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Friday, 1 September 1989
Page: 802


Senator PETER BAUME(11.31) —by leave-I move:

(2) Page 7, paragraph 7 (1) (b), lines 13 and 14, leave out ``, including programs conducted by bodies other than the Commission''.

(3) Page 7, paragraph 7 (1) (c), line 15, before ``to develop'', insert ``when requested by the Minister,''.

(4) Page 7, paragraph 7 (1) (d), lines 18 to 20, leave out the paragraph, insert the following paragraph:

``(d) in connection with matters that are functions of the Commission because of other provisions of this Act, but not in any other circumstances, to assist, advise and co- operate with Aboriginal and Torres Strait Islander communities, organisations and individuals;''.

(5) Page 7, paragraph 7 (1) (e), lines 21 and 22, leave out the paragraph.

(6) Page 7, paragraph 7 (1) (f), lines 23 to 27, leave out the paragraph, insert the following paragraph:

``(f) when requested by the Minister, to advise the Minister on matters relating to Aboriginal and Torres Strait Islander affairs;''.

(7) Page 7, paragraph 7 (1) (h), lines 30 to 34, leave out the paragraph.

(8) Page 7, paragraph 7 (1) (j), lines 35 and 36, leave out ``without derogating from the functions or powers of the Australian Bureau of Statistics'', insert ``at the request or with the concurrence of the Australian Bureau of Statistics but not otherwise,''.

(9) Page 7, paragraph 7 (1) (m), lines 41 and 42, leave out the paragraph.

(10) Page 8, clause 8, lines 15 to 23, leave out the clause.

The Opposition has moved these amendments together because there are a very large number of amendments for the Committee to consider. It would make life very difficult if we were to consider all of them individually. I appreciate Senator Coulter's point that this may make it more difficult for him, but there is logic in the grouping of these amendments. I say to Senator Coulter, in order to assist him, that these amendments are mostly clause 7 amendments as well as an amendment to clause 8 on page 8 of the Bill. They all relate to the functions of the Commission. There can be few things more important than the statutory declaration of the functions of the proposed Aboriginal and Torres Strait Islander Commission. The Opposition believes it is important to propose the necessary amendments to ensure that these functions are appropriate and correct. I remind Senator Coulter of something he said earlier. He put to us that, in his view, it was very likely that this Commission would be in place some time in the foreseeable future. He also put to us the argument that because of that one did not need to agree to certain other amendments to the Aboriginal Development Commission Act, but that argument is the very reason why it is now important to look at all the proposals in this enormous Bill and examine whether or not we wish to alter any of them.

Our amendment No. 2 proposes that on page 7, clause 7, we should leave out the words, `including programs conducted by bodies other than the Commission', so the clause would then read, `to monitor the effectiveness of programs for Aboriginal persons and Torres Strait Islanders'. Let us spend a moment in committee examining what would be the effect of that clause as it is drafted, and what would be the consequence of agreeing to the amendment. The clause as drafted would give the new Aboriginal and Torres Strait Islander Commission the capacity to sit in judgment, by way of monitoring its effectiveness, on any program conducted by any organ or body or group or government in relation to Aboriginal matters-in fact, any program which could affect Aboriginals or Torres Strait Islanders, even if it was not a program specifically designed for Aboriginal and Torres Strait Islanders. This would enable ATSIC to sit in judgment on other programs within the Department of Employment, Education and Training which are not primarily Aboriginal programs at all but which may have several Aboriginal clients. Departments would continue, even if it is not proposed for ATSIC to do so, to report to Ministers, who are responsible to Parliament.

It is very strange to imagine the situation of a department of state, for which there is a Minister appointed under the Constitution who is responsible for that Department's programs, and the Minister suddenly finds that he has a very ill-defined relationship with ATSIC because, under proposed clause 7 (b), the new Commission would have the capacity to look at any program anywhere in Australia affecting Aboriginals and Torres Strait Islanders. This clause, as proposed, would enable ATSIC to sit in judgment on State governments and State government programs.


Senator Stone —That is the whole idea.


Senator PETER BAUME —It certainly would have that effect. The Opposition has concluded that that really is too much. We are aware of the constitutional proprieties that exist as a result of the Constitution, particularly those clauses which establish Ministers of state and give appropriate relationships for Ministers of state with the departments they administer. We do not oppose the proposal that there should be a function of the new Commission-if it is the wish of the Parliament to appoint a new Commission-which should relate to the monitoring of the effectiveness of programs for Aboriginal persons and Torres Strait Islanders. It would not be our intention to see this whole subclause deleted, and we have not so proposed. All we have proposed is that those words, which take the function a bit too far, should come out. That is the first of our amendments.

The second of our amendments is to proposed subclause 7 (c). Honourable senators will see that we propose to insert some words into that subclause. Madam Temporary Chairman, I remind you that we have moved these amendments together, so I will go through them seriatim. We propose to insert the words `when requested by the Minister'. Consider the clause as it is written. It states:

to develop policy proposals to meet national, State, Territory and regional needs and priorities of Aboriginal persons and Torres Strait Islanders;

Again, we think the Commission should remain within its own powers and functions as laid down in this statute, but when one reads proposed clause 7 (c), it suggests, to me anyhow, that it would be possible for the Commission to seek to develop policy proposals for the State of New South Wales in relation to State departments. With great respect, that is a matter for government to government negotiation. The Federal Government has been at some pains to say to us, `Do not regard ATSIC as some kind of Aboriginal parliament. Do not regard ATSIC in the way some of its critics do.' This clause as drafted, is the very thing about which people have been worrying.

What would happen if I were the Minister responsible for Aboriginal affairs in New South Wales and I suddenly got a phone call from someone in ATSIC to say, `Under sub-clause 7 (b) we intend to monitor the effectiveness of what you are on about'. I ask Senator Knowles to imagine this in the State of Western Australia. Under subclause 7 (c) I might suddenly get a phone call to say, `We intend, at Commonwealth level, to develop policy proposals'. It is not just a question of identifying unmet need. The identification of unmet need is another matter. It is a question of actually developing policy proposals to meet State needs and priorities of Aboriginal persons and Torres Strait Islanders.

Again, the Opposition wants to make it clear that it does not oppose the idea of the Commission having the function of developing policy proposals; but we think it should be limited to when it is requested to do so by the Minister. Some of these actions will involve the Minister. They will involve him in discussions with his colleagues within other governments and departments, and at other levels of government. We think that the Minister-he or she-should at least have a role in identifying these policy proposals, certainly as they relate to areas outside the portfolio.

The third amendment in this group is amendment No. 4. I remind the Committee that we have put aside consideration of our amendment No. 1, which relates to the preamble, by agreement. Amendment 4 is to subclause 7 (d). That subclause, as drafted, worries the Opposition quite considerably. We suggest that subclause 7 (d) will need to be deleted and replaced by another. The amendment is designed to avoid the need for the proposed ATSIC to form or enter into arrangements which will enable it to establish any kind of hegemony in Aboriginal affairs. We are not being fanciful in our concern about this. If it has a function to assist, advise and cooperate with Aboriginal and Torres Strait Islander communities, organisations and individuals at national, State, Territory and regional levels-that is what is proposed by the Government-that is altogether too broad. We propose instead that that paragraph should be deleted and there should be inserted in its place a different paragraph (d), which should read as follows:

in connection with matters that are functions of the Commission because of other provisions of this Act, but not in any other circumstances, to assist, advise and co-operate with Aboriginal and Torres Strait Islander communities, organisations and individuals.

We are not limiting unduly the operations or potential operations of ATSIC. We are saying that in connection with any matters that are functions of the Commission because of other provisions of this Act it should be able to do certain things. We think that that is a proper and necessary amendment as well. Our fourth amendment-that is circulated amendment No. (5), which is part of this group-now relates to subclause 7 (e). I emphasise again that we are concentrating on the functions because this is a critical part of the whole ATSIC proposal. (Extension of time granted).

I remind the Minister for Justice (Senator Tate) of the old Latin phrase `Eheu fugaces, postume postume labuntur anni', which means that I was Minister a long time ago.


Senator McKiernan —It's all Latin to me.


Senator PETER BAUME —It is contrary to the Standing Orders to use another language too, but no-one picked me up. The next amendment is to subclause 7 (e). This is the same kind of problem, but this time it talks about establishing consultative arrangements. We have proposed the deletion of this subclause because we think the function of establishing extra consultative arrangements is an incidental function. We think further that there is no need for the Commission to set up elaborate or overly intrusive consultative arrangements. What is more, we think that there is every reason why the Commission should not go down that road. One of the problems will be the acceptability and respectability of the new Commission. That does not only include its acceptability within Aboriginal and Torres Strait Islander communities, but its acceptability within the rest of Australia. I want to see the Government of Queensland able to deal with this new Commission if it comes into existence without a great sense of threat or fear. I want to see the Government of Western Australia able to do the same thing, and the Government of South Australia, and so on. This involves not only goodwill but a statute in which people can have confidence. Our amendment No. (5), which I have already moved, will leave out paragraph (1) (e). The sixth amendment which we have circulated, and which we have moved, is in relation to subclause 7 (f). We propose that that subclause be deleted and be replaced by a new subparagraph (f) which would read:

when requested by the Minister, to advise the Minister on matters relating to Aboriginal and Torres Strait Islander affairs;

I invite honourable senators just to compare the existing subclause 7 (f) and the one which we propose to put in its place. In the Bill paragraph (f) reads:

to advise the Minister on:

(i) matters relating to Aboriginal and Torres Strait Islander affairs, including the administration of legislation; and-

I interpolate: why is that there?-

(ii) the co-ordination of the activities of other Commonwealth bodies that affect Aboriginal persons or Torres Strait Islanders.


Senator Stone —That covers the whole waterfront.


Senator PETER BAUME —Precisely. We think the amendment to subclause 7 (f) is essential to ensure that ATSIC does not have a role in the administration of legislation. Honourable senators should just think about that, look at it as it is presently presented and think what it means. The administration of legislation is a matter for a Minister of State properly appointed in pursuance of the relevant section of the Australian Constitution, who takes advice, as is normal, from a Department of State. It follows, once we have accepted that that is the model under which we operate, that the adoption of this particular amendment would be a vote for the retention-when I say `the amendment', I mean the amendment which the Opposition has proposed-of a Department of State because we believe that there has to be a Department of State, a Department of Aboriginal Affairs of this State, or else the assumption by some other Department of State, perhaps the mega department of the Department of Employment, Education and Training, of the traditional role of adviser to the Minister, but it must not be the new Commission. The new Commission cannot stand in relation to the Minister as if it were a Department of State. This is why we have proposed this amendment to subclause 7 (f).

We have not just sought to delete it; we have sought to replace it with what we think is the reasonable function-that is, `when requested by the Minister, to advise the Minister on matters relating to Aboriginal and Torres Strait Islander affairs'. That is to say, we still place the Minister as the person appointed by the Constitution, but the Commission becomes one adviser to the Minister in a rather more proper role. We think that ATSIC in this kind of sense should not consider itself as being able to operate at large in giving and promoting advice, but that it should do so only when the Government asks for that advice.

The seventh circulated amendment, which is a part of this group, is in relation to heritage protection and is proposed subclause 7 (h). Subclause 7 (h), as it is written, requires the Commission, as one of its functions:

. . . to take such reasonable action as it thinks necessary to protect Aboriginal and Torres Strait Islander cultural material and information, being material or information that is considered sacred or otherwise significant by Aboriginal persons or Torres Strait Islanders;

The deletion of this subclause is necessary to make it clear that ATSIC would not have a maverick role, as it were, in the protection of Aboriginal heritage which seems to be provided by this rather open-ended subclause. The matter is one for the Minister, advised by his Department, to take action on under the Aboriginal and Torres Strait Islander Heritage Protection Act and in accordance with the specific procedures set out within that Act. I just remind the Committee that the Senate Select Committee into the Administration of Aboriginal Affairs looked at this ATSIC legislation and reported at paragraph 2.43 through to 2.47 that subclause 7 (h) would actually interfere with the functions of the Australian Institute of Aboriginal and Torres Strait Islander affairs. We have already considered and agreed to that legislation. We have amended it appropriately, and we have included an amendment relating to heritage protection. I put it to the Committee that this particular paragraph as proposed by the Government in the Bill will still have the defect that the Senate Select Committee identified and about which it unanimously reported.


The TEMPORARY CHAIRMAN (Senator Bjelke-Petersen) —Order! It being 11.55 a.m., pursuant to sessional order, I shall report progress.

The Temporary Chairman having reported accordingly-