McDONALD, Dr James, Director, Board Relations and Constitutional Reform, National Aboriginal Community Controlled Health Organisation [by video link]

TURNER, Ms Patricia (Pat), Chief Executive Officer, National Aboriginal Community Controlled Health Organisation [by video link]

Committee met at 08:45

CHAIR ( Senator Chandler ): I declare open this hearing of the Senate Finance and Public Administration Legislation Committee into the provisions of the Corporations (Aboriginal and Torres Strait Islander) Amendment Bill 2021. These are public hearings and a Hansard transcript is being made. We are also streaming live via the web, which can be found at www.aph.gov.au.

Before the committee starts taking evidence, I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. In addition, if the committee has reason to believe that evidence about to be given may reflect adversely on a person, the committee may also direct that evidence be heard in private session.

The committee prefers all evidence to be given in public, but under the Senate resolutions witnesses have the right to request to be heard in private session. It is important that witnesses give the committee notice if they intend to ask to give evidence in camera. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may also be made at any other time.

I now welcome representatives from the National Aboriginal Community Controlled Health Organisation. Information on parliamentary privilege and the protection of witnesses and giving evidence to Senate committees has been provided to you. I now invite you to make a short opening statement, and at the conclusion of your remarks I will invite members of the committee to ask questions.

Ms Turner : I would like to acknowledge the traditional owners of the land on which I am speaking, the Ngunnawal people. I pay my respects to their elders, and I would also like to thank you for the opportunity to give evidence at this important inquiry.

NACCHO represents 143 ACCHOs, Aboriginal community controlled health organisations, of whom about 80 operate under the CATSI Act, so we have a keen interest in what is happening. There are four main issues we have been raising through this process. The main concern we have is that some of the changes are discriminatory in that different standards are expected for Aboriginal organisations. The main concern raised by our members is that remuneration reports and penalties for directors are more onerous for our organisations than those placed on other Australians under the Corporations Act 2001 and the regulatory frameworks of ASIC and the ACNC. These measures will also add to the administrative and compliance burden for corporations. The CATSI Act's original intention was to make things easier for smaller Aboriginal corporations to do their business, not harder.

The second issue is that recommendation 1 of the review was not embraced. This was for the inclusion of a statement acknowledging the importance of capacity building. It is a simple thing. It would help emphasise the ongoing need for close collaboration and coordination with the peaks, so that struggling corporations can be assisted well before punitive measures are considered.

The third issue is that small corporations will be permitted to avoid holding AGMs. This will have the effect of depriving members of a key mechanism to ensure the accountability of its boards and officials. You cannot replace this with a paper process. We urge you not to deprive community members of meeting face to face with their board.

The fourth issue is that the bill contains a cumbersome review process in which there will be 18-month reviews in every seven-year period. This means that the sector's legislation will be under review 21 per cent of the time, representing an enormous strain on resources and long periods of uncertainty. That is one day in every five that will be spent reviewing. Our members are too busy for that. We argue for a more efficient and targeted period—for example, reviews completed within six months with a three-month extension. The 18-month time frame seems to be based on an expectation of incompetence. We should be able to complete a review within six months, particularly if there is genuine engagement. Without genuine engagement in co-design, it doesn't matter how long you consult.

This brings me to my final point. Consultation has been cursory at best. The lack of involvement of organisations like NACCHO in the decision-making process or in a steering group to provide advice suggests that the government, in this instance, has lost a critical opportunity to demonstrate its commitment to the first priority reform under the new National Agreement on Closing the Gap—that is, that Aboriginal and Torres Strait Islander people are empowered to share decision-making authority with governments to accelerate policy and place based progress on closing the gap through formal partnership arrangements.

In its own submission to the inquiry, ORIC took umbrage at our description of the consultations as 'cursory'. ORIC has completely misunderstood what we were saying. We were not arguing for a longer process; we were arguing for a genuine process, and we were arguing for co-design and a seat at the decision-making table. Consultation is not just a box that you tick. The rushed consideration of the 27 written submissions in less than two weeks before the bill was tabled was indicative of this. We were, and we still are, in the middle of a pandemic. We are on the front line of this fight. Our ACCHOs and their staff are exhausted and stretched to their limits, yet we managed to deploy resources to draft a submission and then we found that it, along with the 26 others, was reviewed in less than 14 days. That is what we mean by 'cursory'.

Notwithstanding these concerns, NACCHO has identified a number of positive improvements. In particular we support the modernisation of certain governance arrangements and measures to deliver greater flexibility, the ability to appoint independent directors for 12-month periods and the ability to redact sensitive personal information to protect vulnerable members. As always, we remain ready to work with the government and its agencies, but there needs to be a genuine process of engagement and co-design where we have an equal voice at the decision-making table. Thank you.

CHAIR: Thank you very much, Ms Turner. Any comments from you, Mr McDonald?

Dr McDonald : No, nothing from me, thank you very much anyway.

CHAIR: I will give the call first to Senator Dodson.

Senator DODSON: Thank you, Patricia, for your submission and also the comments you've made in relation to your submission. There are a couple of things that I think are in your submission which you didn't touch upon, and one of those is the question of changes that enable ORIC to issue infringement notices for contravention of the act. What impact do you think these new powers could have on some of your smaller member organisations?

Ms Turner : I might ask James McDonald to answer that because he is across the detail.

Dr McDonald : We are concerned about that, but we didn't want to put too much in the opening statement and instead focused on some of the key issues. Generally we are concerned because unexpected regulatory action can lead to all sorts of unintended consequences, particularly in smaller and more remote communities. We are worried about the limitations of ORIC, the registrar, and we think that too much is under the discretion of the registrar. We would like to see that resolved and we think that we can do that in a genuine dialogue rather than a consultation process in sessions. We could talk through the detail of that under those circumstances. So our view is that we don't think there's enough detail to be confident.

Senator DODSON: Are you waiting for the regulations to be determined or are you being consulted about the nature of the regulations?

Dr McDonald : The consultation process was very broad, and there didn't seem to be the opportunity to dig into the detail. We kept making that observation in our four submissions over the course of this process. We were asking that that detail be worked out. We think it's too broad at the moment, if that makes sense. Did that answer your question?

Senator DODSON: It does. What I'm trying to get at is: if you're waiting for regulations and the bill goes forward, the regulations might come later, so are you going to have your problems solved?

Dr McDonald : Yes, that's a concern for us, particularly if we're not being consulted along the way.

Senator DODSON: There are also changes concerning corporations potentially with only two members. Did you want to speak to that?

Dr McDonald : Yes, there are a few issues here. We were concerned at one stage that there may be situations where an Aboriginal or Torres Strait Islander person might be manipulated by a non-Aboriginal person in situations wither they wanted to present themselves as being an Aboriginal organisation. Of course, as you know, NACCHO's core beliefs are all about community control and managing organisations at the grassroots level, so we did have some concerns about that but not at a level to repeat those concerns in the subsequent submissions. We think that one of the slight changes that was made—I'm not quite sure when—concerning the 50 per cent mark in, which I think that came out in the latest lot of changes, probably addressed some of our concerns, but we're always worried about that, particularly with misrepresentation by certain entrepreneurs of themselves as Aboriginal organisations.

Senator DODSON: Are you familiar with the notion of black-cladding?

Dr McDonald : Yes. I didn't want to use that term, but that basically sums it up.

Senator DODSON: You don't have any concerns that this may make it possible for far greater abuse and a reduction in the majority position of First Nations?

Ms Turner : Yes, we absolutely do have those concerns and we're always guarded against black-cladding, which you might explain later to your colleagues if they don't know what that means.

Senator DODSON: It's when someone just abuses an Aboriginal person as a member [inaudible] for the procurement opportunities and other things. It is taking advantage.

Dr McDonald : We actually made that point in our August submission. That's where all the detail was. In the submission to the inquiry we didn't think we'd just keep repeating the same points. But it's certainly a concern. We wrote about it in August.

Senator DODSON: On the matters that you raise, what's your preference? Is it that the bill goes forward as it's drafted or that these amendments be made to accommodate your views or modified in some way?

Ms Turner : Well, we would prefer to have a closer engagement along with other key Aboriginal and Torres Strait Islander organisations that have already raised multiple concerns about this legislation and to have a genuine negotiation process with ORIC to try to get these matters sorted out. That's just being dismissed by NIAA and ORIC as though it doesn't matter, and we think it does matter because it's our organisations. We think that there are some positive elements, but we've repeatedly raised and built upon our concerns as this process has moved along. We're really concerned that we're just being dismissed, as we think other organisations are as well. So a process of genuine negotiation with key Aboriginal entities is what we think needs to happen.

Senator DODSON: Thank you, Madam Chair.

CHAIR: Thank you so much, Senator Dodson for being economical with your time then, because we do have a lot to get through today. Senator Thorpe, you have the call.

Senator THORPE: Thank you to NACCHO for appearing. I suppose I want to drill down so that people understand the interpretation of co-design from a NACCHO perspective. What does co-design mean to you? What do you think co-design means to the government if we're even having this conversation?

Ms Turner : Co-design means to ask where we work in genuine, equal decision-making partnerships with government officials and that we negotiate the best possible outcome for a win-win but not at the expense of Aboriginal and Torres Strait Islander people's civil liberties and rights. That's what we mean. You'd have to ask the government what it means to the government, quite frankly. I think you've got NIAA officials appearing later today. I would put the question to them.

Senator THORPE: I will be. The point I'm trying to make here is that the government is going out saying co-design is their mantra with Aboriginal communities and you've raised a number of concerns already about co-design. I suppose the crux of the question is: how genuine do you think the government is in co-design with Aboriginal people in this country?

Ms Turner : It varies. In my experience in the work that we're doing in relation to Closing the Gap, we've had some really excellent developments in spaces like the health space, where we work closely with the Commonwealth government. Likewise in places like in the early childhood sector we're getting some significant wins there through the negotiations between our lead organisations like SNAICC and the department of social security but also with non-government organisations like Life Without Barriers. So we don't consider co-design just to be a matter for governments, although that's where most of the resources are. Of course, we like to ensure that it's the Aboriginal and Torres Strait Islander experience, expertise and views that are reflected in the policy and programs that are supposed to be of our benefit, and that's why we like to be at the negotiating table in an equal decision-making role to achieve the best possible outcomes for our people. It's a hard slog, but we have fought for this all our lives and we're not going to give up.

Senator THORPE: Thank you. I was around in the old NAIHO days, and NAIHO's mantra was self-determination. Based on that, how do you think that this legislation fits with the United Nations Declaration on the Rights of Indigenous Peoples, particularly around free, prior and informed consent and self-determination?

Ms Turner : I think that, if we had the opportunity to engage closely around the table with ORIC and other representative organisations, we could achieve a much better balance in relation to reflecting self-determination for our people. James, did you have anything to add to that?

Dr McDonald : No, I think that sums it up. But in relation to Senator Thorpe's earlier question about the engagement and co-design commitment to it, back on 25 January our submission actually set out a process for co-design. We're just one of many organisations, but we at least put one on the table which said, 'We need to have a voice at the table, it needs to be at the decision-making level, and there need to be a number of representative organisations there,' and we listed them and how that might work. That also relates back to Senator Dodson's question about what's the next step. As our CEO Pat Turner has said, it's all about engagement to take it forward and resolve this. Back in January of 2019 we set out how that might work, so that information is already on the public record.

Senator THORPE: Finally, because systemic racism is pretty rife in the colonial structures that we have to deal with, do you think that systemic racism plays a part, or do you think that this bill contains elements of systemic racism?

Ms Turner : I'm not sure how I would characterise it, but I do think that there are provisions in the bill that are discriminatory. We're concerned about the whole thing, with a few positive elements in it. I remember the days when the CATSI Act was introduced, and that was to assist small, fledgling Aboriginal organisations who needed to be incorporated before they could receive government funding. The whole purpose of the CATSI Act was to get incorporated Aboriginal organisations, but NACCHO's stand has always been that it has to be Aboriginal community controlled and Torres Strait Islander community controlled, hence our concerns about corporations of two and black cladding ripping off our people. Our view is that, because this legislation was intended to assist smaller Aboriginal corporations to get their work done, we should avoid anything that results in hurdles, like the additional reporting requirements, additional compliance or harsher penalties compared to what would be required of other organisations under the Corporations Act and the regulatory framework of ASIC and the ACNC.

We are not opposed to greater transparency for all corporations if it were to have a positive impact, but the requirements are becoming more onerous in this bill. We are not sure whether or not the government perceives that there is a problem, for example, with remuneration being too high in Aboriginal and Torres Strait Islander corporations. If so, we need to see hard evidence that justifies that this is, in fact, the case. Similarly if there is a higher level of fraud then this data also needs to be made available to us, because we haven't seen it.

We have other concerns, including the penalty provisions in the legislation, which are difficult to understand and appear to be largely at the discretion of the registrar. So more clarity needs to be provided to safeguard against excess or misuse of powers. This was an issue raised by one of our members, Danila Dilba, in their 2020 submission. We're concerned about those measures, and we don't want the discriminatory features where our people are yet again penalised and having to pay a higher price simply for being an incorporated body.

Senator THORPE: Thank you. No further questions.

CHAIR: I have a few questions as we move towards 9.20. In your submission, NACCHO references that you were disappointed with the rushed process for considering this bill. My understanding is that the consultation process and the submissions that have been received and responded to as part of that consultation process all date back to January 2019. Recognising that that is 2½ years ago now, what more consultation would NACCHO have liked to have seen? Two-and-a-half years to me seems relatively reasonable.

Ms Turner : I guess that goes to the point that I made earlier about timing. I'll ask James, because we've made multiple submissions to this process. Generally when you make a submission you have an engagement where you can discuss the points that you make to get the changes, and that hasn't necessarily been the case with this legislation, hence the need for us to make repeated submissions, adding on the advice that we've already provided. James, would you like to add more detail there in answer to the chair?

Dr McDonald : Yes, thank you. The point I would like to make is that, in the August submissions, between the closing date and the tabling of the bill in parliament there were 14 days. So the government considered 27 submissions in 14 days. That's what we're saying is rushed. You can expect, say, three or four weeks to consider very detailed submissions, particularly considering that they were lodged at the height of the pandemic, when we had to deploy resources to this at the most anxious of times. Then to find that what we had written up was considered in such a short period of time with no feedback to us was pretty disappointing. Although the period was 2½ years, as you rightly point out, if you go back to 2016, with the KPMG report and then after that the legal firm that also did the technical review, it was even longer. But the point—as Pat was making—is that it doesn't matter how long you consult if the engagement is not genuine and you don't have a decision-making voice at the table. That is the problem that we perceive.

CHAIR: I also note in your submission that you recommend that this legislation should be reviewed every 10 years rather than every seven years. That seems counterintuitive to me. If we're going to have regular review of this legislation, wouldn't you want that to be more often than not?

Dr McDonald : It's not so much whether it's five, seven or 10 years; it's the duration. As it's proposed now, it's 18 months every seven years. As Pat pointed out in the opening statement, that's 21 per cent of the time. So we just want a more efficient review process. We're happy to stick with the seven years if we just make it six months. Obviously this review process is going to take a lot longer because there are so many issues at play. But, once you have the bill bedded down, the legislation in place, then you can probably move to a more efficient, regular periodic process. We're suggesting six months with a three-month extension rather than 18 months.

CHAIR: Your submission claims that the review has excluded certain stakeholders from the decision-making process. Which Indigenous stakeholders were excluded? Can you name them for me?

Dr McDonald : In relation to Senator Thorpe's earlier question, I mentioned the 25 January submission. That's where we identified a number of organisations, such as NATSILS, the Native Title Council and ourselves. We can't speak for them. We can only speak for ourselves. But we can also speak for the 80 ACCHOs that we represent that operate under the CATSI Act. I suppose collectively we can directly speak for that section of the sector, and we've been in close contact with them and our eight affiliates across the eight jurisdictions. But, in terms of other organisations beyond NACCHO, it's probably a little bit difficult for us to speak for them. Originally we were proposing a larger group at the table. They're all set out in that earlier document.

CHAIR: Your submission claims that this review of the CATSI Act and the drafting of the bill hasn't been transparent or evidence based. What do you mean by that?

Dr McDonald : If you have a look at the NIAA submission to the inquiry—this is just an example to try and explain what we mean—it talks about the criticism of the bill, and it's very defensive. It doesn't talk about the reasons why a suggestion was rejected and present a case and the pros and cons. What we're saying is that decisions have been made—okay, consultations have received a whole heap of information and a whole heap of different views, but there has been no dialogue with us to say, 'These are the reasons why we've rejected that and gone for that.' That's what we want to engage in. Hopefully that makes sense.

CHAIR: I think we have slightly different definitions of what is a process that isn't transparent or evidence based, because I'm not entirely sure that's exactly what you've described, but that might be a differing of opinion more than anything else. Thank you very much for appearing today before the committee and for your submission. I'll just double-check that no other senators are seeking the call. No. I don't think we had any questions on notice for you but I will advise for the Hansard record that the committee has set Wednesday 29 September as the due date for answers to questions taken on notice. I thank NACCHO for appearing today.