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Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 63, 2015-16 8 DECEMBER 2015

Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015 James Haughton Social Policy Section

Contents

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Role of AIATSIS ........................................................................ 4

Venturous Australia—Building Strength in Innovation: Review of the national innovation system (The Cutler Review) 2008 ......................................................................... 4

The Review of Higher Education Access and Outcomes for Aboriginal and Torres Strait Islander People (The Behrendt Review) 2012 ......................................................... 4

Our Land, Our Languages—Language Learning in Indigenous Communities (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Report) 2012 ................................................ 5

Australian Institute of Aboriginal and Torres Strait Islander Studies Independent Review 2013 .......................... 5

Committee consideration .................................................... 7

Senate Standing Committee for the Selection of Bills ............. 7

Senate Standing Committee for the Scrutiny of Bills .............. 7

Policy position of non-government parties/independents ..... 7

Position of major interest groups ......................................... 8

Financial implications .......................................................... 8

Statement of Compatibility with Human Rights .................... 8

Parliamentary Joint Committee on Human Rights .................. 8

Key issues and provisions..................................................... 9

Provisions .............................................................................. 10

Functions of AIATSIS .............................................................. 10

Appointment of Members of AIATSIS ................................... 11

Date introduced: 12 November 2015

House: House of Representatives

Portfolio: Education and Training

Commencement: Commences on the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Appointment of Members to the Council ............................. 11

Research Advisory Committee .............................................. 12

Concluding comments ....................................................... 12

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Purpose of the Bill The purpose of the Australian Institute of Torres Strait Islander Studies Amendment Bill 2015 (the Bill) is to amend the Australian Institute of Torres Strait Islander Studies Act 1989 (the Act)1 to:

• change the functions and purpose of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) to provide a greater focus on the collection and preservation of Indigenous culture and heritage, including requiring that AIATSIS members have a demonstrated interest in Aboriginal and Torres Strait Islander ‘culture and heritage’

• reform AIATSIS’ governance arrangements, particularly the procedure for electing and appointing Councillors and members of the Institute and

• abolish the Research Advisory Committee.

Background The most significant changes proposed by the Bill are to the functions of AIATSIS and the abolition of the Research Advisory Committee, thus removing the research function (with some exceptions) and research grants from AIATSIS.

AIATSIS’ current functions are set out in section 5 of the Act. They are:

a) to undertake and promote Aboriginal and Torres Strait Islander studies;

b) to publish the results of Aboriginal and Torres Strait Islander studies and to assist in the publication of the results of such studies;

c) to conduct research in fields relevant to Aboriginal and Torres Strait Islander studies and to encourage other persons or bodies to conduct such research;

d) to assist in training persons, particularly Aboriginal persons and Torres Strait Islanders, as research workers in fields relevant to Aboriginal and Torres Strait Islander studies;

e) to establish and maintain a cultural resource collection consisting of materials relating to Aboriginal and Torres Strait Islander studies;

f) to encourage understanding, in the general community, of Aboriginal and Torres Strait Islander societies;

g) such other functions as are conferred on the Institute by this Act;

h) to do anything else that is incidental or conducive to the performance of any of the preceding functions. 2

These functions are chiefly directed towards research, managing research grants, training researchers and publishing the results of research. This reflects the time at which AIATSIS, and before it the Australian Institute of Aboriginal Studies, were established, when few if any universities or other institutions were systematically conducting research on Aboriginal and Torres Strait Islander history, culture and society.

According to the 2013-14 Review of AIATSIS, and the second reading speech of the Bill, there are now a large number of other research institutions, such as universities, conducting research on various matters related to Aboriginal and Torres Strait Islander peoples.3 Given AIATSIS’ ability to directly support research has declined and its cultural collection requires critical attention, the new functions direct AIATSIS much more towards leadership and coordination of research by others, and curating and making use of the existing collection. The new functions proposed by the Bill are:

a) to develop, preserve and provide access to a national collection of Aboriginal and Torres Strait Islander culture and heritage;

1. Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989, accessed 1 December 2015. 2. Ibid.

3. M Rose and M McMillan, Australian Institute of Aboriginal and Torres Strait Islander Studies: independent review, report prepared for the Department of Education, Acil Allen Consulting, May 2014, p. iii, 29; L Hartsuyker, ‘Second reading speech: Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015’, House of Representatives, Debates, (proof), 12 November 2015, pp. 3-4, both accessed 20 November 2015.

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b) to use that national collection to strengthen and promote knowledge and understanding of Aboriginal and Torres Strait Islander culture and heritage;

c) to provide leadership in the fields of:

i) Aboriginal and Torres Strait Islander research; and ii) ethics and protocols for research, and other activities relating to collections, related to Aboriginal and Torres Strait Islander peoples; and iii) use (including use for research) of that national collection and other collections containing Aboriginal and Torres

Strait Islander culture and heritage;

d) to lead and promote collaborations and partnerships among the academic, research, non-government, business and government sectors and Aboriginal and Torres Strait Islander peoples in support of the other functions of the Institute;

e) to provide advice to the Commonwealth on the situation and status of Aboriginal and Torres Strait Islander culture and heritage. 4

In keeping with the fact that research is no longer a major constituent of the functions of AIATSIS, provisions in the Act which established the Research Advisory Committee have been removed. The Research Advisory Committee formerly advised AIATSIS’ Council on the distribution of research grants and other research matters. The requirements of members of the Council have also changed to promote more rapid turnover of membership and require appointed members to have expertise relevant to AIATSIS’ functions.

The changes in functions and structure introduced by the Bill can be seen as the government’s response to a number of Inquiry recommendations relevant to AIATSIS, and changes within AIATSIS, over the last four years.

Role of AIATSIS The following reviews have contributed to re-examining the role of AIATSIS:

Venturous Australia—Building Strength in Innovation: Review of the national innovation system (The Cutler Review) 2008 In 2008, the Cutler Review, within a context of re-examining the innovation landscape, made the following recommendation in relation to AIATSIS:

Recommendation 7.13: The role of institutions such as the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) should be broadened and strengthened in recognition of the special importance of preserving Indigenous collections and the unique value of Indigenous traditional knowledge and practices within Australia’s innovation system.

5

The Review of Higher Education Access and Outcomes for Aboriginal and Torres Strait Islander People (The Behrendt Review) 2012 The Review was concerned with examining and providing advice on how to achieve parity for Aboriginal and Torres Strait Islander students, researchers and academic and non-academic staff. It examined what can be done across government, universities, business, professions and communities to support all Aboriginal and Torres Strait Islander people to participate and succeed in higher education and included the following recommendations relevant to AIATSIS and Aboriginal and Torres Strait Islander studies researchers and research:

Recommendation 19: That the Australian Government continue to support the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) to digitise and thus preserve its collection for future generations and particularly for use in higher education, and encourage the development of a national approach to data digitisation working with states, territories and community groups to ensure that Indigenous knowledge be digitised appropriately and preserved.

4. Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015, first reading, accessed 8 December 2015. 5. T Cutler, Venturous Australia—building strength in innovation: review of the national innovation system (Cutler Review), report prepared for the Department of Industry, Innovation, Science and Research (DIISR), Cutler & Company, North Melbourne, 2008, p. 97, accessed 24 November 2015.

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Recommendation 24: That the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) provide more formal guidance to publicly funded research agencies, universities and researchers on ethical research practice. This could include, for example, information on the AIATSIS website of case studies and materials to assist Australian researchers.

Recommendation 27: That the Australian Research Council (ARC) examine the adoption of a strategic approach to building capacity in Aboriginal and Torres Strait Islander researchers across its funding programs, building on the experiences of the National Health and Medical Research Council. The ARC should examine:

 current barriers to winning competitive grants experienced by Aboriginal and Torres Strait Islander people

 whether available funding programs can better assist in supporting Aboriginal and Torres Strait Islander researchers achieve research outcomes, particularly early career researchers

 the performance of the new Discovery Indigenous scheme

 whether ethical research practices are sufficiently supported within its competitive grants and grant approval processes.

Recommendation 28: That the Australian Government undertake a review of the Australian Institute of Aboriginal and Torres Strait Islander Studies to consider how best to maintain AIATSIS’ unique place in developing Aboriginal and Torres Strait Islander academic and research activities and the relationship it has with universities. 6

Our Land, Our Languages—Language Learning in Indigenous Communities (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Report) 2012 This inquiry was into Indigenous Languages in Australia, including their current status, their cultural and educational roles, and the various government programs and policies relating to or impacting upon them.

Recommendation 28: Dedicated Indigenous language archive - The Committee recommends that the Commonwealth Government include in the 2013-14 Budget increased resources for the Australian Institute of Aboriginal and Torres Strait Islander Studies to carry out the storage and digitisation of Indigenous language materials.

Recommendation 29: AIATSIS research funding - The Committee recommends the Commonwealth Government consult with the Australian Institute of Aboriginal and Torres Strait Islander Studies to determine an appropriate and sustainable funding model in order for it to recommence its research grants program in the 2013-14 Budget. 7

Australian Institute of Aboriginal and Torres Strait Islander Studies Independent Review 2013 In 2013, the Department of Education commissioned an independent review of AIATSIS by Acil Allen Consulting, as recommended by the Behrendt review. Six of the review’s eleven terms of reference referred to AIATSIS’ research role. The review’s recommendations, delivered in May 2014, have directly shaped the current Bill. They include the recommendations:

• AIATSIS’ role as the ‘key national and collecting research agency’ should be maintained (Recommendation 1)

• the government should work with the ARC, the National Health and Medical Research Council (NHMRC) and AIATSIS to make major grant streams more accessible to community-based research (Recommendation 9)

• AIATSIS should focus its research role on:

6. L Behrendt, S Larkin, R Griew and P Kelly, Review of higher education access and outcomes for Aboriginal and Torres Strait Islander people: final report, report prepared for the Department of Industry, Innovation, Science, Research and Tertiary Education (DIISRTE), DIISRTE, Canberra, 2012, p. ix, xxii-xxiii, accessed 27 November 2015.

7. House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Our land, our languages—language learning in indigenous communities, The House of Representatives, Canberra, September 2012, p. xxii, accessed 27 November 2015.

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- continuing to provide Indigenous Visiting Research Fellowships for early-career Aboriginal and Torres Strait Islander academics (Recommendation 10) - research specifically informed by its collection (Recommendation 11) - community outreach (Recommendations 12, 13) - promoting collaboration with and between institutions (Recommendations 4, 5, 6, 9) and - promoting ethical research in Australian Indigenous Studies (Recommendations 7, 8) • that AIATSIS’ collection management and digitisation program continue to be funded for the longer

term (Recommendations 14, 15, 16)

• that AIATSIS review its committee structures and membership (Recommendations 17, 18) and

• that AIATSIS investigate fundraising opportunities through philanthropy and external partnerships (Recommendation 20).8

AIATSIS welcomed the recommendations of the review, although several significant recommendations included in its submission to the review relating to expanding and funding its research program, were not part of the final recommendations.9

In 2012, AIATSIS suspended its annual research grant program for the first time in over 20 years. The total grants issued in 2011 totalled only $564,571 and had been between $500,000 and just over $700,000 annually since 2003-04. Reasons cited by AIATSIS were reduced government funding (in real terms) including the impact of efficiency dividends, and internal review findings that the grant program had high administrative overheads and was not meeting its intended purpose or current expectations from Indigenous communities, researchers and AIATSIS priorities.10 Funding was therefore diverted to higher priorities such as conservation of the collection. This was greeted with dismay by some stakeholders in the Indigenous studies community.11 Whether AIATSIS should continue to directly fund research in Indigenous Studies appears to have been one of the more contentious points in the later 2014 independent review by Acil Allen Consulting.

At the same time, AIATSIS was facing a crisis in its ability to maintain its collection. Assessment by Significance International, an independent cultural heritage assessor, in 2014 indicated that AIATSIS’ collection was the most extensive and best contextualised collection on Indigenous Australians in the world.12 The assessment also indicated that large parts of the collection were at ‘severe to catastrophic risk of disintegration’, in particular early film and sound recordings. Professor Mick Dodson, chairperson of AIATSIS, called for an immediate injection of funds of around $15 million, of which approximately two-thirds would be used for digitising the collection.13 UNESCO, which lists the collection on the Memory of the World register, has indicated that large parts of the AIATSIS magnetic media collection, including film and audio, would need to be digitised before 2025 or they would become unusable.14

Responding to the findings of the review and to the crisis in the collection in his address to the National Press Club on 12 November 2014, ‘Before It's Too Late: A call to secure Australia's Indigenous heritage’, Professor Dodson stated Australia needed ‘a comprehensive and urgent plan to identify, gather, safe-keep and share, the Indigenous heritage of this nation’ and that AIATSIS would ‘create the BITL [Before It’s Too Late] Mk3 Steering Group - a small group which will include notable Australians, both Indigenous and non-Indigenous, that we can call upon to help put the meat on the bones of this plan.’15

Professor Dodson also announced the establishment of a fundraising foundation, later named the AIATSIS Foundation, which was launched by the Governor-General, Sir Peter Cosgrove in May 2015. Based on the

8. M Rose and M McMillan, op. cit., p. v-viii. 9. AIATSIS, Submission to Acil Allen Consulting, Australian Institute of Aboriginal and Torres Strait Islander Studies: independent review (AIATSIS Review), 2014, accessed 24 November 2015. 10. M Rose and M McMillan, op. cit., p.29-34. 11. For example, R Gosford, ‘The slow death of Aboriginal research? AIATSIS suspends research grants’, The Northern Myth, blog,

22 January 2012, accessed 23 November 2015. 12. V Bullock, ‘Statement of Significance’, AIATSIS website, 21 August 2014, accessed 19 November 2015 13. M Ragatt, ‘Indigenous collections could be lost: More funding crucial to save audio, film’, The Sunday Canberra Times, 7 December 2014, p. 3,

accessed 30 November 2015. 14. AIATSIS Collections Program, AIATSIS collection management plan 2013-2016, AIATSIS, Canberra, 2013, p. 35, accessed 30 November 2015. 15. M Dodson, Before it's too late: A call to secure Australia's Indigenous heritage, speech, National Press Club, Canberra, 12 November 2014,

accessed 30 November 2015.

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statements of purpose of the Foundation (below), it appears that the privately-supported Foundation will take over many of the responsibilities of supporting Indigenous research, researchers and publications that were previously the responsibility of AIATSIS under the Act. This may be in response to Recommendations 10, 11 and 20 of the AIATSIS Review.

The Foundation’s purpose was described in Professor Dodson’s speech as:

• partnering with technological innovators to import and develop futuristic engagements with our Collection

• making possible travelling exhibitions throughout the nation

• creating opportunities for Indigenous students to train in the professional skills required to maintain the collection and

• very significantly and most especially, raising support and funds for the establishment, in the not too distant future, of an internationally iconic building in Canberra to showcase, with substance, symbolism and significance, the world’s oldest continuing cultures. 16

The Foundation’s purpose is described on its website as:

• through forging new partnerships in Australia and internationally the AIATSIS Foundation will support innovative projects and new directions that will have at the core deep engagement with Aboriginal and Torres Strait Islander peoples

• this will include establishing prestigious internships and professional placements to stimulate research on and into the collection

• we will build relationships with institutions and develop the capacity for co-creation of publications, education resources, digital products and exhibitions

• the AIATSIS Foundation will underpin these efforts as well as raise support and funds for the establishment of an internationally iconic building in Canberra to showcase the world’s oldest continuing cultures with substance, symbolism and significance. 17

In response to the crisis in the collection and Recommendations 14 to 16 of the review, the Government provided additional funding of $8.3 million across the 2014-15 ($3.3 million)18 and 2015-16 ($5 million) budgets to address immediate risks to the collection.19 This was welcomed by the Labor Party.20 It is reported that a spokesman for the then Education Minister Christopher Pyne stated that ‘the size and composition of AIATSIS’ staffing arrangements will need to remain flexible and responsive to emerging developments and priorities’.21

Committee consideration Senate Standing Committee for the Selection of Bills The Committee decided not to refer the Bill to a committee for inquiry.22

Senate Standing Committee for the Scrutiny of Bills The Committee for the Scrutiny of Bills had no comment on the Bill.23

Policy position of non-government parties/independents Shadow Minister for Indigenous Affairs Shayne Neumann spoke in support of the Bill in a second reading speech, but called attention to the fact that AIATSIS’ research grants program had not been re-funded, despite

16. Ibid.

17. AIATSIS, ‘Why a foundation’, AIATSIS website, accessed 22 November 2015. 18. C Pyne (Minister for Education), Securing the funding and future of Australian research, media release, 13 May 2014, accessed 7 December 2015. 19. C Pyne (Minister for Education and Training), New funding to preserve Indigenous cultural materials, media release, 29 April 2015, accessed

30 November 2015. 20. K Carr (Shadow Minister for Higher Education, Research, Innovation and Industry), Labor welcomes AIATSIS funding, media release, 29 April 2015, accessed 30 November 2015. 21. M Raggatt, ‘Indigenous collections could be lost’, op. cit. 22. Senate Standing Committee on the Selection of Bills, Report, 16, 2015, 3 December 2015, accessed 1 December 2015. 23. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 13, 2015, 25 November 2015, p. 2, accessed 1 December 2015.

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Recommendation 29 of the Our Land, Our Languages report (above) that the program be recommenced. Mr Neumann stated:

…We support this amending legislation. When I was chair of the House of Representatives Standing Committee on Indigenous Affairs, we established an inquiry that looked into the loss of Indigenous language and produced a report called Our land our languages. We had a bipartisan approach, and we recommended in that report, handed down in 2012, that the Commonwealth government consult with AIATSIS to determine an appropriate and sustainable funding model for it to recommence its research grants in the 2013-14 budget... As I said, Labor have always supported AIATSIS. We support these amendments which we believe will strengthen the governance of AIATSIS. We commend the government for introducing this legislation into the chamber. We hope this Bill signals an intent from the government to re-engage with the institute and support its work in the future with a different approach to funding. We also hope that it is the start of the government resetting its approach to science, culture, heritage and language and that the government has changed its perspective from what we saw in the 2014 budget. However, given the government's abysmal treatment of publicly funded research in this country, we remain concerned. But we do commend the government and support the legislation before the chamber.

24

The Labor Party has previously welcomed the announcement of additional funding to preserve AIATSIS’ collection.25

Position of major interest groups AIATSIS has issued a statement supporting the Bill. Professor Dodson stated:

The amendments have been negotiated between the government and AIATSIS’ Council and executive…We’ll be working closely with our new portfolio Minister, Senator the Hon. Simon Birmingham, to implement the changes seamlessly. They are designed to streamline AIATSIS’ functions so that we can continue to effectively preserve, understand and communicate Aboriginal and Torres Strait Islander heritage and culture for future generations.

26

No other stakeholders have yet made comments.

Financial implications The Explanatory Memorandum states that the financial impact of the measures are expected to be nil or insignificant. The amendments in the Bill form part of a reform agenda for governance of the Institute and may therefore create administrative efficiencies. 27

Some provisions in the Bill are related to AIATSIS’ urgent need to digitise and improve conservation of its collection. It is likely that this will require further additional funding in future.

A potential indirect financial implication is that as AIATSIS may no longer take a lead role in funding or publishing Indigenous Studies research except where it pertains directly to its collection, Indigenous Studies researchers will in future apply to other entities, like the Australian Research Council, for funds. This would increase the already intense competition for these funds and potentially reduce overall funding to the Indigenous Studies sector if applicants are unsuccessful.

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.28

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.29

24. S Neumann, ‘Second reading speech: Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015’, House of Representatives, Debates, (proof), 30 November 2015, pp. 68-70, accessed 7 December 2015. 25. K Carr, Labor welcomes AIATSIS funding, op. cit. 26. AIATSIS, Update for AIATSIS Act, media release, 16 November 2015, accessed 20 November 2015. 27. The Financial Impact Statement can be found at page 2 of the Explanatory Memorandum to the Bill. 28. The Statement of Compatibility with Human Rights can be found at pages 3-6 of the Explanatory Memorandum to the Bill.

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Key issues and provisions The key issue with regard to the Bill is the refocussing of the Institute’s responsibilities away from research and administering research grants to more of a sector leadership role in research and to focussing on building and preserving the collection of materials concerning the history of Aboriginal and Torres Strait Islander peoples in Australia. The Government argues that this will enable AIATSIS to complete the urgent task of adequately conserving and utilising its cultural collection, which is its key asset and point of difference from other institutions conducting Indigenous Studies.

The changes also mean that AIATSIS’ grants program, a long-standing source of funds and resources for general Indigenous Studies research will no longer be available. This is contrary to AIATSIS’ original preferred outcome, expressed in its submission to the review of AIATSIS, of an expanded and revitalised research grants program.30 The Independent Review of AIATSIS received many submissions opposing the earlier freezing of the grants program.31

AIATSIS has in the past supported research and provided public comment on Indigenous matters not directly connected to culture and heritage, for example on Indigenous incarceration rates.32 A significant proportion of previous research grants have concerned Aboriginal and Torres Strait Islander history, health and wellbeing, and political and legal issues.33 The narrowing of its functions and membership to exclusive concern with Culture and Heritage may limit its ability to support research or provide public comment and leadership on such issues in future.

With the grants program removed, AIATSIS is unlikely to continue to support Aboriginal and Torres Strait Islander Studies researchers and publications about Aborigines and Torres Strait Islander issues. These specific responsibilities are removed by the Bill, replaced with the less specific ‘Provide leadership in the field of Aboriginal and Torres Strait Islander research’, nor has AIATSIS been appropriated extra funds to do so. From the description of the Foundation’s purposes above, it appears supporting researchers will now be the responsibility of the AIATSIS Foundation, which is dependent upon private funding and is also fundraising to build a new museum/home for the collection. The second reading speech notes that ‘many more academic, cultural and community organisations and institutions’ are now involved in such work than in 1989 when the Act was enacted.34 This suggests that in future, researchers not directly working upon the collection will need to seek support elsewhere.

There is an ARC Discovery Grant program specifically for Indigenous studies, worth approximately $5.5 million a year.35 However, ARC Discovery grants are usually large grants gained by academics with existing records of achievement, while the AIATSIS grant program previously focussed upon a larger number of small grants to communities and early-career Aboriginal and Torres Strait Islander Studies researchers. For example, in 2014 the ARC Discovery Indigenous grant program made 10 grants with an average value of $480,000 each,36 while in 2011, the last year of the AIATSIS grants program, AIATSIS made 23 grants with an average value of $24,500 each.37

29. Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament, 24 November 2015, p. 2, accessed 1 December 2015. 30. AIATSIS, Submission to AIATSIS Review, op. cit., p. 3-4. 31. M Rose and M McMillan, op. cit., p. vi. 32. AIATSIS, Arresting incarceration, media release, 4 March 2014, accessed 19 November 2015. 33. M Rose and M McMillan, op. cit., p. 29. 34. L Hartsuyker, ‘Second reading speech: Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015’, op. cit. 35. Australian Government, Australian Research Council Budget statements 2015-16, Australian Research Council, p. 168, accessed

23 November 2015. 36. M Rose and M McMillan, op. cit., p. 20. 37. M Rose and M McMillan, op. cit., p. 30.

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Recommendation 9 of the Independent Review of AIATSIS is:

That the Australian Government consider whether current research grants in the major funding streams (i.e. ARC and NHMRC) are being made available, as appropriate, to community based research, and whether there is a role for AIATSIS in the prioritisation and distribution of funding to support community research. 38

If this recommendation, and the similar Recommendation 27 of the Behrendt review (above) are acted upon, it may allay these concerns.

Provisions limiting Councillors to a maximum of two terms will require several high-profile current Councillors at to step down at the end of their current terms, including Professor Mick Dodson and Emeritus Professor Bob Tonkinson.

If the Bill were not passed and AIATSIS’ funding were not increased, AIATSIS’ resources would continue to be spread across a larger number of functions and its ability to focus on and devote its resources to preserving, using and extending its Indigenous cultural heritage collection might be hindered. This might place the collection at greater risk.

Provisions Items 1 and 6 amend section 3 of the Act by removing the definitions of Aboriginal and Torres Strait Islander Studies and the Research Advisory Committee to enable the refocussing of the AIATSIS’ functions. Items 3 and 5 repeal the definition of Principal and replace this with a definition of Chief Executive Officer.

Functions of AIATSIS Item 7 repeals the current functions of AIATSIS contained in section 5 and substitutes with proposed section 5 a set of new functions for AIATSIS which will take it in a different direction. Currently the functions set out in section 5 encompass the research functions of AIATSIS. These functions include conducting research in fields that are relevant to Aboriginal and Torres Strait Islander peoples and publishing the results of those studies. It is also responsible for training Aboriginal and Torres Strait Islanders as research workers in the field and as part of those responsibilities to establish and maintain a cultural resource collection. It promotes Aboriginal and Torres Strait Islander studies and encourages an understanding in the general community of matters relating to Aboriginal and Torres Strait Islander peoples. As part of these responsibilities, AIATSIS has in the past managed the applications by prospective researchers as well as the granting of research monies to persons approved by AIATSIS to do original research.

According to the AIATSIS submission to the independent review, the AIATSIS Council in 2012 suspended the grants program due to a series of issues regarding the program including high overheads, budget constraints and a drop in the quality of applications submitted. The total grants issued in 2011 totalled only $564,571. AIATSIS noted that excellent grants of high cost or major research collaborations could not be supported and the costs of managing the program relative to the amounts offered were higher than other audited programs.39 The AIATSIS Grants program was removed from the Australian Competitive Grants Register40 because its expenditure fell below $1 million, which both decreased the visibility of the grants and also meant research undertaken received a lower ranking for the purposes of the Excellence for Research in Australia initiative.41 Many communities, professional associations, researchers and other stakeholders raised strong objections to the discontinuation of the program.42

38. M Rose and M McMillan, op. cit., p. vi. 39. AIATSIS, Submission to AIATSIS Review, op. cit., p. 36. 40. The 2010 review of the Australian Competitive Grants Register conducted by the Higher Education Data Advisory Committee changed the budget threshold for all eligible schemes to $1 million or more per annum. Department of Education, Employment and Workplace Relations

(DEEWR), 2010 Review of the Australian Competitive Grants Register, DEEWR, 2010, accessed 25 November 2015. 41. ARC, ‘Excellence in research for Australia’, ARC website: The ARC is responsible for administering Excellence in Research for Australia (ERA), Australia’s national research evaluation framework. ERA identifies and promotes excellence across the full spectrum of research activity in

Australia’s higher education institutions… The first full round of ERA occurred in 2010 and the results were published in early 2011. This was the first time a nationwide stock take of discipline strengths and areas for development had ever been conducted in Australia. There have been two subsequent rounds of ERA in 2012 and 2015. The results from each ERA round are published in the ERA 2010 National Report, and the ERA 2012 National Report, which are available online at ARC, ‘ERA reports’, ARC website, updated 4 December 2015, accessed 7 December 2015. 42. M Rose and M McMillan, op. cit., p. vi.

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Proposed section 5 omits provisions related to the grants function and focuses on the direction and purpose for AIATSIS in developing, preserving and providing access to the national collection of Aboriginal and Torres Strait Islander culture and heritage. It is now proposed that AIATSIS use the collection to promote knowledge and understanding of Aboriginal and Torres Strait Islander culture and heritage. It will provide leadership in the fields of research, ethics and protocols for research and other activities relating to collections. AIATSIS will provide leadership and promote collaborations and partnerships among academic, research, government and non-government areas, business sectors and Aboriginal and Torres Strait Islander peoples in support of the other functions of AIATSIS. It will advise the Commonwealth on what is happening in relation to matters concerning the status of Aboriginal and Torres Strait Islander culture and heritage.

Appointment of Members of AIATSIS Item 8 repeals subsection 7(1) of Part 4 of the Act. Part 4 concerns the appointment of members to AIATSIS.

Currently paragraphs 7(1)(a) and (b) deal with persons who were formerly members or associate members of the Australian Institute of Aboriginal Studies before the commencement of section 7 and thereafter considered to be members of AIATSIS. Paragraph 7(1)(c) provided for persons to be appointed by the Council. Proposed subsection 7(1) provides that subject to Part 4, members of AIATSIS will be persons appointed by the Council. Item 11 repeals paragraphs 7(2)(c) and (d) which removes references dealing with the Research Advisory Committee, which under section 7 advised the Council on the appointment of persons as members.

Item 12 sets out application and transitional provisions that concern the amendments to section 7 made by items 8 to 11. Subitem 12(1) provides that the amendments apply to the making of appointments on or after commencement of the amendments as a result of applications for membership made before, on or after commencement. Subitem 12(2) provides that the amendments to subsection 7(1) do not affect the membership of a person who is a member immediately before the commencement of the amendments.

Appointment of Members to the Council Item 16 repeals paragraphs 12(1)(a), (b) and (c) which deal with how the Council is constituted. Currently the makeup of the Council consists of four persons elected by members of AIATSIS, one person who is a Torres Strait Islander appointed by the Minister and four other persons who are Aboriginal or Torres Strait Islanders appointed by the Minister. Item 16 substitutes proposed paragraphs 12(1)(a), (b) and (c). Proposed paragraph 12(1)(a) provides that two members of AIATSIS who are Aboriginal or Torres Strait Islander persons can be elected by AIATSIS members to the Council. Proposed paragraph 12(1)(b) provides that two persons who are members who may or may not be Aboriginal or Torres Strait Islander persons can be elected by members of AIATSIS. Proposed paragraph 12(1)(c) provides for the appointment of five persons to the Council by the Minister. The persons are to have skills or experience in one or more of the following:

i. cultural material conservation;

ii. collection management;

iii. research;

iv. fundraising;

v. finance;

vi. business;

vii. law.

43

The number of Council members proposed above is the same as the current number.

Item 17 inserts proposed subsections 12(1A) and (1B). Proposed subsection 12(1A) provides that the Minister must ensure, when making an appointment to the Council, that at least five of the Councillors are Aboriginal or Torres Strait Islander persons and at least one of the Councillors is a Torres Strait Islander person. Proposed subsection 12(1B) provides that a person cannot be elected or appointed as a Councillor if the term of appointment starts immediately after two consecutive terms of office. Currently under section 15, a Councillor holds office for a period not exceeding four years.

43. Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015, op. cit.

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Item 18 contains transitional and application provisions for Councillors. Subitem 18(1) provides that the amendments to section 12 (constitution of the Council) made by items 16 and 17 do not affect the continuity in office of Councillors who held office immediately before the commencement of the amendments. Those persons continue to serve their terms of appointment. Subitem 18(2) provides that changes to paragraphs 12(1)(a) and (b) apply to elections for Councillors after the end of their terms of office of all elected Councillors who held office prior to commencement. Subitem 18(3) provides that proposed paragraph 12(1)(c) and proposed subsection 12(1A) apply in relation to making appointments on or after the commencement of this Schedule. Subitem 18(4) provides that proposed subsection 12(1B) applies to elections and appointments for terms that start on or after the commencement of this Schedule whether earlier consecutive terms mentioned in that provision occurred wholly or partly before or after that commencement. Terms of appointment occurring wholly or partly before or after commencement will be taken into account.

Research Advisory Committee Item 28 repeals Part 8 of the Act. Part 8 contains the provisions relating to the Research Advisory Committee, its establishment, constitution and functions. The Committee was established under subsection 31(1) of Part 8 and currently consists of twelve members: three members of the Council, eight members of AIATSIS and the Principal of AIATSIS (appointed under Part 6 of the Act).44 The functions of the Committee are contained in section 32. The functions of the Committee are to assess applications for research grants and to make recommendations in relation to those applications to the Council. The Committee also advised the Council on research matters and in relation to applications for membership of AIATSIS.

The current members of the Committee are:

• The Principal—Mr Russell Taylor

• Council Appointment 1—Emeritus Prof Robert Tonkinson

• Council Appointment 2—Mr Kado Muir

• Council Appointment 3—Professor Cindy Shannon

• Health and Wellbeing—Prof Len Collard

• Education and Socio Economic Institutions—Dr Peter Radoll

• Arts and Creative Expression—Associate Prof Maryrose Casey

• Native Title and Traditional Ownership—Dr Sally Babidge

• Economics, Industry and Development—Prof Dennis Foley

• Language and Cultural Transmission—Prof Regina Ganter

• Land, Water and Environment—Dr Fiona Walsh

• Governance, Law and Justice—Prof Larissa Behrendt 45

Concluding comments The Bill is supported by the current Councillors of AIATSIS and the Labor Party. Some researchers in the Aboriginal and Torres Strait Islander studies sector have previously expressed strong opposition to AIATSIS no longer making grants for research, and the Labor Party has also noted the cessation of the research grant funding program.46 However, a resumption of the grants program in the same form was not supported by the Independent Review of AIATSIS.

The Bill is likely to reduce the pool of funds available for more general Indigenous research, as it appears AIATSIS will no longer administer general research grants. This will particularly affect Aboriginal and Torres Strait Islander communities seeking support for research, and independent and early career Aboriginal and Torres Strait Islander studies researchers who may not have the university affiliation or track record to receive a grant from the ARC. This problem could be allayed by government action on Recommendation 9 of the Independent Review

44. Items 3, 5, 14 and 20 to 23 of the Bill replace references to the ‘Principal’ with ‘Chief Executive Officer’. 45. AIATSIS, ‘Research Advisory Committee’, AIATSIS website, accessed 26 November 2015. 46. S Neumann, ‘Second reading speech: Australian Institute of Aboriginal and Torres Strait Islander Studies Amendment Bill 2015’, op. cit.

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of AIATSIS, which recommends that the government work with the ARC, NHMRC and AIATSIS to make grants more accessible to community-based research.47

The Bill’s redefinition of AIATSIS’ functions may also lessen AIATSIS’ ability to provide general public leadership and input into Indigenous Affairs.

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47. M Rose and M McMillan, op. cit., p. vi.