Review of the Aboriginal and Torres Strait Islander Elected Body Act 2008
Terri Janke
Commissioned by:
Contents
Acknowledgements 3
Introduction 4
Review terms of reference 5
Report structure 6
Abbreviations 6
Executive Summary 7
1. Background and overview of the ATSIEB Act 18
1.1 Objects 19
1.2 Functions 21
1.3 Governance 23
1.4 ATSIEB Elections 24
1.5 Administrative support 25
1.6 Analysis of the Act’s framework 26
2. Key issues 27
2.1 Things that work 27
2.1.1 Aims of the Act 27
2.1.2 Pass on views to the ACT Government 27
2.1.3 Advocacy and Representation: reports and key documents 29
2.1.4 Programs and Design Services 31
2.1.5 Monitoring and Reporting: Hearings 32
2.1.6 Communication with non-government entities 33
2.1.7 ATSIEB Election process 33
2.1.8 ATSIEB Structure aims to represents a complex community 34
2.1.9 Size and term of ATSIEB 35
2.1.10 Chair and Deputy Chair positions 35
2.1.11 Resignations 36
2.1.12 Leave 36
2.1.13 ATSIEB Meetings 36
2.1.14 Disclosure of interest 36
2.2 Things that need improvement 38
2.2.1 ATSIEB functions 38
2.2.2 Focus of ATSIEB risks becoming administrative 39
2.2.3 Communication with Aboriginal and Torres Strait Islander Community 40
2.2.4 Engagement with Aboriginal and Torres Strait Islander people 41
2.2.5 United Ngunnuwal Elders Council 42
2.2.6 Community forums 43
2.2.7 ‘Issue of concern’ and individual complaints 44
2.2.8 Limitations of the Directors-General meetings 45
2.2.9 Fostering Community Discussion 47
2.2.10 Sacred or Significant Cultural Material 47
2.2.11 Research 48
2.2.12 Limitations of hearing process 49
2.2.13 Propose Programs and Design Services 49
2.2.14 Key Indigenous organisations 50
2.2.15 Section 10 and non-government entities 51
2.2.16 Consultative Bodies of ACT Government 51
2.2.17 Communication systems 51
2.2.18 Comprehensive consultation 52
2.2.19 Managing Conflict of Interest: implementation 52
2.2.20 ATSIEB Election low votes 53
2.2.21 Candidates for Election 55
2.2.22 Inconsistency re: Timetable between ATSIEB Act and Electoral Act 57
2.2.23 Removal of a member 58
2.2.24 Part-time vs Full-time 58
2.2.25 ATSIEB is under-resourced 59
3. Recommendations for moving forward 60
4. Outside of scope of terms of reference 64
4.1 Independence of ATSIEB 64
4.2 Traditional custodians 65
Conclusion 65
Appendix 1 – Consultations 66
Acknowledgements
I would like thank all those that met with me and provided comments and feedback. I acknowledge the input of Rod Little, Chair of ATSIEB and Diane Collins, Deputy Chair of ATSIEB, the members and secretariat of ATSIEB; the ACT Directors-General that I met with; Julie Tongs and Craig Ritchie from Winnunga Nimmityjah Aboriginal Health Service (AHS); Kim Davison of Gugan Gulwan Youth Aboriginal Corporation and the staff of the Office of Aboriginal and Torres Strait Islander Affairs, especially Craig Leon and Gil Eshman; and the minutes takers Terry Edwards, Maria Vincent and Kerry McGuire. I would also like to acknowledge assistance from my team at Terri Janke and Company; Sarah Grant, Taryn Saunders, Martyn Gray (intern), Andrew Pitt and Veronica Dounis.
Currency: 5 December 2015
Written by:
Terri Janke, Solicitor Director
Terri Janke and Company
PO Box 780
Rosebery NSW 1445
Email: .
Phone: 02 9693 2577.
Introduction
The Aboriginal and Torres Strait Islander Elected Body Act 2008 (ACT) aims to enable all Aboriginal and Torres Strait Islander people in the ACT to have a strong democratically elected voice. The law has been operational for 7 years and there have been many successes and challenges in this period.
I have been engaged to independently review the Aboriginal and Torres Strait Islander Elected Body Act to consider how the Elected Body can be strengthened to effectively undertake its role under the objects and functions of the Act.
In undertaking the Review, I consulted widely with Aboriginal and Torres Strait Islander people and ACT Government officers, to ascertain their views on how the model for an Elected Body, as outlined in the Act, was working. These consultations took the form of face to face meetings, community focus group sessions and roundtables. The consultations are outlined in Appendix 1.
The Review also sought feedback from the public through the ACT Government Time to Talk website. We received 57 submissions to a survey on whether the functions of the Act were effective in meeting the objects of the Act.
The scope of this Review is to examine the components of the Act and associated policies and procedures that have assisted the Elected Body in fulfilling the objectives and functions of the Act. I undertook wide consultations to canvas views on this.
I was asked to focus on Aboriginal and Torres Strait Islander community consultation. It was relevant to consider the Aboriginal and Torres Strait Islander community’s view of whether the ATSIEB Act ensured maximum opportunity for the voice of Aboriginal and Torres Strait Islander people living in the ACT to reach decision-makers in government.
In undertaking the review I also consulted widely with the Elected Body and members of the Aboriginal and Torres Strait Islander Sub-Committee of the ACT Public Service Strategic Board; officer from the ACT Government and identified community stakeholders.
The Review also required examination of the effectiveness of supporting administrative and governance arrangements in giving intent to the objects and functions of the Act.
It is important to note that the Review is about examining the mechanisms of the Act in an effort to make recommendations for improvement in the legal model within which ATSIEB operates. The Review is not a performance review of the ATSIEB. The many comments received during the consultations have been useful in guiding my recommendations for changes to the aims, objectives and operations of the Act; and improvements to supporting administrative and governance arrangements.
The areas I suggest for improvement are not a reflection of the performance of the Elected Body or any of its members. Rather, they are suggestions to clarify and improve the legal parameters under which ATSIEB operates, so that the work of ATSIEB can better align with the objects of the Act. ATSIEB has performed its functions under the Act.
I have inserted stakeholders’ views where they are relevant to the area of the Act being discussed. It is important to note that they are not my views and that they are represented in order to provide context.
Review terms of reference
The Review aims 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 to
· 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.
Report structure
In Part 1 of this Report, the background and context of the Aboriginal and Torres Strait Islander Elected Body Act 2008 will be discussed.
Part 2 reports on the findings which incorporate public responses received during the consultation period. I have divided these findings into things that work and things that need improvement. This section identifies the impediments to the Elected Body operating effectively.
Part 3 sets out the recommendations for changes to the objects and functions of the Act, and improvements in the administrative and governance arrangements supporting the Elected Body in fulfilling its aims and objects of the law.
Part 4 highlights some additional issues canvassed in consultations which come outside of the Review terms of reference, but are important related issues that I would like to draw to the attention of the ACT Government in an effort to assist them towards effective engagement with Aboriginal and Torres Strait Islander community.
Abbreviations
ACT Australian Capital Territory
ATSIEB Aboriginal and Torres Strait Islander Elected Body
ATSIC Aboriginal and Torres Strait Islander Commission
COAG Council of Australian Governments
CSD Community Services Directorate
OATSIA Office of Aboriginal and Torres Strait Islander Affairs
RAP Reconciliation Action Plan
UNEC United Ngunnawal Elders Council
Executive Summary
Introduction
The Aboriginal and Torres Strait Islander Elected Body Act 2008 (ACT) aims to enable all Aboriginal and Torres Strait Islander people in the ACT to have a strong democratically elected voice. Terri Janke conducted extensive consultations to inquire whether the objects, functions and administrative and operational provisions of the Act enable the fulfilment of the aim of the law.
Part 1 Background and Context of ATSIEB Act 2008
ATSIEB was enacted to provide a representative voice for Aboriginal and Torres Strait Islander people, and to keep the ACT government accountable.
It is commonly stated that ATSIEB was established in reaction to the demise of the Aboriginal and Torres Strait Islander Commission. There are similarities in the Aboriginal and Torres Strait Islander Commission Act and the Aboriginal and Torres Strait Islander Elected Body Act, but ATSIEB is not intended to cover the scope that ATSIC had.
The ATSIEB Act has four main parts:
1. Establishment and functions of ATSIEB
2. ATSIEB Members
3. ATSIEB Meetings
4. ATSIEB Elections.
The ATSIEB Act establishes a democratically elected body with functions that cover roles of facilitation, representation and advocacy; research; consultation; monitoring and reporting; and advice on protection of Aboriginal and Torres Strait Islander cultural material. These functions of the ATSIEB Act are very wide and the role of ATSIEB is not well understood by the Aboriginal and Torres Strait Islander community.
There are 7 ATSIEB part-time members, elected for 3 year terms.
ATSIEB is statutorily required to meet at least 6 times a year, to conduct community forums at least twice a year, and to consult with the United Ngunnawal Elders Council.
In addition, ATSIEB meets with Directors-General every month, and conducts hearings at the end of the year. This has resulted in a high level of work for ATSIEB members but has tended to move from the higher level strategic work to more administrative work.
In implementing the ATSIEB Act, ATSIEB is provided with a Secretariat of 2.5 staff, and has a budget of approximately $400,000.
ATSIEB has limited capacity to fulfil all the functions in the Act to the level they would like to and what is expected of them by the Aboriginal and Torres Strait Islander community.
Part 2 Key Issues
2.1. Things that work
· The objects set out in section 3 are mostly all still relevant. ATSIEB is highly valued as providing a voice, and maximum participation, for Aboriginal and Torres Strait Islander people. It aims to ensure coordination of government policies and advance the economic, social and cultural development of Aboriginal and Torres Strait Islanders in the ACT. However, ATSIEB should not be considered to be responsible for all Aboriginal and Torres Strait Islander programs and services of the ACT Government. It does not have any powers or budget.
· The opening sentence to section 3 should be updated to be consistent with language in the Declaration on the Rights of Indigenous Peoples.
· ATSIEB has performed its function as set out in the Act to pass on the views of Aboriginal and Torres Strait Islander people on issues of concern to the Minister. ATSIEB is highly valued by ACT Government in this function, however, there is concern that ATSIEB needs to be more representative and consult with the community about the things that put up to government.
· Advocacy and representation has been advanced by ATSIEB through community forums, and a range of key documents such as the ACT Aboriginal and Torres Strait Islander Agreement 2015 – 2018.
· ATSIEB has proposed a range of programs and services in carrying out its function under section 8(f). This includes the ACT Crime Prevention Strategy and the launch of the community bus. However, there is concern that ATSIEB is undertaking program implementation and getting involved in day-to-day decisions.
· In meetings it’s monitoring and reporting functions, the ATSIEB has been highly praised for the hearings process conducted each year. However, these are not legislated and there is a lack of clarity around the process of delivering reports to the ACT Government and the ACT Government reporting back to ATSIEB.
· In its communication with non-government entities, ATSIEB is seen to have an important role with non-Aboriginal and Torres Strait Islander organisations in helping with engagement with the Aboriginal and Torres Strait Islander community. The key Aboriginal and Torres Strait Islander organisations however have disengaged with ATSIEB and do not view them as advocating on their behalf.
· The ATSIEB Election Process set out in the Act is satisfactory in delivering a democratically elected ATSIEB. All adult Aboriginal and Torres Strait Islanders living in the ACT can vote because the Act includes those enrolled and those that are entitled to enrol to vote. This aspect is not widely known by the Aboriginal and Torres Strait Islander community and should be promoted.
· ATSIEB’s structure of 7 members, with a chair and a deputy chair, and terms of 3 years, is working. Although there were suggestions that there should be co-Chairs; specific positions for issues and sections of the community; and limited terms, the Act sets out a democratic process that sections of the Aboriginal and Torres Strait Islander community can use to ensure their views are represented.
· Many people considered that a small number of the Aboriginal and Torres Strait Islander community vote. In 2012, the ATSIEB Act was amended to include flexible voting processes during NAIDOC Week. This resulted in an increase in the vote from 173 in 2011 to 374 in 2014.
· There are administrative provisions relating to resignations and leave that are working well.
· The ATSIEB meeting provisions set out the frequency, presiding members, quorum and voting as well as conduct at meetings. These provisions are satisfactory.
· The disclosure of interest provisions are clearly designed to provide a clear process. ATSIEB has also adopted a Code of Conduct that promotes values and behaviour aligned to the Nolan Principles – Seven Principles of Public Life.