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Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015

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2013-2014-2015

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

Australian Institute of Aboriginal and Torres Strait Islander Studies

Amendment Bill 2015

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Education and Training,

Senator the Honourable Simon Birmingham)



Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015

 

OUTLINE

 

 

The Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (AIATSIS Act) was passed by Parliament on 27 November 1989.

 

The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) is a publicly-funded research agency and a Commonwealth corporate entity under the Public Governance, Performance and Accountability Act 2013.

 

The AIATSIS Act sets out the functions of AIATSIS. It details the role of members, the constitution and operations of the AIATSIS Council, the composition of the AIATSIS executive and AIATSIS financial operations.

 

The Bill amends the AIATSIS Act to enable changes to the AIATSIS Council appointment process and to refocus the functions of AIATSIS. The Bill also amends the AIATSIS Act to reflect contemporary language that better reflects the functions of AIATSIS and ensure that culturally appropriate terminology is used in the Act. 

 

The AIATSIS Council appointment process will be reformed so as to better reflect the skills needed for effective governance and to ensure diversity, while retaining an Indigenous majority; and limit Council members to a maximum of two consecutive terms. Refocusing the functions of AIATSIS will ensure that the nation is able to preserve, understand and communicate its Aboriginal and Torres Strait Islander peoples’ culture and heritage now and in the future.

   

FINANCIAL IMPACT STATEMENT

 

 

The financial impact of the measures in the Bill are expected to be nil or insignificant.  The amendments in the Bill form part of a reform agenda for governance of the Institute and may therefore create administrative efficiencies.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015

 

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The purpose of the Bill is to amend the Australian Institute of Aboriginal and Torres Strait Islander Act 1989 (AIATSIS Act) to enable changes to the AIATSIS Council appointment process to ensure that an Indigenous majority is maintained, while allowing for a broad skills-based Council in keeping with contemporary governance. The Bill will also refocus the functions of AIATSIS so that resources can be better targeted for the care of AIATSIS’ collection. These reforms have the support of AIATSIS.

 

The amendments will strengthen the Institute’s governance and serve to maintain and preserve the AIATSIS national collection of Australian Indigenous cultural materials by directing resources to development, preservation and access to the collection. The national collection serves as a major resource of cultural and heritage items and is the largest of its kind in the world. It is also a resource that will allow Aboriginal and Torres Strait Islander peoples to conserve and access their culture and heritage.

 

The amendments will also ensure that the AIATSIS Act reflects contemporary language that captures the full range of AIATSIS’ functions and applies culturally appropriate terminology in describing Aboriginal and Torres Strait Islander peoples in the AIATSIS Act. There are also amendments to reflect contemporary language and apply culturally appropriate terminology by using references to ‘Aboriginal and Torres Strait Islander culture and heritage’ and ‘Aboriginal and Torres Strait Islander peoples’ in relevant provisions in the Act.

 

The number of functions of the Institute, as set out in section 5 of the AIATSIS Act, will be reduced from eight to five to ensure a better targeting of resources and direction of maximum effort to the AIATSIS national collection and its use to promote knowledge and understanding of Australian Indigenous cultures.  The changes in function will enable the Institute to concentrate on its mandate as a national authority on the world’s oldest continuing culture for future generations, including the preservation of its irreplaceable and important collection.  

The AIATSIS Council appointment process will be reformed to better reflect the skill set required for contemporary and effective governance by amending the provisions in section 12 of the AIATSIS Act to ensure diversity and the appointment of persons with a range of skills, while retaining an Indigenous majority; and limiting Council members to a maximum of two consecutive terms. Changes to appointments of membership and period of membership and to appointments to the AIATSIS Council will only affect new appointments made after the commencement of these provisions.

 

There are some minor and technical changes being made by the Bill, including amending references to the title of Principal of the Institute, to be replaced with the title of Chief Executive Officer. These are minor and technical changes which do not engage any human rights.

 

Human rights implications

This Bill engages the following rights:

·          right to self-determination under article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Also, while not binding, the right to self-determination is reflected in article 3 of the Declaration on the Rights of Indigenous Peoples (UNDRIP)

·          right to non-discrimination in article 26 of the ICCPR

·          right to work in article 6 of the ICESCR

·          right to education in article 13 of the ICESCR, and

·          right to enjoy and benefit from culture in article 27 of the ICCPR and article 15(1)(a) of the ICESCR.

 

Right to self-determination

 

The Bill promotes the right to self-determination for Aboriginal and Torres Strait Islander peoples. While there is no universally accepted agreement as to the content of the right to self-determination, it is agreed that, at a minimum, it entails the entitlement of peoples to have control over their destiny and to be treated respectfully, including being free to pursue economic, social and cultural development.

 

The Bill promotes the right to self-determination by reinforcing the requirement for an Indigenous majority on the AIATSIS Council, which is the primary decision-making body that ensures the proper and effective performance of AIATSIS and determines its policy under section 13 of the AIATSIS Act. In order to fulfil these functions, the cultural knowledge and understanding of Aboriginal and Torres Strait Islander peoples is critical. The existing requirement that at least one of the Council members be a Torres Strait Islander is retained. The Bill stipulates that the Minister has the responsibility, taking into account the characteristics of elected Council members and appointed Council members at the time, to ensure that there is an Indigenous majority on the Council.

 

The Bill will ensure that Council members have the skill set and experience necessary to govern the Institute into the future. This is achieved by requiring that five of the nine person board should have skills and experience in cultural material conservation, collection management, research, fundraising, finance, business and law.

 

Reducing the AIATSIS functions from eight to five, will better target AIATSIS’ resources and direct maximum effort to the preservation, management, access and growth of the collection. This will ensure AIATSIS maintains its important leadership role in Indigenous studies, and its ability to engage with the increasing number of academics and universities involved in Aboriginal and Torres Strait Islander studies and for Aboriginal and Torres Strait Islander peoples in determining their cultural development and retaining their culture and heritage.

 

On this basis, these measures promote the right to self-determination for Aboriginal and Torres Strait Islander peoples.

 

Right to non-discrimination

 

The Bill engages the right to non-discrimination which ensures that no one is denied their rights because of factors such as race. Sometimes, it may be necessary to treat people differently to achieve equality. This is because differences between people may make it difficult for them to enjoy their rights without support. Different treatment will not amount to prohibited discrimination if the criteria for the differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR.

 

Legislating for an Indigenous majority on the AIATSIS Council constitutes differential treatment as decisions regarding the work of AIATSIS are made by Council members who have knowledge of Indigenous culture and heritage thereby promoting the rights of Aboriginal and Torres Strait Islander peoples to take part in cultural life (see below). These measures are reasonable. Four out of the nine Council members can be from other cultural backgrounds. This measure is also objective as only Aboriginal and Torres Strait Islander peoples can hold these designated positions on the AIATSIS Council where their experience will be critical to the work of the Institute.

 

On this basis, this measure constitutes legitimate differential treatment and is consistent with the right to non-discrimination.

 

Right to work

 

The right to work in article 6 of the ICESCR includes the right of everyone to gain his or her living by work which he or she freely chooses or accepts. In setting out the eligibility for appointment and terms of appointment for Council members, the Bill engages the right to work. 

 

The Bill specifies a diverse, contemporary skills base for appointees to the AIATSIS Council. The Bill will also mandate for the permissible treatment of Indigenous control of the Council by specifying that the majority of Council members are of Aboriginal or Torres Strait Islander background.  The Bill specifies that the terms of Council members will also be limited to two consecutive terms, providing an equitable position in which other individuals are considered for appointment.

 

Right to education

 

The Bill engages the right to education which the United Nations Committee on Economic, Social and Cultural Rights has stated requires that functioning educational institutions, including research institutions, be available in sufficient quantity. The Bill promotes the right to education as it seeks to focus the work of the Institute on promoting knowledge and understanding of Aboriginal and Torres Strait Islander culture and heritage and providing leadership in the research of Aboriginal and Torres Strait Islander culture and heritage. 

 

In developing and preserving the national collection, the Institute will be able to make the collection accessible to those communities wishing to research their culture and heritage as well as for academic purposes.

 

Right to enjoy and benefit from culture

 

The Bill engages the right to enjoy and benefit from culture for minority groups, which the UN Human Rights Committee considers includes Indigenous peoples, and more generally to be able to take part in cultural life. The UN Human Rights Committee has stated that the right to enjoy culture is directed towards ‘ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole’.  

 

Focusing the functions of the Institute will ensure that the most important and urgent work is prioritised to continue to preserve the national collection.  Resources will be also be directed to improving access to the collection for Indigenous communities and to promoting knowledge and understanding of Aboriginal and Torres Strait Islander culture and heritage within the wider community. 

 

In this way the Bill promotes the right to enjoy and benefit from culture. In addition, by strengthening the contribution of AIATSIS in research, ethics, and use of cultural materials, it contributes to the enjoyment and benefit of culture by Aboriginal and Torres Strait Islander peoples.

 

Conclusion

 

The Bill is compatible with human rights requirements as it promotes the protection of human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.



 

 

Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015

 

 

 

NOTES ON CLAUSES

 

 

Clause 1 - Short title

 

Clause 1 provides for the Act to be cited as the Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Act 2015 .

 

Clause 2 - Commencement

 

Subclause 2(1) inserts a three column table setting out commencement information for various provisions in the Bill. Each provision of the Bill specified in column 1 of the table commences (or is taken to have commenced) in accordance with column 2 of the table and any other statement in column 2 has effect according to its terms.

 

The Act commences on the day after it receives the Royal Assent. 

 

Any information in column three of the table is not part of the Act.

 

A note explains that the commencement times in the table will not be amended should the provisions of this Act be amended by any future Act.

 

Clause 3 - Schedule(s)

 

Clause 3 provides that any legislation that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule and that any other item in a Schedule has effect according to its terms.

 

List of abbreviations

 

AIATSIS means the Australian Institute of Aboriginal and Torres Strait Islander Studies.

 

AIATSIS Act means the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989.



Schedule 1      Amendments

 

 

Summary

 

Schedule 1 to the Bill amends the AIATSIS Act in order to:

 

·          reform the appointment process for Council members of AIATSIS

 

·          refocus the functions of AIATSIS to better target resources and direct maximum effort to the AIATSIS collection

 

·          reflect contemporary language that better reflects the functions of AIATSIS and applies culturally appropriate terminology in describing Aboriginal and Torres Strait Islander peoples in the AIATSIS Act

 

·          allow for the repeal of redundant sections that were established to deal with administrative and staffing requirements as AIATSIS transitioned from the Australian Institute of Aboriginal Studies to the current Institute.

 

Background

 

The Bill will strengthen the Institute’s governance and serve to maintain and preserve the AIATSIS national collection of Australian Indigenous cultural materials by directing resources to development, preservation and access to the collection. The national collection serves as a major resource of cultural and heritage items and is the largest of its kind in the world. It is also a resource that will allow Aboriginal and Torres Strait Islander peoples to conserve and access their culture and heritage.

 

The amendments in the Bill reflect the contemporary environment of Aboriginal and Torres Strait Islander peoples’ heritage and culture and associated collections and research and focus AIATSIS’ efforts on its national role and leadership in preserving, understanding and communicating that heritage and culture for future generations.

 

 

 

 

 

 

 

 

Detailed explanation

 

Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989

 

Item 1

 

This item repeals the definition of Aboriginal and Torres Strait Islander studies which is consequential on the repeal or amendment of all the provisions in the AIATSIS Act that relied on this definition.

 

Items 2 and 4

 

Part 5 of the AIATSIS Act concerns the Council of the Institute, including how Council members are appointed (section 12) and the terms of their appointment (section 15).

 

Item 2 makes a consequential amendment to the definition of appointed Councillor in section 3 of the AIATSIS Act so that it will read as follows:

 

appointed Councillor means a Councillor referred to in paragraph 12(1)(c).

 

Item 4 makes a consequential amendment to the definition of elected Councillor in section 3 so that it will read as follows:

 

elected Councillor means a Councillor referred to in paragraph 12(1)(a) or (b).

 

Items 3 and 5

 

Part 6 of the AIATSIS Act provides for matters concerning the Principal of the Institute. As the title of the Principal is being changed to Chief Executive Officer:

 

·          Item 5 repeals the definition of Principal in section 3.

 

·          Item 3 inserts a definition of Chief Executive Officer into section 3 as follows:

 

Chief Executive Officer means the Chief Executive Officer of the Institute referred to in section 24.

 

Item 6

 

Item 28 of the Bill repeals Part 8 of the AIATSIS Act which provides for the Research Advisory Committee. Item 6 repeals the definition of Research Advisory Committee in section 3.

 

The Council will establish committees when and if required to support current priorities across AIATSIS’ functions. 

 

Item 7

 

Section 5 of the AIATSIS Act provides for the functions of the Institute. This item repeals the present functions and substitutes the following functions:

 

·          to develop, preserve and provide access to a national collection of Aboriginal and Torres Strait Islander culture and heritage;

·          to use that national collection to strengthen and promote knowledge and understanding of Aboriginal and Torres Strait Islander culture and heritage;

·          to provide leadership in the fields of:

o    Aboriginal and Torres Strait Islander research; and

o    ethics and protocols for research, and other activities relating to collections, related to Aboriginal and Torres Strait Islander peoples; and

o    use (including use for research) of that national collection and other collections containing Aboriginal and Torres Strait Islander culture and heritage;

·          to lead and promote collaborations and partnerships among the academic, research, non-government, business and government sectors and Aboriginal and Torres Strait Islander peoples in support of the other functions of the Institute;

·          to provide advice to the Commonwealth on the situation and status of Aboriginal and Torres Strait Islander culture and heritage.

 

Items 8, 9, 10 and 11

 

Section 7 of the AIATSIS Act provides for members of the Institute.

 

Item 8 of the Bill repeals and substitutes subsection 7(1) to provide that, subject to Part 4 (members of the Institute), the members of the Institute are those appointed as members by the Council.

 

As the Research Advisory Committee is being abolished, item 11 repeals paragraphs 7(2)(c) and (d) which provide for the Committee to give advice to the Council about appointing particular persons to be members of the Institute.

 

Item 9 makes a technical amendment to paragraph 7(2)(a) to provide that the Council shall not appoint a person to be a member of the Institute unless the person meets the criteria in paragraphs 7(2)(a) and (b).

 

Item 10 makes a minor amendment to paragraph 7(2)(b) to provide that the Council shall not appoint a person to be a member of the Institute unless the person has demonstrated interest in Aboriginal and Torres Strait Islander culture and heritage (instead of Aboriginal and Torres Strait Islander studies).

 

 

 

 

Item 12

 

This is an application provision, the effect of which is that:

 

·          the amendments made by this Schedule to section 7 of the AIATSIS Act apply to the making of appointments to membership of the Institute on or after the amendments commence (that is the day after this Bill, once enacted, receives the Royal Assent), as a result of applications for membership made before, on, or after that commencement date

·          the repeal and substitution of subsection 7(1) does not affect the continuity of a person’s membership of the Institute, where the person was a member immediately before the repeal and substitution commences (that is the day after this Bill, once enacted, receives the Royal Assent).

 

Item 13

 

Section 8 of the AIATSIS Act deals with the period of a person’s membership of the Institute. Currently, subsection 8(1) deals with appointments made under paragraphs 7(1)(a) and (c) and subsection 8(2) deals with appointments made under paragraph 7(1)(b).

 

Consequent upon the repeal and substitution of subsection 7(1) (see item 8), item 13 repeals subsections 8(1) and (2) and substitutes a new subsection 8(1). New subsection 8(1) provides that the appointment of a person as a member of the Institute is for a period of five years.

 

Item 14

 

This item replaces ‘Principal’ with ‘Chief Executive Officer’ in sections 9 (resignation of members) and 10 (register of members) of the AIATSIS Act.

 

Item 15

 

This is a savings provision, the effect of which is that the amendments made by this Schedule to section 10 of the AIATSIS Act will not affect the continuity of the register of members.

 

Item 16

 

Item 16 repeals and substitutes paragraphs 12(1)(a), (b) and (c). The effect of this is that Council membership will consist of the following:

 

·          paragraph 12(1)(a) - two Aboriginal or Torres Strait Islander persons who are members of the Institute (as elected by the members of the Institute in accordance with Institute rules)

·          paragraph 12(1)(b) - two persons who may or may not be Aboriginal or Torres Strait Islander persons who are members of the Institute (as elected by the members of the Institute in accordance with Institute rules)

·          paragraph 12(1)(c) - five persons appointed by the Minister with skills or experience in at least one of the following:

o    cultural material conservation

o    collection management

o    research

o    fundraising

o    finance

o    business

o    law.

 

Item 17

 

Item 17 inserts new subsections 12(1A) and 12(1B).

 

New subsection 12(1A) provides that, when making appointments, the Minister, taking into account the characteristics of all elected and appointed Council members at that time, must ensure:

 

·          at least five Councillors are Aboriginal or Torres Strait Islanders persons; and

·          at least one Councillor is a Torres Strait Islander.

 

The effect of new subsection 12(1B) is that a person cannot be elected or appointed as a Council member for more than two consecutive terms. That person can, however, be elected again as a Council member for a further term or terms, as long as the further term does not commence immediately after the end of the two consecutive terms. A note explains that section 15 deals with the term of office of a Councillor.

 

Item 18

 

This item is a transitional and application provision relating to the appointment of Councillors, the effect of which is as follows:

 

·          the amendments made to section 12 do not affect the continuity of office of any Council members who held office before the amendments commence (which is the day after this Bill, once enacted, receives the Royal Assent). In other words, those persons appointed as a Councillor before this time will continue to serve out the remainder of their terms of appointment

·          new paragraphs 12(1)(a) and (b) will apply to elections for Councillors only after the terms of office of all persons who were elected as Councillors immediately before the amendments commence have served out their terms of appointment

·          new paragraph 12(1)(c) and new subsection 12(1A) will apply to Councillor appointments made on or after the date these new provisions commence

·          new subsection 12(1B) will apply to the election and appointment of Councillors for terms that start on or after the date this new provision commences - whether or not such terms of appointment may have commenced before or after this commencement time.

 

Item 19

 

This item makes a consequential amendment to subsection 21(2A) to insert reference to new paragraph 12(1)(b) in subsection 21(2A).

 

Item 20

 

This item amends the heading to Part 6 of the AIATSIS Act so that it reads ‘Chief Executive Officer’ instead of ‘Principal’.

 

Item 21

 

This item amends the heading to section 24 of the AIATSIS Act so that it reads ‘Chief Executive Officer’ instead of ‘Principal’.

 

Item 22

 

This item omits the word ‘Principal’ in subsections 24(1), (2) and (3) of the AIATSIS Act and substitutes the words ‘Chief Executive Officer’.

 

Item 23

 

This is a transitional provision, the effect of which is deem that the person who was the Principal of the Institute immediately before the commencement of the amendments to section 24 of the AIATSIS Act, is taken to be the person appointed by the Council as the Chief Executive Officer under section 25 for the remainder of the period of that person’s appointment as Principal.

 

Item 24

 

This item amends subsection 25(1) to omit reference to “The Principal” and substitute with reference to “The Chief Executive Officer”. It also removes reference to the redundant subsection (1) in section 25.

 

Items 25, 26, 27, 28 and 31

 

These items omit the word ‘Principal’ and substitute the words ‘Chief Executive Officer’ in sections 26, 26A, 27 and 28, paragraphs 29(2)(a) and (b), subsection 30(1) and section 44.

 

 

 

Item 28

 

In order for the Council to have the sole responsibility for appointing members of the Institute and to advise on research matters, this item repeals Part 8 of the AIATSIS Act - Research Advisory Committee.

 

The Council will establish committees when and if required to support current priorities across its functions.

 

Item 29

 

This item amends subsection 43(1) to change the reference to “Aboriginal persons and Torres Strait Islanders” to “Aboriginal and Torres Strait Islander peoples”.

 

Item 30

 

This item amends the heading to section 44 of the AIATSIS Act so that it reads ‘Delegation to Chief Executive Officer or staff’ instead of ‘Delegation to Principal or staff’.

 

Item 32

 

This item provides that any section 44 delegation of powers to the Principal in force immediately before the commencement of the amendments made by this Schedule continues in force as a delegation to the Chief Executive Officer. This does not, however, prevent any such delegation being amended or revoked on or after that commencement time.

 

Item 33

 

This item repeals the definition of authorised officer in section 50, which is only relevant for the purposes of sections 59 and 65. As sections 59 and 65 are being repealed the definition is redundant and no longer required.

 

Item 34

 

This item repeals the following redundant or spent provisions which are no longer required:

 

·          section 52 (Interim Council)

·          section 53 (first Principal of the Institute)

·          section 56 (pending legal proceedings prior to the commencement of the AIATSIS Act)

·          section 57 (Research Advisory Committee)

·          section 59 (certificates with respect to assets, liabilities and instruments)

·          section 60 (State or Territory officer may act on certificate)

·          section 61 (transfer of appropriated money)

·          section 62 (contracts of employment entered into by old Institute not preserved)

·          section 63 (transfer of staff employed by old Institute to the Australian Public Service).

 

Sections 52 to 63 are no longer required as they were established to deal with administrative and staffing requirements as the Institute transitioned from the Australian Institute of Aboriginal Studies to the current Australian Institute for Aboriginal and Torres Strait Islander Studies.

 

Items 35 and 36

 

These items amend the heading of section 64 and subsection 64(2) to replace reference to the Superannuation Benefit (Interim Arrangement) Act 1988 with the Superannuation (Productivity Benefit) Act 1988 . This reflects the current name of this Act.

 

Item 37

 

This item repeals the redundant section 65 (exemption from taxation).

Section 65 was established to deal with administrative requirements as the Institute transitioned from the Australian Institute of Aboriginal Studies to the current Australian Institute for Aboriginal and Torres Strait Islander Studies and is no longer required.