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Aboriginal and Torres Strait Islander Commission Amendment Bill (No. 1) 1999
Bills Digest No. 40 1999-2000
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest d oes not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Aboriginal and Torres Strait Islander Commission Amendment Bill (No.1) 1999
Commencement: Formal provisions will commence on Royal Assent. Commencement of the substantive provisions is related to the commencement of Schedule 2 of the Aboriginal and Torres Strait Islander Commission Amendment Act 1996 (see below).
The Aboriginal and Torres Strait Islander Commission Amendment Bill (No.1) 1999 amends provisions of the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act) relating to the election of the Chairperson of the Aboriginal and Torres Strait Islander Commission (ATSIC).
ATSIC is the principal Commonwealth agency concerned with Aboriginal and Torres Strait Islander affairs. It serves the role of a government department, being responsible for policy formulation and the development and implementation of a wide range of programs. It also acts as an independent agency, representing the interests of Aboriginal and Torres Strait Islander people to governments and government agencies.
ATSIC has a representative arm. This arm consists of 35 Regional Councils throughout Australia.(1) Regional Councils are elected by Indigenous Australians according to Regions and Zones established under the ATSIC Act. Regional Councils represent and advocate the interests of Indigenous residents in their Region and formulate regional plans for their social, economic and cultural advancement. The Regions are grouped into 16 Zones.(2) The representative arm also consists of the Torres Strait Regional Authority. There is a single zone for the Torres Strait.
At a national level the representative arm consists of the Board of Commissioners. The Board is the main policy making body and allocates funding to national priorities and budgets.
As originally passed, the ATSIC Act provided for a Board of 20 Commissioners appointed by the Minister. Regional Councils elected 16 Commissioners.(3) Another Commissioner was elected by the Tor res Strait Regional Authority. A further two Commissioners and the Commission Chairperson were chosen by the Minister. Regional Council elections must be held every three years.(4) The first Regional Council elections were held in November 1990.
In 1993 the ATSIC Act was amended to reduce the Board to 19 members.(5) The Minister no longer chose the Chairperson separately but was required to appoint the Chairperson from the 19 Commissioners. The second round of Regional Council elections was held in December 1993.
Late in 1993 the ATSIC Act was further amended to reduce the Board to 17 members and to increase its level of autonomy.(6) The Minister would no longer choose two Commissioners. The Board of Commissioners would choose the Chairman.(7) But the amendments wo uld not commence until the 1996 round of Regional Council elections.(8)
Prior to the 1996 Regional Council elections, further amendments were made to postpone the changes made in 1993 and to increase the Board to 18 members. For the 1996 elections, the Minister retained a power to choose one Commissioner and to appoint the Commission Chairperson.(9) The changes would commence in time for the 1999 elections.(10) The third round of elections was held in October 1996. On 9 July 1999 the Minister announced the fourth round of elections for 9 October 1999.
A key issue in the above amendments has been the role of the Minister in selecting and appointing Commissioners and the Commission Chairperson. The amendments to the ATSIC Act which were p assed in late 1993 were originally proposed by the Labor Government earlier that year. They were based on the rationale that appointments were inconsistent with the ethos of self-determination and empowerment that underpinned the ATSIC Act.(11)
However, they were abandoned after opposition from the Coalition and Democrats. The Coalition expressed concern about accountability. It also felt that, in relation to the choice of Commission Chairman, Ministerial involvement provided an opportunity for wider consultation with a range of indigenous groups and might increase the chance of securing a person with appropriate qualifications.(12) The Democrats cited Indigenous concerns that ATSIC was not quite ready for the change.(13)
The amendments were reintroduced in late 1993 following structural changes to ATSIC. The Democrats supported the amendments on the basis that the changes had improved financial and representative accountability. Indeed there were references to the recurring argument that, among all Commonwealth funded agencies, ATSIC was the most highly regulated and accountable.(14) The Bill was passed in late 1993.
The commencement of the substantive provisions is tied to the commencement of Schedule 2 to the Aboriginal and Torres Strait Islander Commission Amendment Act 1996 . This Schedule will commence after the fourth round of Regional Council elections in October 1999 following the appointment of the first Commissioner by the Minister.
Section 27 of the ATSIC Act provides that the Commission consists of 17 members elected under the Act and appointed by the Minister. Section 31A provides for the election of a Commission Chairperson by the Board. Section 39 provides for the resignation of the Chairperson.
Item 1 of Schedule 1 repeals section 27 of the ATSIC Act and replaces it with proposed subsections 27(1) and 27(2) . Proposed subsection 27(1) removes the current reference to 17 members. Proposed subsection 27(2) clarifies that the Minister must appoint as Commissioners those persons elected by Regional Councils. Item 2 of Schedule 1 inserts proposed subsection 31A(3) which provides that a person elected as Commission Chairperson forfeits his or her position as a Regional Councillor and as a Zone Commissioner. Item 3 inserts proposed subsection 39(1A) which provides that, when the Commission Chairperson resigns, he or she is taken to have resigned as a member of the Commission.
These provisions complement the changes discussed above. They have the effect that when the B oard elects its Chairperson, a position becomes vacant within the relevant Regional Council, the Zone and the Board itself. This position could be filled without a fresh election or by-election, by virtue of the rules relating to casual vacancies in Regional Councils and the Board of Commissioners. They resolve a long-standing difficulty that the Board of Commissioners had in electing the Chairperson: the Board effectively forfeited a Zone Commissioner.(15) They would allow the Board to elect an ‘ambassador at large’ without compromising the need for each Zone to have its own Commissioner.
To some extent proposed subsection 27(2) creates more flexibility for further alterations in the number and composition of the ATSIC Board. By removing the reference to 17 members, there is no upper or lower limit to the size of the Board. The numbers and composition could easily vary with a change in the number of ATSIC Zones and/or representation of the Torres Strait Regional Authority.
- Aboriginal and Torres Strait Islander Commission Act 1989 , Schedule 1.
- Ibid., s 27.
- Ibid., s 104.
- Aborig inal and Torres Strait Islander Commission Amendment Act (No.2) 1993 , s 4(1).
- Aboriginal and Torres Strait Islander Commission Amendment Act (No.3) 1993 , s 113.
- Ibid., Schedule 4.
- Ibid., s 115.
- Aboriginal and Torres Strait Islander Commission Amendment Act 1996 , s 7.
- Ibid., s 2.
- Senator the Hon. John Faulkner stated: '[t]he changes are based on the Government’s commitment to Aboriginal and Torres Strait Islander self-determination and our confidence in indigenous people managing their own affairs. They are fundamentally about shifting greater decision-making power to the Aboriginal and Torres Strait Islander people themselves. They are also in line with the thrust of the report of the Royal Commission into Aboriginal Deaths in Custody': Aboriginal and Torres Strait Islander Commission Amendment Bill 1993, Second Reading Speech, Senate, Parliamentary Debates , 18 May 1993, p 662.
- Senator Baden Teague, Senate, Parliamentary Debates , 18 May 1993, p 864.
- Senator Cheryl Kernot, Senate, Parliamentary Debates , 18 May 1993, p 865.
- Senator Cheryl Kernot referred to a debate on this issue which began prior to the establishment of ATSIC and concluded: ‘[w]here is there any organisation under this government or any other government which will be as accountable as ATSIC?’: Aboriginal and Torres Strait Islander Commission Amendment Bill (No. 3) 1993, Senate, Parliamentary Debates , 28 October 1993, p 3387.
- This problem was highlighted by Senator Cheryl Kernot during the debate on the Aboriginal and Torres Strait Islander Commission Amendment Bill (No.3) 1993: Senate, Parliamentary Debates , 28 October 1993, p 3382.
25 August 1999
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