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Inquiries and Reports - Australia
Inquiries and Reports - Australia
John Hannaford, Jackie Huggins AM, Bob Collins AO
November 2003
Tony Westmore
In November of 2002 the Federal Government announced a review of the roles and functions of Aboriginal and Torres Strait Islander Commission (‘ATSIC’). ‘This reassessment of ATSIC reflects the Government’s election commitment to explore the potential for more effective arrangements for ATSIC at the national and regional level’ said then Minister for Indigenous Affairs, the Hon Phillip Ruddock. He went on to say ‘I want the reassessment to strengthen ATSIC’.
ATSIC became operational in March 1990, the result of legislation enacted the previous year. Its functions were broadly defined and included: formulate and implement programs; monitor effectiveness of programs including programs conducted by bodies other than the Commission; develop policy proposals to meet state, territory and regional needs and priorities; assist, advise and cooperate with communities, organisations and individuals and national, state, territory and regional levels; advise the Minister; protect cultural material and information, being material that is considered sacred or otherwise significant; undertake research as is necessary to enable it to perform any of its other functions.
For the financial year 2002/03 the Federal Government appropriated to ATSIC $1.092 billion for its operations. At this stage ATSIC had responsibility for the delivery of programs in housing and infrastructure; community employment and training; and legal aid (including research, education, violence prevention). Most of these programs were delivered by independent organisations funded through a program of annual grants. Indigenous-specific programs in areas including social security, education, health and welfare were delivered by or through the auspices of other federal, state and territory government agencies.
The Government announced in April of 2003 that it would move to ‘separate the roles undertaken within ATSIC’ and that this ‘interim measure will promote good governance and accountability by removing the potential for conflicts of interest in decision making over funding’. Minister Ruddock went on to say ‘while some might argue that we should await the outcome of the current review of ATSIC before making any changes to ATSIC’s operations there are compelling reasons to take early action concerning the conflict of interest issue’. The result of this announcement was the creation of Aboriginal and Torres Strait Islander Services (‘ATSIS’) and the removal to it of all resources and funding responsibility except an administrative rump.
In a media release issued before the detail of ATSIS – its roles, functions and relationship with ATSIC – was revealed, the Minister said ‘this is not about mainstreaming any of ATSIC’s programmes or reducing current spending’ and that ‘the new structure would free ATSIC’s elected arm to focus on big picture policy issues’.
The review panel comprised the Hon John Hannaford (a professor of law at the University of Technology, Sydney and former Attorney General and Minister for Justice in New South Wales), Ms Jackie Huggins (Co-Chair of Reconciliation Australia and Deputy-Director of the Aboriginal and Torres Strait Islander Studies Unit at University of Queensland) and the Hon Bob Collins (formerly a Senator for the Northern Territory and minister with numerous portfolio responsibilities).
The terms of reference stated that
the reassessment will examine and make recommendations to government on how Aboriginal and Torres Strait Islander people can in the future be best represented in the process of the development of Commonwealth policies and programmes to assist them. In doing so the reassessment will consider the current roles and functions of ATSIC including its roles in providing:
i) advocacy and representation of the views of Aboriginal and Torres Strait Islander people
ii) programmes and services to Aboriginal and Torres Strait Islander people; and
iii) advice on implementation of legislation.
The terms of reference sought consideration of ‘the appropriate role for Regional Councils in ensuring the delivery of appropriate government programmes and services to Indigenous people’ and any potential financial implications resulting from the reassessment.
The Minister later extended the terms of reference when he asked the panel to ‘give particular attention to the structure of the relationship between the government and the Commission. This should include the adequacy of the Minister’s powers and the merits of a possible Ministerial veto power in relation to specific ATSIC decisions’.
The panel published a discussion paper in June 2003 and its report in November 2003. The review panel found that ATSIC was ‘in urgent need of structural change’. The principal structural change proposed was the replacement of the Board of 18 zone commissioners with a national body comprising the 35 regional councillors from which a national executive of as many as 10 members would be drawn. Most notably perhaps, the panel recommended that ATSIC and ATSIS ought to be reunified.
The panel made specific recommendations including:
1. The existing objects of the ATSIC Act should be maintained.
2. ATSIC should be the primary vehicle to represent Aboriginal and Torres Strait islander peoples’ views to all levels of government and be an agent for positive change in the development of policies and programs to advance the interests of Indigenous Australians.
16. The ATSIC Board... should immediately find examine practical ways ... to address to address the under-representation of women in ATSIC positions.
21. ATSIC in conjunction with all levels of government should address the issue of proof of Aboriginality as a matter of priority.
34. A ministerial veto power in relation to decisions of the national body or the national executive should not be introduced.
35. The Act should be amended to give the Minister the power to order an Inquiry, with appropriate coercive powers, to determine whether a member of the national body should be removed from office.
On the release of the report the new Minister for Indigenous Affairs, the Hon Amanda Vanstone, noted that the review was the ‘result of exhaustive community consultation’ and that it was ‘clear that there is a mood for change among Indigenous people’. She went on to say that
the needs of Indigenous people are not being met effectively under the arrangements that have applied for the best part of 15 years. The status quo is not an option ... Over the coming months we will be considering the issues raised by the report and developing a reform package. Our intention is to legislate necessary changes to ATSIC during the current Parliament, so that they can come into effect in 2005.
...
This first comprehensive external review of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’), the principal policy adviser to government on Aboriginal and Torres Strait Islander affairs, has found that the organisation is in urgent need of structural change.
ATSIC needs the ability to evolve, directly shaped by Aboriginal and Torres Strait Islander people at regional level. This was intended when it was established, but has not happened. ATSIC needs positive leadership that generates greater input from the people it is designed to serve. One of its most significant challenges is to regain the confidence of its constituents and work with them and government agencies and other sectors to ensure that needs and aspirations are met. ATSIC also has to operate in a fashion that engages the goodwill and support of the broader community.
The review panel’s report recommends a package of reforms which gives greater control of ATSIC to Aboriginal and Torres Strait Islander people at a regional level. The reforms should enable Aboriginal and Torres Strait Islander peoples to stimulate change where it is most needed. Along with the recent COAG initiatives to address the appalling degree of Aboriginal and Torres Strait Islander disadvantage, a regional orientation will strengthen the voice and efficacy of regional councils and establish the necessary framework for integrated service and program delivery.
The panel re-emphasises that there will be no ‘perfect’ model. All governance structures are a compromise and this is particularly the case in an organisation which has to straddle such profoundly different Indigenous and Western perspectives. Whilst in this report the panel recommends a proposed model, the panel recognizes that this is only one possible option for the establishment of a new ATSIC.
The review panel considers that the 35 regional councils are the foundation of ATSIC and that no major changes should be made to that structure at this time.
The review panel recommends however that the existing governing body of ATSIC, the ATSIC Board constituted by 18 zone commissioners, be replaced with an Aboriginal and Torres Strait Islander national body and a national executive. The review panel considers that the existing system of zone commissioners is an unnecessary additional layer of governance which structurally contributes to the ‘disconnect’ between the regional councils and the national governing board.
The members of the national body will be the elected 35 regional council chairs, the chair of the Torres Strait Islander Advisory Board, and the chair and deputy chair of the national body. The chair of the Torres Strait Regional Authority should be a nonvoting member at this point.
In between meetings, the national body will delegate the oversight of ATSIC to an executive group which will also provide leadership and advocacy at a national level. Members of the national body will elect the chair and deputy chair and six additional members of the executive. The Minister will be responsible for appointing up to two more members of the executive from the national pool of regional councillors. All members of the executive will retain their membership and positions on their own regional councils, except for the full-time chair and deputy chair.
The national body will be the governing body of ATSIC. It will determine ATSIC policy and develop and review a national plan, informed by regional plans and the views of the national body members. This policy and national plan will be used to assist the Australian and the State/Territory Governments to develop their policies and programs for Aboriginal and Torres Strait Islander people.
The national body will be the forum for national debate on issues of significance to Aboriginal and Torres Strait Islander peoples. It is proposed that the term of the elected arm of ATSIC be increased from three years to four years consistent with trends of other elected bodies in Australia with the national body meeting at least twice during each term.
The chair and deputy chair of the national body and the chairs of the regional councils will be able to be removed by a vote of no-confidence in them carried by a statutory majority of the national body or council respectively.
The regional planning process, currently provided for under the ATSIC Act, will be accorded high priority with a more realistic focus to ensure goals are achievable. Regional plans will spell out what is expected of ATSIC and identify the responsibilities of government agencies to provide the services that will address disadvantage within the regions.
Specifically-tasked national committees will provide policy input to the national body to ensure that regional priorities are incorporated into national planning. These committees will be made up of members of the national executive.
The review panel supports the need for a delineation of roles between the elected representatives at all levels in ATSIC and the administrative officers of the Commission. The delineation of roles should become a permanent arrangement through a legislated change to ATSIC.
The review panel recommends that ATSIC and the recently established Aboriginal and Torres Strait Services agency (‘ATSIS’) be reunified. The panel notes that the Government instituted this arrangement as an interim measure pending this review.
Any changes to ATSIC’s program delivery role should be considered as part of a Commonwealth/State/Territory examination of the most effective delivery of all services and programs of significance to Aboriginal and Torres Strait Islander Australians.
Among the administrative arrangements proposed is that a small coordinating group be established in the Department of Prime Minister and Cabinet to provide a wholeof- government approach to dealing with Indigenous issues. This coordinating group will replace the Office of Aboriginal and Torres Strait Islander Affairs (OATSIA) currently located in the Department of Immigration and Multicultural Affairs.
Funding to the regions should be targeted at reducing disadvantage. The current system of across the board per capita funding should be discouraged. Funding to the regions should be primarily on the basis of need. The funding of ATSIC and the bodies it funds should be based on triennial funding contracts and accrual accounting should be introduced.
The Commonwealth Grants Commission should be benchmarking relative need in the regions and funding should be underpinned by that and other relevant information.
Funding to all service providers should be focused through outcomes-based services contracts. ATSIC will be required to evaluate and report on the achievement of those outcomes by all service providers.
Indigenous funding based on historical funding arrangements and by way of funding grants should be discouraged. Future funding should focus on outcomes-based contracts for the purchase of services. Bilateral agreements, memoranda of understanding and purchaser/provider arrangements should be used to develop more effective working relationships and service delivery between ATSIC, funded service providers and governments.
For ATSIC to achieve its objectives it requires the continuing goodwill and support of the Australian and all State and Territory governments. They need to cooperate with ATSIC collectively, through the Council of Australian Governments (COAG), and specifically within their own jurisdictions based on an acknowledgement and respect for Aboriginal and Torres Strait Islander Australians.
The most significant service providers to Aboriginal and Torres Strait Islander people are the State/Territory Governments. Until recently these governments have not had sufficient interface with ATSIC. Arrangements for closer collaboration will be progressed by the new ATSIC with these governments and their agencies in a transparent and publicly accountable manner.
Regional councils will be responsible for encouraging more cohesive Indigenous community organisations with higher levels of community governance. In conjunction with these organisations and government agencies, regional councils will develop regional plans that identify the levels of disadvantage in individual communities and the services that will be needed to address that disadvantage.
Performance evaluations should be undertaken of all organisations that are expending Australian Government funding for Indigenous purposes. This will include all State and Territory agencies as well as Australian Government agencies. The Productivity Commission should be asked to undertake this role as an independent organization that reports to the Minister and to the Parliament.
The review panel cannot stress too heavily the urgency for this reform package. ATSIC needs stability, a new leadership structure and a boost to its morale. As the findings of this report show, there is widespread support for the objectives of ATSIC and a commitment to work constructively with it from all levels of government and other sectors of Australian society. Reform to capitalise on this goodwill and commitment cannot come too soon.
...
1. The existing objects of the ATSIC Act should be retained.
2. ATSIC should be the primary vehicle to represent Aboriginal and Torres Strait Islander peoples’ views to all levels of government and be an agent for positive change in the development of policies and programs to advance the interests of Indigenous Australians.
3. The structure of ATSIC shall be altered to provide for a national body and a national executive as outlined on pages 14–15 and explained on pages 78–80.
4. ATSIC regional plans should be focused on needs, outcomes, outputs and capacities, not the broad sweep currently set out in the Act.
5. ATSIC must take the initiative to involve other relevant players, particularly all relevant government agencies, in the preparation of regional plans.
6. All spheres of government and government agencies need to be actively involved in assisting with the development and implementation of ATSIC regional plans.
7. Section 94 of the ATSIC Act should be amended in accordance with the above recommendations.
8. Funding to Aboriginal and Torres Strait Islander organisations based on historical funding arrangements, by way of funds grants, should be discouraged.
9. Future funding by ATSIC should focus on outcomes-based contracts for the purchase of services.
10. Bilateral agreements, Memorandums of Understanding (‘MOUs’) and purchaser/provider arrangements should be used to develop more effective working and service delivery relationships between ATSIC, funded service providers and governments.
11. Professional development programs should be adequately resourced and implemented immediately for both the elected and administrative arms of ATSIC to enable the organisation to cope with the new administrative arrangements and to deal effectively with new working relationships.
12. A skills audit of all staff should be undertaken by ATSIC in order to identify the existing level of policy development skills within the organisation.
13. Adequately resourced policy skills development programs should be instituted for ATSIC staff. ATSIC should develop a model employer program for itself which particularly provides for the development of the skills of its staff in rural and remote regions.
14. ATSIC’s advocacy and representation at the international level should continue but must ensure that it reflects the views of its constituents.
15. ATSIC should review the nature and quality of its communication to the elected membership of ATSIC about its international advocacy and representation activity.
16. The ATSIC Board, with the financial and other support of ATSIS, should immediately examine practical ways, including active campaigns and other strategies, to address the under-representation of women in ATSIC elected positions; if it has not been completed, this work should continue under any new arrangements for ATSIC.
17. ATSIC should adopt and resource approaches that have been identified through the implementation of recommendation 16 to ensure that the underrepresentation of women is remedied.
18. ATSIC voting should continue to be voluntary.
19. ATSIC’s activity to encourage voter participation should continue.
20. An Indigenous electoral roll should not be introduced.
21. ATSIC in conjunction with all levels of government should address the issue of proof of Aboriginality as a matter of priority.
22. The members of the Torres Strait Islander Advisory Board should continue at this time to be appointed by the Minister.
23. The Torres Strait Islander Advisory Board (TSIAB) should elect its own chair from its membership and that this person become a full-time chair of the TSIAB representing mainland Torres Strait Islanders.
24. The TSIAB chair should be a member of the proposed ATSIC national body.
25. Recommendation 23 from the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs A New Deal report (to transfer the Office of Torres Strait Islander Affairs to assist and support the Torres Strait Islander Advisory Board) should be implemented.
26. The Minister should consider appointing an additional Torres Strait Islander Advisory Board member from Queensland.
27. The ATSIC Act should be amended to allow flexibility in the boundaries of the Torres Strait Regional Authority.
28. The Minister should consider amending section 94 of the ATSIC Act to substitute the Torres Strait Islander Advisory Board for the Torres Strait Regional Authority.
29. Government funding of services and the development of programs should be consistent with the regional plan.
30. Funding for ATSIC and for its service providers should be on a triennial funding basis with the adoption of accrual accounting practices for the organisation.
31. The Cabinet Secretariat should report annually, within the annual report of the Department of the Prime Minister and Cabinet, on ATSIC’s involvement in the Cabinet process.
32. A small group should be established within the Department of the Prime Minister and Cabinet, replacing the current office of Aboriginal and Torres Strait Islander Affairs (OATSIA) located within the Department of Immigration and Multicultural and Indigenous Affairs, to provide a whole-of-government focus on Indigenous issues.
33. ATSIC’S function in subparagraph 7(1)(e)(i) of the ATSIC Act should remain.
34. A ministerial veto power in relation to decisions of the national body or the national executive should not be introduced.
35. The Act should be amended to give the Minister the power to order an Inquiry, with appropriate coercive powers, to determine whether a member of the national should be removed from office.
36. The Commonwealth Grants Commission should be tasked to develop measures of relative need in Aboriginal and Torres Strait Islander communities at the regional council level, taking into account funds provided by Indigenous-specific and mainstream programs and funds provided by all levels of government.
37. The work referred to in recommendation 36 should be undertaken by the Commonwealth Grants Commission on an ongoing basis.
38. COAG should convene a round table between the Australian, State and Territory governments and ATSIC to identify and clarify program and service delivery roles and responsibilities.
39. The COAG round table approach outlined in recommendation 38 should be used to identify the most effective processes to achieve key Indigenous policy outcomes.
40. ATSIC should retain its existing programs pending a determination of its role in the context of this broader examination of service delivery.
41. ATSIC’s regional planning role should be examined and determined, also in context of the above task.
42. The Australian Government should ensure that ATSIC’s involvement should be written into all relevant MOUs and bilateral agreements that involve Indigenous issues.
43. COAG meetings should in future include Aboriginal and Torres Strait Islander Affairs as a standing item.
44. The ATSIC chair should have observer status at COAG meetings for all discussions on Aboriginal and Torres Strait Islander Affairs.
45. The role of MCATSIA should be reviewed.
46. COAG should commission the Productivity Commission to undertake a rolling program of evaluations at the regional level.
47. The Indigenous Land Corporation, Indigenous Business Australia and Aboriginal Hostels Limited remain under their current arrangements.
48. These three agencies should participate in the development of the regional plans that are to be prepared by ATSIC’s regional councils.
49. Funding decisions of those three agencies should be consistent with relevant ATSIC regional plans.
50. The function of governance training and capacity building of Aboriginal and Torres Strait Islander organisations should not be performed by ORAC.
51. ATSIC should increase the level of governance training and capacity building of Aboriginal and Torres Strait Islander organisations and provide it through appropriate training organisations.
52. Consideration should be given in the longer term to having all Aboriginal and Torres Strait Islander organisations incorporated under general corporations laws.
53. The Aboriginal Councils and Associations Act 1976 should be amended to allow for an appropriate business turnaround mechanism to be used by organisations.
54. The role of the Office of Evaluation and Audit be expanded to enable it to evaluate and performance audit the programs and services of all service providers including all agencies of government where the Australian Government has provided resources for the provision of services for Aboriginal and Torres Strait Islander people.
55. ATSIC should be a single organisation with a legislated delineation of roles.
56. Governance training programs should be developed by ATSIC to lift the skills levels of the elected and administrative arms to implement an appropriate level of governance.
57. Culturally appropriate variations to the standard principles of governance should be adopted.
58. The ATSIC Act should require that protocols be developed covering working relationships for the elected and administrative arms of ATSIC. Partiality in decision-making should form part of such protocols.
59. Breaches of these protocols, either by elected officials or staff members, should constitute misbehaviour.
60. ATSIC staff should continue to be engaged under the Public Service Act 1999.
61. ATSIC’s CEO should be appointed by the Minister after consultation with the national executive.
62. The ATSIC Act should be amended to reinforce that the ATSIC CEO is responsible for all staff and their employment.
63. The remuneration of elected members should continue to be determined by the Remuneration Tribunal.
64. The remuneration of elected members through sitting fees should be reconsidered and replaced with annualised remuneration. The remuneration should reflect any additional duties that are undertaken by different categories of elected member.
65. Elected members should cease to hold office if they fail to attend without reasonable cause one half of the meetings scheduled each year.
66. The chair and the deputy chair of the national body and the chairs of the regional councils may be removed by a no-confidence vote in them, carried by a statutory majority of their respective electing bodies.
67. The ATSIC Act should be amended to provide that where a substantial majority of Aboriginal and Torres Strait Islander people living in an ATSIC region or ward agree to a system for selecting regional councillors that is different from the system set out in the ATSIC Act, the Minister may approve such a system for determining the regional councillors for that region or ward.
...
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The full text of the Report is available online via the ATSICreview website at <http://www.atsicreview.gov.au/ATSIC%20Review%20report.pdf> .
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2003/48.html