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Friday, 18 August 1989
Page: 398


Senator VANSTONE(10.42) —Senator Devlin seems to have at least heard what the Opposition has been saying in relation to the Aboriginal and Torres Strait Islander Commission Bill 1989 but he does not seem to have understood. Perhaps the honourable senator would understand what we are saying if I repeat the Opposition's position. I will give him another opportunity for this to sink in. He is correct when he points out that we say that the Government has not made a case for a statutory authority, nor for the radical changes in the administrative arrangements that are proposed. We point out that the minority report of the Senate Select Committee on the Administration of Aboriginal Affairs found, firstly, that the proposal for the Aboriginal and Torres Strait Islander Commission (ATSIC) was unjustified, unnecessary and culturally inappropriate and, secondly, that it would operate to the detriment of Aborigines and lead to worse services and to less accountability both to Aborigines and all Australians. I suggest that Senator Devlin should have taken the opportunity to address those points in his speech. Let him point out why those remarks are inappropriate.

We further say that the consultation process preceding the proposal for ATSIC was inadequate. We say that the majority of Aborigines neither understand nor identify with it. We say that ATSIC will regionalise and centralise control and that, as a bureaucratic means of representation, it will undermine traditional and local Aboriginal networks. It will set priorities, despite the expressed desire by many Aboriginal people for more local authority.

We say that the proposal is fundamentally flawed in that it seeks to incorporate representative and administrative processes in the same structure. We say that there is no attempt to propose constructive interaction between the States and the Commonwealth and that the proposal will add to waste and the duplication of programs at all levels of government. I could go on. But I chose to reiterate a number of the Opposition's concerns in relation to ATSIC, to draw them yet again to Senator Devlin's attention and give him the opportunity to reflect on his views.

My main reason for choosing to speak in this debate today, however, really relates to a function of the Senate perhaps rather than the Bill. I want to use the Bill as a means of highlighting this particular function of the Senate. I want to make reference to the Senate Standing Committee for the Scrutiny of Bills, one of two standing committees of the Senate that look at legislation. The other is the Senate Standing Committee on Regulations and Ordinances which, of course, looks at delegated legislation. The Scrutiny of Bills Committee looks at Bills with respect to a number of principles. It ascertains whether the Acts of Parliament, by express words or otherwise, do a number of things: firstly, whether they trespass unduly on personal rights and liberties; secondly, whether they make rights, liberties and/or obligations unduly dependent upon insufficiently defined administrative powers; thirdly, whether they make such rights, liberties and/or obligations unduly dependent upon non-reviewable decisions; fourthly, whether they inappropriately delegate legislative power; and, lastly, whether they insufficiently subject the exercise of legislative power to parliamentary scrutiny. These are very important principles.

In the last couple of days we have had significant debate about the role of the Senate. We know what the Government thinks about the Senate. We know how useless it thinks it is. The Government does not understand the good work that is done here. I am seeking this opportunity to point out some of this very good work. We are all realists. We understand that every senator and member cannot possibly read every piece of legislation, go through it clause by clause and understand all of the ramifications. Consequently, we have committees that do a certain amount of that work. Senators and members who have an interest in a particular area can use the good work done by a committee as a resource for furthering that interest. They can also gain an understanding of a Bill and be aware of its implications and what the Government is trying to do.

So it is the case with the package of Bills now before the Senate. The Scrutiny of Bills Committee, which is a specialist committee, has gone through the legislation. It has looked at it in terms of whether it does the five things that I have mentioned and it has made some recommendations to the Minister for Aboriginal Affairs (Mr Hand). There has been interaction between a bipartisan committee and the Executive in the form of the Minister. It is a matter of a bipartisan committee saying, `Look, in this case we think that you are trespassing unduly on personal rights or inadequately defining rights and liberties and making them subject to unre- viewable decisions'. All these things impact on people in some way. It is all very well to sit here and pass legislation knowing what the intent of it is. It is another matter to get down to the nitty-gritty detail of it and say, `Well, in practice, when this Bill is put into place, apart from whether it achieves its policy objectives'-and that is what Senator Devlin was arguing about-`does it at the same time do some things that we do not want to do in relation to individual Australians?'. This is very important. Many people come into this place with fire in their bellies on particular issues. They become so intent on achieving those policy changes that they do not concentrate, understandably, on the method to achieve that goal.

I turn to what the Senate Standing Committee for the Scrutiny of Bills has said in relation to this package of Bills. I refer to only a number of the points that have been raised as a means of outlining to honourable senators who may not have looked at this report and to other interested parties the good work that Senate committees can do prior to a Bill coming on for debate. A number of clauses of the Bill were drawn to the attention of the Senate in Scrutiny of Bills Alert Digest Nos 5 and 6 of 1989. These comments are really preliminaries to its report. The Committee referred to clause 8 and clause 7 (m), which confers power.

The Committee points out that clause 8 of the Bill allows the Prime Minister to confer a departmental function onto the Commission by means of a notice placed in the Commonwealth of Australia Gazette pursuant to a particular clause. The Committee wanted those notices to be subject to tabling in Parliament to enable them to be scrutinised by Parliament. Fair enough. If the Prime Minister (Mr Hawke) wants to do something the Parliament ought to be able to scrutinise that action and it ought not to have to pour through the Gazette, piece by piece with a microscope to find out what activities the Prime Minister has slipped in.

The Minister responded to the Committee and indicated basically that he did not agree. The Committee thanked the Minister for responding, `Tough luck, I don't agree with you'. But it points out that it regards it as appropriate that these notices be tabled in the Parliament. It does not want the notices to be subject to disallowance. It is not seeking to give power to the Parliament to say to the Prime Minister, `You won't do that because we will disallow that notice'. But the Committee thinks it is appropriate that the notices be tabled so that Parliament can scrutinise what the Prime Minister wants to do. The Committee draws that to the attention of any honourable senator who chooses to read the report. That is one example of where the work of a Senate committee has drawn to our attention activities that can come about by the passing of a Bill which will in the Committee's view allow some things to happen without the scrutiny of Parliament. I think that is an important matter to draw to the Senate's attention.

The Committee also drew subclauses 20 (1) and 20 (3), in relation to non-reviewable decisions, to the Senate's attention. These subclauses would allow the Commission to give written notice to a person or body who had received a grant under the Act that that person or body had failed to fulfil a term or condition of the grant. However, the decision of the Commission could not be reviewed as to its merits, only as to its legality. If a decision of this nature were to be made by the Minister, the Scrutiny of Bills Committee considers that it should be subject to review by the Administrative Appeals Tribunal. The Committee was concerned that there was no provision for appeal on the merits of a decision of the Commission. The Committee sought clarification from the Minister as to the possibility of including merit review for decisions made by the Commission pursuant to clause 20. The Minister replied:

The Bill has now been amended by the House of Representatives to provide for the Administrative Appeals Tribunal to review Commission decisions on these matters;

He then referred the Committee to the relevant clauses that achieve that aim. The Committee thanks the Minister for his response, which meets the concerns of the Committee.

That is an example of how some of my colleagues and some colleagues of honourable members opposite in the House of Representatives may think that it is by their wit and wisdom that this Bill has been amended and that it has all been fixed up in the House of Representatives. With the greatest of respect, that is a load of rubbish. It has been fixed up because a Senate committee has done its job. No doubt the reports on any of those amendments will not refer to the Senate committee at all. It will simply be implicit that the Government has by its own wit-that is probably where the credit will go-amended this Bill. I do not want to nitpick. I am pleased that the Bill has been amended. If it is an improvement, that is all well and good.

The third aspect that the Committee drew the Senate's attention is clause 23. This clause requires certain documents to show authority. It requires the Commission to ensure that documents it issues in relation to loans and funding by the Commission meet certain requirements. That is fair enough. If money is to be dished out we all want certain requirements to be met. We in Parliament want that. The taxpayer wants that. The terms of that clause, however, do not indicate the consequences of the Commission failing to meet those conditions.

The Minister responded, `If they don't do what they are meant to do, they are obviously going to be subject to public criticism'. Obviously, the Minister suggests that that is a big enough stick to keep the Commission in line in that respect: public criticism by the Office of Evaluation and Audit and by the Attorney-General's Office. Perhaps that is right. But it is not the point I want to argue here today. The Minister added that there was a possibility that, if one could show the commissioners had consciously not complied, that might constitute misbehaviour under another clause of the Bill.

The Senate Committee thanks the Minister for the response and hopes that his response will be of assistance to it. This Committee is not a case of a bipartisan committee saying, `You must do this'. The Committee basically says `You decide what you think of this Minister's response. If the clause is not complied with, are public criticism through those respective offices and the possibility of misbehaviour charges enough?'. Excellent work has been done by a committee to enable a Minister to make a choice about whether he is going the right way in the first place. It is not as though the Committee keeps all its good work in the Senate; it goes to the Executive to ask whether it wants to change its mind, gives the Executive the opportunity to improve legislation before it comes here and, in the event of there being a disagreement, simple notes it and leaves it up to senators to decide.

The fourth aspect I want to refer to deals with the termination of appointment of a commissioner. When I commenced speaking on this matter I referred to the fact that often parliamentarians will want to support a Bill because they endorse the policy changes they believe it will implement. It is always important when adopting that course to look at whether the means which are chosen for doing so, inadvertently or otherwise, trample on individual people's rights quite independently of what the policy aims to achieve.

The Committee points out that the effect of this clause is that a commissioner subject to a suspension does not necessarily have the opportunity to put his or her position to the Minister. The Committee notes that a commissioner subject to the provision can challenge the legality but need not necessarily have that opportunity to appeal to the Minister. It is a very important issue for someone to be dismissed and not have the opportunity to have a say is very un-Australian. We all like to think that everybody has a say, particularly someone whose future is about to be affected by the decision of another person. The Minister responded to that point in this way:

The Committee takes the view that the requirement for the Minister to consult with the Commissioner is not adequate, and that a Commissioner to be suspended ought to have the opportunity to show cause why he or she ought not be suspended from office and perhaps terminated as a commissioner.

That was the real outcome. The suggestion was: `If you want to dispose of someone, why don't you issue a notice that that person has to show cause why you should not?'. That would give the person the opportunity to have a say and to defend his or her position. The Minister responded:

The Government sees no problems with such a provision, and will make an appropriate amendment at the earliest opportunity.

This is another example-and I have not checked to see whether this has happened in the House of Representatives and I do not know whether it will happen in the Senate but I will be watching in the committee stage-of the work of a Senate committee achieving a change that will stop Parliament and the Executive inadvertently and inappropriately trampling on people's rights. That has to be good work.

The fifth matter raised by the Committee that I want to refer to is the question of entitlement to vote, which appears in paragraph 99 (a). This particular paragraph lists one of the qualifications to vote in regional council elections as follows:

That the person is an Aboriginal person or Torres Strait Islander.

It points out that there is no provision for determining when the qualification is satisfied and that the Minister in his second reading speech suggests that there will be a process for determining entitlement. That will presumably be included in some electoral rules. The Minister points out:

The electoral rules to be made . . . will provide for voters to certify that they are Aboriginal or Torres Strait Islander persons.

I do not want to get into that debate, but I know that some people would very seriously like to debate how one ascertains who is an Aboriginal or Torres Strait Islander. With respect to the electoral rules, the Minister continues:

They will also provide for liaison officers who will be engaged to assist in the conduct of the election. Where a person is unable to satisfy the liaison officer that they are in fact Aboriginal or Torres Strait Islander persons, their vote will be set aside.

Voters challenged by the liaison officer will have eight days from the date of the election to satisfy the senior liaison officer for the region of their eligibility.

Finally, voters who have been unable to satisfy the senior liaison officer will be able to appeal to the Court of Disputed Elections.

The Committee simply notes the clarification given by the Minister. That gives any honourable senator familiar with the cultural structures of the Aboriginal community the opportunity to assess whether the process of questioning someone who purports to be an Aboriginal or Torres Strait Islander would be a suitable mechanism to establish that person's identity in that sense.

The fifth point I make is also in relation to people's rights. Subclause 128 (2) deals with ineligibility to stand for re-election. It provides that a person whose appointment as a commissioner representing a zone was terminated for misbehaviour is ineligible to stand in the next election. Not only is his appointment terminated, he is also unable to stand next time. The Committee points out that the provision might result in a person having his appointment as a councillor terminated for misbehaviour as a consequence of his contravening a ministerial direction when the councillor may have been acting in response to requests from constituents. The Committee's view is that in those circumstances it is inequitable for a person not to be able to be re-elected as a representative of that zone.


Senator Peter Baume —I hope people are listening to that very important problem.


Senator VANSTONE —Senator Baume knows a lot more about the Aboriginal community than I do. The report of the Scrutiny of Bills Committee, in raising the issues, provides for senators and members interested in an issue a further resource document on which to base their views. People will no doubt be interested in the Minister's response. In my words, he has said that if we look at the Bill we will see that, if a commissioner's position has been terminated because of that person's misbehaviour, he cannot stand again. In other words, the Minister has said, `Tough luck; don't like that idea; not going to do anything about it'. In that case the Committee did what Senator Baume would say was some good work. It identified a problem in the Bill, wrote to the Minister about it, and received a reply from the Minister saying, `I don't agree'.

I have tried to raise a variety of examples-cases where the Minister has taken no notice and the matter will be left to the Senate to consider; cases were the committee simply notes the Minister's response, almost inviting honourable senators to look at the response; and other cases where the Committee has actually said that it is not satisfied and it thinks something would be better done in a different way.

I will go a little further and look to the same Committee's report on the Aboriginal Development Commission Amendment Bill. I raised the question of merit review and the situation in which someone could lose his rights and be unable to go to the Administrative Appeals Tribunal. In the previous Bill the Government decided that it was a good idea to provide for merit review. The legislation went through the House of Representatives and people so affected are now able to go to the Administrative Appeals Tribunal; that is well and good. But when we turn to another Bill related to this one we see the same problem. To paraphrase the Minister's response, he said that the proposed section merely replaces the provision presently set out in another provision. We can see that. The Minister also said that the ADC Act presently has no review provisions equivalent to those in the ATSIC Bill. That is fair enough. If it is good enough for one Bill to allow people to have a decision reviewed by the AAT, why not also for this Bill? In what I interpret as a reason for not including these provisions, the Minister gave this answer:

These present amendments do not represent a comprehensive attempt to revise and update the ADC Act, but are merely the minimum amendments necessary to ensure proper accountability pending the commencement of the proposed Aboriginal and Torres Strait Islander Commission.

That tells us something about the speed with which this matter has been put together. The Minister is saying that a proper job has not been done with the legislation, that only the minimum amount of work has been done in order to get the show on the road. That is a bit like aircraft technicians saying that they have not done a thorough overhaul of a plane but enough to get it up in the air. That is exactly what the Minister has said. I again read to the House his response:

These present amendments do not represent a comprehensive attempt to revise and update the ADC Act, but are merely the minimum amendments necessary to ensure proper accountability pending the commencement of the proposed Aboriginal and Torres Strait Islander Commission.

In other words, he is saying, `We will do as much as we have to do, but anything else, whether it has merit or not, can just go by the board at the moment because it does not suit our purposes'. That is not a reflection on the Committee's work, it is a reflection on the Government's response to it.

I hope that the examples I have raised have done two things: first, it has pointed out the good work that Senate committees do, credit for which is often taken by the House of Representatives or the Government itself; secondly, it has put the Government on notice that it might as well come into this chamber at the committee stage with adequate answers to the report of the Scrutiny of Bills Committee.