Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Tuesday, 5 September 1989
Page: 982


Senator PETER BAUME(6.26) —by leave-I move:

(18) Page 9, subclause 12 (1), line 34, leave out ``general''.

(19) Page 9, subclause 12 (2), lines 38 and 39, leave out ``by the Commission to a Minister, Department of State or authority of the Commonwealth'', insert ``to the Minister''.

(20) Page 10, subclause 12 (3), lines 1 to 6, leave out the subclause.

(21) Page 10, subclause 12 (5), lines 11 to 14, leave out the subclause, insert the following subclause:

``(5) A copy of a direction laid before the Parliament in accordance with subsection (4) shall not disclose any matter the disclosure of which in that manner would be inconsistent with the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders.''.

Amendments No. 18 and No. 19 are amendments to clause 12 on page 9. Amendments No. 20 and No. 21 are amendments to the same clause on the following page. Clause 9 relates to ministerial directions. Our amendments are concerned with the power given to the Minister to issue directions. The first of our amendments requires some explanation. I can see the departmental officers smiling and I understand why. They would say, `You have been insistent upon a limitation of the power to issue directions being general directions when it was the case of the Aboriginal Development Commission', and so we did. But we are saying when it comes to ATSIC that that is not any longer an appropriate limitation. I do not want to argue that point but it really is the point of the argument. The amendment seeks to leave out the word `general' as it appears in clause 12 (1) at line 34. I will explain that. While it may have been appropriate for the provision appearing in the Aboriginal Development Commission Act-and I think we argued the same thing in the debate on the Aboriginal Development Commission Amendment Bill which we recently considered in this Committee-to restrict the Minister to giving the Commission general directions, it does not follow that that is an appropriate course to be followed for ATSIC. ATSIC is a differently constructed creature. It is a Commission with different powers. ATSIC is intended to cover the whole field of Aboriginal administration. We have only to go to the Minister's second reading speech, to the speeches of honourable senators who have taken part in an earlier debate on the second reading and to look at the speeches at the second reading stage here to understand that it is envisaged that ATSIC will have a very extensive role across the whole range of Aboriginal administration in this country. The purpose of ATSIC is to bring together under one heading services which were not previously operating together.

Sitting suspended from 6.30 to 8 p.m.


Senator PETER BAUME —Before the sitting was suspended for dinner I had offered some argument in support of the amendments. Specifically, I had made the point-and I will not rehearse the whole argument again-that the giving of directions, other than general directions, is appropriate because of the very broad ambit and the very great reach of the proposed Aboriginal and Torres Strait Islander Commission (ATSIC). If there is to be an acceptable degree of ministerial control of ATSIC, and if there is to be an acceptable degree of accountability for the actions undertaken by ATSIC, the Minister really needs to have a power to direct the Commission.

The question is: How much ministerial control is appropriate? The Opposition believes, as it does with the Aboriginal Development Commission, that no Minister should be able to direct the Commission as to the content of any advice that the commissioners may wish to give to him. We believe that any proposal for directions must provide adequate protection for sacred, secret information. I do not have to go over that argument; it is one which we raised when we were debating the Australian Institute of Aboriginal Studies Bill. I think we even raised it when we were discussing this legislation on Friday.

We therefore moved, as our first amendment in this group, that the word `general' be left out for reasons which I have stated. We have argued for the second of these amendments-that is, the amendment to clause 12 (2), lines 38 and 39-that we leave out `by the Commission to a Minister, Department of State or authority of the Commonwealth', and just say `to the Minister'. We believe it is appropriate that ministerial directions should relate to the content of advice, information or recommendations that may be given back to the Minister. We are not saying that advice should not be given to other bodies. But, as this is written, a ministerial direction may say that the Minister could otherwise direct the Commission to give advice to the Australia Council in relation to the Aboriginal Arts Board, or that it could authorise the Minister to give advice to that department of state-I think it is the Department of Administrative Services-which has the carriage of the Royal Commission into Aboriginal Deaths in Custody, and so on. That is why we have moved that amendment.

The other two amendments relate to clause 12 on page 10 of the Bill. Clause 12 (3) states:

Subsection (1) does not empower the Minister to give directions relating to the content of any advice, information or recommendation that may be given by the Commission to a Minister, Department of State or authority of a State or Territory, except for the purpose of protecting the confidentiality of information given to the Commission by the Commonwealth . . .

We do not understand why that subclause is necessary; we do not know why it is needed and we believe that it should be deleted.

In relation to clause 12 (5), we have suggested that the wording is not appropriate. Without going over the arguments again, I refer honourable senators to the debates we have already had where we have sought to deal with this question of culturally sensitive or secret and sacred information. We have been trying to get a form of words which would be acceptable to the Committee. I believe that we were able to reach an accommodation in some of the other areas and we are trying to do it again. We think the words that have been included in the Bill would be improved by deleting subclause (5) and substituting the subclause which we have proposed. Subclause (5) would then read:

A copy of a direction laid before the Parliament in accordance with subsection (4) shall not disclose any matters the disclosure of which in that manner would be inconsistent with the views or sensitivities of relevant Aboriginal persons or Torres Strait Islanders.

We believe that that is an appropriate move.

In relation to subclauses (3) and (5) of clause 12 on page 10 of the Bill, I draw the Minister's attention to a report by the Senate Standing Committee for the Scrutiny of Bills which, in 1989, made the following observations:

Clause 12 relates to the Commission performing its functions and exercising its powers in accordance with general directions given by the Minister.

Subclause 12 (3) states that the Minister is not empowered to give directions relating to the content of advice that may be given by the Commission to a Minister, Department of State or authority of a State or Territory

`except for the purposes of protecting the confidentiality of information . . .

Subclause 12 (5) states that a direction laid before Parliament by the Minister `shall not disclose any matters known to the Minister to be held sacred by Aboriginal persons or Torres Strait Islanders . . .

The Scrutiny of Bills Committee then commented in the following terms:

The Committee fully appreciates the concerns of the Minister in this area, but in order to keep Parliament as fully informed as is reasonable in all the circumstances, felt that the Minister shall include a brief statement as to the general nature of any direction relating to sacred matters.

The Scrutiny of Bills Committee reported that the Minister responded. Leaving out the introductory paragraph, the Minister said:

This is an entirely legitimate concern, but is based on a misinterpretation of the clause in question. Subclause 12 (5) does not provide an exemption from disclosure where directions relate to sacred matters (a highly unlikely event), but rather provides that the mandatory publication of all directions (whether they relate to sacred matters or not) shall not disclose information of a sacred nature.

Consequently, the Parliament will always be informed, at least in general terms, of any directions made by the Minister.

The Opposition has looked at the subclause. I note that subclause (5) has what I consider to be a fatal weakness. I draw this particularly to the attention of Senator Coulter. If honourable senators look at the second line in subclause (5) they will see that it refers--


Senator Coulter —Known to the Minister.


Senator PETER BAUME —Senator Coulter has anticipated me; it contains the words `known to the Minister'. I take it that the honourable senator realises the weakness of the words as written. This subclause would provide an absolute defence, should this ever be tested, for the Minister to say that such a matter was not `known to the Minister'. Why are the words there?

In any event, I do not want to become too difficult on this matter. We believe that there has been a common purpose in the Committee to look at these various provisions covering confidential or sensitive material in each of the Bills that have come before us. Amendment No. 21 has been moved in the same spirit and for the same reasons as we have put forward previously.