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Monday, 4 September 1989
Page: 909


Senator PETER BAUME(9.40) —by leave-I move:

(11) Page 8, paragraph 10 (2) (a), line 35, leave out ``negotiate and''.

(12) Page 8, paragraphs 10 (2) (b) and (c), lines 37 to 40, leave out the paragraphs.

(13) Page 9, subclause 10 (3), lines 2 to 4, leave out the subclause.

These amendments all relate to clause 10 of the Bill. I accept Senator Coulter's point. I was not trying to move out of order but that earlier point seemed to be an appropriate place to mention the other matters I wanted to refer to. Clause 10 of the Bill concerns the powers of the Aboriginal and Torres Strait Islander Commission (ATSIC). The three amendments which I have moved together all relate to those powers provided in clause 10. I note that we have already agreed to an amendment by the Government to subclause 10 (2)(a)-we did that last week-so when we are reading clause 10 we must remember that it has already been amended. Subclause (2) of clause 10 gives to the Commission the power to negotiate and cooperate with other Commonwealth bodies and to negotiate with and cooperate with State, Australian Capital Territory, Northern Territory and local government bodies. I ask the Committee to note that that is the first power that is given. Secondly, clause 10 (2) confers a power on ATSIC:

to enter into an agreement for the payment of a grant to a State or the Northern Territory under section 18,

It gives a power to the Commission:

to enter into an agreement (other than an agreement referred to in paragraph (b)) with a State or Territory,

It also gives the Commission certain other powers. The Opposition believes-and I put this to the Committee-that it simply is not appropriate for a statutory body to have the power to negotiate directly with States and Territories about the payment of moneys under section 96 of the Constitution. Moneys that are paid to a State or Territory of the kind referred to here are what we in this place all call section 96 grants. Such activities should be and should remain the responsibility of a Minister who is directly answerable to the Parliament. Section 96 grants are made to the States on such terms and conditions as the Parliament specifies. We know that they are one of the main instruments by which money is transferred from the Federal Government in this country. I remember when I was Minister the States used to love the section 96 grants. They would say to me, `Leave the cheque under the door and go away'. I remember that when Senator Collins was in another legislature we used to discuss this matter sometimes.

The question the Committee has to answer is whether the Parliament is content, or should be content, to delegate to the commissioners of ATSIC the making of whatever arrangements with the States they wish, in the process delegating to the commissioners of ATSIC the power to set, in the name of the Parliament, whatever terms and conditions they like. On our reading of clause 10, as it is written, that is what is proposed. We believe that questions of constitutional propriety come up relating to the difficult interface between this particular Commission-and I accept what the Minister has said about his desire to enhance Aboriginal self-management-and the Parliament and the proper responsibilities of each body. We think that the Government's Bill, with a proposed power for the Commission to deal directly with State governments and to make grants to State governments-section 96 grants-typifies the Government's confusion about the proper role of a statutory authority, on the one hand, and of a department of state on the other. ATSIC is not a department of state. It cannot stand in the place of a department of state, and nor should the States accept such an arrangement. I do not think the States will accept such an arrangement-and then we are going to have a fine old brawl.

Further, this clause relates to the way in which the Commonwealth will deal with the States in matters related to Aboriginal and Torres Strait Islander people. The Minister did not consult with the States or the Northern Territory on this clause, and at a meeting of the Aboriginal Affairs Ministers at the Australian Aboriginal Affairs Council perhaps a year ago, many of the Ministers made their unhappiness about this known. They are unhappy. The Bill appeared, but on a matter involving relationships between the Commonwealth and the States there was no prior consultation. They told the Minister that they were unhappy and they told him that the arrangement was no good, but there was no acknowledgment of any of that in the second reading speech and nor has there ever been any reasoned response to the concerns which were expressed by State Ministers about provisions like this one.

State Ministers want to deal with the Commonwealth Minister. They wish to deal government to government. Whatever the Minister may say about there being no intention-and he says there is no intention-to vary or even abolish States grants, there is no doubt from our reading of the Bill that the Commission would have the capacity to take action to achieve such a result if it was so minded. Honourable senators may say that it would not be so minded, but the capacity is there. That is what the Bill says. I have to ask the Minister: Is it not true that the fact is that, because there is no obligation on the part of the Commission to enter into agreements with States, it may decide not to do so? What are the States to think about the States grant funding which has been part of the funding of Aboriginal affairs for a long time now, a matter of hard negotiation and accountability? What are the States to think when they read this? As that is written, the States grants could disappear. Subclause 10 (3) is relevant here:

The power of the Commission to enter into agreements of the kind referred to in paragraph 2 (c) shall not be exercised without the written approval of the Minister.

But although that seems to provide some protection, it does not mean that the Minister has to approve the content of any agreement entered into by ATSIC. His approval needs to be obtained only at the threshold. It is approval to enter into an agreement. Read the words. That is what they say. The Commission will need the permission of the Minister to enter into an agreement of the kind referred to in paragraph 2 (c). Those are the words there in proposed clause 10 (3). Once that approval is obtained and once it is then possible for ATSIC to go ahead and carry out that negotiation for which agreement has now been sought and obtained from the Minister, the contents of the agreement will be then something for ATSIC to decide in consultation with the States, and if the Parliament did not like what was proposed, ATSIC could easily decide not to make any further States grants payments or could use the other powers which are conferred on it. Because of those concerns, and again because I genuinely wish to avoid any backlash-I genuinely do not want to provide the kinds of circumstances which will provoke and which will intensify a sense of threat at State level; I do not want to see made more easy a capacity for inflammatory reporting in some of the State and Territory newspapers-because of all that, we have proposed a set of amendments.

Amendment No. 11 seeks to leave out the words `negotiate and' so that if that was done clause 10 (2) (a) would then read `to co-operate with other Commonwealth bodies and with State, Australian Capital Territory, Territory and other local government bodies'. Amendment (12) proposes to leave out paragraphs 2 (b) and 2 (c). We propose to leave those out for the reasons which I have made clear in the arguments I have advanced. We think they relate to States grants type agreements, States grants type functions. We think those are properly matters for government. I can say, perhaps, they are matters for government to undertake on the advice of ATSIC, but they are matters for government to government behaviour. Our amendment (13) proposes that subclause (3) be left out. Subclause (3) is really no protection at all, for reasons which I have already set out in the arguments I have advanced. I commend to the Senate amendments (11), (12) and (13) which have been circulated in my name.