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ESTIMATES COMMITTEE F
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
Subprogram 3.2--Law and Justice
- Committee Name
ESTIMATES COMMITTEE F
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
- Sub program
Subprogram 3.2--Law and Justice
- System Id
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Table Of ContentsPrevious Fragment
ESTIMATES COMMITTEE F
(SENATE-Thursday, 10 September 1992)
- Start of Business
DEPARTMENT OF INDUSTRIAL RELATIONS
Program 1--Industrial Relations Policy Development, Workplace Reform and
- Subprogram 1.1--Policy Development and Planning
- Subprogram 1.2--Private sector workplace reform and best practice
- Subprogram 1.3--Special Industry Services
- Subprogram 1.4--Affirmative Action Agency
- Subprogram 1.5--Australian Industrial Relations Commission and Australian Industrial Registry
- Subprogram 1.6--National Occupational Health and Safety Commission (Worksafe Australia)
- Subprogram 1.7--Australian Trade Union Training Authority
- Subprogram 1.8--Construction Industry Development Authority
Program 2--Public Sector Workplace Development and Services
- Subprogram 2.1--Australian Public Service, Remuneration Structures and Conditions
- Subprogram 2.2--Government Authorities and Defence
- Subprogram 2.3--Remuneration Tribunals
- Subprogram 2.4--Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (Comcare Australia)
Program 3--Corporate Management and Support
- Subprogram 3.1--Executive Management
- Subprogram 3.2--Legal and General Services
- Subprogram 3.3--Advocacy, International and Secretariat Services
- Subprogram 3.4--Corporate Services
- Senator CHAPMAN
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION
- Subprogram 1--Commercial
- Subprogram 2--Employment
- Subprogram 3--Development, Education and Training
- Subprogram 4--Regional Support
- Subprogram 1--Land, Heritage and Environment
- Subprogram 2.2--Substance Abuse
- Subprogram 3.1--Community and Group Support
- Subprogram 3.2--Law and Justice
Content WindowESTIMATES COMMITTEE F - 10/09/1992 - ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION - Program B--Social - Subprogram 3.2--Law and Justice
Senator PANIZZA --Under the heading `Objectives' on page 165, the first one states:
To ensure that Aboriginals and Torres Strait Islanders enjoy their rights and are aware of their responsibilities under the law and have access to appropriate legal representation.
The Minister might remember that I raised the point about Aboriginals being `aware of their responsibilities under the law' two years ago. That was the case where Ellenbrae Station in the east Kimberleys got burnt out. Ellenbrae Station is alongside Carson River Station, which is an Aboriginal community. It was burnt out four years ago. That is when I asked what could be done for them. Now they have been burnt out four years in a row.
Four years ago they were running 4,000 head of cattle. Having been burnt out four years in a row--I have got aerial photos showing there were fires emanating from that community--they are down to 2,000 head of cattle and in dire financial circumstances. On their behalf, I wrote to the Minister for Agriculture, who is the local member of Parliament, and I will be getting back to him. It seems to me that this is a continuing episode in that area. You say that this is a program to make Aboriginal communities aware of their rights and responsibilities. In that case, the family has been fighting to get compensation for four years. They have not yet been successful. I notice the matter has been in the courts. But the fires are a yearly occurrence. What is the solution?
Dr Shergold --I think the courts are the solution. As you say, it is before the courts now.
Senator PANIZZA --Yes, it was before the courts four years ago. The station has been burnt out three times since then and this family, which is struggling to pay its own way, can find no sense from anyone at all. As I told you, I wrote to the Minister for Agriculture in Western Australia to see how this family could be helped pending the outcome of the court case. This is the answer. With the indulgence of the Chairman, I will read out the letter. I do not think that Mr Bridge would have any objections.
The circumstances of Ellenbrae Station following the recent widespread wildfires are well known to me following a recent visit to the north Kimberley. The option of providing the Ellenbrae lessee with surplus hay from the south-west does not exist. Clearly Mrs Terry had been misinformed on the availability of surplus hay . . .
That is by the bye. It continues:
As a consequence of my background as a Kimberley station operator, I have considerable sympathy for the difficult circumstances faced by Byrne Terry.
He is the owner. It continues:
However, I recognise there would be major logistical problems involved with locating, assembling and feeding the Ellenbrae herd which range over an area of 381,000 hectares--
I fully realise that myself--
even if hay was available as suggested by Mrs Terry.
As you are aware, wildfire--
I do not agree with `wildfire'; I would call it bushfire--
has emerged as a major hazard for livestock operations in the north Kimberley despite the controlled burning practice by the Western Australian Bushfires Board. The development of more effective fire prevention strategies for that area will be undertaken involving the North Kimberley Land Conservation District Committee, individual land holders and the appropriate government agencies.
While I have great sympathy for the plight of the Ellenbrae lessees I believe the most effective form of government assistance is through support for the development of fire management strategies to reduce the likelihood of similar occurrences in the future.
What do these people have to do to survive in the place? They have been burnt out four times by an Aboriginal community. I asked you three years ago whether those communities have insurance liability against a fire going out of their property and onto another one. From my experience as a practical farmer, I know that if I let a fire go from my property to another in any circumstances I am liable. Why are these people not liable?
Senator Cook --Quite clearly, what you have set out is a very unfortunate set of circumstances.
Senator PANIZZA --It is unfortunate.
Senator Cook --I am a little confused as to why you think this issue is related to these Estimates hearings.
Senator PANIZZA --Because it comes from one of your communities, under the jurisdiction of the Council. It comes under law and justice. These communities should know what their responsibilities are under the law, and one of their responsibilities under the law is to stop lighting fires that get out of control.
Senator Cook --That would appear to be a matter that is contested. The courts are the proper place to settle it.
Senator PANIZZA --After four consecutive years of getting burnt out--it dries off in the Kimberley at a certain time every year--this will probably happen again next year and the year after. Is it mandatory for these people to have public liability insurance?
Senator Cook --I am not aware at the present stage whether it is mandatory. In that letter you read out from Ernie Bridge, he talks about the answer to this problem being in proper fire management techniques supplied in the area. That surely is something that is in the ambit of the State Government, not the Commonwealth.
Senator PANIZZA --The only suggestion he can make at the present moment is to do something. I know it is a State responsibility, but this station has been burnt out four times. The number of cattle has been reduced from 6,000 to 2,000 in four years. My guess is that the place might be on the market before long if this keeps going on. How can anyone survive? Nobody listens to them. I have visited the place. I have flown over it. I have had a bit of experience with bushfires. Getting up in the air is the way to find out where these fires come from. Even when you are trying to control them, you should direct your operations from the air. This must be occurring not only at Ellenbrae; there must be other places in Australia. Why does everyone walk away from it?
Senator Cook --It appears that they are not. In fact, there is a legal action going on about it.
Senator PANIZZA --Yes, the one from four years ago. Then there will be the one from three years ago--
Senator Cook --I frequently share your frustration about the way in which the legal system operates.
Senator PANIZZA --Let us not blame only the legal system. That is four years ago.
CHAIRMAN --I can understand your frustration. As parliamentarians, we face these cases on a daily basis, but if you look at the objectives of this component of the subprogram I am not sure that this is the place to be taking up that issue, although I fully understand your frustration.
Senator CRANE --Could I ask one question about these obviously very unfortunate circumstances. Does ATSIC advise these communities which purchase stations or whatever they might be that it is wise to take out public liability insurance to cover them for these types of risks? I would think these people come under the same laws as all of us sitting around this table. Is that part of what you do? If not, I think it is something you should address.
Mr Dillon --Certainly it is, but what is not clear to us at this table is which Aboriginal community is involved and whether ATSIC has any involvement with it at all. It may be that we have no involvement whatsoever. But, in general, we would be advising our communities to take out appropriate insurance to protect both their assets and any liabilities, such as you are suggesting.
Senator CRANE --Even if you did not have a direct involvement, it would be a legitimate and useful function of ATSIC to actually advise Aboriginal communities of their legal requirements under the law. I am sure that there would be a number of communities who would not be aware of them.
Senator PANIZZA --Let me put this to you: if the court were to award damages to Ellenbrae station, who would finally pick up the tab?
Senator Cook --We at the table are a little confused. Is there an allegation that a particular Aboriginal community is the cause of these fires?
Senator PANIZZA --Yes. Let us say that the fire came from the Aboriginal station onto Ellenbrae station. There is no dispute about that. Anyone with half an eye can see that.
Senator Cook --Could you tell us which one it is?
Senator PANIZZA --If I have it right, it is Carson River station, which is next door.
Mr Beadman --It seems to me that land administration matters in relation to pastoral leases in the State of Western Australia are for the Western Australian Government in the administration of its Crown land Act. I am not quite sure why you raise it with ATSIC year after year.
Senator PANIZZA --Because you have a budget here. I am entitled to ask what questions I like, especially when they do not get any answers. That is why I am fully entitled to ask the question.
Mr Beadman --We accept no liability whatsoever for a fire that you allege started on an Aboriginal pastoral lease. That is a matter for the Lands Department to resolve as between adjoining pastoralists.
Senator PANIZZA --I do not accept that answer. I want an answer. If that community is held to be liable in court, who picks up the tab?
Senator Cook --You are now asking us to speculate.
Senator PANIZZA --No, it is not speculating.
Senator Cook --It is at the point of `if'.
Senator PANIZZA --The only `if' is if the court finds in their favour. That is the only `if'. It is very important. I would like to know where the money is coming from. Some Committee members might think it is a joke, but it is not a joke to this family in the Kimberley.
Senator Cook --I am not arguing. I want to make very plain, so if we are going to disagree we know what we are disagreeing about, that I understand and share your frustration about the plight of this group of pastoralists.
Senator PANIZZA --You have already told me that.
Senator Cook --But I cannot see how your frustration, verging on anger, is related to ATSIC in this sense. You have just heard an explanation from the officer about ATSIC's views on where liability rests. It seems to me that that is the most productive avenue of inquiry.
Senator PANIZZA --Okay, I will get back to what I said before. If this community, or any other community in Australia, is found liable for damages, who finally picks up the tab?
Senator Cook --That may depend on a number of relevant factors such as whether they are legally incorporated--things of that nature. I cannot give a general answer. Officers at the table may be able to be more specific, but I cannot answer that.
Senator PANIZZA --Is anyone going to give me an answer on that one?
Mr Dillon --In general, an Aboriginal community would be incorporated if it owned a pastoral lease. If legal action were taken and, hypothetically, a court were to find against that incorporated body, the only recourse would be the assets owned by the incorporated body. There is no liability by ATSIC. We would have no link. It is a quite separate body. The recourse is against the assets of the corporate body. If need be, a court could order the corporate body to sell up the station and pay the damages--hypothetically.
Senator PANIZZA --You reckon that is where it would stop?
Senator Cook --I think that the officer is trying to hypothetically answer the question.
Senator PANIZZA --I suppose that is some sort of an answer. The point that Senator Crane made, and which I made three years ago at least, is that they should have public liability, just as any other farmer generally has. My last question for the night, if I can hark back a little bit--
Senator Cook --They may well have public liability.
Senator PANIZZA --I certainly hope so.
CHAIRMAN --I remind all members of the Committee that we have nine components yet to cover.
Senator PANIZZA --Mr Chairman, this is my last question and you are holding me up. I would like to know from someone, sooner or later, whether that community has public liability or not. I asked that question two years ago and I never got an answer.
Senator Cook --It is not the duty of ATSIC to know that.
Senator PANIZZA --I know that, but I thought ATSIC might be helpful and let me know. I am concerned for the welfare of these people. If ATSIC does not want to be helpful, fair enough.
Senator Cook --It is not a question of being helpful. Senator Panizza, you are inquiring about a freestanding legal entity, over which ATSIC has no direct jurisdiction or control.
Senator PANIZZA --It has no direct control, but it has indirect.
Senator Cook --It does not have indirect either. It has to answer for itself before the courts. Maybe it would answer if you inquired of it directly whether it has public liability or not.
Senator PANIZZA --I have never been able to find out. I have asked them. Just going back to my question on the research into languages, can the officer who responded at the time give me the names of the researchers who undertook that research, the reports and the papers?
Mr Dillon --I will certainly endeavour to do that, Senator.
Senator Cook --I can tell you for my part that Kim Beazley Sr, when he was Aboriginal Affairs Minister, passed that information on to me back in 1973.
Senator CRANE --I would like to emphasise a matter, if I could. The circumstances raised by Senator Panizza are very unfortunate. I was involved in a similar situation a couple of years ago when a farmer, who should have known, was not aware of his public liability responsibilities. I would like to emphasise that I think it is terribly important, particularly as there are quite a lot of stations which are being bought, that people be made aware of their responsibilities. It is not a difficult problem to overcome. It is not expensive to overcome either.
Senator CHAMARETTE --In relation to subcomponent 3.2.3, can the Commission give me the Budget amount allocated to prevention and diversion programs and the number of programs provided by that section.
Mr Schnierer --I will take that question on notice.
Senator TIERNEY --In your program performance statement for 1991-92, mention was made of the difficulty of obtaining adequate performance data from any of the legal services. Can you inform the Committee of the percentage of Aboriginal legal services which provide performance data now, as outlined in your program budgeting manual.
Mr Schnierer --There are still difficulties with gathering performance indicators information from legal services. There has been an improvement this year. I note that it is in the order of at least 50 per cent of ALSs at this point in time. We are still chasing up the outstanding reports from individual legal services.
Senator TIERNEY --Of course, that is relative. It depends on the sort of base you are working from initially. If you say a 50 per cent increase--can you clarify that a bit more?
Mr Schnierer --I meant of all the legal services. We mentioned that there are 22 community based organisations.
Senator TIERNEY --In last year's program performance statement the Commission noted a need to clarify demarcation of the roles and responsibilities of the State legal aid commissions and the Aboriginal Legal Service. Has the Commission made any progress in this area?
Mr Schnierer --In the context of the Government response to the report of the Royal Commission into Aboriginal Deaths in Custody--we worked very closely with the Attorneys-General on this--there was a belief that there is a great unmet demand for legal services; particular kinds of legal services. For example, there is an increased need for legal aid commissions to be resourced further to enable them to provide services to Aboriginal and Torres Strait Islander people.
In that context we have been looking at how legal aid commissions can service Aboriginal and Torres Strait Islander people who are choosing not to use Aboriginal legal services. That demarcation issue is being worked through in the context of the right of people to choose between ALSs and legal aid commissions in regard to their legal service needs. The demarcation relates to the Legal Aid Commission's criteria on whether it should fund a particular person and whether, if Aboriginal and Torres Strait Islander people meet that set of criteria, they are entitled to that service.
Senator TIERNEY --Last year the Commission envisaged a review of the Queensland Aboriginal Legal Service. Has this review commenced? If so, are there reports on its findings?
Mr Schnierer --There are a number of legal services in Queensland. Could you be more specific, Senator?
Senator TIERNEY --Are you saying that there is more than one body named the Queensland Aboriginal Legal Service?
Mr Schnierer --There are a number of independent Aboriginal legal services.
Senator TIERNEY --We are going back to last year's reports where the Commission envisaged, at that point, a review. That proposal was coming out of ATSIC at that time. We are asking for a progress report on your plans last year.
Mr Schnierer --I will have to take the question on notice.
Senator TIERNEY --ATSIC conducted an assessment of the funding basis of Aboriginal legal services. Can the Commission provide any details of that assessment?
Mr Schnierer --I can provide some general views at this point in time.
Senator TIERNEY --Take the specific detail on notice. Do you want to make some general comments?
Mr Schnierer --Yes. The report of the assessment has not yet been finalised. The assessment is looking at how legal services have been funded and putting up propositions about whether that needs to be changed. We are finding that the basis for the funding of ALSs has not changed at all in any dramatic kind of way for many years, and that we do need to have a serious look at whether we continue with a historic basis or look to finetune the criteria for funding on agreed criteria with ALSs.We are trying to work cooperatively with Aboriginal legal services to address that issue.
One of the findings, as I indicated earlier, was that the unmet need in terms of the demand on Aboriginal legal services causes dramatic strain on the limited budgets that are available. The situation at this point in time is that we need to work with legal services to work out better ways for them to prioritise the use of the resource that they have now, and try to catch up with the unmet need that is obviously there which was clearly identified in the report of the Royal Commission into Aboriginal Deaths in Custody. In general terms, the funding basis does seem to be inadequate and we do need to address that. It has been addressed quite significantly in the context of the Commonwealth's response to the Royal Commission report.
Senator TIERNEY --The number of young Aboriginal offenders is a matter of great concern. What strategies is the Commission looking at at this stage to try to reduce this?
Mr Schnierer --We have worked on a number of strategies specifically in terms of the Commonwealth Government's response to the Royal Commission report. The needs of Aboriginal and Torres Strait Islander youth ranked as one of the highest priorities of the Commission in terms of any resources that may flow from the Commonwealth Government.
You will notice in the various subprogram components in the program performance statements a range of youth oriented initiatives. There is the young people's employment program and the young people's development program. We are looking at a youth bail hostel program. We are also looking, in the specific funding allocation, to enhance services to Aboriginal legal services. Aboriginal legal services are responding to specific recommendations in the Royal Commission report which look at specialised youth legal services within their operation.
So on a number of fronts the Commission is trying to deal with the difficulties facing Aboriginal and Torres Strait Islander youth in terms of education, employment, legal services and actual alternatives to sentencing as well.
CHAIRMAN --We will now look at component 3.3, International Issues and Human Rights.
Senator CRANE --On page 169 we see total expenditure of $1,500,000 and when we read the chart there are no appropriations and no outlays. I do not see any of the other accounts presented in that manner. Can you explain why it is presented in that manner and where the money is coming from if there is no appropriation?
Dr Shergold --Yes. The board made a decision that it would set aside $1.5m this year from its global vote to support the International Year for the World's Indigenous People, and that sum reflects that decision.
Senator CRANE --I understand that, but there are no appropriations and no outlays; where is the money coming from? Is it out of another program?
Mr Eldridge --The reason there is no appropriation is that that particular allocation is fully funded from cash balances brought forward from 1991-92.
Senator CRANE --Thank you. It is a significant amount of money, in terms of presentation. What is actually planned? Where is the conference being held? What are the activities--are they in Australia or will they involve going overseas?
Dr Shergold --A huge number of activities have been planned. Many of those will not be funded in any way from that $1.5m. In other words, ATSIC, as the coordinating agency, is looking to all Commonwealth government agencies and State government agencies to contribute from within their existing resources to events to mark the international year. At the Commonwealth level, many of the agencies have now responded.
The $1.5m is being set aside to help support a number of significant international conferences and major domestic conferences being planned for next year, for example, conferences on Aboriginal communities and the police; Aboriginal people in the media; a major international Aboriginal youth conference; and so on. So some of the money will go to supporting conferences. A significant portion of the money, some $600,000, will go through regional councils to community organisations to give them relatively modest amounts of $10,000 to $15,000 each next year to have some event to mark the international year, and some of that $1.5m will be used to allow representatives of community organisations to attend some of the conferences that are being planned for the international year.
Senator CRANE --Are they overseas or within Australia or both?
Dr Shergold --Both.
Senator CRANE --Would it be possible to get me a list of the ones that are overseas?
Dr Shergold --Immediately I have a list of all the conferences being planned, I will certainly give it to you. One of the difficulties we have at the moment is successfully identifying all the major conferences that are being planned, but I can certainly send you the list we have so far and keep you updated throughout the course of the year.
Senator TIERNEY --Mr Chairman, I have four more questions--two related to this area and two related to program 4--and I would be happy to put those on notice.
CHAIRMAN --Is it the wish of the Committee that these questions be tabled? There being no objection, it is so ordered. Senator Tambling has given me some questions in relation to the Department of Primary Industries and Energy. Is it the wish of the Committee that they be incorporated in Hansard? There being no objection, it is so ordered. That completes consideration of appropriations for ATSIC. Thank you, Minister, for your attendance; you were shanghaied into this one. I thank the officers for their patience.
Committee adjourned at 10.59 p.m.