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Wednesday, 4 November 1992
Page: 2607


Mr TICKNER (Minister for Aboriginal and Torres Strait Islander Affairs and Minister Assisting the Prime Minister for Aboriginal Reconciliation) (8.18 p.m.) —I move:

  That the Bill be now read a second time.

The Bill proposes a number of amendments to the Aboriginal Councils and Associations Act 1976, hereafter referred to as the Act, which are designed to improve the Act so as to: firstly, clarify and strengthen the obligations of governing committees of corporations; secondly, protect better the rights of their members; and, thirdly, streamline and strengthen powers of the Registrar of Aboriginal Corporations to take action against corporations which are in breach of their obligations under the Act.

  When the then Minister for Aboriginal Affairs, the Hon. Ian Viner, MP, introduced the Aboriginal Councils and Associations Bill 1976 to this Parliament on 3 June 1976 he emphasised two features of the new legislation. These were its relative simplicity and flexibility to meet a wide variety of community needs and its capacity to take into account the particular cultural needs of Aboriginal and Torres Strait Islander communities and groups.

  I can assure honourable members that both these qualities remain untarnished. So, too, does the Act's capacity to provide groups of Aboriginal and Torres Strait Islander peoples with an inexpensive and straightforward means of gaining incorporation. While Aboriginal and Torres Strait Islander communities and groups can choose to be incorporated under various forms of State and Territory legislation, incorporation under the Aboriginal Councils and Associations Act has proved a popular option. There has been a growth in the number of incorporated associations since the commencement of the Act in 1978, reaching approximately 1,600 at 30 September 1992.

  The requirement that government funding to Aboriginal and Torres Strait Islander communities and groups must be by way of grants to incorporated bodies has been a powerful incentive for groups to seek incorporation. The Board of Commissioners of the Aboriginal and Torres Strait Islander Commission has repeatedly made it clear that accountability for the expenditure of funds provided to Aboriginal community organisations through the Commission is not negotiable. The ATSIC commissioners have done this, for example, by requiring the acquittal by funded organisations of all previous grants before the release of further funds to an organisation.

  In this, the Commissioners are reflecting the views of Aboriginal and Torres Strait Islander people at the community level who recognise that public accountability for expenditure in Aboriginal and Torres Strait Islander Affairs is not only a legitimate concern of governments, it is also the right and expectation of Aboriginal people who are the clients of funded organisations. However, the Act has not provided the Registrar of Aboriginal Corporations with the means to ensure compliance with the obligations of incorporation. The amendments contained in this Bill are designed to assist the Office of the Registrar in the more effective enforcement of compliance with the Act, and in particular to protect the rights of members of associations.

  The Royal Commission into Aboriginal Deaths in Custody recommended in its historic report that, in the implementation of any policy or program which will particularly affect Aboriginal people, the delivery of the program should as a matter of preference be made by such Aboriginal organisations as are appropriate—recommendation 192. That recommendation of the Royal Commission was supported by all Australian governments, State, Territory and Commonwealth.

  The Royal Commission also recognised that governments were entitled to require a proper system of accounting for funds provided to Aboriginal communities and organisations. The provisions contained in this Bill reflect the desire of the Government for proper standards of accountability in the expenditure of public funds. Equally importantly, however, these provisions also reflect the expectation of Aboriginal and Torres Strait Islander people that funded organisations will manage resources made available to them in an effective and efficient manner and in the interests of the communities they serve. That expectation can only be met if associations are required to meet high standards of public accountability in the management of their affairs.

  The people who take positions on the governing committees of these associations have very serious responsibilities and are doing great service for their communities. Frequently they carry the additional burdens of limited education and management experience. They are deserving of considerable support in these roles, including having clearly stated for them the requirements of incorporation.

  There is no acceptable alternative to the establishment of honesty and clear and open accountability as the guiding principles for the conduct of the affairs of these incorporated associations. To accept anything less is to deny Aboriginal and Torres Strait Islander people in the communities a chance for a better life. We must not risk undermining the whole strategy of Aboriginal self-management through the erosion of public confidence in it.

  The Act is an important tool in the Government's hand for ensuring accountability and transparency in the operations of incorporated bodies. Unfortunately many of its compliance and accountability provisions have proved to be blunt and unwieldy in their application. The central purpose of the amendments contained in this Bill is to correct these deficiencies in the Act. The amendments will strengthen the obligations of the governing committees and the corresponding rights of the members of incorporated associations in the following ways:

.Clause 10 will make the rules of an association have the effect of a contract between the association, its members, the members of the governing committee and the public officer;

.Clause 11 will provide for the disqualification from being on governing committees of people with convictions for offences involving fraud or misappropriation of funds, the requirement for committee members to disclose pecuniary interests, to act honestly and diligently and the requirement for committee members to vacate office in the event of becoming bankrupt;

.Clause 13 will require governing committees to call and conduct annual general meetings and special general meetings as provided in the association's rules; and

.Clause 14 will require that the committee's and examiner's reports, which the governing committee is required to produce, will be made available at annual general meetings and for inspection by members of associations.

Another set of amendments is aimed at ensuring that governing committees do not run the affairs of associations without due regard for the wishes of the members, and avoiding fragmentation of community groups.

.Clause 9 will enable the Registrar to refuse to issue a certificate of incorporation to an association if the rules do not give members an effective degree of control over the running of the association;

.Clause 9 will provide that associations which are not formed wholly for business purposes, or to hold title to land or a leasehold interest, will be required to have at least 25 members; and

.Clause 12 will require that governing committees provide the Registrar with updated lists of membership of associations. This should clarify situations when the Registrar is obliged to act as an arbitrator in disputes.

  Each of these amendments will either confer new rights or clarify and strengthen existing rights of members of associations and ensure that governing committees conduct the affairs of associations honestly, openly and in the interests of Aboriginal and Torres Strait Islander people and the communities in which they operate.  The amendments will streamline and strengthen the powers of the Registrar to take action against corporations which are in breach of their obligations under the Act.

  A major deficiency in the Act is the limitation on the Registrar regarding the power to act as an arbitrator in disputes. Clause 13 will provide the Registrar with specific powers to act in the role of an arbitrator of disputes and includes the ability to require governing committees to call and conduct annual general meetings and special general meetings. This should be a means by which matters can be resolved before they develop into damaging and time consuming disruptions to the affairs of associations.

  Clause 16 will provide procedures by which the Registrar may investigate the affairs of an association. These are now considerably streamlined. Instead of having to engage registered company auditors for all investigations, the Registrar can appoint an authorised person to examine the documents of an association. The person may well be a qualified auditor in some situations, but in many situations, such qualifications would not be required. This can provide both a saving in costs and a greater ability to act quickly and with flexibility.

  Clause 17 will give the Registrar power to apply for injunctions where the Registrar considers that an association is not complying with a provision of the Act, the regulations or the association's rules. This procedure replaces a more complicated procedure involving the issue of several notices on the association, prior to any legal action being taken regarding its non-compliance with the Act.

  The provisions of the Act under which the Registrar can apply to the court to appoint a judicial manager are replaced by clause 23, which will give the Registrar powers to appoint an administrator. This again will give the Registrar more flexibility and the ability to act more quickly when there are requirements that the affairs of an association be placed under special management.

  The amendments contained in this Bill will make it easier to achieve better accountability without placing onerous burdens on the governing committees of incorporated associations. All of the associations incorporated under the Act will be informed of the amendments once they become law. I commend the Bill to the House, and I present the explanatory memorandum.

  Debate (on motion by Dr Wooldridge) adjourned.