Government Response to the Review

Government Response to the Review of the Aboriginal and Torres Strait Islander Elected Body Act 2008

INTRODUCTION

During the second term of the Aboriginal and Torres Strait Islander Elected Body (the Elected Body), both the Elected Body and the ACT Government considered it appropriate to review the Aboriginal and Torres Strait Islander Elected Body Act 2008 (the Act).

Ms Terri Janke of Terri Janke and Company, Lawyers and Consultants, was engaged as the Independent Reviewer.

The Review terms of reference were to:

• inquire and make general recommendations as to the aims, objectives and operations of the Aboriginal and Torres Strait Islander Elected Body Act 2008;
• inquire into and make recommendations as to whether the administrative and operational provisions within the Act require any changes to facilitate and improve the efficacy of the Act;
• report all findings and recommendations, incorporating public responses following a period of consultation;
• recommend improvements into the effectiveness of the Elected Body to undertake its role and functions of the Elected Body as intended by the Aboriginal and Torres Strait Islander Elected Body Act 2008; and
• identify the impediments to the Elected Body operating effectively in the context of its role and functions as described in the Aboriginal and Torres Strait Islander Elected Body Act 2008.

The independent reviewer provided a report to the Community Services Directorate on 5December 2015.

The report was prepared following extensive consultation with the Elected Body, the United Ngunnawal Elders Council, the Aboriginal and Torres Strait Islander Subcommittee to the Strategic Board, ACT Government Directorates, community organisations and the local Aboriginal and Torres Strait Islander community.

In her report, Ms Janke recognised the Elected Body for the value it brings to the ACT Government and the community, with limited resources, by giving a range of perspectives and distilling information from the Aboriginal and Torres Strait Islander community.

The review found that the Elected Body performed its functions as evidenced by its reports, key agreements and the hearing process. The review recommended that the Act confirm the fundamental purpose of the Elected Body which is to give a voice to the people, not be the voice. It further recommended that the functions of the Elected Body need to be clarified, allowing for more comprehensive consultation and establishing the Elected Body’s hearings process within the legislation.

The summary conclusions of the review is that amendments are needed to confirm that the fundamental purpose of the Elected Body is to give a voice to the people, not be the voice, and to enable this purpose to be properly fulfilled.

The report makes thirty three recommendations that will assist the Elected Body to more effectively advocate and represent the Aboriginal and Torres Strait Islander communities of the ACT in line with principles of the ACT Aboriginal and Torres Strait Islander Agreement 2015-2018 and the United Nations Declaration on the Rights of Indigenous Peoples.

The recommendations include:

• The objects of the Act being amended to be consistent with the language of the UNDeclaration on the Rights of Indigenous people;
• Clarification of the objectives of the Act and the functions of the Elected Body;
• The Elected Body’s relationship with the traditional custodians of the ACT and the United Ngunnawal Elders Council;
• Improvements to the effectiveness of the Elected Body in its dealings with the ACT Government and the Aboriginal and Torres Strait Islander communities in the ACT;
• Consultation mechanisms beyond community forums and formalisation of their hearings process;
• The Elected Body’s governance and electoral participation; and
• The Elected Body’s independence and harmonisation of the Act and ACT Heritage Act 2004.

One of the recommendations highlighted an inconsistency between the Act and the Electoral Act 1992.

REVIEW RECOMMENDATION

/

RESPONSE

1. The Aboriginal and Torres Strait Islander Elected Body Act 2008 is an important leading model for Aboriginal and Torres Strait Islander participation in government. ATSIEB is highly valued by the Aboriginal and Torres Strait Islander community and ACT Government, and should be maintained.

/ Agreed

1. The opening sentence of section 3 - Objects of the Act should be amended to be consistent with the language of the Declaration on the Rights of Indigenous people. Alternatively, an interpretative statement could be added to the Act.

Issue
The current wording of the introduction of the objects comes from a deficit approach when it recognises the disadvantaged position of Aboriginal and Torres Strait Islander people living in the ACT. / Agreed (subject to outcomes of consultation)

1. The object in section 3(e) of the Act ‘to provide for advice to be given on appropriate representation of Aboriginal and Torres Strait Islander people living in the Act on consultative bodies established by government agencies’ should be changed to a function of the Act in section 8, or otherwise have its own section.

Issue
This is a function of ATSIEB rather than an object.
The functions of the ATSIEB Act are too wide and there is a general view by Aboriginal and Torres Strait Islander people that the Act has no power. There is confusion about the role of ATSIEB. The functions are interpreted widely, and need to be reduced to a strategic high level role. / Agreed (subject to outcomes of consultation)

1. The following amendments should be made to the section 8 functions of the Act:

1. Change 8(f) – ‘to propose programs and services’.
2. Change Section 8(j) to refer to Ngunnawal cultural heritage, and move this function to section 9, consultation etc. with UNEC.

Issue

1. The current wording of this section places responsibility on ATSIEB to propose programs and design services for Aboriginal and Torres Strait Islander people living in the ACT for consideration by the government and its agencies. It is the responsibility of ACT Government agencies to develop programs and services in consultation.
2. The functions of the Act that require ATSIEB to consult with UNEC if asked on a matter of cultural material protection in 8(j) is inconsistent with the Heritage Act.

/ Agreed (subject to outcomes of consultation)

1. Clarification of section 8(e) that ‘conduct research’ also includes that ATSIEB may ‘propose research to be undertaken by the ACT Government’ which is to assist the ATSIEB exercise its functions.

Issue
The current wording of this section places responsibility on ATSIEB to conduct research and community consultation to assist ATSIEB in the exercise of its functions. ATSIEB’s should be able to propose research to be considered for completion by the ACT Government. / Agreed (subject to outcomes of consultation)

1. Amend the community consultation reference in section 8(e) to provide for Aboriginal and Torres Strait Islander community consultation rather than just ‘community’.

Issue
ATSIEB’s function is to consult with the Aboriginal and Torres Strait Islander community. / Agreed (subject to outcomes of consultation)

1. Consideration should be given to review section 9 relating to the consultation with UNEC to include Ngunnawal cultural heritage, as per current section 8(j).

Issue
Section 9 of the Act should be amended to consult with and consider the views of Traditional Custodian groups in line with the Heritage Act 2004 and any other relevant cultural stakeholder groups as it relates to regional cultural issues. / Agreed (subject to outcomes of consultation)

1. The ACT Government, ATSIEB and UNEC should jointly establish the issues that UNEC should be consulted on, and s 9 should be amended to this effect.

Issue
This recommendation needs to be considered in line with the recommendations in 4(b) and 7 to ensure the views of Traditional Custodian groups in line with the Heritage Act 2004 and any other relevant cultural stakeholder groups as it relates to regional cultural issues. / Agreed (subject to outcomes of consultation)

1. Section 13 outlining the community forums principles should be reviewed but considered in light of the need for a more comprehensive community engagement plan by ATSIEB.

Issue
The Act needs to reflect ATSIEB’s responsibility to consult with the Aboriginal and Torres Strait Islander community without being overly proscriptive on the medium that the Elected Body should use. / Agreed (subject to outcomes of consultation)

1. Review of clauses 11 – 13 relating to the community forums:
2. The forums should not be the only legislative mechanism for canvassing the issues of concern for Aboriginal and Torres Strait Islander people and consideration of mechanisms for ATSIEB to develop a wider consultation plan;
3. The wider Aboriginal and Torres Strait Islander community should be invited including key Indigenous organisations.
4. The review should consider how ATSIEB will report back.

Issue
In line with recommendation 9, it is proposed that references to community forum be replaced with a more generalised community consultation. This will ensure that every Aboriginal and Torres Strait Islander person living in the ACT is eligible to participate in a community consultation process and that Aboriginal and Torres Strait Islander organisations and traditional custodian groups are invited to participate in consultation processes. / Agreed (subject to outcomes of consultation)

1. Amendments to section 13 should require invitation to key Indigenous organisations, UNEC and representative organisations – and further establish the hearings process.

Issue
In line with recommendations 9, 10 and 12, the Act needs to reflect ATSIEB’s responsibility to consult with the Aboriginal and Torres Strait Islander community without being overly proscriptive on the medium that the Elected Body should use. / Agreed (subject to outcomes of consultation)

1. A new division should be included in Part 2 of the ATSIEB Act that provides power to ATSIEB to conduct hearings and the process of tabling reports, and the response by the ACT Government. This division could detail the communications between ATSIEB and the Aboriginal and Torres Strait Islander community regarding the hearings and a clear process for how the community feeds into the questioning; the reporting processes to the ACT Government, and ACT Government response to ATSIEB and timeframes.

Issue
This will give validity to the hearings process and allay community concerns at the lack of powers of ATSIEB. The monitoring and reporting functions provide ATSIEB with considerable influence to keep ACT Government to account. / Agreed (subject to outcomes of consultation)

1. Rectify the inconsistency between section 29 of the ATSIEB Act and section 118 of the Electoral Act regarding timing of the draw for positions of candidate names on the ballot paper.

Issue
ACT Electoral Commission identified an inconsistency with the Aboriginal and Torres Strait Islander Elected Body Act 2008 and the Electoral Act 1992, as applied by the Aboriginal and Torres Strait Islander Elected Body Act 2008, during the 2014 election. / Agreed

1. Guidelines on the understanding of the functions of the ATSIEB Act should be drafted to guide ATSIEB and the ACT Government, and inform the Aboriginal and Torres Strait Islander community.

Issue
The report identified that once the functions of the Act are clarified and there are established guidelines for the matters put to ATSIEB, it is expected that the workload should focus on high level strategy work and representation. / Agreed (subject to outcomes of consultation)

1. Establish measures and reporting targets for ATSIEB to monitor effectiveness and accessibility.

Issue
The report found that previously the Elected Body found it difficult to monitor and report effectively. The development of an outcomes framework for the Aboriginal and Torres Strait Islander Agreement with provide the measures and targets for the Elected Body to monitor effectiveness and accessibility. / Agreed (subject to outcomes of consultation)

1. Guidelines should be developed for Directorates and ATSIEB about what business is put to ATSIEB for consultation, and what matters can be handled by OATSIA, directorate policy staff or RAP committee.

Issue
The report raised the issue that the focus of ATSIEB risks becoming administrative. The ATSIEB Act should be adjusted to avoid this for several reasons. Firstly, as a matter of governance, ATSIEB should keep to high level strategic decisions and its advocacy role. The separation of powers is a key principle of good governance. / Agreed (subject to outcomes of consultation)

1. A policy development tool kit for consulting and engaging the Aboriginal and Torres Strait Islander community should be developed. This should aim to provide a uniform approach across directorates and include checklists such as the policy impact statement.

Issue
The report recommends that the ACT Government develop:

• Toolkit for Managers on dealing with Aboriginal and Torres Strait Islander issues
• Consistent framework for impact assessment of policies on Aboriginal and Torres Strait Islander people
• Consistent framework for how ACT Government engages Aboriginal and Torres Strait Islander people, organisations and Elected Body.

/ Agreed (subject to outcomes of consultation)

1. Greater inclusion of wider Aboriginal and Torres Strait Islander community in ACT Government consultative bodies. ACT Government guidelines on how Aboriginal and Torres Strait Islander people are included and appointed to advisory committees.

Issue
The objects of the Act state that ATSIEB is to provide for advice to be given on appropriate representation of Aboriginal and Torres Strait Islander people living in the ACT on consultative bodies established by government agencies. During the review the community reported a tendency for ATSIEB members to hold these positions. This was criticised because it did not acknowledge the expertise of the Aboriginal and Torres Strait Islander community by allowing skilled and experienced Aboriginal and Torres Strait Islanders to participate on consultative bodies, and advise Directorates.
ACT Boards and Committee Handbook should be reviewed to clearly outline how government officials should seek nominations for candidates. / Agreed (subject to outcomes of consultation)

1. ATSIEB to develop comprehensive community engagement plans in carrying out its community consultation functions of in section 8(e) of the ATSIEB Act

Issue
Many Aboriginal and Torres Strait Islander people said that they did not feel that the communication systems used by ATSIEB were adequate to reach the wider Aboriginal and Torres Strait Islander community. / Agreed (subject to outcomes of consultation)

1. Establish a consistent process across directorates for Directors-General meetings, and adopt reporting to community processes. Increase transparency around meetings ATSIEB hold with Directorate staff

Issue
There is a risk that ATSIEB is asked to do a great range of things, and some are operational tasks. Some of these may be better directed to OATSIA who are better resourced.
The report recommends that there be protocols about what issues to take to ATSIEB and which ones can go to OATSIA or the Indigenous policy staff, and when to consult with the wider Aboriginal and Torres Strait Islander community. / Agreed (subject to outcomes of consultation)

1. The work that ATSIEB is doing needs to be communicated back to the community in appropriate ways. For instance, reports converted into plain English and in an accessible manner.

Issue
The report identified that the complex reports and information produced by ATSIEB were not seen as accessible. Some suggestions to improve communications included:

• Send flyers, hard copy newsletters or letters to community organisations or individuals to inform them about forums (by mail or email).
• Meet with people.
• Use radio, television and media;
• Use local free newspapers.

/ Agreed (subject to outcomes of consultation)

1. There should be greater use of sub-committees drawing from the expertise in the Aboriginal and Torres Strait Islander community.

Issue
The reviewer this would be a mechanism for ATSIEB to consult more broadly. / Agreed (subject to outcomes of consultation)

1. Information guide for dealing with complaints about programs and services. Review processes for accessibility to Aboriginal and Torres Strait Islanders and raising awareness of the complaints process for Aboriginal and Torres Strait Islanders.

Issue
ATSIEB’s role to draw attention to issues of concern raises a tension between ATSIEB taking up systemic issues rather than looking into individual complaints. Better communications could assist this. However, there is an expectation in the community that ATSIEB is there to speak to people in power, especially for the more disadvantaged members of the Aboriginal and Torres Strait Islander community. / Agreed (subject to outcomes of consultation)

1. Further efforts to conciliate between UNEC and ATSIEB to build relationships in carrying out ATSIEB’s section 9 obligation to consult with UNEC.

Issue
In line with recommendations 4(b), 7, 8 and 11,the Elected Body should consult with and consider the views of Traditional Custodian groups in line with the Heritage Act 2004 and any other relevant cultural stakeholder groups as it relates to regional cultural issues including UNEC.
There is a need for parameters to be set around consultations between these entities. / Agreed (subject to outcomes of consultation)

1. Work with UNEC to develop protocols for what matters ATSIEB consults with UNEC including cultural material and make consistent across government with respect to inconsistency with Heritage Act.

Issue
Consult with and consider of the views of Traditional Custodian groups in line with the Heritage Act 2004 and any other relevant cultural stakeholder groups as it relates to regional cultural issues. See 4(b), 7, 8, 11 and 24. / Agreed (subject to outcomes of consultation)

1. Measures for monitoring and reporting should be developed to ascertain the impact of ACT policies on Aboriginal and Torres Strait Islanders. This will improve the exercise of ATSIEB’s monitoring and reporting functions under ss 8(g) & (h) of the Act.

Issue
In line with recommendation 15, the development of an outcomes framework for the Aboriginal and Torres Strait Islander Agreement with provide the measures and targets for the Elected Body to monitor effectiveness and accessibility. / Agreed (subject to outcomes of consultation)

1. Guidelines for section 10(3) to ensure that discussions with the non-government entities are to assist better accessibility and effectiveness, but not to deal with complaints about those services.

Issue