Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Inquiries and Reports - Australia
Senate of Australia
March 2005
...
1.27 The Committee accordingly recommends that the government affirms formally that ATSIC’s powers remain in force until the date of proclamation of the relevant legislation, and that decisions taken in accordance with the law up to that date are recognised and implemented.
3.11 The Committee recommends that all assets controlled by ATSIC [Aboriginal and Torres Strait Islander Commission] continue to be applied to the benefit of Indigenous Australians, and that Indigenous people retain custody of Indigenous artworks and artefacts.
3.27 The Committee recommends that ILC’s capacity to manage its portfolio of properties be monitored by the Parliamentary Joint Committee on Native Title as part of its statutory scrutiny role of the ILC [Indigenous Land Corporation]. In the event that ATSIC and its regional councils are abolished, the ordinary members of the ILC Board include an Indigenous representative nominated by a relevant Indigenous organisation.
3.42 The Committee recommends that the Bill be amended to provide appeals to the Administrative Appeals Tribunal in cases where IBA [Indigenous Business Australia] refuses a business loan. The Committee also recommends that the Government examine all new requirements that the Bill and related administrative changes impose on the IBA to ensure that these do not have a negative impact on its operation.
3.46 The Committee recommends that the Parliamentary Joint Committee on Native Title carefully examine the issue of conflict of interest in the funding of Native Title Representative Bodies as part of its current inquiry into Native Title Representative Bodies.
3.53 The Committee recommends that consultation clauses in the Acts modified by the ATSIC Amendment Bill be amended to insert a requirement to consult relevant Indigenous organisations.
4.37 The Committee recommends that the Government allocate funds to expand opportunities for Indigenous leadership, governance and administration training and development. These funds could be allocated out of money saved from ATSIC’s running costs.
4.43 The Committee recommends that the Government give active support and funding to the formation of a national Indigenous elected representative body, and provide it with ongoing funding. The Committee also recommends that the Government publicly commit to acknowledging that body as the primary source of advice on Indigenous advocacy and views. The Committee recommends the elected body should include a representative of Torres Strait Islander people living on the mainland.
4.63 The Committee recommends that the government defer plans to abolish the Regional Councils, and continue with consultation processes on developing new regional representative arrangements, recognising that in some areas, the preferred outcome may be to have organisations similar to TSRA [Torres Strait Regional Authority] and existing Regional Councils.
4.72 The Committee recommends that the NIC [National Indigenous Council] be a temporary body, to exist only until a proper national, elected representative body is in place.
5.76 The Committee recommends that the Government immediately establishes a mechanism to thoroughly and impartially assess the new mainstreaming arrangements as they are implemented, including those already in place. The Committee also recommends that the resultant report is made public.
5.97 The Committee recommends that ICC [Indigenous Coordination Centre] Managers have the delegated authority necessary to make direct funding decisions, within their agreed budget, on local Indigenous programs.
5.167 The Committee recommends the establishment of a Senate Standing Committee on Indigenous Affairs, tasked with examination of:
...
...
The issues covered in this report must be seen in the context of the Howard Government’s long-term agenda in Indigenous affairs. ‘Mainstreaming’ and a ‘whole of- government approach’ are the Howard government’s terms for its approach to Indigenous policy. This agenda, apparently new and unashamedly radical, has in reality been unfolding since 1996. Starting with its defensive Ten Point Plan response to the potentially far-reaching Wik decision of the High Court in December 1996, the government has sought to set in place an ‘assimilationist’ policy direction that is oblivious to the rights of Australia’s Indigenous people.
The Wik decision clarified, and extended the implications of, the Court’s Mabo judgment of 1992 that legally established the concept of native title in Australia. The newly elected Howard government’s reaction was, to use then Deputy Prime Minister Tim Fischer’s words, to adopt a strategy that would provide ‘bucketfuls of extinguishment’ to native title on pastoral leases. This was simply the first step on a road towards a policy that ignores both the rights of Indigenous people and their dispossession and subsequent serious disadvantage in Australian society following the arrival of white colonialists over 200 years ago.
‘Assimilationism’ or ‘inclusionism’ is painted by the government as a benign policy direction: it aims, it is claimed, to bring Indigenous people into mainstream society on an equal basis with other Australians:
In the history of Aboriginal policy in Australia, going back to earliest times, we find the fault line divides the protagonists into inclusionists or assimilationists on the one hand, and separatists or Rousseauvian sentimentalists on the other.[1]
And yet this is based implicitly on the view that Indigenous culture and social organisation are inferior Former Territories Minister Paul Hasluck used the term ‘assimilation’ and described his government’s approach thus:
The superiority of Western civilisation both on its own merit and in its established position as the way of life of the vast majority – indeed the incompatibility of civilised usage and pagan barbarism – left only two possible outcomes: separate development or assimilation.
It is the inherent inferiority of Indigenous society, the argument goes, that necessitates this conclusion – that there are only two options, and the assimilationist route is by far the preferable one: it is not possible for Australia to recognise and respect the rights and unique attributes of Indigenous people and their society, while at the same time ensuring that Indigenous people can participate in the mainstream of Australian economic and social life.
The Committee rejects this view. Nobody would want to argue that Australia’s Indigenous people should be forced to live in separate communities or to be treated differently in every respect by government from other Australians. Indigenous people themselves do not want this, and have called repeatedly for recognition of their right to participate on and equal basis in economic and social terms. Yet such participation cannot be successful unless, first, there is formal recognition that Indigenous people have been dispossessed and, second, definite, specific steps are taken to redress the grave social and economic disadvantage that followed that dispossession.
Since winding back the rights won by Indigenous people with respect to recognition of native title, the Howard government has acted progressively to undermine the rights of Indigenous people in Australia. It has refused to replace the elected national Indigenous representative body, ATSIC, with a new, genuinely representative structure.
The Government paints what it terms the ATSIC ‘experiment’ as an unambiguous failure. It concludes from this characterisation that Australia’s Indigenous people are incapable of managing their own affairs; that self-determination and not merely the ATSIC model, has failed.
At the same time, the Government has furthered its assimilationist agenda by dissolving the administrative structures that provided specialist, specific services to Indigenous people and their communities. Already as a result, the number of Indigenous people employed by the Commonwealth to provide these services has fallen markedly. Indigenous people will henceforth find their interactions with government more difficult and less informed by shared cultural understandings. In health and education, where Indigenous policy and service delivery have been part of mainstream provision for many years, and despite the best efforts of many able public servants and policy makers, Aboriginal and Torres Strait Islander people’s circumstances continue to lag well behind those of other Australians.
Meanwhile, many programs until now administered by ATSIC and focussed clearly on the needs of Indigenous people have brought appreciable gains – the Community Development Employment Projects (‘CDEP’) program and the financial agency
Indigenous Business Australia among them.
Under the new arrangements, these and other programs in Indigenous housing, legal aid, the arts and other areas will be dissolved into large Commonwealth departments whose primary objectives are much broader. Though the programs will be retained in name, inevitably they will fall under the cultural influence and values of those mainstream organisations. Their specific Indigenous focus could well be lost. At the same time, it will become more difficult for Indigenous people themselves, and also for the Parliament, to monitor and evaluate the performance of the government in providing for the needs of Indigenous citizens.
Assimilationism is far from a benign philosophy. On the contrary, it represents merely one aspect of a view of Indigenous people that is paternalistic and essentially arrogant in its superiority. It is a view that most Australians would find repugnant. Opponents of assimilationism, both black and white, do not want to banish Indigenous people to apartheid-inspired reservations, but recognise that, in order to take their rightful place in Australian society, Indigenous people’s needs, their history, their cultures and their rights must be accorded recognition and respect. The government’s agenda fails to do this. In so doing it fails its own Indigenous citizens. For all Australians, that is a matter for shame.
1.1 On 16 July 2004 the Senate resolved to appoint a Select Committee on the Administration of Indigenous Affairs, to report by 31 October 2004, into the following matters:
(a) the provisions of the Aboriginal and Torres Strait Islander Commission Amendment Bill 2004;
(b) the proposed administration of indigenous programs and services by mainstream departments and agencies; and
(c) related matters.
...
1.3 The Government’s reforms fall within two categories: those requiring legislative change to the ATSIC Act, and administrative changes. These administrative changes represent much more than routine consequences of a legislative change. The majority, which have pre-empted the abolition of ATSIC in that they have already been effected, go to the ‘mainstreaming’ of programs previously operated under the aegis of ATSIC. They are driven by a government policy approach that has been termed by witnesses to the inquiry as ‘assimilationist’: they involve the shifting of ATSIC’s program responsibilities into larger, generalist Commonwealth departments. The Committee notes that this move is regarded by many as extremely controversial. A large amount of evidence was presented to the Committee on this issue, and is discussed at length and in detail in this report.
...
1.5 The ATSIC Amendment Bill repeals or amends large parts of the ATSIC Act 1989, as well as making consequential amendments to a range of other legislation. Its effect is essentially to do away with ATSIC as an elected representative body with specific powers and responsibilities and to distribute its program functions among other Commonwealth departments. ATSIC’s international representative role, in particular, is not replaced or paralleled in the new arrangements. The main provisions:
1.6 The Bill also contains consequential provisions that remove references to ATSIC from other legislation. More substantively, this includes:
1.7 The main changes in the reintroduced Bill are:
1.8 The Australian Government implemented changes in the administration of Aboriginal and Torres Strait Islander affairs on 1 July 2004. The aim was to enable a ‘whole of government’ approach by building partnerships with Indigenous Australians at the local and regional level to tailor the delivery of government services.
1.9 More than $1 billion of former ATSIC/ATSIS programs, including some 1300 staff, were transferred to mainstream Australian Government agencies. A Ministerial Taskforce on Indigenous Affairs was established to provide strategic direction and monitor outcomes of those mainstream agencies and will be supported by a Secretaries Group comprising the heads of the Commonwealth agencies responsible for program delivery. As noted, this move pre-empted the formal abolition of ATSIC by means of legislation and in effect created a fait accompli in policy terms. In taking these steps, the Government has acted precipitously to implement its policy agenda. The Committee, in the course of the current inquiry, heard evidence from representatives of many Indigenous organisations, as well as individuals, expressing dismay and anger at the manner in which the Government has sought to implement a set of radical changes in Indigenous affairs policy, representing a complete about-face in terms of overall policy approach from that which has obtained for the last twenty years.
1.10 Government will also be advised by the National Indigenous Council, an appointed body of Indigenous experts from various fields that will meet directly with the Taskforce up to four times yearly. This body, it must be stressed, is neither elected nor representative in any other sense, and is not formally answerable to Indigenous people. The Office of Indigenous Policy Coordination (‘OIPC’) has been established within DIMIA to drive policy development and service delivery.
1.11 Thirty Indigenous Coordination Centres (‘ICC’) have replaced the ATSIC/ATSIS offices in regional and remote areas, offering a whole of government response to issues identified by Indigenous communities. Service delivery will be guided by partnership agreements at the regional level and shared responsibility agreements at the local and community level. The ICCs will lead and coordinate the negotiation of these agreements.
1.12 The Regional Councils will remain in operation until July 2005, in anticipation of the passing of the ATSIC Amendment Bill. While the Government has asserted that it intends to invite Indigenous people and organisations to form representative bodies of some form or another, to perform the functions now carried out by ATSIC regional structures, no provisions relating to such an intention are contained in the legislation before the Parliament. Nor are there any other material signs of the Government’s plans in this regard.
...
1.14 In the context of the introduction of the report, it is appropriate to make several comments on the process by which the Government has effected what are the most significant changes to Aboriginal affairs in a decade. Leaving aside the merits of these changes, which are the subject of the remainder of this report, the Committee is critical of the speed with which the Government has forced through these changes. The Committee also shares the concerns of the many Indigenous organisations which have expressed grave disquiet about the complete lack of consultation with Indigenous people about the changes. They have been effected without adequate information being provided to Aboriginal and Torres Strait Islander people.
1.15 Professor Mick Dodson referred to this lack of consultation during evidence given to the Committee in Canberra. Professor Dodson made the comment that the decisions were made as if Indigenous people were ‘invisible’:
It was like we did not exist. ... political figures ... talking about our future without any reference to us ... seemed to deal with us as totally irrelevant and to ignore us.[3]
1.16 His colleague reinforced this sentiment, saying that:
the people who have most to lose out of this process are the ones who have greatest corporate knowledge ... [but] they are being ... deliberately left out of the process. Yet the documents provided publicly that describe the process sets them up as primary participants in the process.[4]
1.17 Continuing his criticism, Professor Dodson paused to explain the difference between what the Government means by consultation and what Indigenous people expect it to be:
In my experience, what the Government means by consultation is, ‘We, the government, have an agenda. Let’s go out and run that agenda past the Indigenous community organisation.’ ... In that model, there is no place for Indigenous decision making. It [government consultation] is a process by which the government or bureaucratic agenda gets some sort of legitimisation.[5]
1.18 Commissioner Quartermaine, then Acting Chairman of ATSIC, made the following observation, which was consistent with other feedback collected during the Inquiry:
[T]he Government’s decision announced on 15 April 2004 to abolish ATSIC was devoid of any consultation with those who would be affected; Aboriginal and Torres Strait Islander peoples. In making the decision, the Prime Minister blatantly ignored the findings of his own Government’s report [the ATSIC Review] and the views of the Indigenous people who had contributed to its findings.[6]
1.19 Firstly, and a major source of resentment for many in the Indigenous community, is the fact that having commissioned the ATSIC Review, which presented the Government with a model to reform ATSIC based on extensive consultation, the Government suddenly announced the complete abolition of ATSIC.[7] This was done with limited explanation and no discussion. A large number of people, organisations and communities participated in this review in good faith, with a commitment to a process of honest critique and reform. Abolition of ATSIC was never mentioned: rather, there was a legitimate expectation that the Government would proceed with at least the general direction of the Review’s findings.
1.20 The Government, having decided to radically depart from the Review findings, should have provided some opportunity for comment. In his opening statement to the Committee in February 2005, the ATSIC Review Panel Convenor, Hon John Hannaford, made the following comment, which clearly questions the integrity of the Government’s intent with the Review findings. Mr Hannaford addressed the Committee, saying:
Thank you very much for the opportunity to speak to you. This is the first opportunity I have had to speak to anyone in government about the report.[8]
1.21 The Chair later clarified this point with Mr Hannaford, asking whether, since handing the report to the Minister in November 2003, he had been given a chance to debrief the Minister; Mr Hannaford responded:
I have spoken to no-one since then.[9]
1.22 Rather than hold even perfunctory consultations with the Review Panel, the Government adopted what can only be described as a ‘crash-through’ approach to reform, using surprise and momentum to carry through changes it knew would be unpopular. Furthermore, in so doing, it ignored the major findings of the ATSIC Review – an exercise which, according to the Government’s own admission has cost the taxpayer $1.4 million.
1.23 Secondly, as indicated, the Committee is critical of the manner in which the Government acted immediately to give effect to its revised administrative arrangements well before the Parliament had actually abolished ATSIC. While the abolition of ATSIC was announced by the Minister on 15 April 2004, the majority of ATSIC/ATSIS programs and services were transferred to mainstream departments on 1 July 2004.[10] In addition, most of ATSIC’s resources, including staff, budgets and travel entitlements were removed, leaving elected ATSIC officials with only the barest statutory entitlements.
1.24 The extent of this process is evidenced by the fact that both the Chairman and Deputy Chairman of ATSIC were even refused funding by the Minister to travel to Canberra to give evidence to this Committee. Mr Geoff Clarke was also refused permission to obtain legal advice under the terms of the ATSIC/ATSIS agreements.[11] In the view of this Committee, this was quite inappropriate. ATSIC officials were legitimately elected under an Act that is still in force, and should retain their full entitlements including staff – not just the bare minimum of pay and conditions – until the ATSIC Act is amended.
1.25 Instead, this hasty change was implemented arbitrarily, evicting duly elected Commissioners and Regional Councillors in the midst of their three-year term. These people were elected with the reasonable expectation of serving their constituents for the usual three year term, and being paid and supported to do so, as any elected official or parliamentarian would anticipate. They have been denied their expectation that any plans and aspirations they were in the midst of implementing would be allowed their natural course of time.
1.26 Further, the decisions formally made by ATSIC since 1 July 2004, until ATSIC is actually abolished, must be recognised by the Government as legitimate and legally binding.
1.27 The Committee accordingly recommends that the government affirms formally that ATSIC’s powers remain in force until the date of proclamation of the relevant legislation, and that decisions taken in accordance with the law up to that date are recognised and implemented.
1.28 The Secretary of the Department of the Prime Minister and Cabinet, Dr Shergold defended the Government’s approach:
Do I think that commissioners should only be paid what is actually necessary to undertake their role? The answer, I have to say, is yes. And the role of commissioners now is extraordinarily limited compared with the role that they had in the past.[12]
1.29 It is certainly the case that the removal of the program delivery functions from ATSIC certainly reduced the role of the ATSIC Commissioners. However, at a time of such significant changes in Indigenous policy, and a time at which the Government itself had sought the advice of ATSIC in devising new representative organisations, the work of the full-time ATSIC Commissioners in their core role of consultation with their Indigenous communities has perhaps never been greater – especially given the limited capacity of the part-time Regional Councillors to perform this role. The changes have created major uncertainty and confusion in many communities, and instead of the Government treating the ATSIC Board as an obstruction, it would have been more appropriate to enlist their assistance in managing a constructive transition.
1.30 Thirdly, the Committee is strongly of the view that the actions of the Government have pre-empted Parliament’s decision on the future of ATSIC. ATSIC was created through a lengthy and thorough debate in the Parliament. ATSIC is a creation of Parliament, and as such, it is for Parliament to decide what, if any, changes are to be made to it. As the Government pointed out, the immediate changes were administrative in nature and did not require legislative amendment by Parliament. However whilst legally accurate, this is disingenuous, since the Government’s changes dismantled ATSIC in all but name.
1.31 Not content with these actions, the Minister repeatedly criticised the Senate for delays in passing the Government’s Bill and the wastage of taxpayers’ money associated with the salaries and entitlements of the ATSIC Board members.[13] Dr Shergold told the Committee:
It is certainly true that the government is understandably frustrated that there is continued significant payment for commissioners – money that could otherwise be directed to other programs.[14]
1.32 The Committee rejects this view, which is based on the agreement by the then Leader of the Opposition to the abolition of ATSIC. An important caveat to Mr Latham’s agreement was that were ATSIC to be abolished, it should be replaced by a national Indigenous representative organisation of some form yet to be decided. On these grounds, ATSIC should not be dismantled until consideration of a replacement is decided. To do so is likely to risk the loss of much that has been achieved by ATSIC, and to complicate the creation of its successor.
1.33 During the life of the inquiry during both the 40th and 41st Parliaments, the Committee published over two hundred and forty submissions (a full list of submissions is at Appendix 1).
1.34 Prior to the Federal election, the Committee conducted public hearings in Alice Springs, Broome, Darwin, Gove, Thursday Island and Cairns and also received a briefing from the Department of Immigration, Multicultural and Indigenous Affairs, prior to tabling an Interim report on 31 August 2004.
1.35 After its reconstitution by the 41st Parliament, the Committee held further public hearings in Brisbane, Moree, Sydney and Canberra, full details of which are listed in Appendix 2.
1.36 The Committee is mindful that due to the tight reporting deadline, it has not been able to consult as widely as it might have wished. In particular, the Committee regrets that it had to cancel its planned hearing in Melbourne, and was unable to meet with communities in locations such as Adelaide, Perth, Geraldton, Kalgoorlie or Tasmania. The Committee regrets that the tight reporting timeframe has also allowed limited opportunity to discuss the new arrangements with the various State and Territory governments. This is especially regrettable in the light of the importance placed on ‘whole of government’ responses, and that changes to the Australia-wide consultative arrangements have considerable implications for these governments.
1.37 Chapter two of the report provides a brief background to the history of the administration of Aboriginal and Torres Strait Islander affairs in Australia, followed by a description of the proposed amendments to the ATSIC Act. The chapter concludes with an examination of the effectiveness of ATSIC over its ten years of existence and whether it can be said to have ‘failed’.
1.38 Chapter three deals with a number of administrative issues contained in the Bill, including the removal of statutory consultation mechanisms contained in a range of other Commonwealth legislation, as well as changes to the operation of the Indigenous Land Corporation and Indigenous Business Australia.
1.39 Chapter four discusses the issue of Indigenous representative mechanisms, including their role at local, regional, national and international level. In the context of this discussion, the chapter considers how these representational functions will operate under the Government’s new arrangements. In particular, this discussion addresses the central questions of whether representative bodies should be legislated or funded by government.
1.40 Chapter five then examines the policy of ‘mainstreaming’ of Indigenous programs and services. It examines the theory of what the Government sees as a new style of ‘mainstreaming’ that focuses on whole of government integration of services, with mainstream departments delivering Indigenous specific programs.
...
...
2.144 The Government’s abolition of ATSIC is premised on its assertion that ATSIC ‘failed’. Balancing the strengths and weaknesses discussed above, is this conclusion justified?
2.145 ATSIC must be judged against its objectives, which are worth repeating here:
2.146 From the evidence this Committee has seen, ATSIC did much to increase participation of Indigenous people and their engagement in the political process, and in so doing, helped to create a new generation of Indigenous leaders in communities across Australia. Equally, many of ATSIC’s programs in housing, culture, employment and community programs undoubtedly achieved a great deal. In these respects, ATSIC was clearly not a failure.
2.147 ATSIC’s success or failure in respect of the other criteria is harder to judge. A crucial focus for ATSIC has been the formulation of policy and the provision of policy advice to government, and its expert role in this regard has been extremely important. The Committee, however, does not have the resources to make a detailed examination of, and judgement on, the quality, timeliness, and effectiveness of ATSIC’s efforts in providing policy advice and coordinating government policy.
2.148 What is clear though, is that at a national level, our institutions, policies and programs have failed Indigenous people. While there is evidence of slow but steady improvement across many of the key indicators,[15] relative to the wider Australian community Indigenous people still lag far behind.
2.149 This is clearly not solely ATSIC’s fault. The overall failure of public policy to successfully overcome the grave disadvantage suffered by Australia’s Indigenous people is not a sign that ATSIC itself has ‘failed’. Nor, indeed, is it a sign that the broader policy of self-determination is a failure. The challenges faced by public policy, and those responsible for it, in this area are significant because the disadvantage is so severe and far-reaching, and has so many complex causes. The fact that Indigenous disadvantage has yet to be overcome is not proof that any agency or individual has ‘failed’. In relation to exactly who is responsible for the failures in addressing Indigenous disadvantage, Dr Shergold made the following comments to the Committee:
I do not think the failure of public policy can be attributed to a single person: the CEO of ATSIC, the chair of ATSIC, the minister for Indigenous affairs. This has been a challenge for public policy to find ways to try and overcome the appalling, deep-seated socioeconomic disadvantage faced by Indigenous Australians. The aim is to keep trying to find better ways of delivering. I am not saying that ATSIC alone has been a failure. During the time that I was there I was fortunate to see the most extraordinary leadership provided to ATSIC, and I think that some of the things ATSIC did were of a high order and, in an auditing sense, with a high level of accountability.[16]
2.150 There was additional evidence that mitigates ATSIC’s responsibility for what some regard as its failure in areas of governance. As previously discussed, the ATSIC was structured using a Western system of governance. It was inevitable that it would take some time for many of those running ATSIC to come to terms with this foreign and culturally quite different system of governance. This was well illustrated in evidence given by the ATSIC Review Panel Convenor:
ATSIC was in our view, set up to fail. ... I use a comparison. If a local tennis club, with people of limited skills and limited education, were given millions of dollars and asked to run the Australian Open. That is exactly what happened, in a sense, with ATSIC. A large amount was expected of them, when they did not have the capacity and skills to do it. Very little was put in place to ensure that they were given or could develop the skills.[17]
2.151 The lack of sufficient resources to facilitate capacity building has been highlighted in several of the recommendations in previous reviews discussed in this chapter.
2.152 The Committee also acknowledges that in many respects, where ATSIC has been criticised, apparent weaknesses or failures have been due to a lack of institutional ‘muscle’ - in a formal sense - to achieve its objectives. ATSIC never had the power to insist that its policy advice be accepted, nor did it have the authority to compel better coordination of activities by other Commonwealth agencies, let alone state or territory agencies. In this respect, it is perhaps better to conclude that ATSIC’s objectives were from the start over-optimistic and unachievable, when set against the legal ‘muscle’ available to the body.
2.153 Nevertheless, as the central Indigenous national organisation, with responsibility for administering up to half of the Commonwealth Indigenous specific funds, ATSIC must clearly share part of the blame for the poor outcomes. As the ATSIC Review found, ATSIC had a number of significant problems and needed change.
2.154 So while the Committee cannot agree with the Government’s assertion that ATSIC has failed, it can agree with the wider conclusion that the national policy settings in Indigenous affairs have failed Indigenous people.
2.155 The then Minister stated during his Second Reading speech: ‘No one can say that the current approach is working’.[18] While this is true, it is important that there is a thorough assessment of the ‘current approach’ before jumping to the conclusion. The Committee does not accept that the approach of self-determination and recognition of Indigenous rights has been responsible for the failure to address Indigenous disadvantage. International evidence would in fact suggest that recognition and empowerment of Indigenous people are fundamental to addressing material disadvantage.
2.156 The Committee considers that national performance in Indigenous affairs should be carefully, continuously, and transparently monitored. The Government as a whole must be held accountable. A recommendation presented later in this report goes to this issue.
...
5.159 The Government’s move to shift all delivery of services for Indigenous Australians to the mainstream departments is a momentous one. It comes at a time of great change in the broader political situation for Indigenous Australians, but has greater potential to affect the everyday lives of a greater number of people than any other single Indigenous-related policy. If the Government promptly and effectively addresses the critical issues discussed in this chapter, the Committee believes that mainstreaming has the potential to improve the delivery of services to Indigenous people.
5.160 Realising this potential depends on whether the policy of ‘new’ mainstreaming lives up to its rhetoric and really amounts to a major change in the way things are done. ‘Old’ mainstreaming has already been shown to fail and the Government’s own review of ATSIC in 2003 explicitly rejected mainstreaming as an option.[19] ‘New’ mainstreaming has great potential to be different, with its focus on bringing the expertise and resources of line agencies to bear on the problem through flexible, coordinated and differentiated programs that respond to the needs of individual communities.
5.161 These possibilities were recognised by some respondents to the inquiry. In his submission, Commissioner Hill said that:
There are aspects of the changes that are welcomed, such as the whole of government approach to service delivery and emphasis on partnership approaches with Indigenous communities.[20]
5.162 The changes also offer a promising method to link government and communities in partnership – a task that Mr Yates from ATSIS, sees as a fundamental principle.[21]
5.163 But the problems of the ‘old’ mainstreaming still lurk, and as the discussion above demonstrates, the success of line agencies overcoming these problems and transitioning to this new and quite different way of doing things is far from a foregone conclusion. There are a great many details still to be sorted out before any real judgements can be made on the policy, including, the functioning of the new ICC’s, how the Shared Responsibility Agreements will work in practice, and the ways of evaluating the results. In addition, there is much work yet to be done to achieve effective cooperation and collaboration between Commonwealth, state/territory and local government to prevent duplication, build partnerships and ensure the continual improvement results.
5.164 From the Committee’s perspective, the inquiry has raised as many questions as it has answered. For this reason, the Committee is a little wary of the Government’s somewhat triumphalist rhetoric, which papers over a wealth of unresolved detail. The Committee considers there is potential in the new arrangements, but there remains the need to indepe ndently monitor how the policy is put into practice.
5.165 It has already been noted in discussion earlier in this chapter that the ‘new’ mainstreaming arrangements for programs for Indigenous people will present a serious challenge for the Parliament in monitoring and evaluation of the Government’s performance. Transparency is potentially reduced and, with it, public accountability. For this reason alone, new arrangements to enable public scrutiny to be effective need to be considered. There is no Senate Committee charged specifically with examining policy and administration in Indigenous Affairs.
5.166 Further, the existing Parliamentary Joint Committee on Native Title has a sunset clause imposed by the Native Title Act 1993; Section 207 provides that Part 12 of the Act ceases to be in force after 23 March 2003, effectively ceasing the operation of the Native Title Joint Committee. This Committee, in any case is charged with dealing with only one aspect of Indigenous Affairs policy - native title. While there exists in the House of Representatives the Committee on Aboriginal and Torres Strait Islander Affairs, this Committee, like all those established in the House, can only take up issues with the approval of the relevant minister. For these reasons, the Committee considers that a new, specialist Senate Standing Committee, with powers of a references committee, should be established.
5.167 The Committee recommends the establishment of a Senate Standing Committee on Indigenous Affairs, tasked with examination of:
...
The Australian Democrats support the majority findings of the report. Nevertheless, we are of the opinion that the findings and comments of the majority regarding the government’s treatment of Indigenous Affairs and Indigenous Australians, require stronger recommendations. We therefore make the following comments and recommendations in addition to those contained within the majority report.
The Australian Democrats are appalled at the Howard government’s treatment of Indigenous people since 1996. The majority report does address this general topic and we are fully supportive of the majority findings, particularly the preface and chapter two. We wish to emphasise the disingenuous nature of government rhetoric in Indigenous affairs: the claim that ‘equality’ is delivered through the ‘same treatment’ of all Australians is fundamentally racist and has been proven to deliver extremely poor results for Indigenous people. No matter how cleverly the current policy is phrased, this government is committed to assimilation and is opposed to self-determination, as it has unashamedly stated on many occasions.[22] Cloaking this policy in the language of self-determination, for example describing it as a ‘bottom up approach’, as Dr Peter Shergold repeated in his evidence, and as Senator Vanstone has also repeatedly stated, cannot change the fact that decisions pertaining to mainstream Indigenous services are being made with no prior consultation. This is in fact the epitome of a paternalistic ‘top down’ approach. The fact that the government knows well enough to misrepresent their ideological agenda as a policy in which decision- making is in the hands of Indigenous people indicates that they well know it is the wrong direction in which to take Indigenous Affairs.
The government’s lynch pin of ‘mutual obligation’ – SRAs – only highlights the disarray of the current mainstreaming policy. From its beginnings as ‘policy on the run’, to the modelling of SRAs on unevaluated Council of Australian Government (COAG) trials, the government’s mainstreaming policy is incomprehensibly poorly thought through. The Democrats conclude from evidence given to the committee that this government and its departments do not know how SRAs are going to function. No Minister or public servant has yet been able to give a clear outline of what SRAs actually are; it is clear from the evidence presented from many departments and from Ministerial statements that SRAs are ad hoc agreements to be applied in an ad hoc way. This bodes very badly for accountability and transparency of negotiations and outcomes and for the achievement of national benchmarks across all levels of government.
There are significant legal questions relating to SRAs which remain unanswered: Who is bound to an SRA as a contract? How will they be enforced so as not to disadvantage people who have not been a party to failed SRAs? Do they in fact breach international law?
Additionally, the Democrats believe the SRAs are self-serving for the government. The government is recognising some Indigenous representatives for the purpose of the government’s own agreements (and hence for ensuring the blame for failure can be squarely laid on individuals and organisations) but they will not recognise Indigenous governance structures for purposes advocated by Indigenous people.
The Australian Democrats believe that the overwhelming body of evidence presented to the Committee is in favour of, and presents a strong case for, the continued existence of a national, elected, Indigenous representative body. In addition to the evidence presented to the Committee, we note that the Government commissioned ATSIC review report by Huggins, Collins and Hannaford, In the Hands of the Regions – a New ATSIC (2003) (‘ATSIC Review Report’) found, after significant consultations, that an elected Indigenous representative body at the national level is essential for self-determination and subsequent improvements in living standards and life opportunities.
In addition to what the Democrats see as the indisputable need for an elected national body, we are of the opinion that ATSIC is capable of being reformed along the lines recommended by the ATSIC Review Report. The litany of discarded Indigenous Affairs structures over the last thirty to forty years[23] is a pattern which must cease. If the body responsible for representing Indigenous peoples’ interests is changed every ten or fifteen years it is inevitable that no body taking that role will ever be fully respected and understood by Indigenous people and will be less than fully effective in delivering outcomes as a result. Although we recognise that the government has already effectively disbanded ATSIC prior to the legal abolition of the ATSIC Board and that it is therefore highly unlikely that there will be any change in government direction, we are still of the opinion that ATSIC should be retained and reformed.
Therefore, the Democrats recommend that the ATSIC Bill as it stands be rejected and a new Bill be drafted which reflects the changes recommended by the ATSIC Review Report. The Democrats do not expect the government to accept this recommendation and so make further recommendations in the alternative and endorse those of the majority report.
The Democrats are of the opinion that the Committee’s recommendation 3.1 does not go far enough. Recommendation 3.1 and the preceding paragraphs (notably paras 3.8 and 3.9) do not clearly state the position of the committee regarding the assets of ATSIC.
The Democrats believe there is a potential conflict and certainly a lack of clarity in paras 3.8 and 3.9. Para 3.8 states that ‘[t]he Committee supports...that Indigenous people should formally have custody of Indigenous artworks and artefacts’, while para 3.9 states that ‘the principles that should underlie any decision about the future ownership and location of the artworks and artefacts currently in the possession of ATSIC include...that Indigenous people and organisations be closely involved in, and approve, the location of the collection; and that the collection remains in public hands’. If ‘public hands’ means merely that the collection should be accessible to all Indigenous and non-Indigenous Australians in a public institution (such as the National Gallery of Australian or AIATSIS) as opposed to a private organisation, then this may be reasonable, depending on the level of control Indigenous people retain over the collection. However, if it means that ownership will pass from Indigenous people to the Commonwealth and be maintained by the Commonwealth then this contradicts the previous paragraph and is not acceptable.
Additionally, the principle that ‘Indigenous people and organisations [should] approve of the location’ for the collection will be difficult because the government has effectively destroyed the representative structure of ATSIC, including the withdrawal of Regional Council resources and staff, which would be capable of conducting the necessary consultations required for legitimate ‘approval’.
The Democrats believe that the ‘underlying principles’ in para 3.8 should read:
• That the collection be maintained as a single coherent entity;
• That Indigenous people and organisations be closely involved in, an approve, the location of the collection;
• That the collection remains both formally and practically in Indigenous custody and control; and
• That the collection remains in public hands (meaning it is not to be given to a private organisation and is publicly accessible).
The Democrats recommend that a working group be established, headed by the Australia Council Aboriginal and Torres Strait Islander Arts Board and with representatives from the National Gallery of Australia and AIATSIS, to consider and recommend the best way of protecting, preserving and displaying the artworks and artefacts, including the preferred location, in line with the above underlying principles. The government should provide adequate resources for this to be completed.
Recommendation 3.1 is also unclear when it states ‘all assets controlled by ATSIC [should] continue to be applied to the benefit of Indigenous Australians ...’ This recommendation would apply to a range of ATSIC-held properties, including some which the Committee heard evidence about. ... The Democrats believe that in addition to being ‘applied to the benefit of Indigenous Australians’, properties held by ATSIC must remain under the decision making control of Indigenous people.
The Democrats believe that the government should recognise and publicly affirm that legitimate decisions made by ATSIC regarding assets which ATSIC owned or had an interest in are valid and will be honoured by the relevant government departments. Applications to ATSIC regarding property that were initiated prior to the distribution of ATSIC’s programs to government departments and agencies, should be continued with the same criteria. Properties purchased by ATSIC for particular purposes, or for a particular group of Indigenous people, should be transferred as soon as is practicable to a representative organisation of that group.
Property which was purchased for ATSIC/ATSIS to deliver programs, such as staff houses, should be quarantined for Indigenous service delivery and only divested to Indigenous organisations or people, at no cost. The government should not be looking to recoup costs at the expense of Indigenous people’s asset and resource base.
...
Further to the Committee’s Recommendations 1.1 and 3.1, the Democrats recommend:
The Democrats are extremely concerned with the government’s plans for the funding of Native Title Representative Bodies. We do not believe that the government has demonstrated in any way that it can function as funding body for both opposing parties in a native title claim and not disadvantage the claimant.
The Democrats recommend that the funding of Native Title Representative Bodies, previously administered by ATSIC, be administered by a statutory body no less independent from the government than ATSIC was. Consideration should be given by government for transfer of these responsibilities to the Indigenous Land Corporation.
The Democrats note the majority report’s findings that IBA will have its independence from the Minister further limited now that they are obliged to follow general Ministerial directions in relation to their entire business conduct.5 The Democrats agree with the majority report that this has the very real potential to damage the effectiveness of such a successful organisation.
In addition, the evidence presented to the hearing regarding the new impositions of Ministerial power indicates that there has been little if any consideration to the liability of the Minister as a pseudo-Director. Given that the Directors of IBA are personally liable like any other company Directors, the Democrats are of the opinion that Ministerial directions which could, and presumably will, impact the way IBA does business should be at least considered from this perspective. The Committee has not been privy to any advice which indicates that this issue has been explored.
The Democrats recommend that Ministerial directions be limited to the new functions which IBA has or will acquire from ATSIC, to the degree that such Ministerial directions were allowed to be applied to the functions when they were with ATSIC, and specifically that it not extend to IBA’s whole operations.
The Australian Democrats support the findings and the recommendations of the majority report. However, in our opinion, the findings of the Committee require stronger comments and recommendations in the areas of representation, asset retention and program administrative arrangements, as described. It would be a far more appropriate course for the government to take to accept the work of the ATSIC Review Report in pursuing a reformed Indigenous representative body with greater regional participation and control in a context of respect and recognition of Indigenous Australians. At the very least, the Australian Democrats would strongly support the retention of regional councils in a renewed form, as discussed in the ATSIC Review Report.
Government statements that this process of mainstreaming is a ‘bottom up’ approach reflect only that the right rhetoric is being disseminated to hide the lack of substance in the plans. This lack of substance is clear from the utter chaos which reigns in the area of Shared Responsibility Agreements.
It is unconscionable that yet again, the least resourced groups in our society are being called upon to subsidise government neglect. The Regional Councils are still performing heroically to cushion the impact of mainstreaming as best they can with no recognition of the role they play. Indeed, it was a poignant moment when, at the Sydney hearing, Sydney Regional Council Chairperson, Marcia Ella-Duncan, described a conversation with a senior bureaucrat in OIPC. Ms Ella-Duncan said ‘[t]he chairs wanted to know where the resources were to allow them to continue to do their jobs. The response from a senior bureaucrat was, “What do you do?”’.
The abolition of ATSIC will happen; it already effectively has. The government has shown characteristic contempt of both Indigenous people and the Parliament in implementing the abolition to the full degree possible without either Senate approval or the confidence of Indigenous Australia. This policy direction must be strongly opposed from all sides for the sake of the history books, if nothing else.
Senator Aden Ridgeway
Democrat Senator for NSW
The full report is available online at <http://www.aph.gov.au/Senate/committee/indigenousaffairs_ctte/report/final/> .
[1] Peter Howson, ‘The 2004 election and Aboriginal Policy’, Quadrant, November 2004,
republished by the Bennelong Society.
[2] This information was supplied by the Office of Indigenous Policy Coordination.
[3] Professor Dodson, Proof Committee Hansard, Canberra, 3 February 2005, 33.
[4] Mr Glanville, Proof Committee Hansard, Canberra, 3 February 2005, 35.
[5] Professor Dodson, Proof Committee Hansard, Canberra, 3 February 2005, 41.
[6] ATSIC, Submission 202, 17.
[7] See, eg, Ms Logan, Submission 6, 1; Pat Andruchow, Submission 14, 1; Ms Hines, Submission 36, 2; Uniting Aboriginal and Islander Christian Congress, Submission 99, 1.
[8] Hon John Hannaford, Convenor, ATSIC Review Panel, Proof Committee Hansard, Canberra, 18 February 2005, 22.
[9] Ibid 36.
[10] Office of Indigenous Policy Coordination, Submission 128, 10.
[11] For details of this difficulty, see Mr Clarke, Proof Committee Hansard, Canberra, 8 February 2005, 2. See also documents tabled by Mr Clarke.
[12] Dr Shergold, Proof Committee Hansard, Canberra, 8 February 2005, 32.
[13] See, eg, the Second Reading Speeches.
[14] Dr Shergold, Proof Committee Hansard, Canberra, 8 February 2005, 32.
[15] Professor Altman, Proof Committee Hansard, Canberra, 3 February 2005, 2; Dr Shergold, Proof Committee Hansard, Canberra, 8 February 2005, 5.
[16] Dr Shergold, Proof Committee Hansard, Canberra, 8 February 2005, 5.
[17] Hon John Hannaford, ATSIC Review Panel Convenor, Proof Committee Hansard, Canberra, 18 February 2005, 25.
[18] Second Reading Speech (40th Parliament), 1.
[19] In the Hands of the Regions, 80.
[20] ATSIC NT North Zone Commissioner Hill, Submission 100, 10. See also Des Rogers, Submission 57, 1.
[21] Mr Yates, Committee Hansard, Canberra, 29 June 2004, 2.
[22] See the Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunities Commission, Social Justice Report (2002) 30–47.
[23] See Committee Report, Chapter 2, 6–11.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2005/33.html