As outlined in the previous chapter, the Committee received a wide range of evidence in relation to the design of an institutional structure to give effect to a First Nations Voice.
However, the Committee also received some evidence in relation to past and current advisory structures, including structures specifically intended to represent the views of Aboriginal and Torres Strait Islander peoples at a national level. This chapter outlines this evidence, noting in particular evidence in relation to the strengths and weaknesses of these structures, with a view to further informing the design of The Voice.
A small number of indicative structures for The Voice were submitted to the Committee for consideration. This evidence is also outlined in this chapter.
As outlined in Chapter 2, several international jurisdictions have established structures to represent Indigenous people or provide an advisory role. Experiences in relation to the operation and effectiveness of these structures may also be useful in informing the design of The Voice.
The Committee is aware of the National Aboriginal Consultative Committee (NACC) and the National Aboriginal Conference (NAC), but received very little evidence about the structure of these bodies and their effectiveness.
National Aboriginal Consultative Committee, 1972-1977
The NACC was an advisory body made up of 41 nationally elected Aboriginal and Torres Strait Islander people who advised the Minister for Aboriginal Affairs on Aboriginal and Torres Strait Islander policy. In 1973 voter turnout was 78 per cent. The constitution developed by the NACC gave it policy-making and administrative powers, contrary to the government’s desire that it remain simply advisory. Ultimately, the NACC did not have the capacity to develop into an independent, agenda-setting policy organisation due to a lack of government support for such a function.
National Aboriginal Conference, 1977-1985
The NAC was created as a government consultative body comprising 35 full-time salaried members. The NAC had state and territory branches and a national executive of 10 members. The executive represented the state and territory branches and was chosen by them rather than being directly elected. An annual meeting of interested Indigenous constituents was held, to ensure that the elected representatives might be accountable to their constituents. None of the three tiers of the organisation were bound by any decisions of the others. The organisation was consultative in nature, without executive authority.
Aboriginal and Torres Strait Islander Commission, 1990-2005
Throughout the inquiry, the Committee heard about the strengths and weaknesses of the former Aboriginal and Torres Strait Islander Commission (ATSIC). ATSIC was established in 1990 and abolished in 2005.
The objects of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) gave ATSIC the responsibility:
to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them;
to promote the development of self-management and self-sufficiency among Aboriginal persons and Torres Strait Islanders;
to further the economic, social and cultural development of Aboriginal persons and Torres Strait Islanders; and
to ensure co-ordination in the formulation and implementation of
policies affecting Aboriginal persons and Torres Strait Islanders by
the Commonwealth, State, Territory and local governments, without detracting from the responsibilities of State, Territory and local governments to provide services to their Aboriginal and Torres
Strait Islander residents.
ATSIC consisted of two parts: a representative arm and an administrative arm. However, the structure of ATSIC was altered several times throughout its history, and ATSIC’s responsibilities changed over time as a result of functions being transferred to and from other agencies.
The original representative structure of ATSIC comprised 60 regional councils and a 20-member board consisting of 17 commissioners elected from within 17 geographical zones, plus a chairperson and two commissioners appointed by the Minister.
Direct elections were held for regional council positions, followed by elections among the representatives for regional council chairs and zone commissioners.
In 1993, the number of regional councils was reduced to 36. This change followed ATSIC’s representation to government that it found the administration of 60 regional councils ‘unwieldy’. Positions of both regional council chairs and commissioners were also made full-time and salaried.
In 1994, the number of regional councils was reduced to 35 following the establishment of the Torres Strait Regional Authority.
In 1999, the position of chairperson became elected (from among the elected commissioners) rather than appointed.
Elections were conducted by the Australian Electoral Commission. Entitlement to nominate and vote was restricted to Aboriginal and Torres Strait Islander people over the age of 18 years who were on the Commonwealth Electoral Roll, and voting was voluntary.
The electoral system used was proportional representation with a single transferable vote.
Throughout the ten years from 1990 to 1999, voter turnout in ATSIC elections varied between 20 and 25 per cent of the estimated voting-age population. In the 1999 election, 49 252 people voted across all regions.
However, voter turnout as a percentage of voting age population varied widely among ATSIC regions. In the 1999 election, for example, turnout ranged from 73.7 per cent to 5.8 per cent. Remote areas in northern and central Australia in general reported higher turnout than southern metropolitan regions and more densely settled rural regions.
The administrative arm of ATSIC was comprised of Commonwealth public servants, headed by a Chief Executive Officer appointed by the relevant Minister. The administrative arm supported ATSIC’s elected representatives to administer various programs.
In 1992-93, the ATSIC budget was approximately $800 million, accounting for approximately two-thirds of the Australian Government’s expenditure on Indigenous-specific programs. In 2003-04, the budget was approximately $1.3 billion, accounting for approximately half of this expenditure.
The majority of the ATSIC budget was quarantined by the government for expenditure on particular programs. This included ATSIC’s two largest programs, the Community Development Employment Program and the Community Housing and Infrastructure Program, which together accounted for two-thirds of the Commission’s budget.
The remaining budget was spent on programs for, among other things, the preservation and promotion of Indigenous culture and heritage and the advancement of Indigenous rights and equity.
As at 30 June 2003, ATSIC reported having 1052 permanent staff, which included 501 Aboriginal and Torres Strait Islander staff.
In 2003, a new executive agency, the Aboriginal and Torres Strait Islander Services, was established to administer ATSIC’s programs and make decisions about grants and funding to Aboriginal and Torres Strait Islander organisations.
An Australian Government review of ATSIC in 2003 found that an urgent structural change was needed. It recommended the overhaul of ATSIC’s representative arm to strengthen the connection between local Indigenous communities and the national board and regional planning processes. However, after the review it was announced that ATSIC would be abolished.
The Committee notes that the review considered a number of matters that have been raised in relation to proposals for The Voice, including:
input and access to policy development and the Cabinet;
achieving an interface with all levels of government;
incorporation of Aboriginal and Torres Strait Islander organisations;
The Committee heard views on the features of ATSIC that could inform the design of The Voice, including its relationship with Aboriginal and Torres Strait Islander communities and its regional boundaries.
In response to questions from the Committee, Mr Bill Gray AM, a former Secretary of the Department of Aboriginal Affairs and former Chief Executive Officer of ATSIC, outlined the importance of connections between the national executive and regional councils:
I think the ... biggest lesson learned is that you need to retain your connection to, and your advice from, the regions. I think [ATSIC’s] national executive got out ahead of the regional base of the organisation and there was a disconnect between the regional councils and then what was being stated on their behalf, if you like, by the national executive.
Mr Gray emphasised that it is up to the Parliament to ensure that it has a mature approach to the establishment and embedding of an organisation or institution, regardless of how the institution is structured.
As noted in the previous chapter, Professor Alexander Reilly suggested that a structure similar to ATSIC could be appropriate for The Voice, with ‘regional councils elected by Indigenous communities themselves scaffolding up to a national body’.
The Hon. Fred Chaney AO, a former Minister for Aboriginal Affairs, noted that ATSIC brought together regional administration, which he suggested was ‘essential to closing the gap’ but could also feed up to a national voice.
However, Dr Peter Burdon suggested some structural problems affected ATSIC, including:
... the underrepresentation of women, which was around 30 per cent in representative roles, and the difficulty of gaining legitimacy in First Nations communities when the organisation and structures were based around Western political and administrative models.
The Hon. Kyam Maher MLC, Shadow Minister for Aboriginal Affairs in South Australia, told the Committee that the abolition of ATSIC ‘left a void in the space where all levels of government were able to easily and recognisably go to seek advice’. Mr Maher noted that following the abolition of ATSIC some states, including South Australia, established advisory councils.
The Hon. Amanda Vanstone, who was the federal Minister for Indigenous Affairs at the time of the abolition of ATSIC, in response to questions about ATSIC’s regional councils had this to say:
I didn’t have as negative a view of the ATSIC regional structures as of the central one, but if something’s going to go, you really have to make a clean job of it. In hindsight, that might have been a mistake.
A number of current advisory bodies were discussed in evidence to the Committee.
Human Rights Committee
Some witnesses noted the Parliamentary Joint Committee on Human Rights as an example of a body with an advisory or consultative role in the legislative process.
The Committee is established under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). Under section 7 of the Act, the Committee has the following functions:
to examine bills for Acts, and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to both Houses of the Parliament on that issue;
to examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue; and
to inquire into any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of the Parliament on that matter.
Human rights are defined in section 3 of the Act as those contained in seven human rights treaties to which Australia is a party.
The Committee reports its findings to both Houses of the Parliament, and the powers and proceedings of the Committee are determined by a resolution of both Houses of the Parliament.
The Committee consists of 10 members—five members of the Senate and five members of the House of Representatives. Members are formally appointed by each chamber.
The Committee elects a government member as its chair from either the House of Representatives or the Senate. The deputy chair is elected from one of the non-government members of the Committee. The chair and deputy chair of parliamentary committees generally receive an additional salary as office holders.
The Committee secretariat is staffed by parliamentary officers drawn from the Department of the Senate.
Dr Bede Harris, a senior lecturer at Charles Sturt University, suggested that an analogy could be drawn between the Human Rights Committee and the intended function of The Voice. Dr Harris suggested that The Voice could be modelled on the Committee, noting:
… the voice would have the role of scrutinising federal government legislation and advising the federal parliament on whether or not this legislation furthered or negatively impacted Indigenous people.
However, in discussing this suggestion, Dr Harris noted that advice on draft legislation should be given at the most opportune point during the legislative process.
The Committee is also aware of concerns about the practical influence the Human Rights Committee is able to exert on improving outcomes, and the view that it has already become a hollow activity to ensure compliance.
Mrs Lorraine Finlay and Dr Freeman both argued against a model based on the Human Rights Committee, suggesting that the Committee considers legislation too late in the legislative process. Professor Calma illustrated this point. He observed that parliamentary committees, like the Human Rights Committee, provided advice when bills for the Northern Territory Intervention were being considered by Parliament but that advice was, ‘not heard by the legislators’. He suggested that parliamentary committees, ‘do not have a lot of authority’, except for Senate committees through their scrutiny of public administration.
Torres Strait Regional Authority
The Torres Strait Regional Authority (TSRA) is an example of a regional structure that may inform the design of The Voice.
The TSRA is an Australian Government statutory authority that was established under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), now the Aboriginal and Torres Strait Islander (ATSI) Act 2005 (Cth).
The TSRA consists of two parts: the elected board and the administration. The TSRA board is made up of 20 elected members who are all Aboriginal or Torres Strait Islander people living in the region. Each is elected to represent a particular region or ‘ward’ for a four year term. Voting is overseen by the Australian Electoral Commission and is open to Torres Strait Islander and Aboriginal people aged 18 years or over who were correctly enrolled at an address within the Authority’s jurisdiction. The TSRA Chairperson noted ‘increased interest and higher levels of participation among candidates and voters throughout the Torres Strait region’ during the last TSRA election (held in 2016) although six of the 20 wards were uncontested.
Following general TSRA elections, board members also elect a Chairperson and Executive Members at the Authority’s first board meeting. The Chairperson is a fulltime officer holder and is paid approximately $298 850 per annum. The Chairperson is required to convene at least four board meetings each year. Other board members are part-time officials who receive a daily fee for work of $491, in accordance with the Remuneration Tribunal.
The TSRA’s elected board determines the Authority’s policies and budget allocations, including:
setting out the Authority’s vision for the Torres Strait;
overseeing the Authority’s strategic objectives and direction;
approving programme mandates;
reviewing the authority’s performance, objectives and outcomes; and
managing strategic risk and regional stakeholder relations.
The TSRA administration is staffed by Commonwealth public servants and carries out the functions and responsibilities of the Authority. It employs 159 people, 120 of which are Torres Strait Islander and Aboriginal people, making the TSRA a government entity with one of the highest percentages of Indigenous employment. The Chief Executive Officer is appointed by the Minister for Indigenous Affairs.
Murdi Paaki Regional Assembly
The Murdi Paaki Regional Assembly is the peak representative structure that represents the interests of Aboriginal and Torres Strait Islander peoples in 16 communities across Western New South Wales. It has two levels of representation: a community public meeting known as a ’working party’ to which any Aboriginal and Torres Strait Islander person who resides in the relevant community is entitled to attend. The working parties meet in each of its 16 communities on a monthly basis. Once a year each of the 16 working parties elect a Chair for each working party who is responsible for organising the meetings, hiring the meeting venue, following up issues raised at the meeting and reporting back. The Chair has to be contactable between meetings. The Chair also informs local meetings of government initiatives, such as programs and grants, which may be available for the community. State agencies (and sometimes local and federal agencies) attend the meetings. Each Chair sits on the regional assembly which meets four times a year to deal with strategic issues facing the region.
At a public hearing in Dubbo, the Committee heard from Mr Des Jones, Chairperson of the Assembly. Mr Jones described the Assembly’s membership at the regional level as native title claimants and land council members. He noted that the community working parties deal with local issues and the Regional Assembly focusses on broader regional issues by engaging with government agencies and industry. The Regional Assembly also disseminates information down to the community working parties. Mr Jones stated that this model, through the elected chair, allows for a local voice to translate to a regional level.
The Committee heard that the Murdi Paaki model is about a community voice, where an Aboriginal person who resides in one of the communities or shires has the right to air their issues at a community table. The community working parties encourage individuals to come along and have their voice heard on all matters that relate to those communities. Issues of concern raised during community working party meetings are followed up by the Chair.
The Assembly’s Charter of Governance describes its goals as:
ensuring ‘Aboriginal people participate in all decision making that affects our lives’;
connecting ‘Aboriginal people with all service delivery arrangements’;
having ‘a legislative regime which reinforces the connection between Aboriginal participation and accountable service delivery by government agencies to provide an authoritative and consistent framework of shared responsibility and accountability’; and
influencing and controlling ‘the way policies and services are implemented’.
Mr Jones noted that the Murdi Paaki model evolved from the previous regional ATSIC body for Western New South Wales, with Murdi Paaki maintaining the ATSIC boundary. He told the Committee that the model was designed to be unincorporated so that it could not be abolished by government and would not be bound by quorum or legislative requirements under the Corporations Act. In the absence of legislative arrangements or incorporation law, the Assembly is governed by a Charter of Governance which provides the regulation, functions, and principles for its operation.
The Murdi Paaki Regional Assembly operates with the financial support of other regional bodies, including Murdi Paaki Housing, Maari Ma Health and the Murdi Paaki Regional Enterprise Corporation. Mr Jones noted that the Commonwealth Government also provides some support for the Assembly, in particular, the Chairperson’s role, administration services and the young leaders program:
I think [the budget is] $1.2 million over three years for the assembly to meet and for the chairperson’s role in that. Some of the young leaders and the development of capacity building are also within that budget.
Each of the community working parties receives approximately $4 000 a year to cover the cost of conducting community meetings, including hall hire and catering. A small secretariat of volunteers and four staff support the work of the Regional Assembly.
Prime Minister’s Indigenous Advisory Council
Another example of an advisory structure discussed in evidence to the Committee is the Prime Minister’s Indigenous Advisory Council (IAC).
The IAC is appointed by the Prime Minister, in consultation with the Minister for Indigenous Affairs, to advise the Australian Government on Indigenous policy and programs. It is comprised of a Chair, Deputy Chair and up to 12 members, appointed for up to three years.
The Remuneration Tribunal reported that the Chair of the IAC is paid an annual fee of $76 000 and Members are paid a daily fee of $409.
According to the Australian Government, members of the IAC are highly regarded, pre-eminent Indigenous thinkers and practitioners with experience in their respective fields:
Members will have a strong understanding of Indigenous culture and bring a diversity of expertise in economic development and business acumen, employment, education, youth participation, service delivery and health. The membership will include representation from both the private, public and civil society sectors and be drawn from across Australia, with at least one representative from a remote area.
The website states that the role of the IAC is to advise Government on practical changes which can be made to improve the lives of Indigenous peoples, including but not limited to:
improving school attendance and educational attainment;
creating lasting employment opportunities in the real economy;
reviewing land ownership and other drivers of economic development;
preserving Aboriginal and Torres Strait Islander cultures;
building reconciliation and creating a new partnership between black and white Australians;
empowering Aboriginal and Torres Strait Islander communities;
building the capacity of communities, service providers and governments;
promoting better evaluation to inform government decision-making;
supporting greater shared responsibility and reducing dependence on government within indigenous communities; and
achieving constitutional recognition of Aboriginal and Torres Strait Islander people.
The Department of the Prime Minister and Cabinet reported that the IAC’s forward agenda is negotiated between the Department and the Chairs of the council:
The committee has set out a forward agenda over the next three years. We’ve had an opportunity to say, ‘These are the key policy issues over the next period,’ and they have then said, ‘Well, these are the sorts of issues that we would like to surface and actually have a conversation about’.
The IAC’s terms of reference (dated from November 2013 to January 2017) outlined that the IAC would have 12 members for a three year term and be required to meet three times annually with the Prime Minister and relevant senior ministers. The current terms of reference do not refer to membership or meeting requirements although the IAC has met with the Indigenous policy sub-committee of Cabinet.
A recent communique published by IAC noted that the council has an evolving relationship with ‘the Indigenous Policy Committee of Cabinet’ and viewed this relationship as an opportunity to ‘strengthen the partnership between Aboriginal and Torres Strait Islander Australians and the Commonwealth Government’.
The Department of the Prime Minister and Cabinet provides supporting secretariat services to the IAC. The number of supporting staff or the annual budget allocated to the IAC is unclear.
The Committee heard from some witnesses who suggested that the fact that the IAC was an appointed body undermined its legitimacy.
ACT Aboriginal and Torres Strait Islander Elected Body
The Committee heard evidence about the structure and operation of the ACT Aboriginal and Torres Strait Islander Elected Body (ATSIEB). Ms Katrina Fanning, Chairperson of the ATSIEB, explained that the body was set up by the ACT Government in response to the abolition of ATSIC.
The ATSIEB has seven sitting members who are elected for three-year terms. Each member is elected by the ACT Aboriginal and Torres Strait Islander community, with non-compulsory elections conducted by the ACT Electoral Commission. There were 435 votes admitted for the count in 2017.
Members of the ATSIEB are paid in line with the Remuneration Tribunal determination and paid fortnightly. The Chairperson receives $23 970, the Deputy Chairperson receives $19 180, and ordinary members receive $14 385 annually, paid fortnightly. The ATSIEB has two full-time staff, with any additional support required provided by the Office for Aboriginal and Torres Strait Islander Affairs.
The ATSIEB has a discretionary annual budget through the Office of Aboriginal and Torres Strait Islander Affairs. Last financial year, the discretionary budget was approximately $65 000. The discretionary budget allows for the body to hold six meetings per year and a minimum of two community consultations, and also fund other activities including events, printing, publication of reports and a website, and other administrative requirements such as annual hearings.
Ms Fanning noted that the body does not have a budget appropriation that allows it to determine program or service delivery funding. She advised that the body only has the ability to conduct community consultations and provide advice to the ACT Government.
Each of the seven members is allocated an ACT Government Directorate (portfolio area). They meet every month with the relevant Director-General, and bi-monthly with the ACT Minister for Aboriginal and Torres Strait Islander Affairs. Depending on the size of the directorate and the services and programs relevant to Aboriginal and Torres Strait Islander people, members can spend up to 40 hours per week on meetings, emails and other tasks such as attending consultations and events.
Ms Fanning suggested that in designing local, regional, and national bodies for a Voice, it is important to work with traditional owners and not to extinguish or devalue their right and proper role into determining traditional-owner matters.
National Aboriginal Community Controlled Health Organisation
The Committee heard evidence from the National Aboriginal Community Controlled Health Organisation (NACCHO), the national peak body representing Aboriginal Community Controlled Health Services across Australia on Aboriginal health and wellbeing issues.
NACCHO is a public company limited by guarantee, incorporated under the Corporations Act (2001) (Cth) and funded by the federal government for a secretariat in Canberra to increase the capacity of the Aboriginal community to participate in national policy development.
Ms Patricia Turner, Chief Executive Officer of NACCHO, explained that NACCHO has 140-plus Aboriginal Community Controlled Health Services associated at a local level. They are direct members of NACCHO and each of them is responsible for the delivery of primary health care. Ms Turner explained the structure of NACCHO to the Committee saying:
Within each jurisdiction, at the state and territory level, there is what is called an affiliate. Our members, the local health services, which are called Aboriginal Community Controlled Health Services—ACCHS—are members of the affiliates, but the affiliates are not members of NACCHO. So NACCHO is constituted at the national level, [comprised] of an elected chair and deputy at an annual general meeting every three years, and there are nominees through the affiliates to the NACCHO board: two from each jurisdiction except Tasmania and the ACT, who have one each. So we have a board of 16.
The NACCHO submission highlighted that the other 14 Directors’ terms can change each year as determined at Affiliate annual general meetings. In 2017, 67 per cent of eligible voters exercised their right to vote at the NACCHO annual general meeting.
NACCHO’s budget per annum is $25 million, with the bulk of the NACCHO budget provided to the Affiliates. NACCHO has 30 staff and as highlighted in their submission the NACCHO network is one of the largest employers of Aboriginal and Torres Strait Islander peoples with 56 per cent of staff being Indigenous.
National Congress of Australia’s First Peoples
The National Congress of Australia’s First Peoples (National Congress) is the peak representative body for Aboriginal and Torres Strait Islander peoples. Its membership comprises over 180 organisations and over 9 000 individuals sorted into three chambers:
one comprising Aboriginal and Torres Strait Islander individuals;
one comprising organisations; and
a third comprising national and peak representative bodies.
The membership of each chamber elects 40 delegates (for a combined total of 120 delegates) to represent them at a national annual general meeting and two directors to participate in a national board (for a total of six). The combined membership of the three chambers also elects male and female Co-Chairs to lead the national board. All elected representatives serve for two years.
Member participation in elections is on a voluntary basis. At a public hearing in Adelaide, Committee Co-Chair, Mr Julian Leeser MP, observed that the member turn out for National Congress elections is low. However, Mr Rod Little, Co-Chair of National Congress argued that as a relatively new representative body without significant funding support, National Congress has done well to grow its membership to the extent that it has—although he welcomed further expansion.
According to Mr Little, National Congress’ current operational budget is approximately $2.3 million per annum, but around $5 million per annum is required to grow its membership. He explained that National Congress currently has approximately three staff and earns money by providing consultancy services to the Department of the Prime Minister and Cabinet:
We are currently in contracts with the federal government Department of the Prime Minister and Cabinet on a fee-for-service basis, where they want us to advise and collaborate with them and to extract information about the impacts of Closing the Gap and the Redfern Statement.
The design of the National Congress was influenced by criticism of ATSIC:
Because around 80 per cent of the ATSIC councillors were men, the constitution of the National Congress requires gender equality in all elected positions. And because of controversies about its last chair and its financial management, an Ethics Council was established to watch over all aspects of National Congress’ operations and ensure that its actions were consistent with its values and mission. In addition, police checks are required for all elected officers of National Congress.
At the national annual general meeting, the 120 delegates from the three chambers of the National Congress ‘discuss strategy, issues of concern to Aboriginal and Torres Strait Islander Peoples, and the priorities for Congress’. Dr Jackie Huggins, Co-Chair of the National Congress, described the body’s role as:
…[advocating] for self-determination and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. We believe that we should be central in terms of the decisions that are made about our lives and our communities in all aspects, whether they relate to land, health, education, law, governance et cetera. We promote respect for our culture and recognition as the core of our national heritage.
National Congress often surveys its members to determine their priorities.
As noted in the previous chapter, National Congress submitted that, with appropriate funding and support, the organisation could function as The Voice. In its submission to the Committee, National Congress suggested it is ‘uniquely suited’ because of its representative nature and its accountability mechanisms, ‘which effectively regulate its activities and ensure that it is acting in its members’ best interests’.
The submission recommended building upon the ‘firm foundation’ proven by National Congress.
Prescribed Bodies Corporate
After the decision in Mabo vs Queensland (No. 2) (1992), where the High Court recognised the rights of Aboriginal and Torres Strait Islander peoples as traditional owners of their land, the Native Title Act 1993 (Cth) (NTA) established a statutory regime for claiming and recognising native title land in Australia.
Under the NTA, when a native title determination is made, native title holders must establish a corporation called a Prescribed Bodies Corporate (PBC) to manage and protect native title rights and interests. The PBCs have obligations under the NTA, including a requirement to incorporate under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). PBCs have roles and responsibilities under the NTA, PBC Regulations, the CATSI Act, and other Commonwealth, state, and territory legislation.
A PBC is the first point of contact for government and other parties wishing to undertake activities on native title land. PBCs manage and protect native title on behalf of native title holders and are required, under the NTA, to consult and gain consent from traditional owners in any decisions that surrender or affect native title rights and interests.
Aboriginal Land Councils
Aboriginal Land Councils represent Aboriginal affairs at state or territory level, with the aim to protect the interests and aspirations of Aboriginal communities.
The arrangements under which Aboriginal Land Councils are established, and their responsibilities, differ among states and territories. For example, in the Northern Territory, the Commonwealth has direct responsibility for Land Rights through the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Under this Act, traditional owners hold decision-making powers over the use of Aboriginal land. Land Councils assist traditional owners to acquire and manage their land. The primary responsibilities of Land Councils include:
ascertaining and expressing the wishes of Aboriginal people living in the area of the land council as to the management of Aboriginal land in that area;
protecting the interests of traditional owners of, and other Aboriginal people interested in, Aboriginal land in the area;
consulting with the traditional owners of, and other Aboriginal people interested in, Aboriginal land in the area regarding any proposed use of that land;
assisting Aboriginal people within the area of the land council to carry out commercial activities (including developing resources, providing tourist facilities and engaging in agricultural activities);
assisting in protecting sacred sites; and
assisting Aboriginal people to make traditional land claims.
The executive councils of the four Northern Territory Land Councils are democratically elected in processes overseen by the Australian Electoral Commission. For example, elections for the Central Land Council occur every three years:
Communities and outstations in the CLC area nominate one or more members for a three year term. At the first meeting of the new council, the members vote for the positions of chair and deputy chair, and to elect the five members who will represent the CLC on the Aboriginals Benefit Account (ABA) Advisory Committee. These elections are run by the Australian Electoral Commission. Members then gather in nine groups to nominate an executive member for their region.
The last CLC election was held in April 2016.
Other land councils can be governed or represented by larger councils or peak bodies. For example, the New South Wales Aboriginal Land Council has a network of 120 Local Aboriginal Land Councils (LALCs) divided into nine regions:
The number of LALCs within each region ranges from 9 to 21.
Elections for the New South Wales Aboriginal Land Council are conducted by the Electoral Commission of New South Wales every four years in accordance with the Aboriginal Land Rights Act (1983) (ALRA). All Aboriginal people who are 18 years of age or over and who are listed on a LALC membership roll are entitled to vote in elections. Voting occurs via a secret ballot using an optional preferential system whereby voters may choose to indicate a preference for one candidate, some of the candidates or all of the candidates. The voting members of the LALCs in each of the nine regions elect one councillor to represent their region as part of the New South Wales Aboriginal Land Council.
At the first meeting of the newly elected New South Wales Aboriginal Land Council, nominations are called for the position of Chairperson and Deputy Chairperson. If more than one nomination is received for each position then a secret ballot of the nine councillors is conducted under the auspices of the Office of the Registrar of the ALRA. A Returning Officer counts the votes of the nine councillors and the nominees that receive the most votes are declared the winners. The successful nominees hold the positions of Chairperson and Deputy Chairperson for a two-year term.
The Committee has met with representatives from a number of Aboriginal Land Councils across Australia during the inquiry.
Indicative proposals for a First Nations Voice
During its inquiry, the Committee received a small number of indicative proposals for the structure, establishment, and operation of a Voice.
Proposals made by Uphold & Recognise
Uphold & Recognise submitted two proposals for a constitutionally enshrined Voice. Speaking to the Committee in Canberra, Dr Damien Freeman outlined the proposals, which would establish local bodies for various Aboriginal and Torres Strait Islander peoples (speaking for country option) and establish a national advisory council tasked with providing advice on Aboriginal and Torres Strait Islander affairs (Advisory Council option).
Constitutional provisions relating to these proposals are discussed at paragraphs 3.163 and 3.170.
Speaking for country option
This model provides for a new section 70A of the Constitution which would require the Parliament to establish or recognise local entities for the various Indigenous peoples.
Legislation would then detail how the Indigenous entities would be established and recognised, with local Indigenous peoples organising themselves and deciding how they wish to be represented.
Once the local bodies have determined how they wished to be set up, they would, under the legislation, have the right to affiliate and would be independent. There would not be a prescribed constitution for each of the bodies as it would be for the local people to work out what structure their bodies should have.
An appointed Recognition Commission would be responsible for certifying regional boundaries and which group of people speaks for which local region by determining the process leading to the formal recognition of a local Indigenous entity in each region. The Recognition Commission would then formally recognise a national affiliation, which would have a statutory right to provide advice to the Parliament.
Dr Freeman outlined to the Committee how the views of the local entities would be provided to the Parliament:
The idea here is that the national affiliation would be a conduit between the local bodies and the national parliament. So it would be for the national affiliation to have advice tabled in parliament but the obligation is imposed on this national affiliation to provide the advice from the local organisations. So if there is a consensus position, it presents the consensus position. If there are divergent positions amongst the local organisations, then the obligation is to make the parliament aware of those divergent positions.
It would be up to the Parliament to consider the divergent positions differently or work with the national affiliation to find a compromise that addressed the different concerns.
Uphold & Recognise submitted that, under this option, the attributes of authenticity are incorporated at the local level, and then local entities may voluntarily affiliate in order to speak effectively at the national level.
Advisory Council option
The Advisory Council option provides for a new section 60A of the Constitution establishing an Advisory Council for Aboriginal and Torres Strait Islander affairs entitled to provide advice to the Parliament.
Legislation would then outline the roles, functions, and composition of the Advisory Council. It would also provide for local Indigenous entities to nominate delegates to participate in a National Conference that would select members of the Advisory Council.
Uphold & Recognise suggested that under this model the Advisory Council would be entitled to table advice in both Houses of Parliament. As outlined in the previous chapter, the Parliament would only be required to consider the advice if it relates to a Designated Bill. Uphold & Recognise explained the concept of a Designated Bill:
Designated Bills are bills that seek to amend or enact Designated Acts. Designated Acts are those Acts listed in the schedule to the Advisory Council for Aboriginal and Torres Strait Islander Affairs Bill, or any Act made under section 51(xxvi) or section 122 of the Constitution, if the Act is directed to Aboriginal or Torres Strait Islander peoples.
Uphold & Recognise submitted that, under this option, the attributes of authenticity are incorporated at the national level, and then the national entity would be linked to local entities.
Proposal made by Cape York Institute
The Committee notes a position paper from the Cape York Institute on the Cape York Pama Futures model. Pama Futures is a reform agenda developed by the First Nations of the Cape York Peninsula. It aims to empower Aboriginal and Torres Strait Islander communities and close the gap over three generations. The Pama Futures model for Cape York builds on Empowered Communities and offers an example of how Aboriginal and Torres Strait Islander voices could be locally and regionally empowered.
The Pama Futures model proposes both an appropriate constitutional guarantee of First Nations Voices and a legislated framework to give effect to the constitutional guarantee. Legislation would establish a Regional Partnerships Authority that would be an interface between regional Aboriginal and Torres Strait Islander communities and Commonwealth, state, and local governments. It would allow the regional partnerships to be underpinned by local decision making arrangements, enabling co-design planning and co-purchasing of services.
The Cape York Institute stated that the Pama Futures model incorporates multiple mechanisms for grassroots empowerment, ensures traditional owners have the full say in appropriate matters, and provides mechanisms for interfacing and agreement making with government.
Proposal made by Mr Eric Sidoti
In a submission to the Committee, Mr Eric Sidoti outlined a model for an Indigenous Parliamentary Committee that he had developed in 2008. Mr Sidoti suggested the model was ‘illustrative of the fact that it is possible to give practical effect to [The Voice] within the Australian Parliament’.
Mr Sidoti described the proposal as follows:
The establishment of an Indigenous Parliamentary Committee, adapting the Senate standing committee model, would provide a means for elected Indigenous representatives to have a direct role in policy development and, more particularly, law-making, as well as a meaningful oversight function of the policy, legislative and regulatory activity, appropriations and performance of the Australian Government and its agencies.
According to the proposal, the Indigenous Parliamentary Committee would be mandated to inquire into general matters, consider proposed government expenditure, consider legislation and consider annual reports, and examination of government administration.
In his submission, Mr Sidoti described how the Indigenous Parliamentary Committee might operate, specifying a number of features, including:
membership of 15 members who would be directly elected;
powers similar to Senate committees, including the protection of parliamentary privilege, the power to summon witnesses and documents, and the provision to issue reports; and
provision of a secretariat similar to Senate committees.
The submission noted that members of the Indigenous Parliamentary Committee would not be Senators and would not have voting rights in the Parliament.
Speaking to the Committee in Sydney, Mr Sidoti emphasised that the Indigenous Parliamentary Committee would not constitute a ‘third chamber’ of the Parliament, explaining that, similar to other committees of the Parliament, its role would be advisory only and that it would have no power to exercise a veto.