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Building a sustainable National Indigenous Representative Body – Issues for consideration: Issues Paper 2008

Building a sustainable National Indigenous Representative Body – Issues for consideration

Building a sustainable National Indigenous
Representative Body – Issues for consideration

An Issues Paper prepared by the Aboriginal and Torres
Strait Islander Social Justice Commissioner, in accordance with section
46C(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)

July 2008

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Contents

Introduction

Section 1: National Indigenous Representative Bodies in
Australia-A History

Text Box 1 – Overview of national Indigenous representative and advocacy
bodies in Australia

The Federal Council for the Advancement of Aborigines and Torres
Strait Islanders (FCAATSI)

National Indigenous Representative Bodies in Australia, 1972-2008

1) National Aboriginal Consultative Committee (NACC), 1972-1977

Structure
Autonomy, Resilience and Vulnerability

2) National Aboriginal Conference (NAC), 1977-1985

Structure
Autonomy, Resilience and Vulnerability

3) The Aboriginal and Torres Strait Islander Commission (ATSIC)

Structure

Text Box 2 – Overview of Key findings and recommendations of the
Hannaford Review of ATSIC (2003)

Autonomy, Resilience and Vulnerability

i) Clarity about powers and functions

ii) Tension between policy development and
program delivery

iii) Relationship between regional councils, the Board
and the bureaucracy

iv) Relationship with governments

Lessons learnt from previously existing National Indigenous
Representative Bodies

Section 2: Current mechanisms for representing Indigenous
peoples at the national, State/ Territory and regional levels

National Indigenous Peak Bodies

Text Box 3 – Overview of existing National Indigenous Peak Bodies

Land Councils and Native Title Representative Bodies

Regional Authorities – Torres Strait Regional Authority (TSRA)

Regional Indigenous representative arrangements post-ATSIC

a) Ngaanyatjarra Regional Partnership Agreement.
b) Murdi Paaki Regional Assembly
c) Post-ATSIC regional representation for Torres Strait Islanders on the
mainland

State and Territory Government representative arrangements,
post-ATSIC

Text Box 4 – ACT Government’s Aboriginal and Torres Strait Islander
Elected Body (ATSIEB) – 2008

The ‘new arrangements’ for the administration of Indigenous affairs at
the federal level post-ATSIC (2005 – current)

Lessons Learnt from existing mechanisms for representing Indigenous
people at the national, State, Territory and regional levels

Section 3: National Indigenous Representative Bodies in
other countries-some comparisons

The National Congress of American Indians: United States of America

Nature and Extent of Mandate and Decision Making Authority
Relationship with State Governments
How the Organisation is Funded

The Assembly of First Nations – Canada

History of the Assembly of First Nations
Effectiveness of Representation and in Promoting the Rights and Interests
of Indigenous Peoples

The Assembly of First Nations Renewal Commission

The Sami Parliament- Sweden

How the Organisation is Funded

Maori Representation – New Zealand

Maori Electorates
Ministry of Maori Development, Te Puni Kokiri
Maori Trust Office
Treaty of Waitingi and the Waitingi Tribunal
Treaty of Waitingi Fisheries Commission

Lessons to be learnt from overseas experiences of Indigenous
Representative Bodies

Section 4: Key issues in establishing a sustainable National
Indigenous Representative Body

Issue for Discussion: Guiding principles for the establishment of a
National Indigenous Representative Body

Text Box 5 – ATSIC Review Team’s vision and principles for a New
National Indigenous Representative Body

Text Box 6 – Options for the future of Indigenous Australia-Ambitions and
Themes from the 2020 Summit

Issue for discussion: Role and functions of a National Indigenous
Representative Body

Government service delivery
Advocacy
Policy Formation and Advice
Contributing to Legal Reform
Review and Evaluation of Government Programs
Clearing House Role
International Role
Research
Facilitation and Mediation

Issue for discussion: Structure of a National Indigenous
Representative Body

Mechanisms for representing Indigenous peoples at the regional level
Mechanisms for representing Indigenous peoples at the state or
territory level

The National structure of the National Indigenous Representative Body

Representatives chosen by election or delegation?

Election
Delegation

Representation of distinct Indigenous groups of the
national body’s executive

Traditional Owners
Stolen Generations
Youth
Torres Strait Islanders

Gender balance and ensuring equal participation and representation for
Indigenous women at the national level

The role of non-Indigenous organisations

Issue for discussion: Formal Relationship between the National Indigenous
Representative Body and the federal government and Parliament
\

Issue for discussion: Resourcing the National Indigenous Representative
Body

Conclusion: Scoping a National Indigenous Representative Structure


EXTRACT

Budget 2008-09: Ministerial Statement on Closing the gap between
Indigenous and non-Indigenous Australians

The Hon Jenny Macklin MP, Minister for Families, Housing, Community
Services and Indigenous Affairs

The Policy Challenge

The Australian Government's reform agenda — both in Aboriginal and
Torres Strait Islander affairs and across governments — is to address the
structural and systemic problems that are producing appalling outcomes for
Aboriginal and Torres Strait Islander people.

A generation of Aboriginal and Torres Strait Islander children —
Australian children — is at stake. Time is fast running out. This fact is
acknowledged by Indigenous elders and leaders, as well as by government...

Indigenous Australians must be involved in developing and driving solutions.
Actions like the National Apology are working to build the trust needed to work
together on getting results.

Our 'closing the gap' commitments require effective engagement with
Aboriginal and Torres Strait Islander people at all levels. Government needs to
involve Indigenous people in the design and delivery of programs locally and
regionally, and share responsibility for outcomes. Solutions developed on the
ground must be driven by the communities that will ultimately determine their
success or failure...

The Government went to the election with a commitment to set up a national
representative body to provide an Aboriginal and Torres Strait Islander voice
within government. We will soon begin formal discussions with Indigenous people
about the role, status and composition of this body.

May 2008

Note – Use of the terms ‘Aboriginal and
Torres Strait Islander peoples’ and ‘Indigenous
peoples’

The Aboriginal and Torres Strait Islander Social Justice Commissioner
recognises the diversity of the cultures, languages, kinship structures and ways
of life of Aboriginal and Torres Strait Islander peoples. There is not one
cultural model that fits all Aboriginal and Torres Strait Islander peoples.

Aboriginal and Torres Strait Islander peoples retain distinct cultural
identities whether they live in urban, regional or remote areas of
Australia.

Throughout this issues paper, Aboriginals and Torres Strait Islanders are
referred to as ‘peoples’. This recognises that Aboriginals and
Torres Strait Islanders have a collective, rather than purely individual,
dimension to their livelihoods.

Throughout this report, Aboriginal and Torres Strait Islander peoples are
also referred to as ‘Indigenous peoples’.

The use of the term ‘Indigenous’ has evolved through
international law. It acknowledges a particular relationship of Aboriginal
people to the territory from which they originate. The United Nations High
Commissioner for Human Rights has explained the basis for recognising this
relationship as follows:

Indigenous or aboriginal peoples are so-called because they were living on
their lands before settlers came from elsewhere; they are the descendants
– according to one definition – of those who inhabited a country or
a geographical region at the time when people of different cultures or ethnic
origins arrived, the new arrivals later becoming dominant through conquest,
occupation, settlement or other means... (I)ndigenous peoples have retained
social, cultural, economic and political characteristics which are clearly
distinct from those of the other segments of the national populations.

Throughout human history, whenever dominant neighbouring peoples have
expanded their territories or settlers from far away have acquired new lands by
force, the cultures and livelihoods – even the existence – of
indigenous peoples have been endangered. The threats to indigenous
peoples’ cultures and lands, to their status and other legal rights as
distinct groups and as citizens, do not always take the same forms as in
previous times. Although some groups have been relatively successful, in most
part of the world indigenous peoples are actively seeking recognition of their
identities and ways of life.[1]

The Social Justice Commissioner acknowledges that there are differing usages
of the terms ‘Aboriginal and Torres Strait Islander’,
‘Aboriginal’ and ‘indigenous’ within government policies
and documents. When referring to a government document or policy, we have
maintained the government’s language to ensure consistency.


© Human Rights and Equal Opportunity Commission.

This work is copyright. Apart from any use permitted under the Copyright
Act 1968
(Cth), no part may be reproduced without prior written permission
from the Aboriginal and Torres Strait Islander Social Justice Commissioner,
Human Rights and Equal Opportunity Commission. Requests and inquiries concerning
the reproduction of materials should be directed to the Executive Director,
Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney, NSW,
2001.

 

Acknowledgements

This paper has been prepared in accordance with section 46C(1)(b) and (c) of
the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

It has been prepared by staff of the Human Rights and Equal Opportunity
Commission (Alison Aggarwal, Tom Calma, Kirsten Cheatham, Marissa Chorn, Darren
Dick and Katie Kiss) incorporating research commissioned from the National
Centre for Indigenous Studies at the Australian National University (Professor
Mick Dodson, Tim Goodwin, Patrick Sullivan, Professor Peter Veth and Jo-Anne
Weinman).


Introduction

Issues of Indigenous disadvantage and dysfunction are before our eyes more
frequently and more prominently than ever before.

Barely a day goes by without another chilling and heartbreaking story of
abuse, violence or neglect; or of demonstrations of the impact of entrenched
poverty and despair among our communities.

Without proper engagement with Aboriginal and Torres Strait Islander peoples,
(Indigenous peoples) governments will struggle in their efforts to make lasting
progress in improving the conditions of Indigenous people and in our
communities.

A National Indigenous Representative Body is a fundamental component of any
future action if we are to achieve positive change.

At present, there is not a transparent, rigorous process for engaging with
Indigenous peoples in determining the policy settings and to hold governments
accountable for their performance.

The new Australian Government has acknowledged the importance of addressing
this. In the Apology speech, the Prime Minister stated that:

Our challenge for the future is to embrace a new partnership between
Indigenous and non-Indigenous Australians. The core of this partnership for the
future is closing the gap between Indigenous and non-Indigenous Australians on
life expectancy, educational achievement and employment opportunities. This new
partnership on closing the gap will set concrete targets for the future.

In furtherance of this commitment, in March 2008 the Australian Government
and federal Opposition also signed a Statement of Intent to work in partnership
with Indigenous people and their representative organisations to achieve
equality in health status and life expectancy between Aboriginal and Torres
Strait Islander peoples and non-Indigenous Australians by the year 2030. This
statement provides bipartisan support to:

  • develop a comprehensive, long-term plan of action, that is targeted to need,
    evidence-based and capable of addressing the existing inequities in health
    services, in order to achieve equality of health status and life expectancy
    between Aboriginal and Torres Strait Islander peoples and non- Indigenous
    Australians by 2030.
  • ensure the full participation of Aboriginal and Torres Strait Islander
    peoples and their representative bodies in all aspects of addressing their
    health needs.
  • respect and promote the rights of Aboriginal and Torres Strait Islander
    peoples... and
  • measure, monitor, and report on our joint efforts, in accordance with
    benchmarks and targets, to ensure that we are progressively realising our shared
    ambitions.

These are welcome commitments and ‘first steps’ to a
new partnership in Indigenous affairs.

It is now time for us to flesh out these commitments to ensure the full
participation and input of Indigenous peoples into government decision making at
the national level.

And this, ultimately, is what the discussion about a new National Indigenous
Representative Body is about.

It is about our place at the table in making the decisions that impact on our
communities, on our men, our women and our children.

It is about creating a genuine partnership with government and across
society:

  • With shared ambition, so we are all working towards the same
    goals and not at cross purposes.
  • With mutual respect, so we are part of the solutions to the
    needs of our communities instead of being treated solely as the problem.
  • With joint responsibility, so that we can proceed with an
    honesty and an integrity where both governments and Indigenous people accept
    that we each have a role to play, and where we each accept our responsibilities
    to achieve the change needed to ensure that our children have an equal life
    chance to those of other Australians.
  • With respect for human rights, that affirms our basic dignity
    as human beings and provides objective, transparent standards against which to
    measure our joint efforts.

To this end, in 2007 I initiated research to identify the key
considerations that will need to be addressed in establishing a new National
Indigenous Representative Body.[2]

This paper sets out the findings of that research. It addresses a series of
issues for consideration in the process of establishing a new National
Indigenous Representative Body. Namely:

  • First, what lessons can be learned from mechanisms for representing
    Aboriginal and Torres Strait Islander peoples at the national, State/ Territory
    or regional level that have previously existed or that are currently in place?
  • Second, what lessons can be learned from mechanisms for representing
    Indigenous peoples that have been established in other countries?
  • And third, what options are there for ensuring that a National Indigenous
    Representative Body is sustainable?

The research does not substitute for broad-based consultation
with Indigenous communities.
Indeed, the research does not state a
preference for a particular model for a National Indigenous Representative Body
– it merely identifies the many and varied issues that need to be
considered in the formulation of the new Body.

The paper raises challenges for both the federal government and for
Indigenous people.

For the government, it will be of critical importance that you articulate
what you are not prepared to support in a new National Indigenous Representative
Body.

I encourage the Minister for Families, Housing, Community Services and
Indigenous Affairs to articulate what the government sees as the major benefits
of a national representative body and accordingly, what roles the government
hopes it will fulfill.

I am not suggesting that the government should be prescriptive and close off
debates that may need to be had. But ultimately, we need to minimise the
differences between what the Indigenous community expects of its representative
body and what government is prepared to support.

If we don’t ‘close this gap’ between the expectations of
government and the Indigenous community, then a new body may face the same
credibility difficulties that have beset previous representative bodies. This
will limit the ability for the representative body to have influence with
government. It may limit the representative body’s ability to be an
effective agent for change for the Indigenous community.

The responsibilities of a new National Indigenous Representative Body are two
way – to government and to Indigenous people.

And for Indigenous people, the challenges that exist in establishing a new
National Indigenous Representative Body are many.

We should resist the temptation to slip back into old habits. This is not
about reviving ATSIC. The ATSIC Review of 2003 did not recommend the abolition
of ATSIC but instead proposed a restructure and close adherence to a series of
key principles. I am confident that Indigenous people will draw on the lessons
from the ATSIC Review while also looking beyond the ATSIC model when setting out
their hopes and expectations for a new National Indigenous Representative Body.

I consider that perhaps the greatest problem that ATSIC faced was that it was
‘blamed’ for the lack of progress in addressing Indigenous
disadvantage, despite the simple fact that it had few responsibilities for
service delivery that could contribute to achieving this goal. This was a key
finding of the ATSIC Review in 2003.

I see significant benefits for a new National Indigenous Representative Body
to not exercise the service delivery responsibilities of government. As for all
other Australians, let government be responsible for delivering services to
Indigenous citizens. We don’t want to take the blame for second class
treatment by government anymore.

Let the new Representative Body set the vision for our people’s future,
provide the guidance to achieving this and advocate for understanding for the
consequences that flow from our status as the First Peoples of this nation.

A new National Indigenous Representative Body will also have to operate in a
vastly changed environment from when ATSIC existed. This is one with:

  • concrete commitments from government to closing the gap, with a partnership
    approach at the centre of this process;
  • a renewed focus on reconciliation, following from the National Apology to
    the stolen generations;
  • a whole of government system for delivering services to Indigenous people
    where the primary responsibility resides with mainstream government departments;
    and
  • significant environmental challenges facing all Australians, and where the
    traditional knowledge, practices and land use of Indigenous peoples will have a
    significant role to play in preserving the quality of life of all
    Australians.

A new National Indigenous Representative Body will also be created
within the context of rapid advances internationally in the recognition of the
rights of Indigenous peoples – developments which the new Australian
government has indicated it supports and respects.

It is essential that as Indigenous peoples we have a seat at the table and
are involved in the big debates that affect our communities. It is not credible
to suggest that we should not have such involvement.

My hope is that we can, in partnership with government, develop a new
National Indigenous Representative Body that engages with different sections of
the pan-Aboriginal and/ or Torres Strait Islander community – be it women,
men, our youth and children, communities in different geographical locations,
traditional owners or stolen generations members.

And I hope that a representative body will operate in such a way as to
inspire and support our people, while also holding governments accountable for
their efforts, so we may ultimately enjoy equal life chances to all other
Australians.

The first step on this road is mutual respect and a partnership. A National
Indigenous Representative Body is an essential component of achieving the long
overdue commitments to closing the gap.

Tom Calma

(signature)


Section 1: National Indigenous Representative Bodies in
Australia – A History

Indigenous Australians have often organised themselves in an attempt to
effect political and social change. Many Indigenous organisations were created
as a result of this, particularly over the past century. These organisations
were independent of government and were often defined by their specific
objectives. Such organisations became focused on particular campaigns rather
than systemic issues of Indigenous representation.

When the federal government became heavily involved in Indigenous affairs
following the election of the Whitlam government in 1972, more focus was given
to how Indigenous peoples could be represented within the mechanisms of
government.

Text Box 1 below provides an overview of developments relating to
national Indigenous representative bodies in Australia over the past fifty
years.

This section will make brief mention of the activities of the Federal Council
for the Advancement of Aborigines & Torres Strait Islanders (FCAATSI) and
then focus on the three organisations that have been involved in national
Indigenous representation:

  • the National Aboriginal Consultative Committee (NACC);
  • the National Aboriginal Conference (NAC); and
  • the Aboriginal and Torres Strait Islander Commission (ATSIC).

This section describes their structure as well as the problems and
challenges that were faced by these organisations during their lifetime. It is
fair to say that each new body learnt from the lessons of its predecessor. Many
concrete outcomes emerged, not the least of which was the capacity building and
advocacy development that emerged amongst the Indigenous polity. This is
available to be tapped again in a new National Indigenous Representative Body.

Text Box 1 – Overview of national Indigenous representative and
advocacy bodies in Australia

1957 - Federal Council for the Advancement of Aborigines & Torres Strait
Islanders (FCAATSI) established independently of government.

1973 - National Aboriginal Consultative Committee (NACC) established. Begins
national consultations on electoral structure.

1975 - Hiatt commissioned to review NACC, reports 1976. O’Donoghue submits
minority report.

Coombs begins own review as part of
the Royal Commission on Australian Government Administration, also commissions
Rowley to report on NACC.

1977 - National Aboriginal Conference (NAC) established.

1983 - Coombs commissioned to review the NAC. Reports in 1984.

1984 - NAC abolished. O’Donoghue begins national consultation on a
replacement body.

1986 - O’Donoghue reports on consultations in An Aboriginal and Islander
Consultative Organisation
Report.

1988 - Aboriginal Affairs Minister Gerry Hand launches widespread national
consultation around his discussion paper Foundations for the Future.

1988 - Senate Select Committee investigates proposed Aboriginal and Torres
Strait Islander Bill
, suggests over 40 amendments most of which are
incorporated. Subsequently over 90 amendments made to Bill during its passage
through parliament.

1989 - Aboriginal and Torres Strait Islander Commission (ATSIC) established.

1993 - ATSIC internal review conducted under s26 of Aboriginal and Torres Strait
Islander Commission Act 1989
(Cth).

1996 - Coalition government elected, special audit of ATSIC undertaken.

1997 - ATSIC Board commissions review of ATSIC’s functions, establishes
steering committee, conducts national consultations, recommends over 30 changes
to the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).

2003 - Aboriginal & Torres Strait Islander Services (ATSIS) established to
split ATSIC’s administrative functions from its representative
functions.

2003 - Minister Ruddock commissions Hannaford Review of ATSIC’s roles and
functions. Review recommends internal separation of administrative and
representative functions and greater involvement of Regional Councils in
national structure.

2004 - Prime Minister and Minister Vanstone announce abolition of ATSIC. National
Indigenous Council (NIC) established, with 14 members appointed by government as
experts, with a purely advisory function (i.e. no representative role).

2005 - Senate Select Committee inquiry into ATSIC Amendment Bill 2004 which
abolishes ATSIC.

2007 - Labor shadow Minister Macklin announces Labor Party platform at the
44thAustralian Labor Party National Conference to establish a new
National Indigenous Representative body.

2007 - Following the election of the Rudd Government, Minister Macklin decides not
to reappoint NIC members. On expiry of term, the NIC is abolished.

2008 - Prime Minister Rudd calls for a new partnership with Indigenous
peoples to underpin policy development in his Apology speech to Parliament in
February 2008.

2008 - In March 2008, the Government signs a Statement of Intent with the
Indigenous health sector for a new partnership to close the gap in life
expectancy within a generation.

2008 - Australian Government allocates funds for commencement of
consultations with Indigenous peoples on the establishment of a new National
Indigenous Representative Body

 

The Federal Council for the Advancement of
Aborigines and Torres Strait Islanders (FCAATSI)

Founded in 1957, in its early years the Federal Council for the Advancement
of Aborigines and Torres Strait Islanders (FCAATSI) was a successful alliance of
Indigenous and non-Indigenous organisations.

Its main purpose was to agitate for civil and political rights, the rights of
citizenship, equality of pay and conditions, universal education and the
retention of existing reserve lands in Aboriginal
hands.[3]This led to significant
involvement by trade unions. It was able to leverage widespread community
support following the 1967 referendum into a groundswell of acceptance for the
principle of land rights.

Its membership base was in organisations rather than individuals. Its 1975
constitution allowed for two categories of member organisations. Category
‘A’ organisations were required to agree to the five basic
principles of FCAATSI and were exclusively concerned with Aboriginal affairs, or
had a standing committee so concerned.

Category ‘B’ organisations were those that supported the
objectives of FCAATSI but could not qualify for category ‘A’
membership. Category ‘A’ organisations could send up to five
delegates to the Annual General Meeting. Category ‘B’ organisations
could send two. Voting for the Executive was limited to the Aboriginal delegates
of these organisations, but nomination and election to the Executive committee
was open to non-Indigenous peoples.[4]

Debate over the principle of Aboriginal control of the Executive split the
Council at its 1970 annual meeting.[5] Debate continued at least until the 1977 meeting, when a revision to its
Constitution was proposed, but by that time it representative functions had been
taken over by the National Aboriginal Consultative Committee (NACC).

Many of the principles of both equality and particular Indigenous rights that
FCAATSI fought for have been widely recognised, with attention now turning to
their effective implementation.

In the period since FCAATSI existed, the principle of self-determination has
supported national bodies being comprised exclusively of Indigenous members.
There are, however, existing organisations which are Indigenous/non-Indigenous
alliances. Australians for Native Title and Reconciliation (ANTaR) works with an
Indigenous Reference Group. Reconciliation Australia (RA), a not-for-profit
corporation, has Indigenous and non-Indigenous people on the Board.
Nevertheless, they are widely perceived as non-Indigenous organisations. Their
effectiveness could perhaps be enhanced by the existence of a National
Indigenous Representative Body that could act as an external point of reference
for their programs.

National Indigenous Representative Bodies in Australia,
1972 – 2008

1) National Aboriginal Consultative Committee (NACC), 1972 - 1977

The NACC was the first unified national Indigenous organisation that
represented Indigenous views. Prior to the NACC, the Federal Council for the
Advancement of Aborigines and Torres Strait Islanders (FCAATSI) had evolved as
the major organisation promoting Indigenous interests from the 1950s. While
FCAATSI played a central role in the success of the 1967 referendum, its
leadership was largely
non-Indigenous.[6] Following the
election of the Whitlam government the Minister for Aboriginal Affairs, Gordon
Bryant, created the NACC.

Structure

The NACC was an advisory body made up of 41 nationally elected Aboriginal
people who advised the Minister for Aboriginal Affairs on Aboriginal
policy.[7] It was envisaged that the
structure of the NACC would be detailed by the first elected representatives of
the body. There appears to have been little structural development of the
organisation before it first met.

The Department of Aboriginal Affairs (DAA), under the leadership of Charles
Perkins, held 16 regional consultations to promote the idea of the NACC and to
mobilise the Indigenous population to vote in the subsequent NACC elections. To
a large extent these consultations were successful, with approximately 78% of
Indigenous peoples voting in November
1983.[8] The constitution developed by
the NACC gave it executive, or policy-making, and administrative powers,
contrary to the government’s desire that it remain simply advisory.
Throughout its short life, the NACC remained organisationally
under-developed.

Autonomy, Resilience and Vulnerability

The NACC was ultimately vulnerable for a variety of
reasons.[9] It is helpful to
categorise these reasons as both internal and external.

Regarding external vulnerabilities, firstly there were major tensions
between the NACC, the Department of Aboriginal Affairs (DAA) and the Minister.
Minister Bryant often gave preference to the advice of NACC over that of the
DAA. This led to hostility between the DAA and the NACC. This situation reversed
when Minister Bryant was replaced by Senator Jim Cavanagh as Minister for
Aboriginal Affairs. No clear relationship between all stakeholders appears to
have been clearly articulated.

Secondly, the NACC desired greater independence and did not wish to simply
act as an advisory body. Without the support of the government in this aim for
autonomy, the public were unsupportive of such a move.

Regarding internal vulnerabilities, firstly the NACC was unable to
develop a coherent organisational structure that could deliver for its
constituents. This situation was almost certainly at least partly due to the
under-resourcing of the organisation by government. However, the limited
capacity of the organisation was also due, in part, to the lack of clarity
members had about their roles, the relative inexperience of the secretariat and
a lack of focus by the members on internal structures rather than external
advocacy.

Furthermore, the NACC is seen to have lacked cohesion as an organisation. The
elected members often failed to agree among themselves on issues of importance.
A constant tension was seen to exist between the interests of Aboriginal people
living in more rural and remote ‘traditional’ lifestyles and urban
Aboriginal people. This tension was fuelled by the opinions of non-Indigenous
advisors to the government at the
time.[10]

Ultimately, the NACC did not have the capacity to develop into an
independent, agenda-setting policy organisation due to a lack of government
support for such a function and the NACC’s unmet need to develop coherent
policy position regarding its functions and structure.

2) National Aboriginal Conference (NAC), 1977 - 1985

Following the election of the Fraser government in 1975, the new Minister for
Aboriginal Affairs, Ian Viner, established an inquiry into the role of the NACC.
Reporting in 1976, the inquiry found that the NACC was restricted in its role
due to the lack of clarity given by the previous government about its aims and
functions and the desire of the NACC to be more than purely a consultative
body.[11] As a result, the NACC was
effectively abolished, and the NAC was created in 1977, with the first elections
held in November of that year.

Structure

The NAC was created as a government consultative body comprising 35 full-time
salaried members. The NAC had state branches and territory branches and a
national executive of 10 members. The Executive represented these branches and
was chosen by the branch representatives rather than a broader national
membership. An annual meeting of interested Indigenous constituents was held, to
ensure that the elected representatives might be accountable to their
constituents. None of the three tiers of the organisation were bound by any
decisions of the others. Ultimately, the organisation was a further entrenchment
of the government view that a national Indigenous representative body should be
merely consultative in nature, without executive authority or guaranteed
ministerial access.

Autonomy, Resilience and Vulnerability

The NAC, like the NACC, was unable to consistently develop coherent national
policy positions on matters of national importance in Indigenous affairs.
Successful positioning was often based on the efforts of particular executive
members, a state/territory branch or other Indigenous organisations who were
members of the NAC.

The structure of the organisation as created by government also led to what
has been characterised as an inherently cautious
organisation.[12] This was partly
based on the fact that the government’s intention that the organisation
not be controlled or heavily influenced by urban activists succeeded in limiting
the voice of that constituency in the NAC. Tensions between the NAC and the
bureaucracy remained as a legacy of the DAA’s relationship with the NACC,
contributing to the destabilisation of the organisation.

Two reports into a replacement structure for the NAC were commissioned
following the election of the Hawke government in 1983. The O’Donoghue
report concluded that the NAC produced “politicians” rather than
advisors, had not adequately represented the diversity of Indigenous interests
and had not realised coherent policy positions. Further, the body was unable to
work with other Indigenous organisations or government
departments.[13] The report
recommended that a more regionalised organisation be created to give greater
voice to the broader Indigenous constituency.

The other report, the 1984 Coombs report, suggested that a new organisation
be based on regional representative structures and that it make provisions for
the representation of existing Indigenous organisations. The Coombs report
suggested that a new body should have significant responsibility over Indigenous
expenditure.[14]

3) The Aboriginal and Torres Strait Islander Commission (ATSIC), 1989 -
2005

ATSIC was established following the Coombs and O’Donoghue reports on
the principle that the new organisation should be built around regional
mechanisms. In 1986 the Minister for Aboriginal Affairs, Gerry Hand, recommended
that a new organisation replace the NAC. Following the introduction of enabling
legislation, major consultations were conducted with the Indigenous community.
This significantly changed the basis of the legislation and greatly regionalised
its structure. The new organisation, ATSIC, was ultimately created in 1989 and
began operation in 1990.

Structure

The ultimate structure of ATSIC resulted from various political compromises
which were required to ensure the realisation of the Aboriginal and Torres
Strait Islander Commission Act 1989
(Cth). The Bill was significantly
amended to address concerns from the Opposition and minor parties that ATSIC was
not adequately accountable, either administratively or financially, to the
public or the Minister for Aboriginal
Affairs.[15]

As a consequence, the Minister remained at the top of the legislative
structure, and retained significant power over decisions made by elected
representatives. Consequently, there were inevitable tensions between
ATSIC’s responsibilities to the Minister and its duties to Indigenous
constituents. The organisation was given a broad mandate to formulate and
implement programs for Indigenous peoples and to monitor the effectiveness of
its own and other nominated programs.

Further, ATSIC was empowered to develop policy proposals at all levels, to
advise the Minister on all matters and to undertake research necessary to enable
it to perform its functions. The Commission controlled and managed a budget to
create and implement programs. For the first time, a national Indigenous
representative body had the power to both advise government and to fund and
deliver programs.

Along with establishing unique functions, the Parliament created a unique
organisational structure to deliver ATSIC’s mandate. Central to this
structure was a separation of power between elected representative and
administrative arms.

The elected representative arm consisted of regional councils grouped into
regional zones – including, for the first time, Torres Strait Islanders.
In each zone, regional councillors would elect one of their own members to the
national Board of Commissioners. The Board was legally responsible for
determining financial priorities, developing budget estimates and reports, and
ensuring the organisation acted in accordance with its powers.

Regional Councils were given the power to formulate a regional plan for the
improvement of the economic, cultural and social status of Indigenous peoples
and to assist ATSIC and other bodies in its implementation. In addition,
regional councils were tasked to prepare budgets for approval by the central
organisation, and to act as a local advocate for the views of regional
communities.

The administrative arm was staffed by public servants and was given the task
of implementing the policy and program priorities determined by the elected
representatives.

As the created structure was untested for a statutory authority, the
legislation that created ATSIC was subject to regular review.

ATSIC was given the power to review the operation of its own legislation and
make recommendations for its amendment. Two reviews conducted in 1993 and 1998
raised somewhat similar concerns. Firstly, both highlighted shortfalls in the
legislation itself, stating that while an object of the legislation was to
coordinate the formulation and implementation of policies, ATSIC did not have
the power to act in a specific co-ordinating role, or enforce the cooperation of
the Commonwealth, State and Territory
governments.[16]

Secondly, the reviews aimed to provide less onerous funding arrangements
between ATSIC and State and Territory
governments[17] and increase
government accountability through an annual monitoring and reporting function
for ATSIC.[18]

Unfortunately the majority of recommendations emanating from these reviews
were never implemented.

The Howard Government announced the first comprehensive external review of
ATSIC in November 2002. In April 2003, it further announced a separation of
powers between ATSIC’s policy making and service delivery roles as an
interim measure to remove the potential for conflicts of interest in
decision-making over funding. ATSIC was subsequently stripped of all resources
and funding superfluous to administrative requirements ostensibly to free its
elected arm to focus on larger policy issues and these were transferred to a new
body, the Aboriginal and Torres Strait Islander Services (ATSIS).

The Hannaford review produced its Report in November 2003. Among its terms of
reference was consideration of the adequacy of representation and advocacy of
Indigenous views, the role of Regional Councils in service and program delivery,
and the establishment of a Ministerial veto power over ATSIC’s decisions.

After wide national consultation the final Report, titled In the hands of
the regions
, recommended urgent structural reform enabling greater regional
control and a permanent division of ATSIC’s administrative and elected
representative roles (to be achieved through a single body - i.e. by reunifying
ATSIS and ATSIC). The national body would then become responsible primarily for
developing policy and reviewing a national plan, informed by regional plans and
specifically-tasked national committees.

The review team also recommended that ATSIC be given greater ability to
develop more effective relationships with State and Territory governments
through multilateral
agreements.[19]

The then Minister for Indigenous Affairs pledged to consider the issues which
were raised in the Report and deliver a reform package in 2005. Before any of
these recommendations could be considered, let alone implemented, the
organisation was abolished.

An overview of the findings of the Hannaford review of ATSIC is contained in
Text Box 2 below.

Text Box 2 – Overview of key findings and recommendations of the
Hannaford review of ATSIC (2003)

In the hands of the regions - a new ATSIC found that ATSIC was in
urgent need of structural change.

The report of the Review Team particularly emphasised the need to improve
the connection between ATSIC's regional representative structures and national
policy formulation processes. The Review Team state that:

As it currently operates, the review panel sees ATSIC as a top down body.
Few, if any, of its policy positions are initiated from community or regional
levels. The regional operations of ATSIC are very much focused on program
management. To fulfil its charter, engage its constituency and strengthen its
credibility, ATSIC must go back to the people. The representative structure must
allow for full expression of local, regional and State/Territory based views
through regional councils and their views should be the pivot of the national
voice.

In terms of capacity building, this identifies a challenge to develop a
'cultural match' between the structures of ATSIC and Indigenous peoples at the
local level to ensure that ATSIC is representative and participative.

Significantly, the Review Team note that public perceptions of how ATSIC
have performed have been burdened by unrealistic expectations, with the
organisation blamed for failures which lie outside its control. They also noted
that ATSIC had also not lived up to unrealistic expectations of what it can
achieve:

ATSIC was intended to be a supplementary funding body and was never
intended, or funded, to be the provider of all programs and services to
Aboriginal and Torres Strait Islander people. Its establishment did not absolve
mainstream agencies from their responsibility to meet their obligations to
Indigenous citizens. The hopes pinned on the organisation - that it could and
would effect instant change were not realistic

They state that these unrealistic expectations have also operated to shield
governments from being accountable, and that ‘this avoidance of
accountability and responsibility must be overcome with the new ATSIC.’

The Review Team recommends a revised structure for ATSIC that includes the
following features:

  • The retention of ATSIC's 35 Regional Councils;
  • The replacement of the ATSIC Board, which is currently constituted of 18
    zone commissioners, with two new structures - a national body and a national
    executive;
  • The new 'national body' would be the governing body of ATSIC and determine
    ATSIC policy, primarily through the development of a national plan which would
    be drawn from ATSIC Regional Council plans and ultimately form the basis of the
    policies and programs of all governments;
  • The 'national body' would meet at least twice every four years;
  • The new 'national body' would have 38 members and be comprised of the 35
    elected Regional Council chairs, the chair of the Torres Strait Islander
    Advisory Body and the chair and deputy chair of the new 'national executive';
  • The new 'national executive' would be delegated by the 'national body' the
    role of leading ATSIC and advocating on behalf of ATSIC on a day to day basis;
  • The new 'national executive' would have up to10 members, comprised of 8
    people elected by the 'national body' including a chair and deputy chair, as
    well as up to 2 people appointed by the Minister from elected regional
    councillors;
  • A series of national committees would be established to provide policy input
    to the 'national body' to ensure the incorporation of regional priorities into
    national planning, with membership drawn from the 'national body' and 'national
    executive';
  • The Regional Council planning process would be accorded higher status in
    establishing ATSIC's priorities; and
  • The elected and administrative arms of ATSIC (and presently ATSIS) would be
    reunified in one organisation with a clear delineation of roles incorporated
    into the ATSIC Act.
Overall, the ATSIC Review Team made 67 recommendations which
broadly address issues of the relationship between ATSIC and Indigenous peoples,
the federal government, the States and Territories, and between its elected and
administrative arms.

Autonomy, Resilience and Vulnerability

Since the demise of ATSIC, there has been much analysis of the problems
experienced by the organisation and the weaknesses of its legislatively
determined framework. Four organisational structural issues were identified:

  • Firstly, there was confusion surrounding ATSIC’s broad powers and
    functions.
  • Secondly, tension existed between policy development and program delivery.
  • Thirdly, the relationship between regional councils, the Board of
    Commissioners and the bureaucracy required clearer definition.
  • Fourthly, the Parliament failed to define the relationship between ATSIC and
    the different governments, or grant ATSIC the power to hold these governments
    accountable.

i) Clarity about powers and functions

While ATSIC was given a broad mandate, it did not capitalise on its
functions and was simultaneously blamed for problems that were the
responsibility of other agencies.

ATSIC’s function of monitoring the effectiveness of programs required
the “active cooperation and involvement” of Commonwealth, State and
Territory governments, who remained the major Indigenous service
providers.[20] The legislation that
established ATSIC was silent on how this relationship was to be developed and
failed to provide ATSIC with executive authority to require effective
cooperation.

Instead, public confusion existed, often fuelled by political rhetoric, about
the nature and scope of the organisation’s powers. The Howard government
often blamed the organisation for failing to make major progress in ending
Indigenous disadvantage, even though ATSIC administered less than 50% of
Indigenous-specific Commonwealth
funding.[21] Clearer legislative
provisions to give fuller expression as to how ATSIC was to realistically
achieve its mandate were required.

ii) Tension between policy development and program delivery

Confusion about ATSIC’s broad mandate led to a
disproportionate focus on program delivery. As the organisation developed, it
became increasingly difficult for it to negotiate its dual policy and program
roles. Eventually, program delivery became the focus at the expense of policy
development. As a result, the organisation became hostage to government grants
and funding cycles, increasing financial accountability and constant cycles of
reporting, audit and
evaluation.[22]

This occurred at the expense of policy development that could have actually
informed governments as how to better run the majority of Indigenous programs.
This effectively led to a failure to hold government accountable for program
delivery.[23]

The desired effective relationship transformed instead into one between the
government as ‘funder’ and ATSIC as the ‘contracted service
provider’.[24] Under-resourcing of policy development led to a lack of Indigenous participation
in government policy and program development. In 2003, the Minister for
Indigenous Affairs, Philip Ruddock, split the administrative and funding arm
from the representative arm of ATSIC in an attempt to resolve this problem. The
abolition of ATSIC occurred soon after, so there was no effective evaluation of
this separation.

iii) Relationship between regional councils, the Board and the
bureaucracy

While it prescribed broad functions, the legislation governing
ATSIC failed to define key relationships, leading to tension and conflict
between these three key stakeholders. The Chief Executive Officer (CEO) of ATSIC
was directly accountable to both the Board and the Minister. This limited the
ability of the bureaucracy to support conflicting agendas between the Board and
the government. Recommendations to change the structure of the organisation to
allow the Board to appoint the CEO were ignored.

Also, while the Act established the respective functions of the Board of
Commissioners and the regional councils, it was to a large extent silent on the
interrelationship between the two. While regional councils were given the
capacity to advise on national funding priorities, in practical terms they
became focused on program
management.[25] Instead, a top-down
approach resulted regarding funding decisions and policy development, resulting
inevitably in the centralisation of power in the national
organisation.[26] Indigenous peoples
were therefore less able to affect the processes of the organisation.

iv) Relationship with governments

ATSIC was further incapacitated by having limited power to compel
the Commonwealth, State or Territory governments to act on its policy advice.
While the organisation was given the task of monitoring the effectiveness of
Indigenous programs, ATSIC had no executive authority to persuade governments to
cooperate with its scrutiny. As the organisation focused on program delivery,
various governments were able to escape criticisms about their own unproductive
Indigenous policies and
programs.[27]

This was especially the case for State and Territory governments, who
remained responsible for the majority of Indigenous expenditure. The
Commonwealth government had the ongoing problem of holding other governments
accountable for tied grants, leaving ATSIC unable to track government
expenditure on Indigenous programs and forcing them to attempt to plug the gaps
in State and Territory services through the capacity of the regional
councils.[28]

In a sense this relieved the Commonwealth, State and Territory governments
from as stringent accountability as ATSIC necessarily focused more on program
delivery. Consequently, ATSIC was hampered in its ability to contribute to
long-term policy debate or innovative policy development.

ATSIC’s focus on program delivery meant it could not contribute
adequately to government policy formulation. Although ATSIC had a monitoring
function, the organisation had no coercive power to hold governments accountable
or guarantee that they would act on their advice. Consequently, various levels
of government and within government acted without Indigenous involvement and
were able to escape criticism for their own shortcomings in Indigenous affairs.

Lessons learnt from previously existing National Indigenous
Representative Bodies

The strengths and shortcomings of previous representative organisations created by government are complex and depend often on the political and
social environment of the nation at any given time. However, there are some key
and recurring factors as to why representative bodies have not been sustainable
and have been hampered in their effective operation – often despite major
investments by individuals, groups and Boards.

Firstly, there has been a recurrent failure to adequately define the key
relationships between governments, the representative body and other
stakeholders in Indigenous affairs. In this regard there was a lack of clarity
in the relationships between national representative bodies and State and
Territory governmental structures. There were also inadequate links and
processes between the national body and other regional structures and processes.

Secondly, there has been a failure to clearly articulate and detail the
functions of the representative body in accordance with the stated aspirations
of Indigenous Australians. This has manifested as incoherent organisational
structures that were unable to meet the multiple objectives of a representative
body. There was a lack of clarity both internally within bodies and externally
on the roles and functions of the body, and hence there arose competing and
unmet expectations of representative bodies. This caused problems particularly
where the representative body was not provided the authority and resources to
fully undertake functions such as program delivery, but was nonetheless expected
to fulfil these functions. There were also tensions that arose from having a
single body being responsible for advocacy, policy development, program delivery
and evaluation – which created conflicting responsibilities. The lack of
clarity was accompanied by inadequate resourcing that limited the capacity of a
representative body to fulfil its multiple objectives.

Thirdly, past representative bodies have also been plagued by tensions
arising from the need to represent a diversity of Indigenous interests,
including interests of both urban and rural/ remote communities as well as
interests of specific members of the community including, Indigenous women and
youth.

Finally, each organisation has to varying degrees been constrained by
government and the bureaucracy in pursuing their own priorities as galvanised
from the wishes of its Indigenous constituents. Underlying this has been a lack
of government support for a strong independent agenda setting policy
organisation, as opposed to a mere advisory body. Therefore, each organisation
has been unable to act with sufficient independence from government, a core and
repeatedly asserted desire of Indigenous peoples throughout Australia.

These lessons learned from previous mechanisms for national Indigenous
representation can help identify what issues need to be discussed when
considering the scope of a new National Indigenous Representative Body,
particularly in relation to the roles and functions of the body, its level of
independence and its relationships with government at the national, State/
Territory and regional levels.

To assist in clarifying these issues, this paper reproduces at Text Box 2 the
proposed principles and vision for a representative body as articulated by the
2003 Hannaford Review of ATSIC. Due to the abolition of ATSIC there was not an
opportunity at the time to consider the usefulness of these principles assisting
to define the key features of a new National Indigenous Representative Body.

Section 2: Current mechanisms for representing Indigenous
peoples at the national, State/ Territory and regional levels

Despite the absence of a National Indigenous Representative Body, there
exists a range of organisations that advocate for the interests of Indigenous
peoples. This includes through:

  • an extensive array of national peak bodies that represent the different
    sectoral interests of Indigenous service delivery organisations;
  • land councils, native title representative bodies and prescribed bodies
    corporate established through the native title and land rights and native title
    systems;
  • regional mechanisms for representing Indigenous people that exist in some
    parts of the country; and
  • mechanisms established by State or Territory governments to represent
    Indigenous peoples in policy making processes.

Some of these organisations or mechanisms are representative of
different communities or sectors of Indigenous peoples, whereas others base
their advocacy on their service delivery role.

This section of the paper identifies the key features of a range of different
organisations and mechanisms that currently exist across Australia. While none
of these organisations or mechanisms is capable of addressing the sheer breadth
of issues required from a National Indigenous Representative Body, they do
provide a substantial base on which to build.

Each of these organisations or mechanisms, therefore, has a role to play
either in contributing to the operations of, or through their relationship with,
a new National Indigenous Representative Body.

This section of the paper concludes by considering what issues are raised for
the operation of a new National Indigenous Representative Body in light of these
existing mechanisms, as well as in relation to the post-ATSIC arrangements for
delivery of services to Indigenous peoples at the federal level, which have
substantially changed the operating landscape for Indigenous Affairs.

Any National Indigenous Representative Body will need to be alert to how it
can effectively work with the regional and State/ Territory representative
bodies, and the current administration arrangements in place for Indigenous
affairs.

National Indigenous Peak Bodies

There exists an extensive array of national Indigenous peak bodies. A
critical issue in the development of a new National Indigenous Representative
Body will be deciding how these peak bodies will interact and inform the work
and decision making of the new National Indigenous Representative Body.

Generally speaking, existing Indigenous peak bodies represent the different
sectoral interests of Indigenous service delivery organisations. In other words,
they deal with a particular professional area or service delivery role. This
differentiates the role of these peak bodies from those of a National Indigenous
Representative Body. The National Body would need to consider all different
perspectives in developing a clear vision of how to advance the overall
wellbeing and priorities for indigenous peoples at a national level.

Many of these peak bodies are also elected, some with direct representation
from the community level. Peak Indigenous bodies offer significant expertise and
experience that should be drawn on by the new National Indigenous Representative
Body.

Text Box 3 below provides an overview of a number of existing national
Indigenous peak bodies and how they are
constituted.[29]

Text Box 3 – Overview of existing National Indigenous Peak
Bodies

Organisation
Function & Structure
(purpose and
elections/composition)
Aboriginal Tourism Australia (ATA)
Primary Objectives
  • Provide leadership and a focus for the development of Aboriginal tourism,
    consistent with Aboriginal economic, cultural and environmental
    values.
  • Promote cultural integrity and authenticity across the
    tourism industry and provides education on Indigenous protocols to the broader
    tourism industry.
Structural Organisation
  • ATA is an industry organisation formed by Indigenous
    tourism operators with a national membership. It is a Company Limited by
    Guarantee registered under the Australian Securities and Investment Commission
    (ASIC). It is a not for profit and a non government
    organisation.
Australian Indigenous Doctor’s
Association
(AIDA)
Primary Objectives
  • Dedicated to the pursuit of leadership, partnership & scholarship in
    Aboriginal and Torres Strait Islander health, education and workforce.
  • Advocate for improvements in Indigenous health in Australia and equitable
    health and life outcomes for Aboriginal and Torres Strait Islander people
  • Encourage Aboriginal and Torres Strait Islander people to work in medicine
    by supporting Indigenous students and doctors.
Structural Organisation
  • A representative organisation for Aboriginal and Torres Strait Islander
    practitioners
  • A not-for-profit, non-government organisation
Congress of Aboriginal and Torres Strait Islander
Nurses

(CATSIN)
Primary Objectives
  • Increase the recruitment and retention of Aboriginal and Torres Strait
    Islander peoples into nursing.
  • Setting the agenda for, and advising on, a range of health related
    issues.
Structural Organisation
  • CATSIN is a Professional Nursing Organisation that formally represents
    Indigenous nurses. It is an independent organisation with links to other
    professional bodies, and provides advice to these organisations.
Federation for Aboriginal and Torres Strait Islander
Languages
(FATSIL)
Primary Objectives
  • Promote the maintenance, retrieval and revival of Indigenous languages,
    through the support of community based language programs.
  • Have Indigenous languages recognised as core elements in the development of
    all policy and legislation relevant to Aboriginal and Torres Strait Islander
    people in Australia.
Structural Organisation
  • FATSIL is the national peak body for community based language
    organisations
  • It acts in an advisory role on issues relating to Indigenous languages to
    government and relevant non-government agencies, and provides a communication
    network to support information sharing between all target groups involved with
    Indigenous languages in Australia.
Indigenous APS Employees Network (IAPSEN)

Primary Objective
  • Support Indigenous employees to share information and experiences and
    promote cultural awareness and respect in the wider APS.
  • Help Indigenous Australians improve their employment opportunities within
    the Australian Public Service.
Structural
Organisation
  • IAPSEN membership is open to any Aboriginal and Torres Strait Islander
    employee of a Commonwealth Government Agency.
  • IAPSEN has networks in Townsville, Brisbane, Sydney, Melbourne, Adelaide,
    Perth and the ACT.
  • The Chairs’ Forum brings together the Chairs of all the regional
    IAPSENs to exchange information, discuss regional issues and provide regional
    perspectives on Indigenous Employment in the APS. The IAPSEN Chairs usually meet
    bi-yearly.
Indigenous Dentist’s Association of
Australia
(IDAA)

Primary Objectives
  • Promote good oral health for Indigenous Australians and provides support for
    Indigenous dentists and dental students
Structural Organisation
  • The Association receives no government funding and is entirely dependent
    upon donations
National Aboriginal Community Controlled Health
Organisation
(NACCHO)
Primary Objectives
  • NACCHO represents local Aboriginal community controlled health organisations
    at a national level to ensure that Aboriginal people have greater access to
    effective health care across Australia.
  • NACCHO provide a coordinated holistic response from the community sector,
    advocating for culturally respectful and needs based approaches to improving
    health and well being outcomes through Aboriginal health organisations.
Structural Organisation
  • A national peak Aboriginal health body representing Aboriginal Community
    Controlled Health Services throughout Australia.
  • Its membership is composed of member organisations of a State or Territory
    peak Aboriginal community controlled health body affiliated with NACCHO.
  • The Executive Committee is elected by the members at an AGM.
National Aboriginal Justice Advisory
Committee
(NAJAC)
Primary Objectives
  • To independently monitor the Commonwealth, State and Territory
    Governments’ responses to Recommendations of the Royal Commission Inquiry
    into Aboriginal Deaths in Custody. This would ensure a continued national focus
    on those Recommendations.
  • To address the over-representation of indigenous people in the criminal
    justice system through the development of justice plans by State and Territory
    Governments and the indigenous community.
Structural Organisation
  • A representative body consisting of the Chairpersons of the AJACs from each
    State/Territory, and serviced by a secretariat to be supported by the
    Commonwealth Attorney-General’s Department.
Note: NAJAC was intended to consist of the Chair of each state
and territory AJAC.  However, as a result of changes in the state and
territory based AJACs in recent years, along with administrative changes in
Indigenous affairs more broadly, the Australian Government is considering the
establishment of a different type of expert advisory group in Indigenous law and
justice.  The Government is proposing that it comprise a group of high
profile experts in a variety of fields, able to comment across key issues
relevant to Indigenous law and justice.  The Government is planning a
consultation process to engage Indigenous Australians and organisations in the
establishment of the peak advisory body in the near future.
National Aboriginal and Torres Strait Islander Ecumenical
Commission
(NATSIEC)
Primary Objectives
  • Work with the churches for a fair deal for Aboriginal and Torres Strait
    Islander Australians, and for the healing of our nation.
  • Provide a forum for Aboriginal and Torres Strait Islander peoples to speak
    and take action on issues of faith, mission and evangelism; of Aboriginal and
    Torres Strait Islander spirituality and theology; of social justice and land
    rights.
Structural Organisation
  • NATSIEC is the peak ecumenical Indigenous body in Australia.
  • It is a part of the National Council of Churches and is comprised of
    Aboriginal and Torres Strait Islander peoples that represent a cross-section of
    church-related Aboriginal and Torres Strait Islander groups.
National Coalition of Aboriginal and Torres Strait Islander
Social Workers Association
(NCATSISWA)

Primary Objective
  • Bring together Aboriginal and Torres Strait Islander social workers as a
    professional body, to exchange information, ideas, and to network for the
    benefit of our communities.
Structural Organisation
  • NCATSISWA is an independent and not for profit organisation that offers full
    memberships to indigenous people and associate non-indigenous people as well as
    those from interested government and community organisations
National Indigenous Higher Education Network (NIHEN)
Primary Objectives
  • Achieve parity for Aboriginal and Torres Strait Islander peoples in higher
    education; provide a forum for the staff of the Indigenous higher education
    sector to pursue common goals and objectives for Aboriginal and Torres Strait
    Islander peoples.
Structural Organisation
  • NIHEN is a cohort of professional bodies, established to provide a
    representative voice for Indigenous higher education knowledge networks.
    Membership of NIHEN is open to each of the Indigenous Higher Education Centres
    within Australian public Universities, the Indigenous Faculty and Schools of
    Aboriginal and Islander/Indigenous Australian Studies, Indigenous Research
    Centres of Excellence and the Bachelor Institute of Indigenous Education.
     
National Indigenous Postgraduate Association Aboriginal
Corporation
(NIPAAC)
Primary Objectives
  • Provide a network for Indigenous postgraduate students; Advocate for and to
    represent the interests of Indigenous postgraduate students at a national level;
    Promote research into Indigenous issues and the training of Indigenous
    researchers; Educate researchers on appropriate protocols when dealing with
    issues of cultural and social significance to Indigenous
    peoples.
Structural Organisation
  • An association for Indigenous scholars and leaders since 1989.
  • Membership of NIPAAC is open to all indigenous-Australian postgraduate
    students, Elders and ex-postgraduate students. There is also non-voting
    membership for non-Indigenous Australian postgraduate students.
  • The Association is an incorporated Association under the Aboriginal
    Corporations Act
National Indigenous Youth Movement of
Australia
(NIYMA)
Primary objectives
  • Engage other young indigenous peoples with life.
  • Support young Indigenous peoples in life and career pursuits.
  • Celebrate all successes among the membership.
  • Promote self-awareness, healing and wellness among the membership and our
    communities.
  • Contribute to the revival of Indigenous cultural and spiritual values,
    beliefs and practices for today’s world.
Structural Organisation
  • NIYMA is a not for profit organisation founded and run by Indigenous young
    people from the ages of 18-30 years of age.
  • NIYMA’s executive structure is comprised of 6 indigenous young people.
National Native Title Council

Primary Objectives
  • Committed to forging strong and collaborative
    partnerships with key stakeholders in native title as well as Indigenous affairs
    policy;
  • The main focus is on promoting the development of
    better solutions for resolving native title and securing adequate resources for
    Native Title Representative Bodies (NTRBs) and Native Title Service providers
    (NTSs);
  • Seeks to maximise the significant contribution that
    native title makes to achieving and improving the economic, social and cultural
    participation of Indigenous people.
Structural Organisation
  • Comprised of Native Title Representative Bodies and Native Title Service
    providers across Australia;
  • Voluntary membership, incorporated as an autonomous public company;
  • Chief Executive Officers of NTRBs and NTSs participate in the Council, and
    elect a Chairperson and Deputy Chairperson.
National Sorry Day Committee
(NSDC)
Primary Objective
  • Work in unity with its members, the Stolen Generations, Aboriginal and
    Torres Strait Islander communities, government, social justice and community
    organisations, so that the 54 recommendations of the Bringing Them Home Report are finally achieved.
Structural organisation
  • The NSDC is made up of a variety of indigenous and non-indigenous members,
    including members of the Stolen Generation networks.
  • Each State and Territory has established affiliated Sorry Day
    Committees/Networks. The names of these affiliated bodies today reflect the
    broad spectrum of groups that the National Sorry Day Committee membership
    consists of (i.e. Journey of Healing, Bringing Them Home, Sorry Day, Stolen
    Generations or Link Up).
  • The NSDC has a mandate from the Stolen Generations, through its affiliated
    Regional/ State/Territory bodies.
  • NSDC is presided over by an executive committee, comprised of indigenous and
    on-indigenous people.
Ngalaya Aboriginal Corporation
Primary objective
  • Comprised of Indigenous lawyers and law students nationally
  • Seeks to cooperate and collaborate to achieve an equality of justice for all
    Australians.
  • provide assistance to Indigenous law students and Indigenous law graduates
  • ensure Indigenous law students attain the same graduation and work place
    participation rates as those attained by other students.
Structure
  • An Indigenous Corporation under the Aboriginal Councils and Associations
    Act 1976
    .
Positive Aboriginal Torres Strait Islander Network
(PATSIN)
Primary Objective
  • Work within Indigenous communities and with government and service providers
    to represent the interests of Indigenous Australians
Structural organisation
  • A national membership-based network of Indigenous people living with
    HIV/AIDS.
  • The network is auspiced by National Association of people Living with
    HIV/AIDS
Secretariat of National Aboriginal and Torres Strait
Islander Child Care
(SNAICC)
Primary Objective
  • Provide a strong voice for Aboriginal and Torres Strait Islander children
    and families through a national body which represents Aboriginal and Torres
    Strait Islander children’s services and promotes the rights, needs and
    aspirations of Aboriginal and Torres Strait Islander children and families.
Structural Organisation
  • A national non-government peak body in Australia representing the interests
    of Aboriginal and Torres Strait Islander children and families.
  • SNAICC operates from a membership base of Aboriginal and Torres Strait
    Islander community-based child care agencies, Aboriginal Children’s
    Services, family support services, foster care agencies, link up and family
    reunification services, family group homes, community groups and voluntary
    associations, long day care child care services, pre schools, early childhood
    education services and services for young people at risk.
  • SNAICC is governed by a National Executive made up of Aboriginal and Torres
    Strait Islander community-controlled children’s and families’
    services. The National Executive is elected directly through postal ballot by
    SNAICC’s full members, who are Aboriginal and Torres Strait Islander
    community-controlled children’s and families’ services, for a two
    year term.
Stolen Generations Alliance

Primary Objective
  • Work for healing, truth and justice
Structural Organisation
  • Its members are comprised of indigenous and non-Indigenous people who have
    been active in the Journey of Healing, since the release of the Bringing Them
    Home Report.
  • It has an executive comprised of Indigenous and non-Indigenous members from
    all States and territories of Australia.

Land Councils and Native Title Representative
Bodies

Nationwide, there are 17 Native Title Representative Bodies (NTRBs) and
Native Title Services (NTSs), established under the Native Title Act 1993 (Cth). NTSs do not have a representative role. Many NTRBs emerged out of local
‘land councils’, which were established under State and Territory
land rights legislation which predated the native title system. Many of these
land councils have a long history of representing Indigenous interests at a
regional or State/Territory-wide level.

The first land councils were established in the Northern Territory under the Aboriginal Land Rights Act 1976 (Cth) with a range of responsibilities to
run land claims and manage existing land trusts by taking instruction from
traditional owners on development issues. Since the introduction of the Native Title Act 1993 (Cth), these land councils effectively operate
under two statutes and as a result have two sets of operational
responsibilities.

New South Wales also has a land rights system, which is established under the Aboriginal Land Rights Act 1983 (NSW). The NSW Aboriginal Land
Council network operates as a two –tiered structure, comprising the peak
statutory authority – the New South Wales Aboriginal Land Council (NSWALC)
– and 121 Local Aboriginal Land Councils (LALCs). The objectives of both
NSWALC and the LALCs is generally to “improve, protect and foster the best
interests of Aboriginal persons” within their respective
jurisdictions.
Both the NSWALC and LALCs are governed by elected Boards. The
9 Councillors that make up the NSWALC Board are elected to represent each of the
regions that the 121 LALCs are grouped into across the state.

Although native title advocacy, agreements, claims and determinations are a
central focus of NTRBs, NTSs and land councils under State and Territory land
rights legislation, these bodies increasingly undertake roles in related areas
of land management, community development and employment and training programs.
Land management units have developed into significant resource centres receiving
support from a range of government and non-government agencies to run programs
from ranger groups to Indigenous ecological knowledge maintenance.

The range of support services and programs, their structure and election
procedures and the increased regionalisation of some land councils or NTRBs have
contributed to imbuing these institutions with some degree of representativeness
for Indigenous communities in certain parts of Australia.

However, their legitimacy, authority, resources and effectiveness is not
uniform. They are usually governed by a membership that has achieved land rights
grants, or has achieved or asserts native title. They are not usually
representative of those Indigenous groups that cannot demonstrate traditional
ownership of areas covered by the land council or NTRB, nor do they always have
close ties to existing Indigenous community service organisations. They are,
nevertheless, important bodies in the wider landscape of Indigenous
representation, particularly at the local and regional level.

There are a further range of organisations that are beginning to operate
through the native title system. These are Prescribed Bodies Corporate (PBC).
The prime object of prescribed bodies corporate is to hold the native title
rights and interests granted by a determination of native title on trust or as
an agent for native title holders. Once the determination is made a PBC is then
registered on the National Native Title Register as a Registered Native Title
Body Corporate (RNTBC). The primary roles of PBCs are to:

  • Protect and manage determined native title, in accordance with the native
    title holders’ wishes; and
  • Provide a legal entity through which native title holders can conduct
    business with government, and others, interested in accessing or regulating
    native title lands and waters.

As at 30 June 2008, there were 57 RNTBCs, and 12 determinations of
native title currently awaiting determination to become Registered Native Title
Body Corporates. While funding support is limited for such bodies, and they are
differently constituted, they are emerging as a new organisational structure
that has representative responsibilities in relation to traditional owners who
have had their native title recognised.
 
There are a further 12
determinations of native title currently awaiting determination of a Prescribed
Body Corporate, to become the Registered Native Title Body Corporate.

Regional Authorities – Torres Strait Regional
Authority (TSRA)

The Torres Strait Regional Authority (TSRA) began as an ATSIC Regional
Council in 1990 and became an independent statutory authority by amendment to
the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) in
1994.

It consists of two parts: a Board of 20 Indigenous elected members resident
in the region and an Administration staffed by Australian government public
servants headed by a General Manager appointed by the Minister for Indigenous
Affairs.

The Board includes 18 representatives from the island communities of the
Torres Strait plus two more elected under the Aboriginal and Torres Strait
Islander Act 2005
(Cth), that replaced the Aboriginal and Torres Strait
Islander Commission Act 1989
(Cth). Considered to be the political arm of
the TSRA, the Board determines budget allocations and policy, sometimes within
the parameters of portfolios.

Unified regional Indigenous governance structures have existed in the Torres
Strait for decades.[30] The TSRA is
currently the principal Commonwealth agency co-ordinating Indigenous affairs in
the region. Its predecessor was the Torres Strait Regional Council (TSRC) that
existed in the late 1980s, and which drew its membership predominantly from
another regional representative Islander body, the Island Co-ordinating
Council[31] (ICC). The councils have
powerful responsibilities under the Community Services (Torres Strait) Act
1984
(Qld) which establishes 17 Island Councils and the Local Government
Act 1993
(Qld) which establishes the Torres Shire Council, both of which
come together in the Island Coordinating Council (ICC).

As well as being responsible for formulating, administering and monitoring
the effectiveness of programs to individuals, councils and community
organisations in key development areas (such as economic, employment and
training, housing and environmental, social and cultural, policy co-ordination),
the TSRA is the regional representative body for native title and land and sea
management. It advises the Minister for Indigenous Affairs on matters relating
to Torres Strait Islander and Aboriginal Affairs in the Torres Strait.

The TSRA therefore combines representative, policy-making and administrative
elements within the one body.

The current functions of the TSRA include:

  • Recognising and maintaining the special and unique Ailan Kastom of
    Torres Strait Islanders living in the Torres Strait;
  • Formulating and developing programs for Torres Strait Islanders and
    Aboriginal people living in the Torres Strait, and monitoring the effectiveness
    of its own and other bodies’ programs for them in the region;
  • Developing policy proposals to meet their national, State/ Territory and
    regional needs and priorities;
  • Assisting, advising and cooperating with their communities, organisations
    and individuals at these levels;
  • Advising the Minister for Families, Community Services and Indigenous
    Affairs on matters related to Torres Strait Islander and Aboriginal affairs in
    the area;
  • Taking necessary action to protect sacred or significant Torres Strait
    Islander or Aboriginal cultural material and information; and
  • Collecting and publishing statistical information as requested by the
    Australian Bureau of Statistics (Aboriginal and Torres Strait Islander Act
    2005
    (Cth) s142A).

Elections are held every four years. While voting is open to both
Indigenous and non-Indigenous residents, there are fewer of the latter in most
island communities. All prospective candidates must, inter alia, reside
for at least two years prior to an election within the ward they wish to
represent and be Indigenous peoples. It should be noted that Torres Strait
Islanders living in the Torres Strait are outnumbered by those resident on
mainland Australia, who nonetheless share a “common sense of history and
identity”.[32]

Chairs of Community Councils contribute 17 Board members. One elected ICC
member represents five constituencies on Thursday Island on the Board (Tamwoy,
Rosehill, Aplin, Waiben and Quarantine [TRAWQ]) and the remaining two members
represent Port Kennedy (Thursday Island), as well as Horn and Prince of Wales
Islands.

The Queensland government is currently amalgamating the Islander Councils
into a single local government structure with the existing jurisdictions
becoming the responsibility of Community
Boards.[33]

Regional Indigenous representative arrangements post-ATSIC
(2005 - current)

Following the abolition of ATSIC, the then Commonwealth government committed
to the establishment of regional arrangements for the representation of
Indigenous peoples. This was to be based on the negotiation of Regional
Partnership Agreements (RPAs) and Shared Responsibility Agreements (SRAs) with
Indigenous communities, families or clans. The government had also committed to
supporting the development of regional Indigenous representative structures in
the place of ATSIC Regional Councils.

In 2005, consultations were undertaken nationally with Indigenous peoples on
the type of representative structures that should be supported in each region.
The outcomes of these consultations are discussed in the Social Justice
Report 2005.
[34] It reveals a
mix of different models that were proposed by Indigenous communities.

Since 2005 however, only two such regional representative structures have
been supported through the signing of RPAs or SRAs. These are:

  • the Ngaanyatjarra Council in Western Australia; and
  • the Murdi Paaki Regional Assembly in Northern New South Wales.

The Social Justice Commissioner has identified the absence of
regional representative arrangements (with the exception of these two
arrangements) as the most significant problem with the operation of the
post-ATSIC arrangements for Indigenous affairs. In the Social Justice Report
2006
he stated:

Policy is being developed in a vacuum at the national level, with no
connection to Indigenous experiences at the local and regional level ... what this ... demonstrate(s) is the lack of coherence between the
different levels of service delivery and policy...

In practice the new arrangements are a top down imposition – with
policy set centrally and unilaterally by government, confirmed in bilateral
processes with State and Territory governments (again without Indigenous input)
and then applied to Indigenous peoples. The absence of regional mechanisms for
engagement with Indigenous peoples is a critical
problem...[&][35]

a) Ngaanyatjarra Regional Partnership
Agreemen[t]

The Ngaanyatjarra Regional Partnership Agreement (RPA) in Western Australia
was signed on 12 August 2005.[36] The agreement relates to 12 discrete communities of the Ngaanyatjarra lands. It
sets out strategic approaches and projects for joint action by government and
the Ngaanyatjarra Council, a community organisation, in partnership with
Ngaanyatjarra people and communities. The term of the RPA is until 30 June 2008.

The RPA is a statement of mutual intentions but does not create any legally
binding obligations. The parties to the agreement are the Australian government,
the Western Australian government, the Ngaanyatjarra Council and the Shire of
Ngaanyatarraku.

The objectives of the RPA include:

  • Establishing partnerships and sharing responsibility for achieving
    measurable and sustainable improvements for people living in Ngaanyatjarra
    lands;
  • Providing better coordinated and resourced programs and services to achieve
    improvements in priority areas;
  • Establishing mainstream programs and improving access to them;
  • Reducing inefficiencies; and
  • Developing a Strategic Investment Plan for the region.

The Ngaanyatjarra principles that underlie the agreement include:

  • recognising existing capabilities and capacity;
  • maintaining control of Ngaanyatjarra affairs;
  • recognising the role of the Ngaanyatjarra Council and its capacity to drive
    planning and negotiation;
  • maintaining and strengthening traditional Ngaanyatjarra cultural and social
    values and connection to land;
  • recognising need for change and innovation to improve living
    conditions;
  • wishing to live in communities on traditional country that have the best
    achievable standard of living and healthy and safe environment;
  • securing core infrastructure funding and developing all participating
    communities; and
  • supporting an education system that provides children with relevant and
    useful mainstream education while also reinforcing culture.

The representation structures allowed for the Ngaanyatjarra Council
to represent and consult those communities in the area that wished to be
represented by the council, and facilitate the development of SRAs. The
government agreed to support the Council in its representative role by actively
engaging with the council and funding it to fulfil its role, and agreeing not to
establish another representative arrangement for communities that have endorsed
the council’s representative status.

The intended outcomes of the RPA included improved regional capacity;
establishment of structures to manage the RPA (i.e. Regional Partnership
Committee and Agreement Coordinators Group to monitor and develop the
partnership), reduced red tape, and development and implementation of the
Ngaanyatjarra Strategic Investment Plan (20-30 year vision). Progress for the
RPA is to be monitored by all parties in accordance with agreed timeframes and
indicators.

b) Murdi Paaki Regional Assembly

The Murdi Paaki Regional Assembly (MPRA) is the regional governance and
engagement forum for 16 communities in the northwest region of New South Wales.
It operates in the same geographic region as the previous ATSIC Murdi Paaki
Regional Council. The Murdi Paaki region in NSW was also one of eight COAG whole
of government trial sites since 2002.

Community working parties (CWPs) exist in each of the 16 member communities.
The CWPs operate under a Charter and Code of Conduct and have developed
individual Community Action Plans.

On 22 August 2003, Murdi Paaki entered its first SRA with the Australian and
NSW governments. Under the Agreement, the ATSIC Murdi Paaki Regional Council was
acknowledged as the peak regional body and primary point of Indigenous community
contact. The Murdi Paaki Community Working Parties (Working Parties) are
acknowledged as the peak community bodies and primary points of Indigenous
community contact in each community across the region.

The Agreement incorporates the regional priorities identified by the
community and establishes the responsibilities of all parties. Within Regional
Priorities, specific priorities and agreed outcomes for each community in the
region were agreed to be detailed in separate Shared Responsibility Agreements
between the Community Working Parties and the governments.

A subsequent agreement has been reached recognising the Murdi Paaki Regional
Assembly as the principal regional Indigenous governance body (replacing the
ATSIC Murdi Paaki Regional Council).

The MPRA has currently entered into six regional agreements and 12 SRAs with
the government.

The Murdi Paaki Regional Assembly finalised a Regional Plan in 2006. This
plan has used as its foundation the 16 Community Action Plans, and previous
planning documents developed by the Murdi Paaki Regional Council.

The Plan identifies 10 key areas where the Regional Assembly can enable
initiatives, through its influence and representation of the Murdi Paaki region.
They are: community governance, economic development, employment and enterprise
development, housing and infrastructure, young people, health, law and justice,
families, education and culture and well-being.

The Murdi Paaki Regional Assembly has stated that its’ Chair and
members will use the Plan to:

Convey community priorities as gathered and developed from the sixteen
CWP’s Community Action Plans at the regional level. This plan will be used
to coordinate partnership and funding initiatives from government agencies and
non-government service providers that will benefit all communities. The Regional
Plan will also be used by the Regional Assembly to influence the development of
policies and programs that affect Indigenous peoples within the
region.[37]

c) Post-ATSIC regional representation for Torres Strait Islanders on the
mainland

In the 2006 census count there were 29,515 Torres
Strait Islanders and 17,813 persons of both Torres Strait islander and
Aboriginal origin in Australia - a total of 47,328 people. Of this only 15% were
living in the Torres Strait. Of the remaining proportion of Torres Strait
Islanders who live on the mainland, 61% lived in
Queensland.[38]
The needs and
interests of Torres Strait Islanders living on the mainland are distinct from
those living in the Torres Strait. The Torres Strait Regional Authority
represents the interests of those living in the Torres Strait Islander region
(see the discussion of this regional authority above - ‘Regional
Authorities - Torres Strait Regional Authority (TSRA)’). Under ATSIC the
interests of Torres Strait Islanders living on the mainland were represented
through the Torres Strait Islander Advisory Board (TSIAB). The TSIAB was
responsible for advising the Government on issues specific to Torres Strait
Islanders on the mainland.

With the abolishment of ATSIC, the TSIAB was also abolished and the needs of
mainland Torres Strait Islanders were expected to be met through the new federal
service delivery arrangements. This included mainland Torres Strait Islanders
interests being addressed by the local Indigenous Coordination Centres (ICCs)
through Shared Responsibility Agreements (SRAs) and other arrangements. The
Office of Indigenous Policy Coordination (OIPC) absorbed the Office of Torres
Strait Islander Affairs, but continued to fund the National Secretariat of
Torres Strait Islander Organisations Limited (NSTSIOL), to represent mainland
Torres Strait Islanders in dealings with government departments, statutory
corporations and the Aboriginal community.

The removal of distinct representative bodies for mainland Torres Strait
Islanders has meant that the under-representation of their interests in the
delivery of government programs and, policies and services has continued if not
increased. Since 2004 the Aboriginal and Torres Strait Islander Social Justice
Commissioner has sought to assess the adequacy of arrangements for the
participation and representation of mainland Torres Strait Islanders. In the Social Justice Report 2005, the Commissioner noted that with the
abolition of TSIAB the participation of mainland Torres Strait Islanders was no
longer assured.[39] The
Commissioner reported that very few Torres Strait Island Corporations on the
mainland had been involved in the new arrangements for service delivery, and
that the bodies responsible for implementing them, namely the ICCs, had very
limited understanding of the specific contexts and needs of mainland Torres
Strait Islanders.[40]
There is
no indication that there have been any improvements to this situation more
recently. There have been no SRAs or RPAs signed with mainland Torre Strait
Islander Communities.

This situation of the mainland Torres Strait Islanders highlights the need
for diversity in Indigenous representative bodies. It demonstrates that,
particularly at the regional level, all Indigenous groups cannot be homogenised
into a single representative body, but require distinct representative
arrangements.

State and Territory Government representative arrangements,
post-ATSIC (2005 – current)

Following the abolition of ATSIC, several States and Territories sought to
develop replacement regional models for Indigenous
representation.[41] The Western
Australia and New South Wales governments both convened forums and embarked upon
consultations with Indigenous peoples to identify options for representative
bodies.[42]

One example of an advanced regional model was the Kulari model of regional
governance in the Kimberley region of WA. Involving three tiers of governance
with an over-arching council, it involved the retention of the then-existing
ATSIC Regional Councils. It included a level of community working parties to
enable access, participation and capacity building at the grass roots
level.[43]

The NSW Government discussed options at the Our Future Our Voice Summit in 2004, on three models including a regional assembly model (based on
the Murdi Paaki model), the Coalition of peak Aboriginal Bodies (building on
existing organisations) and the Combined ATSIC/ Land Council model (where local
land councils input to regional councils, which in turn input to State land
councils).[44]

The Northern Territory government considered a model of Regional Authorities
under the ‘Overarching Agreement on Indigenous Affairs between the
Commonwealth of Australia and the Northern Territory of Australia
2005-2010’, and the ‘Building Stronger Regions – Stronger
Futures Strategy.’ This latter strategy was the first step in the current
process of amalgamating existing community councils that is underway in the
Northern Territory.[45]

In 2005 Victoria established the Premier’s Aboriginal Advisory Council
(PAAC), chaired by the Premier. Secretariat support for the PAAC is provided by
Aboriginal Affairs Victoria. PAAC provides advice to the Government on strategic
issues in Indigenous policy, and acts as a forum for Indigenous community
perspectives to inform government direction and processes.

PAAC supplements existing Indigenous consultative arrangements in other
portfolios and broad-based community consultations on specific
initiatives.[46]

The South Australian government established an interim Aboriginal Advisory
Council with the role to oversee the application of the ‘Doing it
Right’ policy framework and report to the Premier. Members include the
Minister, representatives from ATSIC State Council, leaders of land councils,
other Aboriginal peak bodies and community
leaders.[47]

In 2008, following the recommendations of this Advisory Council, the
government appointed a Commissioner for Aboriginal Engagement, Mr Klynton
Wanganeen, and established a permanent South Australian Aboriginal Advisory
Council.

The Commissioner is a point of contact for Aboriginal people to express their
concerns, which the Commissioner will identify to the government and work
towards having resolved.

The new permanent Advisory Council will provide the government with advice on
existing programs and policies and help shape future policies and services
relating to Aboriginal people, ensuring that Aboriginal views are part of
government policy-making. The Council will have ten members each appointed by
the Minister for Aboriginal Affairs and Reconciliation for a term of two
years.[48]

The Australian Capital Territory government announced the establishment of an elected representative body for Indigenous peoples in May 2008. Elections have now been held and seven members appointed for a three year term to advise the ACT government on Indigenous issues. Details of this new representative body are provided in Text Box 4 below.

Text Box 4 – ACT Government’s Aboriginal and Torres Strait
Islander Elected Body (ATSIEB) -
2008[49]

As this paper was being finalised, elections had been concluded in the
Australian Capital Territory (ACT) for members of the Aboriginal and Torres
Strait Islander Elected Body (ATSIEB). The Territory’s Chief Minister has
indicated his intention that this body fill the void for a
democratically-elected Indigenous voice following the abolition of ATSIC

The ATSIEB is established under the Aboriginal and Torres Strait
Islander Elected Body Act 2008
(ACT), which came into force on 15 May 2008
after a series of consultations about its structure with the local Indigenous
community. These consultations were conducted in 2006 via the Aboriginal and
Torres Strait Islander Community Consultative Council.

Eligibility requirements for both nominated members and voters are
identical: only Indigenous peoples at least 18 years old and on, or entitled to
be on, the ACT electoral roll qualify. Nominees have the additional stipulation
of not being under a sentence of imprisonment for one year or longer for an
indictable offence. Importantly, voting is not compulsory.

Voting was conducted between 16 and 21 June 2008 (inclusive), with the
seven elected members of the Body announced in early July.

Seven members are to be elected every three years, among them a Chair and
Deputy Chair, and meetings will occur at least six times per year. Voting at
meetings will be by majority consensus or, if equal, by a deciding vote from the
presiding member (see ss22-25). A Chief Executive of a government agency may be
invited to attend (s26). The first meeting is scheduled for July.

The functions of the Elected Body are set out in section 8 of the Act as
follows:

  1. To receive, and pass on to the Minister, the views of Aboriginal people and
    Torres Strait Islanders living in the ACT on issues of concern to them;
  2. To represent Aboriginal people and Torres Strait Islanders living in the ACT
    and to act as an advocate for their interests;
  3. To foster community discussion about issues of concern to Aboriginal people
    and Torres Strait Islanders living in the ACT;
  4. To conduct regular forums for Aboriginal people and Torres Strait Islanders
    living in the ACT and report the outcomes of those forums to the Minister;
  5. To conduct research and community consultation to assist ATSIEB in the
    exercise of its functions;
  6. To propose programs and design services for Aboriginal people and Torres
    Strait Islanders living in the ACT for consideration by the government and its
    agencies;
  7. To monitor and report on the effectiveness of programs conducted by
    government agencies for Aboriginal people and Torres Strait Islanders living in
    the ACT;
  8. To monitor and report on the accessibility by Aboriginal people and Torres
    Strait Islanders living in the ACT to programs and services conducted by
    government agencies for the general public;
  9. When asked by the Minister, to give the Minister information or advice about
    any matter stated by the Minister;
  10. When asked by a government agency or another person, and in consultation
    with the United Ngunnawal Elders Council, to recommend any reasonable action it
    considers necessary to protect Aboriginal and Torres Strait Islander cultural
    material or information considered sacred or significant by Aboriginal people
    and Torres Strait Islanders living in the ACT;
  11. Any other function given to ATSIEB by the Minister; and
  12. Any other function given to ATSIEB under this Act or another territory
    law.
The body reports to the ACT Minister for Aboriginal and Torres
Strait Islander Affairs and is mandated in s9 of the Act to consult with, and
consider, the views of the United Ngunnawal Elders Council (UNEC) in the
exercise of all its functions. It is also obliged by s11 to conduct a community
forum at least twice per financial year on areas of interest to Indigenous
residents, at which any Indigenous resident may participate. There is provision
for timely, accessible and informed notice and feedback prior to and during a
forum (ss12-13).

The ‘new arrangements’ for the administration
of Indigenous affairs at the federal level post-ATSIC (2005-
current)

In the wake of the abolition of ATSIC and ATSIS in 2005, the federal
government introduced a series of reforms to the administration of Indigenous
Affairs[.] These reforms are documented and
analysed at length in the Aboriginal and Torres Strait Islander Social Justice
Commissioner’s Social Justice Report for 2004, 2005 and 2006.

These arrangements, which continue today, have substantially changed the
operating landscape in which any National Indigenous Representative Body will
operate.

Under these new arrangements, policy and service delivery at the federal
level is the responsibility of mainstream government departments. All Indigenous
specific programs have been retained and sit alongside mainstream programs
within these departments.

There have also been a range of mechanisms established within government
aimed at delivering a more coordinated, holistic or ‘whole of
government’ response to Indigenous affairs. These include the
establishment of:

  • A Ministerial Taskforce on Indigenous Affairs that is chaired by the
    Minister for Indigenous Affairs, and involves Ministers with relevant portfolios
    across the government. Its purpose is to provide high level direction to the
    Australian government on Indigenous affairs as well as reporting to Cabinet on
    policy and expenditure.
  • A Secretaries Group on Indigenous Affairs that is composed of the heads of
    Australian government departments, chaired by the Secretary of Prime Minister
    and Cabinet, and which provides support to the Ministerial Taskforce and reports
    annually on performance across the whole of the federal government on Indigenous
    affairs.
  • A National Indigenous Council (NIC) that was an appointed council of
    Indigenous experts to advise the Ministerial Taskforce on policy program and
    service delivery issues. The NIC’s status as a hand-picked body with no
    ability to independently consult with Indigenous people meant that it enjoyed
    very little credibility with Indigenous people. Its mandate expired in December
    2007, when the new government decided not to continue with it.
  • An Office of Indigenous Policy Coordination (OIPC) that coordinates
    government policy development and service delivery in Indigenous affairs, across
    the whole of government.
  • A network of regional Indigenous Coordination Centres (ICC) that co-locate
    staff across federal government departments in regional offices to coordinate
    whole of government responses to Indigenous issues on a regional level. The
    location of these offices is in the same regions that had been adopted by the
    ATSIC Regional Councils.
  • A ‘Single Budget Submission for Indigenous Affairs’ whereby all
    items relating to Indigenous affairs are considered by the Ministerial Taskforce
    in a single budget document to promote integrated whole of government activities
    and allocation of funding.[50]

Policy development is guided by a national framework of principles
for government service delivery to Indigenous peoples agreed by the Councils of
Australian Governments (COAG). Since 2005, there have been a series of
commitments made by COAG that guide Indigenous affairs. Most notably, in 2007
COAG adopted a series of targets to close the gap in Indigenous disadvantage and
agreed to a reform agenda through COAG.

The COAG commitments and new arrangements at the federal level were also
reflected in bilateral agreements between the federal Government and State and
Territory governments.

It is notable that in the absence of a National Indigenous Representative
Body, the commitments through COAG and bilateral agreements that set the basis
for the relationship between governments and policy directions for Indigenous
affairs, have been made without any Indigenous participation or consultation.
Indigenous representative structures at all levels are needed to partner
governments in planning and determining appropriate service delivery
arrangements.

Lessons learnt from existing mechanisms for representing
Indigenous peoples at the national, State, Territory and regional
levels

The range of national, State/ Territory, and regional level outlined above
demonstrate that a diversity of Indigenous representative bodies is currently in
existence in Australia. However, none of these bodies or the combination of
them can adequately provide the comprehensive representation that would be met
by a National Indigenous Representative Body.

Each category of bodies illustrates strengths and weaknesses of different
approaches to representation that can be usefully drawn upon in developing a new
National Indigenous Representative Body. This includes understanding how the
different models are structured, what functions they fulfil, how their
membership is constituted, and the processes for electing the representative
body.

The national peak Indigenous bodies commonly represent different sectoral
interests of Indigenous service delivery organisations. While some of them may
have a role in representing the interests of their Indigenous membership, it is
often restricted to the specific sector that they primarily work in. Within
their relative areas of interest the peak bodies can be a valuable source of
information and input. It will be important to consider how the new
Representative Body can ensure these peak bodies will interact and inform the
work and decision making of the new National Indigenous Representative Body. In
terms of membership, it may be useful to consider if there should be a special
category of membership for these bodies, particularly for those that are elected
by an Indigenous membership.

The Land Councils and Native Title Representative Bodies are limited in their
scope for representation as they only generally represent Indigenous groups that
can demonstrate traditional ownership of areas covered by the land council or
NTRB. They are, nevertheless, important bodies in the wider landscape of
Indigenous representation, particularly at the local and regional level,
particularly as a source of information and input.

The Torres Strait Regional Authority is a useful model to look to in terms of
how to structure the membership and functions of a representative body. It also
can be a guide on how to resolve the tensions of having multiple functions of
representation, policy-making and administrative elements within the one body.

Importantly, the new National Indigenous Representative Body will have to
consider how to interface with this regional body in terms of ensuring Torres
Strait Islander participation at the national level. It will also be important
to consider how to separately include the representation of mainland Torres
Strait Islanders in the national body.

The recent development of a representative group in the ACT and advisory
committees, such as in South Australia and Victoria, are initiatives that have
not existed previously, even during the era of ATSIC. There has been a lack of
clarity in past national Indigenous representative bodies on their relationships
with States and Territory bodies and mechanisms. It will be critical to ensure
that consideration is given to how the new National Indigenous Representative
Body will interface with these State/ Territory mechanisms.

A National Indigenous Representative Body will also have to bear in mind the
current administration mechanisms for Indigenous Affairs that were put in place
post-ATSIC. These arrangements relate primarily to program delivery required to
meet government commitments. A key feature of these arrangements is the
devolution of service delivery to the regional level, through the ICCs and
mechanisms such as the SRAs and RPAs. Another key feature of the new
arrangements is the transfer of Indigenous specific programs to mainstream
departments. A new National Indigenous Representative Body will have to consider
structures for informing all mainstream departments on Indigenous
Affairs.[51] It will be important
for the new National Indigenous Representative Body to ensure that clear and
consistent mechanisms are in place with the relevant bodies (i.e. COAG
Ministerial Taskforce on Indigenous Affairs, Secretaries Group on Indigenous
Affairs, the Office of Indigenous Policy Coordination and regional Indigenous
Coordination Centres). This will be important for ensuring consistency between
program delivery by these bodies and the work of the new National Indigenous
Representative Body, particularly in terms of linking national policy
development with regional level program implementation.

A new National Indigenous Representative Body will have to determine how to
effectively engage and link with these regional and State/ Territory
representative bodies, to ensure complementary and supplementary relationships
are established.


Section 3: National Indigenous
Representative Bodies in other countries – some comparisons

This section of the Issues Paper provides examples of Indigenous
Representative Bodies that have been established internationally. These include:

  • the Assembly of First Nations (AFN) in Canada;
  • the National Congress of the American Indian (NCAI) of the USA;
  • the Sami Parliament of Sweden; and
  • Te Puni
    K
    ōkiri (TPK)
    of New Zealand.

The perceived strengths and weaknesses of these different models
are considered. The critical difference between the models is whether
self-governance is aspired to and what ‘purchase’ or persuasiveness
these structures have with government.

The National Congress of American Indians: United States of
America

The National Congress of American Indians (NCAI) was founded in 1944 to
facilitate unity and cooperation among tribal governments for the protection of
their treaty and sovereign rights. It strives to inform the public and Congress
on the governmental rights of American Indians and Alaska Natives. It now
comprises 250 member tribes from throughout the United States. NCAI monitors
federal policy and has input into federal decisions that affect tribal
government interests.[52]

The NCAI provides a forum for policy development among tribal governments
to:

(1) Protect and advance tribal governance and treaty rights;

(2) Promote economic development and health and welfare in Indian and
Alaska Native communities; and

(3) Educate the public toward a better understanding of Indian and
Alaska Native tribes.[53]

Membership is made up of tribes, organisations and individuals. It
includes the Alaskan Native tribes.

Tribal members must be an identifiable group who have substantial numbers of
their members living on the same reservation or general locality. They must
maintain a unified tribal organisation which does not fission. They must be
recognised as a tribe by the US Department of Interior, Court of Claims, the
Indian Commission or a State.[54]

Any individual with Indian ancestry is eligible for membership. Such
individuals must be a member of a recognised tribe. Non-Indians may be admitted
as non-voting associate members on payment of an annual fee. Organisations may
also be admitted as members on the same terms. The Executive Director may confer
membership to applicants, subject to review by the Executive
Council.[55]

The NCAI is currently addressing a range of issues that range from:

  • Service programs for Indian families, targeting Indian Youth and elders;
  • Promotion and support of Indian education;
  • Enhancing health care, including reducing substance abuse and HIV-AIDS;
  • Support of environmental protection and natural resources management;
  • Protection of Indian cultural resources and religious freedom Rights;
  • Promotion of the Rights of Indian economic opportunity; and
  • Protection of the Rights of Indian people to decent, safe and affordable
    housing.

Nature and Extent of Mandate and Decision-Making
Authority

The supreme powers of the Congress reside with the members meeting in General
Assembly. The General Assembly meeting of members may delegate its powers to the
Executive and Officers of the
NCAI.[56]

There are two official meetings of the Congress each year – the Annual
Convention and the Mid-Year Conference.

The officers of the Congress are divided into two categories:

a) the Administrative Board Officers (ABO) which consists of the President,
First Vice-President, Recording Secretary and Treasurer, and

b) 12 Regional Vice-Presidents.

The Administrative Board officers are elected by secret ballot on nomination
from the floor at the Annual Convention. The Regional Vice-Presidents are
elected by regions (according to procedures established by each region) meeting
in caucus at the Annual Convention at a time appointed after the election of the
ABO members. Only tribal government officials or delegates in good membership
standing
can qualify for nomination, election or office in the
Congress.[57]

Individual Indian members are entitled to one vote and tribal members are
allocated between 100 to 180 votes according to size; e.g. tribes with up to 500
members get 100 votes while tribes consisting of more than 7500 members get 180
votes.[58] All officers are elected
for two year terms and can only serve two consecutive
terms.[59] Elections take place each
odd numbered year.

The NCAI also has an Executive Council which comprises the Administrative
Board Officers, the 12 Regional Vice-Presidents and one delegate from each
member tribe. This Council meets once in annual conference although the
Constitution does provide for additional meetings in certain
circumstances.[60]

The powers of the Executive Council include administration of the
organisation’s affairs under the Constitution, management of funds and bona fide contributions, to enable policies consistent with the Annual
Convention.[61]

The NCAI also has an Executive Committee which comprises the Administrative
Board Officers and the 12 Regional Vice-Presidents. It has power to employ the
Executive Director and has the full authority to act for the Executive Council
between meetings of the Council. This Committee reports in writing to the
Council. The Executive Director is the administrative
head of the Congress and is subject to the direction and policy set out by the
Executive Committee.[62]

The President is authorised to appoint committees and sub-committees.
Examples include:

  • The Human Resources Committees, which has various sub-committees including
    Education, Health, Indian Child and Family Welfare, and Elders;
  • The Litigation and Governance Committee which has sub-committees on Tribal
    Gaming and Taxation and Human Religious and Cultural concerns;
  • The Veterans Committee; and
  • The Rules and Credentials
    Committee.[63]

The NCAI has 250 member tribes and thousands of individual members
from throughout the United States. There are said to be over 550 recognised
tribes in the USA and this may impact on the Congress’ ability to provide
broad representation.

The NCAI has developed a Policy Statement which provides direction on tribal
sovereignty, treaty rights, federal trust responsibility, health, housing,
education, environmental quality, and physical, spiritual, traditional, and
cultural customs and practices.[64] These stem from the NCAI’s key objectives: respect for tribal governance
and the federal trust relationship; support for healthy Native communities and
people, and preservation of human dignity and cultural integrity.

The NCAI pursues these objectives as follows:

  • Respect for tribal governance and the federal trust relationship: Effective USA and tribal government dialogue and consultation (including
    Alaskan Native tribal governments and Native Hawaiian rights); the exercise of
    tribal self-determination and governance; the acknowledgement of tribal
    sovereignty and receipt of adequate resources for Indian programs and land
    management.
  • Support for healthy Native communities and people: The development of
    appropriate, sustainable and diversified economies on Indian Land; training
    opportunities on reserves; accessible housing, transportation infrastructure and
    information technology; support for a tribally-driven health care system;
    commitment to Indian education; tribal law enforcement and sentencing; child
    protection; and development of tribal resources.
  • Preservation of human dignity and cultural integrity: Ensuring the
    maintenance and transmission of practices and language; protecting Indian
    tangible and intangible cultural heritage; recognition of the wider rights of
    indigenous peoples; and the ending of racially discriminatory practices.

Relationship with State governments

When Indian lands were ceded to the United States the government’s
ensuing legal commitment was codified in treaties, federal law, executive
orders, judicial opinions, and international doctrine. Three general obligations
were created by this:

  • protection of Indian trust lands;
  • protection of tribal self-governance; and
  • provision of basic social, medical, and educational services for tribal
    members.

The NCAI and the states through the National Conference of State
Legislatures (NCSL) have reached agreement on a State-Tribal Relations Project
to promote cooperation between the tribal and state governments.

This Project acknowledges that States and Indian tribes have a broad range of
common interests and shared responsibilities to use available public resources
wisely and effectively. The Project aims to coordinate and realise the
objectives of 50 state governments and 550 tribal governments with respect to
education, health, economic development, law enforcement and cultural and
environmental maintenance. It also aims to avoid state-tribal litigation due to
jurisdictional disputes.[65]

How the Organisation is Funded

The NCAI is funded through annual membership dues. These dues are payable at
the Annual Convention of each year for the following year until the next Annual
Convention.

An individual voting member pays $40.00 and can pay $1,000.00 for life
membership. Tribal membership dues are calculated according to the annual income
of the tribal government. Those with less than $500,000 annual income are at the
bottom of the dues scale and pay a membership of $110.00 per annum. Those at the
top of the scale are those with an income of $30 million or more and they pay
$25,000 per year. An individual associate member pays $40.00 whilst organisation
Associates pay $500.00 annually.[66]

Members of the Executive Committee are not entitled to any salary, fees,
remuneration gratuities or other form of compensation from the NCAI for serving
on the committee.[67]

The Assembly of First Nations – Canada

The Assembly of First Nations (AFN) is the national organisation representing
First Nations citizens in Canada. The AFN represents all citizens regardless of
age, gender or place of residence. The Assembly of First Nations is a national
aboriginal advocacy organisation.

There are over 630 First Nation’s communities in Canada. The AFN is
intended to present the views of the various First Nations through their leaders
in areas such as: Aboriginal and Treaty Rights, Economic Development, Education,
Languages and Literacy, Health, Housing, Social Development, Justice, Taxation,
Land Claims, Environment, and a whole array of issues that are of common concern
to Aboriginal Canadians which arise at any given time.

The Chiefs meet annually to set national policy and direction through
resolution. The National Chief is elected every three years by the
Chiefs-in-Assembly.

The Chiefs meet between the annual assemblies every three to four months in a
forum called the ‘Confederacy of Nations’. The membership of the
Confederacy consists of Chiefs and other Regional Leaders chosen according to a
formula based on the population of each region. First Nations’ Chiefs in Canada are elected in accordance with Indian Act regulations or by traditional governance practices of the country’s First
Nations.

History of the Assembly of First Nations

The origins of the Assembly of First Nations (AFN) are rooted in the
post-World War I activism of Indian veterans returning from the war. The League
of Indian Nations of Canada fought against assimilation from the early
1920’s and into the 1930’s. The League laid the foundations for the
National Indian Brotherhood (NIB). The Brotherhood consisted of the presidents
of provincial and territorial organisations.

After the Second World War, First Nations again attempted to form a national
lobby group. The North American Indian Brotherhood (NAIB) was established in the
late 1940’s, but like its predecessor, the NAIB’s efforts were
hindered by a lack of nation-wide support and suppressive government actions,
causing it to be disbanded by the early 1950’s.

In 1961, the National Indian Council was formed to represent three of the
four major groups of Aboriginal people in Canada. However, the National Indian
Council found the task of uniting all of the various First Nations
people’s interests into one national lobby to be
challenging.[68]

In 1969 the federal government introduced a White Paper which called
for the assimilation of all First Nation peoples into the mainstream of Canadian
society. The National Indian Council joined forces with the federally appointed
National Indian Advisory Council to defeat the White Paper. Their efforts
were coordinated through an executive – the National Indian Brotherhood (NIB).

In 1970 the Indian Association of Alberta produced a Red Paper replacing the White Paper. In the same year the first nationally elected
President was chosen for the NIB.
In the late 1970’s the
Canadian government decided to patriate the Canadian constitution from Britain,
which galvanised the NIB and first nations leaders into action to ensure
Aboriginal rights were recognised and protected in any new constitution. Their
efforts were realised in the Canadian Constitution Act 1982.

Prior to that, in December 1980, an assembly of chiefs adopted the Declaration of First Nations which established the foundations for the
formation of the Assembly of First Nations. From being an ‘organisation of
representatives from regions’ the AFN became an Organisation of First
Nations Government Leaders.[69]

The NIB corporate structure provides secretariat and administrative functions
to the AFN. The National Chief and 10 Regional Chiefs are elected, through the
AFN process, then soon after go through a routine administrative process of
being ‘elected’ in an NIB General Assembly. The NIB Board of
Directors also hires an Executive Director, who also is the AFN Chief Executive
Officer.

In 2003 discussions began regarding the responsibilities and objectives of
the AFN and in January 2004 the AFN Renewal Commission was established to
conduct a review of the AFN.

The AFN Renewal Commission delivered a report in September 2005 including 47
recommendations relating to accountability, new structures, relationships and
administrative improvements.[70]

The overall structure of the AFN is based on the Charter of the Assembly of
First Nations, which was adopted in July 1985. Regional Chiefs are
elected/appointed within ten defined regions of Canada. The principal organs of
the Assembly of First Nations are:

  • the First Nations-in-Assembly;
  • the Confederacy of Nations;
  • the Executive Committee;
  • the Secretariat (AFN/NIB);
  • the Council of Elders;
  • the Council of Women and
  • the National Youth Council.

The Executive Committee is made up of the Regional Vice-Chiefs, the
National Chief, and the Chairperson of the Council of Elders. Chiefs of their
respective regions select the Vice-Chiefs.

Effectiveness of Representation and in Promoting the Rights and Interests
of Indigenous Peoples

The AFN mandate is primarily to lobby government on behalf of First Nations
in Canada. The AFN can use political and moral persuasion to influence
government. Because the AFN is funded by the federal government, to some extent
it is at the mercy of the government of the day. A hostile national government
can make the ability to lobby difficult or limited. Much relies on the political
experience and abilities of the National Chief.

Sometimes, the AFN has been seen to be overtly political, and therefore less
focused on policy matters that may have long term benefits for community
members. This is partly a function of the structure of the AFN and partly a
function of capacity and process.

The effectiveness of the AFN almost entirely hinges on several factors:

  • The strategic skills of the National Chief and the leadership capabilities
    of that individual particularly in maintaining the focus on national issues by
    the Regional Chiefs;
  • The disposition of the federal government of the day; and
  • The capacity of the organisation to react to current major national
    issues.

One of the biggest challenges faced by the AFN at the moment is in
representing all of its members. In the past, the AFN has focused more on
‘on-reserve’ status members. However, at least 50% of all status
Indians now resides in urban centres, especially in some of Canada’s
larger cities.[71]

The Congress of Aboriginal Peoples (CAP) was established to represent
so-called ‘non-status’ Indians in Canada (that is, aboriginal people
who do not have ‘status’ under the Indian Act). By default,
they represented Indians in urban Canada in meetings with the federal
government. Today, CAP asserts that it represents both status and non-status
Indians in urban areas. This creates the opportunity for hostile governments to
‘play off’ the different organisations. In this scenario AFN does
not have a ‘monopoly’ on national representation.

The dual accountability of Regional Chiefs to both their regional
constituents and strategic national agenda policy items has been seen as a
tension during meetings of both the Special and General Assemblies. The AFN
Renewal Commission recommended that women’s organisations, treaty groups,
Native friendship centres and other First Nation organisations be allowed to
attend and participate in AFN Assemblies and be allowed to speak on specific
issues concerning them (Recommendation 34).

The Assembly of First Nations Renewal Commission

The Renewal Commission was established by the AFN with a broad mandate to
consult with First Nations communities and peoples across Canada about the
renewal and restructuring of the AFN. The Commission’s recommendations
were wide ranging and stressed that the AFN needed to change lest it risk
becoming ineffective and also risk diminishing its claim to be representative of
First Nations and its citizens.

The key according to the Commissioners was for the internal structures and
processes of the AFN to be responsive to the priorities and objectives of First
Nations (see Resolution No. 58/2006). Almost two years after the production of
the Report of the Renewal Commission the AFN has resolved that the National
Chief and the Executive must now implement the
recommendations.[72]

Specific recommendations include the adoption of the Gender Balanced Analysis
Framework; the development of a new Corporate Charter (and the dropping of the
NIB); the election of the National Chief by First Nations Citizens; training for
AFN chairs and co-chairs and a Universal Vote. There are present discussions
about coordinating First Nation’s community elections with an election for
National Chief and Regional Chiefs. At present the terms of regional chiefs vary
from community to community, some are elected for two year terms others for
three year terms and still others for four year terms. Some of the existing
community arrangements are well entrenched and it may take some time to
implement this recommendation across the country.

The Sami Parliament – Sweden

Sami comprise about 70,000 people and are spread across four countries;
portions of Russia, Sweden, Norway and Finland. Around 20,000 Sami live in
Sweden.[73]

The Sami are renowned for their pastoralist reindeer herding having a long
history of organising themselves into polities. The Sami parliament in Sweden is
a publicly elected body.[74] The
Swedish Sami parliament was established in 1993 and is regarded as a State
authority with the overall objective of achieving a living Sami
culture.[75] Recently, the Finnish,
Norwegian and Swedish Sami parliaments endorsed a draft Nordic Sami Convention,
which is currently under consideration by their corresponding
States.[76]

The status of Sami as the Indigenous peoples of Sweden is not recognised in
the Swedish Constitution however the establishment of the parliament provides
this recognition in the Swedish
State.[77] The main purpose of the
parliament is “...to monitor issues that relate to Sami culture
in Sweden” rather than act an instrument for
self-governance.[78]

The Sami Parliament has 31 elected members who meet three times per year and
the President is the only full time employee of the Parliament. The meetings are
known as the Plenary Assembly. The Parliament has some 20 staff.

The Swedish State did not officially recognise the Sami as an Indigenous
people until 1977. The Sami Parliament reports annually to the Swedish
Parliament and its operations are controlled by the Swedish Parliament. The
Swedish Parliament does this through laws, ordinances and appropriation
decisions.[79]

Swedish Sami are entered on the Sami electoral register and are entitled to
vote in general elections for candidates to the Sami Parliament. There are
requirements to be eligible as an elector. Firstly, each elector is entitled to
vote if they consider themselves to be a Sami, culturally and ethnically and
secondly, if they speak a Sami language or have, or had, a parent or grandparent
who spoke Sami.

Sami identity and Sami culture has been bound up with pastoralism and
reindeer herding and the Swedish state’s view of what constitutes a Sami.
The early reindeer grazing laws (the first of which was the Reindeer Grazing
Act 1886
) sought to define the rights of the Sami people. The nomadic
reindeer herders were considered the ‘real’ Sami and they were
separated from the rest of the population to preserve ‘genuine Sami’
culture. As many Sami were forced out of herding and children were separated,
the state established special schools for nomadic Sami children along
assimilationist lines.

New laws have changed this situation. The format of the Sami Parliament is
tightly controlled by the Sami Assembly Act. The Sami parliament became
both a publicly elected body and an authority that is controlled by the Swedish
government.[80] The Sami still have
no political representation in the Swedish
parliament.[81]

How the Organisation is Funded

The Sami Parliament is funded by the Swedish government. In 2004 the
Parliament received 17 million SEK (about AUD 3.07million) to cover the
operations of both its elected arm and its role as a public authority. In 2005
the budget was increased by a further SEK 3.0 million (about AUD 0.54million) to
cover the work of the Sami Information Centre. A further SEK 14.5 million
annually (about AUD 2.60million) is distributed by the Cultural Affairs Council
of the Sami parliament.

The Sami Parliament has also been able to access funding through the European
Union (EU). One of the objectives of the EU is to maintain the diversity of
cultures in Europe. The EU is also concerned to reduce the economic and social
imbalances between the member states and the organisation has set up
‘structural funds’ for this purpose.

The Sami Parliament has been able to access funds via allocations made by the
EU to Sweden.[82] Under the
arrangements Sweden has to also make matching payments of between 30-50 percent
of the total cost. These resources are used to promote Sami business and
culture.[83]

/sites/default/files/content/social_justice/repbody/Final%20rep%20body%20paper00.jpgSweden was also required to
agree to a Sami Protocol as part of its conditions of membership to the EU and
to recognise the domestic and international legal obligations and
responsibilities Sweden has to Sami people in their country. The protocol states
that Sweden is committed to preserving and developing the Sami people’s
living conditions, language, culture and way of life – and specifically
pastoralism and reindeer herding.

Māori
Representation – New Zealand

Māori, the indigenous people of New
Zealand make up 632,900 or 14% of the total population spread across the
North and South Islands of the
nation.[84]

There are numerous ways in which
Māori interests are represented
across the political system. Distinct from their Australian, Canadian and
Swedish bodies, the New Zealand scheme
primarily revolves around the provision of guaranteed Māori seats in the
legislative system as opposed to a separate National Indigenous Representative
Body or indigenous parliament.

The interests of New Zealand’s indigenous people are embodied in
the Ministry of Māori Development, Te Puni Kokiri (TPK), a
governmental advisory body that links the Crown with the Māori population.
A branch of this body, the Māori Trusts Office exists to support Māori
land and asset management. Importantly however, recent consultations by the New
Zealand Government with Māori groups have proposed that the Trust become
independent of the TPK and be required to report on an annual basis to
Parliament. The proposed changes are likely to be embodied in legislation
sometime in 2008[85].

Māori
Electorates

In 1867 the New Zealand Parliament established four
Māori electorates, an enduring
and distinctive feature of the State’s ‘first past the post’
electoral system. This was initially a temporary measure to accommodate the
opposing demands of members of the North and South island but was solidified
with the passing of the Māori Representation
Act 1867
and became permanent in
1876.[86]. Despite criticism and
recommendations for their abolishment,
Māori seats were retained under
the State’s new ‘mixed member proportion’ voting system
instituted in 1993. The number of seats
Māori now occupy fluctuates
according to the results of the regular
Māori electoral option. Of the
120 existing seats in the House of Representatives, seven are
designated for Māori representatives,
although Māori persons may also run for and occupy non-reserved seats.
Notwithstanding the existing seven Māori seats, they currently hold a
further 15 seats, bringing the overall Māori participation rate to
approximately 18% of the entire
parliament.[87].

Ministry of
M
āori Development, Te Puni
K
ōkiri

The Ministry of Māori
Development, Te Puni
K
ōkiri (TPK),
is the principal government body that advises on policy and legislation
regarding Māori wellbeing. It
currently has no service delivery role but
acts as an intermediary between government agencies and other external
organisations to ensure that ‘Māori succeed as
Māori’[88] and
that their concerns are reflected in policy development.

A Chief Executive is at the head of its organisational structure, with three
Deputy Secretaries of Support Services, Relationships and Information, and
Policy, and a Māori Trustee.
Importantly, the Relationships and Information branch of TPK focuses on
developing and maintaining relationships
between Māori and those stakeholders
pertinent to this process. This is facilitated by the 10 regional offices of TPK
which provide a direct and vital link with Māori communities.

The Ministry, or TPK, formulates policy and amendments to legislation and
subordinate legislation that fall within the
Māori Affairs portfolio. In
particular, one of TPK’s primary functions is its statutory responsibility
in accordance with the Ministry of Māori Development
Act 1991
, which provides an avenue for monitoring the
effectiveness of government policies towards
Māori inhabitants.

It is also responsible for providing independent policy advice to, and
coordinating the legislative obligations of, the Minister of
Māori Affairs. A policy
framework (‘Māori
Potential’) was developed by the TPK which informs and coordinates the
Māori Affairs portfolio and the
development and implementation of
Māori public policy. The focus
of their Māori Potential
framework is on building knowledge and skills
(mātauranga),
strengthening Māori culture,
leadership and decision-making (whakamana) and on the development and use
of natural, financial and physical resources (rawa).

Maori Trust Office

The Māori Trust
Office, currently independent of the Crown
and accountable to landowners and the Māori Land Court, exists to
assist Māori to manage land and
assets by acting as trustee or agent for owners of
Māori land and assets. Part of
its mandate is to minimise the adverse effects of fragmented and multiple
ownership. This entails collection and payment of income (such as rental income
in the context of leasing land) and the investment of trust monies. Legislation
to establish the Māori Trustee
as a stand-alone organisation, separate from TPK, will be introduced in 2008
following government consultations in 2007 with
Māori. The office will
thereafter be responsible for regular review and adjustment of the interest rate
paid on trust funds and required to report annually to Parliament.

Treaty of Waitangi and the Waitangi Tribunal

An additional point worth noting is that
TPK are charged with the responsibility of facilitating Treaty of Waitangi
settlements. The Treaty of Waitangi is a founding document in New Zealand
history that affirms the status of Māori as its indigenous inhabitants.
Signed in 1840, the document represents an agreement between the British Crown
and the Māori people of New Zealand encapsulated within three main
articles. The first is that concerning the right of the British to govern
Māori people, the second to the rights of indigenous peoples to the land
and natural resources, and the third to affirm the right of Māori to the
enjoyment of the same rights as their non-indigenous
counterparts.[89]Although not
enforceable at law, there are three fundamental ways in which the principles of
the Treaty are given effect. To this end, both the Crown and the Courts can
apply the principles to legislation where possible and otherwise have a moral
obligation to resolve other conflicts where
necessary.[90]

However, the primary means of implementing the principles is through the
Treaty of Waitangi Tribunal. It is through this mechanism, which was established
in 1975 under legislation of the same name
that grievances between the Crown and Māori are addressed. The Tribunal has
non-binding power to make recommendations on breaches of the Waitangi Treaty
principles and means of redress as well as the ability to hear current and past
claims. An equal distribution of pakeha (non-indigenous) and
Māori persons comprise the 16 member Tribunal, all of which are appointed
by the Governor General either on the advice of the Minister of Māori
Affairs or from the Māori Land Court.

A claim can be brought by any member of
Māori community which generally involves the negotiation phase which
establishes that a well-founded grievance exists, within the mandate of the
Tribunal legislation. Matters outside this which can not be considered by the
Tribunal include commercial fishing interests and matters between conflicting
Māori claimants. The modern claims process provides assistance to
resolve claims which have arisen after 21 September 1992. In particular, any
grievances arising after that date may be brought before the Waitangi Tribunal
so long as they fit within the mandate provided by section 6 of the Waitangi
Tribunal Act
1975. Crown responses to contemporary claims are dealt with by
the relevant governmental agency so that current policy is consistent with the
Treaty as much as possible.

Treaty of Waitangi Fisheries Commission

The Treaty of Waitangi Fisheries Commission or Te Ohu Kai Moana (TOKM)
came about after an arrangement between the Crown and its
Māori population between 1989 and 1992
to establish a settlement which provided the basis for Māori ownership for
a proportion of New Zealand’s commercial fishing industry.

Developed under the Māori Fisheries Act
2004
, TOKM has responsibility for
enhancing the participation of Māori
people in the fishing industry. In particular, TOKM is responsible for
allocating assets to Iwi or tribal groups, 57 of which are recognised under the
fisheries legislation. Importantly, the Treaty of Waitangi (Fisheries Claims
Settlement) Act 1992
provided for a
scheme whereby Māori people were entitled to 10% of the total allowable
catch for each species of
fish.[91] However, the Fisheries Settlement process
which began in 1989 has now seen Māori people control approximately
one third of the fisheries industry where previously there was little to
no control at all[92]. A major
responsibility of the Fisheries Commission is to oversee this process.

Lessons to be learnt from overseas experiences of
Indigenous Representative Bodies

It is encouraging that all developed nations have seen the need to provide a
distinct voice to their Indigenous peoples, and have struggled so hard to devise
appropriate structures. However, each country, in light of the differing
historical and cultural contexts, has developed different forms of Indigenous
representative bodies.

The perceived strengths and weaknesses of the different models outlined
demonstrate that the critical difference between the models is to what extent
self-governance is aspired to and the purchase these structures have with
government.

The National Congress of American Indians model
from the USA highlighted the advantages of having an entirely independent body
that sits outside of government and is financially independent. While it is not
involved in any service delivery, it has active dialogues with government and
plays a strong role in advising on policy development and the promotion of
Indigenous rights, as well as monitoring government policies. The membership
base is limited to tribe members. The level of independence has in part been
achieved because of the historical recognition of tribes’ independence
through treaty processes.

In contrast, the Assembly of First Nations from
Canada is an independent advocacy body. The Assembly was born out of advocacy
campaigns opposing assimilation policies hence advocacy has been the primary
function of the body. Sometimes the focus on advocacy has been perceived to be
at the cost of having a role in influencing policy. Its independence is limited
to an extent because it is funded by the government. Its membership includes all
First Nation citizens who elect representatives from their communities to the
Assembly. The Assembly has tried to represent a diversity of First Nation
people’s interests, including representing women’s interests, as
well as the interests of both those living on reserves as well as those living
in urban areas.

The example of the Sami Parliament from Sweden is an interesting model of a
parallel Indigenous parliament. However, its primary role is limited to
monitoring government rather than acting an instrument for self-governance. It
is both a publicly elected body and a public authority that is controlled and
funded by the Swedish government. More recently the Sami Parliament has also
received some funding from the European Union.

Finally, the situation in New Zealand illustrates the possibilities of how
representative mechanisms such as the
Māori electorates can co-exist
with non-representative government bodies such as the Ministry of
Māori Development, Te Puni
K
ōkiri (TPK).
The Māori electorates allows for
Māori representatives to sit in
Parliament. The TPK, while not being a representative body, is the principal
government advisor on policy and legislation regarding
Māori wellbeing. It has 10
regional offices, but has no service delivery role. In addition
Māori interests are represented
through other offices and commissions such as the Maori office trust, the
Waitangi Treaty Tribunal and the Waitangi Fisheries
Commission. These bodies have Indigenous
members, but not necessarily elected members, and address issues of land and
asset management, grievances between the Crown and Māori relevant to the
Treaty of Waitangi, and management of fisheries, respectively.

Clearly, each of the arrangements for national Indigenous representation
described in this part of the Issues Paper is based on different historical,
cultural and legislative circumstances. The manifestations of representation in
each differ according to whether they have a policy or advocacy role, who their
membership is and how they are structured across the national and regional
level. The Australian experience is also unique. However, appropriately adapted,
the indigenous bodies described here offer useful examples that can be referred
to when considering the options for a new National Indigenous Representative
body outlined in the next part of this paper.


Section 4:
Key issues in establishing a sustainable National Indigenous Representative
Body

The previous sections of this paper have outlined existing and previous forms
of representation of Indigenous peoples in Australia and internationally. It
shows that there is a wealth of information available on the key issues that
have been faced by representative bodies. It also provides some guidance on
possible features and roles for a new National Indigenous Representative Body in
Australia.

This section of the paper identifies and discusses some of the key issues
that will need to be addressed in formulating a new National Indigenous
Representative Body.

At the outset it should be acknowledged that the intention here is to
identify those key issues that relate to creating a sustainable basis for a new
National Indigenous Representative Body. It is not intended to raise every
possible issue that may need to be considered in establishing such a body, nor
is it intended to propose a specific model.

Accordingly, the intention is to assist in creating dialogue among Indigenous
peoples and government about the key principles for a new National Indigenous
Representative Body that draws on the experiences and lessons of other bodies to
date.

It will be up to Indigenous peoples to consider whether there are other
issues that need to be addressed in formulating a new National Indigenous
Representative Body, and indeed whether the issues raised here are the key ones.
The list of key issues identified here should therefore not be seen as
prescriptive or limiting in any way.

The following key issues are addressed in the remainder of this paper:

  • Principles that should underpin the creation of a new National Indigenous
    Representative Body;
  • The functions of a National Indigenous Representative Body;
  • Structure of a National Indigenous Representative Body (including the
    mechanisms for representing Indigenous people at the regional, State/ Territory
    and national level);
  • Relationship with existing national Indigenous peak bodies and State/
    Territory advisory bodies;
  • Membership of a National Indigenous Representative Body;
  • Relationship with governments and COAG; and
  • A secure resource base for a National Indigenous Representative Body.

In considering the key issues here, the following factors should
also be borne in mind.

First, the need for a National Indigenous Representative Body is
understood and accepted.
The reviews of the NACC and NAC occurred at a time
where national representation of Indigenous peoples was not necessarily accepted
as a positive development. Some Australians felt it was premature, as in their
view Indigenous peoples were not sufficiently organised at the regional level
and had not had sufficient experience as emancipated citizens to organise
themselves nationally in an effective manner. Others felt that a national
organisation had no counterpart in Indigenous history and
culture.[93]

ATSIC’s fifteen year run in Indigenous representation and services can
be credited with settling this aspect of the debate once and for
all.[94] Since the abolition of
ATSIC there has been a sense that a vital component of the Indigenous polity is
missing and that it will only be remedied when a strong national body
(re)emerges. Regional and State/ Territory representation is clearly desirable
both for government and for Indigenous peoples.

A recent study by researchers in the School of Psychology at the Australian
National University surveyed both Indigenous and non-Indigenous samples about
support for an Indigenous representative body. They concluded that:

  1. There was strong support from Indigenous peoples for a new Indigenous
    decision-making body on behalf of Indigenous peoples. It also showed there was
    broad community support for the idea as opposed to purely sectoral interest
    groups;
  2. That there would likely be social-protest consequences of denying
    Indigenous peoples a say in political decision-making;
  1. That decisions of the Australian Government without Indigenous
    representative input are likely not to be perceived as neutral by both
    Indigenous and non-Indigenous peoples;
  1. That both Indigenous and non-Indigenous peoples felt that fairness
    requires the provision of unique voice to Indigenous peoples. This finding
    suggests that the non-Indigenous sample group appeared to have recognised the
    stake held in the debate by the Indigenous population, and were relatively
    magnanimous in their preference for an Indigenous
    voice.[95]

Second, a new National Indigenous Representative Body will not
be borne into a historical vacuum.
With the extensive history of reviews and
reports on representative structures in Australia (as well as examples overseas)
it makes sense to build on the past, drawing on what has worked or not, as well
accepting that times have changed.

In particular, ATSIC was reviewed several times during its fifteen years of
operation. The Hannaford review of 2003 had considered in depth the role of
ATSIC as a National Indigenous Representative Body from first principles. There
had been limited focus on the findings and recommendations of this review when
ATSIC was abolished in 2004. There is certainly a lot of value in reconsidering
the principles to underpin a National Indigenous Representative Body that were
recommended by the review team (note: these are reproduced Text Box 5
below).

Third, a consistent experience in Australia of national Indigenous
representative bodies to date is a gap between the outcomes of reviews and
consultations on what is the optimal representative structure and the actions of
government.

A note of caution must be sounded here. It is a striking fact that none of
the reviews mentioned here were wholly accepted by government or led directly to
the optimal form of organisation envisaged. In her 1986 report pre-dating the
establishment of ATSIC, Lowitja O’Donoghue wisely suggested that the
government should set the parameters of the process by “...announcing
guidelines within which it is prepared to see a new organisation
established”.[96]

Fourth, there will need to be a discussion of the role of Torres Strait
Islanders within a new National Indigenous Representative Body.
The NACC and
the NAC were Aboriginal bodies. ATSIC recognised and gave a voice to
Australia’s other Indigenous peoples, Torres Strait Islanders. This
evolved into a unique measure of autonomy in the Torres Strait Regional
Authority. Torres Strait Islanders, both resident on the Islands and on the
mainland, clearly will need to discuss among themselves the form of their
participation in a national body.

Issue for discussion: Guiding principles for the
establishment of a National Indigenous Representative Body

Before considering the key features of a National Indigenous Representative
Body, it is important to consider what principles should guide a representative
body.

Indigenous peoples’ vision of what they want from a representative body
and the principles to guide its operation will have a significant impact on the
design of a National Indigenous Representative Body.

There are some useful sources to look to for identifying foundational
principles, which are outlined below These include the Themes and Ambitions from
the Indigenous Stream of the 2020 Summit, the Principles and Vision for a
National Indigenous Representative Body outlined in the Hannaford Review of
ATSIC, and the objects of the Aboriginal and Torres Strait Islander Act 2005
(
Cth).

Drawing on different sources and experiences of national Indigenous
representative bodies both here in Australia and overseas, following are some
foundational principles for a new National Indigenous Representative
Body[97]:

  • In order for the representative body to be persuasive, it will need to have legitimacy and credibility with both government and Indigenous
    peoples.
  • A representative body will, therefore, require ‘two way’ accountability –to government and to Indigenous peoples and
    communities.
  • Such accountability will come from the representative body being transparent and accountable in its operations. This requires transparency
    in the mechanisms for determining membership or election; in its policy making
    processes; as well as financially.
  • The credibility of the representative body will come from it being
    regarded as truly representative of a diverse Indigenous polity This
    might be achieved through a variety of means, such as from ensuring
    participation of different groups of Indigenous people including stolen
    generations, traditional owners, Torres Strait Islanders, youth and women for
    example.
  • The credibility of the representative body will also come from having a structure that is internally consistent and
    connected’, so that there is a clear relationship between
    the national body and Indigenous peak bodies, service delivery organisations and
    other representative mechanisms that may exist at the State, Territory or
    regional level.
  • The legitimacy of the representative body will also depend on whether
    it is seen as independent and robust in its advocacy and analysis. This
    was one of the most critical failures of the National Indigenous Council –
    it was seen to deal with an agenda set entirely by government.
  • A critical issue to be considered by Indigenous peoples is what is meant by independence. It can mean that the policy advice and advocacy is not
    restricted to occurring within the confines of the policies of the government of
    the day, but it may also extend to sustainable funding options to reduce the
    vulnerability of the organisation to the political process and the threat of
    budget cuts if the advice provided is not to the liking of the government.

A National Indigenous Representative Body should do more than
simply provide a ‘consultation mechanism’ for government. It should
also outline a clear vision for a positive future for all Indigenous
Australians, and inspire action and partnerships for change.

To achieve this, for example, the National Indigenous Representative Body
might be expected to:

  • Play a leading role in forging a new partnership between governments and
    Indigenous people;
  • Ensure Indigenous peoples contribute and lead policy development on
    Indigenous issues;
  • Ensure that an Indigenous perspective is provided on issues across
    government (such as in relation to issues which have a broader impact or focus
    than just Indigenous peoples – for instance, debates about climate change,
    social inclusion or homelessness);
  • Advocate for the recognition and protection of Indigenous peoples
    rights;
  • Seek to ensure that adequate and appropriate accountability mechanisms exist
    for the performance of governments on Indigenous issues; and
  • Ensure that commitments, such as Closing the Gap, are supported by
    comprehensive, long-term action plans that are targeted to need, evidence-based
    and capable of addressing the existing inequities experienced by Indigenous
    peoples.

Text Box 5 sets out the proposed vision and principles for a new
National Indigenous Representative Body as recommended in 2003 by the ATSIC
Review Team. While the process of creating a new National Indigenous
Representative Body is not about recreating or reviving the ATSIC structure,
this vision and these principles nonetheless provide useful guidance.

Text Box 5 – ATSIC Review Team’s vision and principles for a
new National Indigenous Representative Body

In the hands of the regions, the final report of the ATSIC Review
proposed the following vision and principles to underpin a new National
Indigenous Representative Body.

The report sets out the following vision for a National Indigenous
Representative Body. It should result in an organisation that:

  • Enables Aboriginal and Torres Strait Islander people to build a future
    grounded in their own histories and cultures within the broader Australian
    framework;
  • Represents and promotes the views of Aboriginal and Torres Strait Islander
    people, including their diversity of opinion;
  • Vigorously pursues the interests of Aboriginal and Torres Strait Islander
    people through partnerships with Aboriginal and Torres Strait Islander
    communities, governments and other sectors of Australian society;
  • Influences priorities, strategies and programs at the national, State/
    Territory and regional level;
  • Minimises and streamlines the government interface with Indigenous
    communities;
  • Promotes good Indigenous governance;
  • Recognises the complexity of relationships between Aboriginal and Torres
    Strait Islander individuals, communities, organisations and governments and the
    values and limitations created by this;
  • Is an equal partner in all negotiations, resourced adequately to achieve
    this equality, and commands goodwill and respect;
  • Increases women's participation and expression of views;
  • Ensures that there is transparent accountability of all organisations that
    are funded to provide services for Aboriginal and Torres Strait Islander people;
  • Maintains its unique status;
  • Recognises that the representative body is a key player, but not the only
    player, that seeks to advance the interests of Aboriginal and Torres Strait
    Islander Australians with government and others.
The report also proposed that the new representative body be
underpinned by the following principles:

  • It should be the peak State/ Territory and national body, which advocates
    for the development of Aboriginal and Torres Strait Islander communities;
  • It should have regional mechanisms to provide the State/ Territory policy
    interface with the governments co-coordinating regional activities;
  • Representatives from each State/ Territory should constitute the national
    body, achieving a direct relationship between the regional, State/ Territory and
    national levels;
  • The national body should provide the policy interface for the Australian
    Government setting and advocating a national strategic direction and monitoring
    progress against the representative body’s national plan to reinforce the
    accountability of program and service providers;
  • Its primary focus should be on building strong local communities through
    development and implementation of a needs-based regional plan;
  • State/ Territory and national programs should be informed by, and undertake
    activities consistent with, regional plans;
  • Strengthening Aboriginal and Torres Strait Islander communities must not be
    based solely on the provision of welfare services;
  • Aboriginal and Torres Strait Islander people should be provided with equal
    access to health services and there should be an appropriate balance of
    preventative, environmental and public health policies, programs and
    services;
  • Health, education, training, skills development and employment are integral
    to building the local and regional economy on a long term sustainable
    basis;
  • Housing should be provided on the basis of ensuring access is available to
    those who need it and ownership is available to those who desire it;
  • All government funded programs should be subject to an independent
    assessment of outcomes; and
  • The role of elected officials should be clearly delineated from that of the
    administration.
ATSIC itself had proposed to the ATSIC Review Team the following
five guiding principles. These were also endorsed in the final report of the
Review Team:

  • The right to self-determination based on inherent rights and the laws,
    traditions and cultures of the Indigenous peoples of Australia is central to the
    development of the national representative body as an organisation.
  • Aboriginal and Torres Strait Islander
    peoples should be able to engage with governments
    on the basis of equality and mutual
    respect about policies and programs affecting them.
  • The goal of sustainable and equitable
    outcomes
    for Aboriginal and Torres Strait
    Islanders peoples in respect of economic, social and cultural rights is a major
    priority in achieving social justice.
  • Flexibility of the national
    representative body’s structures and processes
    is important in order to reflect and
    represent the full diversity of Indigenous cultures and situations in Australia,
    whether at family, clan, community, language group or national
    level.
  • The rights of traditional owners and
    native titleholders
    needs to be protected
    through negotiated agreements regarding new regional structures, developments
    and plans.

Text Box 6 below provides an overview of the main themes to emerge from the
Indigenous stream of the Prime Minister’s 2020 Summit earlier in 2008.
These also provide useful guidance on the principles that might underpin a new
National Indigenous Representative Body.

Text Box 6 – Options for the future of Indigenous Australia -
Ambitions and Themes from the 2020 Summit

The following ambitions and themes for Indigenous Australia were agreed at
the Prime Minister’s 2020 Summit by the Indigenous policy stream.

Ambitions
The ambitions of the stream were discussed in each of the sub-groups, and a
number of themes and aims were identified in plenary sessions:

  • Following the historic and significant Apology a new national, bipartisan
    dialogue between Aboriginal and Torres Strait Islander people and government
    should begin.
  • There should be a new form of engagement of Aboriginal and Torres Strait
    Islander people in public policy and planning that affects them, as well as
    formal national recognition of Aboriginal and Torres Strait Islander people and
    their place in the national identity and national story.
  • By 2020 we will have capable, productive and confident families, young
    people and children who are proud, independent and contributing members of
    society.
  • By 2020 there will be a high level of attention, energy and resources
    focused on the needs of Aboriginal and Torres Strait Islander children.
  • By 2020 Aboriginal and Torres Strait Islander people will have parity with
    other Australians across the spectrum of measures—most importantly, in the
    strength and wellbeing of their families and young people, safety and security
    for families and children, decent housing, good health and education.
  • By 2020 at least one person in each Aboriginal and Torres Strait Islander
    household will be in ongoing employment.
These points were summarised by some participants as
follows:

Our ambition is an Australia where Aboriginal and Torres Strait Islander
people have formal recognition in the Australian legal framework and
Australia’s global identity is one that is recognised as being enriched by
a living culture that is 50 000 years old. In this Australia in 2020,
Aboriginal and Torres Strait Islander people have the same health, education and
economic participation opportunities and outcomes as other Australians, are able
to realise their hopes and aspirations and are affirmed in their cultural
identity. This can only be achieved by taking measures now to urgently transform
society to nurture today’s Aboriginal and Torres Strait Islander youth and
children.

Themes
The stream as a whole agreed on a number of priority themes, which were
further explored by the smaller discussion groups during the summit:

  • Enshrine formal recognition of Australia’s Aboriginal and Torres
    Strait Islander people.
  • Provide stronger support for families and their wellbeing and their role in
    keeping Aboriginal and Torres Strait Islander culture and identity vibrant. This
    includes safe, private space in community life for families, so children can be
    nurtured and cared for and are able to get a good education.
  • Encourage a new form of engagement that harnesses Aboriginal and Torres
    Strait Islander ability, knowledge and leadership.
  • Overcome the complex arrangements at the national, state and territory and
    local government levels in relation to funding, infrastructure and some service
    delivery—for example, housing.
  • Develop new, more comprehensive accountability arrangements.
  • ‘Close the gap’ in all areas and capitalise on links between
    formal recognition and achieving better social and economic outcomes.
  • Identify and maximise the interdependencies between housing, education,
    health and employment.
  • Provide to young Aboriginal and Torres Strait Islander people an opportunity
    to be involved in developing policies and programs designed to assist them,
    recognising that these young people represent a substantial proportion of the
    Indigenous population.
  • Ensure that young Aboriginal and Torres Strait Islander people, in urban and
    regional areas, are involved in decisions that affect them, rather than being
    invisible to policy makers and planners.
  • Speed up the pace of economic development, redistribution of resources and
    clarification of property rights.
  • Expand partnerships between Aboriginal and Torres Strait Islander
    entrepreneurs and business.
  • Place value on Aboriginal and Torres Strait Islander cultures and weave them
    into global identity.
  • Give due recognition to Aboriginal and Torres Strait Islander knowledge of
    country, and recognise the relevance of this knowledge to the response to
    climate change, water and sustainability challenges.
  • Confront racism.

It is also worth noting that the following objectives are contained in the Aboriginal and Torres Strait Islander Act 2005 (Cth). This Act is the
primary piece of legislation at the federal level for Indigenous affairs (and
was previously called the Aboriginal and Torres Strait Islander Commission
Act 1989
(Cth)).

Section 3: The objects of this Act are, in recognition of the past
dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples
and their present disadvantaged position in Australian society:

  1. to ensure maximum participation of Aboriginal persons and Torres Strait
    Islanders in the formulation and implementation of government policies that
    affect them;
  2. to promote the development of self management and self sufficiency among
    Aboriginal persons and Torres Strait Islanders;
  3. to further the economic, social and cultural development of Aboriginal
    persons and Torres Strait Islanders; and
  4. to ensure co-ordination in the formulation and implementation of policies
    affecting Aboriginal persons and Torres Strait Islanders by the Commonwealth,
    State, Territory and local governments, without detracting from the
    responsibilities of State, Territory and local governments to provide services
    to their Aboriginal and Torres Strait Islander residents.

A National Indigenous Representative Body will have a significant
role to play in realising these objectives. Consultations on a National
Indigenous Representative Body may also reveal other objectives and principles
that should also be reflected in the Aboriginal and Torres Strait Islander
Act 2005
(Cth). This will particularly be the case should the new National
Indigenous Representative Body be established or confirmed through
legislation.

Issue for discussion: Guiding principles for the
establishment of a National Indigenous Representative Body

What principles should guide the formation of a new National
Indigenous Representative Body?

What aspects of the following documents provide useful
guidance in answering this question:

  • The Principles and Vision for a National Indigenous
    Representative Body outlined in the Hannaford Review of ATSIC;
  • The Themes and Ambitions from the Indigenous Stream of the
    2020 Summit; and
  • The objects in the Aboriginal and Torres Strait Islander
    Act 2005 (
    Cth)?

Issue for discussion: Role and functions of a National
Indigenous Representative Body

A major issue that must be addressed in establishing a new National
Indigenous Representative Body is what its role and functions should be.

A new National Indigenous Representative Body will not be born into an
historical vacuum. It will build upon and inevitably be seen as a progression of
previous forms of national Indigenous representation. It will also have to
operate within or alongside the new system for whole of government service
delivery at the federal level.

The following potential functions of a new National Indigenous Representative
Body are discussed in this section:

  • Delivery of government programs;
  • Advocacy;
  • Policy formulation and advice;
  • Coordinating long term planning processes at regional level;
  • Contributing to legal reform;
  • Review and evaluation of government programs;
  • Clearing house role;
  • International role;
  • Research; and
  • Facilitation and mediation.

The issue of whether a new National Indigenous Representative Body
should deliver government services is a threshold question that will
significantly impact on the design of a representative body. Other potential
functions are less contentious, but they need to be seen in the context of
proposals for an organisation that delivers development programs or one that is
simply representative and advisory.

Government service delivery

Ultimately, a new National Indigenous Representative Body must confront the
ghost of ATSIC.

The main distinction between ATSIC and its predecessors was that ATSIC was
actively involved in the planning and delivery of (limited) programs to
Indigenous communities. ATSIC had difficulty in reconciling its functions in
advocacy, forming policy, program/service delivery and
review.[98]

This paper progresses on the basis that the functions of a new National
Indigenous Representative Body should not include the delivery of
government services.

In preparing this paper, the new Australian Government has made clear that it
does not support a new National Indigenous Representative Body having
responsibilities for delivering government services and will continue to deliver
services through a coordinated whole of government system. The Minister for
Indigenous Affairs has stated that the new representative body will not be
‘a new ATSIC’.

It is notable that the national Indigenous representative bodies profiled in
this paper (for example, in Canada, the USA, Sweden and New Zealand) also do not exercise service delivery responsibilities on behalf of
government.

This still leaves open a series of questions relating to the role of a
National Indigenous Representative Body and government service delivery. These
include what role (if any) should a National Indigenous Representative Body have
in:

  • setting priorities for service delivery (This might include through a formal
    or informal role in determining priorities for the federal budget such as
    through participating in the Single Line Budget Submission Process and/or
    involvement in the Secretaries Group or Ministerial Taskforce on Indigenous
    Affairs);
  • contributing to planning processes to ensure such services are appropriately
    directed and funded to levels capable of addressing the outstanding needs of
    Indigenous peoples; and
  • monitoring government service delivery.

Views on whether a National Indigenous Representative Body should
be directly engaged in service delivery tend to fall into two camps. There are
those who argue that control of significant resources is the only way to assert
power in political relationships with non-Indigenous
Australia.[99] They would argue,
also, that self-determination requires that Indigenous peoples have their hands
on the levers of their own
development.[100] This is seen as
both a practical as well as a symbolic requirement, since Indigenous peoples
have a privileged understanding of their own needs and local insight into the
design of programs.

On the other side of the discussion there are those that argue that the
performance of ATSIC did not bear out any of these assertions. While it did
exert some influence both nationally and internationally, the greatest power
wielded by ATSIC occurred at the local and regional levels and mostly concerned
only Indigenous peoples. The structure of ATSIC was often perceived to be overly
bureaucratic. There was conflict, too, between the representative structure and
the resource distribution function which led to suspicions of nepotism and lack
of transparency.[101]

The difference of views boils down to whether a National Indigenous
Representative Body will assert more influence if it is in control of program
funding, as against the view that service delivery is properly the province of
government, gets in the way of advocacy and representation, and diverts
attention from the main job of holding government to account.

If Government were to ensure that the new National Indigenous Representative
Body was mandated to have a significant role in program design as well as
performance monitoring and evaluation it is feasible that these conflicting
approaches could be reconciled. In other words, it is feasible that the national
body could exercise influence over program delivery without itself delivering
the programs.

Although ATSIC was a new departure in Indigenous control of some important
development programs (CDEP and CHIP), actual service delivery was, and largely
continues to be, carried out by local and regional community organisations (many
of which are incorporated by the Registrar of Aboriginal Corporations). These
pre-dated ATSIC, in many cases by several decades.

A national Indigenous body that engages with these service based
organisations meets many of the arguments for Indigenous control of local
development programs. It also meets the requirement of adequate democratic
representation since these organisations are controlled and governed by their
members. If the national body does not have a national program delivery function
then the source of friction that existed between ATSIC and many of these
organisations is removed, and attention can turn to the responsibilities of
government.

While this paper has proceeded on the basis that a new National Indigenous
Representative Body will not have a direct government service delivery role, if
national consultations uncover a firm belief that a national
Indigenous-controlled organisation must be involved in program delivery then the
tension that this creates between this function and other functions would then
need to be addressed.

Issue for discussion: The National Indigenous
Representative Body and government service delivery

How could the National Indigenous Representative Body
influence program delivery without itself delivering services to Indigenous
people and communities?

For example, should the National Indigenous Representative
Body have a role in the following:

  • setting priorities for service delivery;
  • contributing to planning processes to ensure such services
    are appropriately directed and funded to levels capable of addressing the
    outstanding needs of Indigenous peoples; and
  • monitoring government service delivery?

Advocacy

Advocating an Indigenous perspective on issues is a key function of all
national Indigenous representative bodies. Without advocacy there can be no
representation.

Accordingly, the main issues relating to an advocacy role of a National
Indigenous Representative Body are not whether it should undertake such a role,
but how to ensure such advocacy is robust, credible and effective.

This will cover a raft of issues such as whether the representative body is
located within or outside of government; how its funding is secured; and how it
ensures that its advocacy is drawn through representative processes. These
issues are discussed further in the remainder of this paper.

Whether the representative body is located within or outside of government,
will pose different advantages and challenges, depending on which path is
chosen.

ATSIC exercised its advocacy role from within government. Similar examples of
bodies that advocate from within government include bodies such as:

  • The Human Rights and Equal Opportunity Commission (HREOC) which has a broad
    mandate to advocate for the recognition and protection of human rights. The
    Social Justice Commissioner within HREOC, for example, has powers to promote
    awareness and understanding of the human rights situation facing Indigenous
    peoples and regularly review government compliance with human rights
    obligations. In doing so, the Commission may direct government agencies at all
    levels to provide requested information. Operating as an independent statutory
    authority, the government is not able to direct HREOC as to how it performs its
    functions or to restrict its findings and public comments to ones that are
    consistent with government policy. HREOC is, however, reliant upon the
    government financially through the regular budget process.
  • The Australian Law Reform Commission (ALRC) which has a broad mandate to
    advocate for law reform, predominately through national inquiries. As the ALRC
    note on their website, ‘while accountable to the federal Parliament for
    its budget and activities, the ALRC is not under the control of government,
    giving it the intellectual independence and ability to make research findings
    and recommendations without fear or
    favour’.[102]

The Office of the Privacy Commissioner and the Commonwealth
Ombudsman are statutory offices with some similarities.

A statutory authority model, underpinned by legislation that mandates the
National Indigenous Representative Body to advocate for the interests of
Indigenous peoples in policy processes and for government to consider such
advice, is one way of proceeding.

Most organisations that are focused on advocacy, however, tend to stand
outside government. The Australian Council of Social Service (ACOSS), for
example, is part funded by government, statutorily independent, and draws its
membership from State and Territory councils and other national
organisations.[103] The Federation
of Ethnic Community Councils of Australia is another example (and similarly
relies on a mix of government and non-government funding).

ACOSS carries out its advocacy functions through the media, especially during
the budget process, as well as through more discreet lobbying, and by its
inclusion in government-sponsored policy forums. However, it has had a tense
relationship with governments of both major political parties and this has
sometimes led to its exclusion, and thus limited the effectiveness of its
advocacy.

Whether the National Indigenous Representative Body is positioned inside or
outside of government, effective advocacy will also depend upon a robust
representative structure indicating legitimacy, sound research, professional
presentation, adequate resourcing and a trustworthy relationship with
government, the public service and the media.

Policy Formation and Advice

Indigenous individuals have lifelong experience of conditions in Indigenous
areas and practical understanding of the impact of a succession of government
programs. Senior bureaucrats do not usually have this experience, nor do many
ministerial advisers.

Coming together in a National Indigenous Representative Body, Indigenous
individuals have the opportunity to pool their experiences to reflect the
diversity of conditions in Indigenous Australia. This too is a form of expertise
currently not available to government.

While it is often formally recognised that Indigenous peoples bring
particular expertise to Indigenous questions, the actual process of policy
formation tends to roll over Indigenous input with the weight of mainstream
practice. No previous National Indigenous Representative Body has managed to
take the predominant role in setting policy goals, implementation strategy and
evaluation. Rather, they have been seen as one element in a consultative process
which may or may not have influence when senior officials design the details of
government programs.

One school of thought in political science firmly supports this approach. It
believes that policy originates in the senior ranks of the public service in
touch with politicians, is delivered down through the ranks to the public,
evaluated, and the evaluation passed back to the top to further inform policy.
This is presented as the ‘policy cycle’.

This approach has been challenged by other political scientists, such as
Colebatch[104], who see better policy outcomes resulting from the collaborative efforts of both government
and non-government players.

The experience of previous Indigenous bodies indicates there is a task ahead
in convincing the Indigenous affairs bureaucracy of the value of this approach,
and political leadership may be required.

This has begun to be acknowledged by the federal government. In late 2006,
the Department of Prime Minister and Cabinet joined with the Australian National
Audit Office to produce the Better Practice Guide on Implementation of
Programme and Policy Initiatives.
This emphasises the importance of
‘stakeholder management’ and emphasises the importance of adopting a
consultative and participatory approach to policy
development.[105]

To this end it is notable that in his Apology speech and at the National
Indigenous Health Equality Summit in March 2008 the Prime Minister has committed
to:

  • A new partnership to achieve equality in health status and life expectancy
    between Aboriginal and Torres Strait Islander peoples and non-Indigenous
    Australians by the year 2030;
  • To developing a comprehensive, long-term plan of action, that is targeted to
    need, evidence-based and capable of addressing the existing inequities; and
  • To measure, monitor, and report on our joint efforts, in accordance with
    benchmarks and targets, to ensure that we are progressively realising our shared
    ambitions.

It is also important to acknowledge that there have been
significant international developments in recent years that support a more
inclusive approach being taken to policy development, particularly in relation
to Indigenous Peoples.

For example, a human rights based approach to development has now become
standard practice across the United Nations. This requires that in developing
policy and delivering services, governments should:

  • recognize and accommodate the cultural distinctiveness and diversity of Indigenous Australians;
  • adopt a people-centred approach which values the full participation of Indigenous peoples in the process, from the very beginning of policy
    development, through to service delivery and monitoring and evaluation;
  • involve the development of agreed targets and benchmarks, so we have
    a clear picture of what it is exactly that is trying to be achieved; and
  • be supported by an evaluation framework to assess whether the rights
    of Indigenous peoples are being ‘progressively realised’, so that we
    can be confident that government efforts are effective, well targeted and taking
    place at the maximum level possible.

We have also seen the emergence internationally of respect for the
principle of free, prior and informed consent. This principle is
increasingly emerging as a practical methodology within the UN system for
designing programs and projects, which either directly or indirectly affect
indigenous peoples.

The United Nations Working Group on Indigenous Populations has commented on
this principle as follows:

Substantively, the right of free, prior and informed consent is grounded in
and is a function of indigenous peoples’ inherent and prior rights to
freely determine their political status, freely pursue their economic, social
and cultural development and freely dispose of their natural wealth and
resources - a complex (series) of inextricably related and interdependent rights
encapsulated in the right to self-determination, to their lands, territories and
resources, where applicable, from their treaty-based relationships, and their
legitimate authority to require that third parties enter into an equal and
respectful relationships with them based on the principle of informed consent.

Procedurally, free, prior and informed consent requires processes that allow
and support meaningful and authoritative choices by indigenous peoples about
their development paths.[106]

This will require a more open and collaborative approach to policy
development by government departments.

To be effective a National Indigenous Representative Body will need to have
its own processes to debate and refine policy proposals based on evidence as
well as aspirations. Sound structural arrangements for feeding policy proposals
and advice to government are desirable, and some suggestions for these are made
later in this part of the Issues Paper.

Effective steering of the policy debate will depend most of all on
well-founded proposals which are well-argued and presented, and inevitably in
competition with others who present themselves as experts on Indigenous peoples.
The national organisation will need to balance its broadly representative forums
that harness the diversity of Indigenous experience and give it legitimacy, with
more tightly focused arrangements for research and political lobbying.

Contributing to Legal Reform

ATSIC was often supportive of legal reform movements once these were
underway, such as negotiating the Native Title Act 1993 (Cth) or
reviewing the recommendations of the Royal Commission into Aboriginal Deaths in
Custody. It did little, however, to promote and drive reform from the start from
its own resources. This is with the exception of its legal services funding
stream that provided funding for test cases with significant precedent value for
Indigenous people.

The Aboriginal Legal Services, in general, have been limited to addressing
criminal matters, rather than contribute directly to legal reform, due to
limited resources or funding constraints. The result has been a patchwork of
advances under a variety of legislative regimes, as well as limited follow up of
significant reform processes such as those emerging from the Deaths in Custody
Royal Commission.

Indigenous peoples may consider this to be a priority area for a new National
Indigenous Representative Body.

Many ‘big picture’ issues remain to be addressed in Australia
(such as the UN Declaration on the Rights of Indigenous Peoples), as well
as smaller test cases of civil rights. As debate is renewed over an Australian
republic the place of Indigenous peoples in the constitution and any recognition
of sovereign rights needs to be addressed. The effectiveness of the Racial
Discrimination Act 1975
(Cth) is under question after its suspension for the
Northern Territory intervention. The existence of unextinguished mineral rights
could be tested outside of the native title legislative framework. The removal
of children from families without good cause and the misappropriation of the
wages of state wards are also issues that are proceeding piecemeal across the
country.

This national discussion could consider whether a national body should
actively pursue law reform and be involved in coordinating and otherwise
supporting test cases in cooperation with existing Aboriginal and Torres Strait
Islander Legal Services, Family Violence Prevention Legal Services and Legal
Rights Movements.

Review and Evaluation of Government Programs

An important role of a National Indigenous Representative Body would be to
ensure that governments, both State/ Territory and national, are responsive to
Indigenous needs. Responsiveness is encouraged where there is a sense of
continuous well-informed scrutiny.

A national body with a robust regional structure would be well-placed to
receive ‘field reports’ on government performance where at present
government only reports to itself. This form of scrutiny from the member base is
important to the functions of policy formation and advocacy, but it is also
desirable that a national body be tied into formal evaluation and monitoring
processes. To do so it would need some investigative authority. Some proposals
for formal relations between government and a national body to review government
performance are put forward in the ‘Relations with the Commonwealth
Government’ section later in the Issues Paper.

One issue for consideration will be how a National Indigenous Representative
Body would work with existing monitoring and evaluation processes (such as the
Office of Evaluation and Audit – Indigenous Programs in the Department of
Finance).

Clearing House Role

A potential role for a National Indigenous Representative Body could be to
undertake a coordination role or act as a ‘clearing house’ to share
information between Indigenous representative organisations and service delivery
organisations. As an example, the Social Justice Commissioner has proposed that
a national body could convene an annual congress on service delivery to
Indigenous communities.

Such a congress could be run along similar lines to the National Native Title
Conference coordinated by the Australian Institute of Aboriginal and Torres
Strait Islander Studies. It would provide an opportunity for communities,
Indigenous service delivery organisations, as well as regional representative
Indigenous organisations, Indigenous Coordination Centres and State and
Territory governments to share best practice examples in service delivery to
Indigenous communities and in the formulation of agreements, and in improving
whole of government coordination. This could also be conducted on a State/
Territory basis or be done on a thematic basis each gathering.

The outcomes of such a Congress would provide valuable input to the
formulation of advice and national policies by a National Indigenous
Representative Body. It could also:

  • inform research into best practice examples, identifying success factors and
    strengths within communities;
  • identify opportunities for greater collaboration between Indigenous
    organisations and communities, or between communities and governments; and
  • identify opportunities for innovation and new solutions to existing, and
    often entrenched, problems faced at the community
    level.[107]

International Role

A further issue for consideration is whether or how a National Indigenous
Representative Body might engage at the international level.

Indigenous Australians, as with other indigenous peoples across the world,
have a long history of engaging in the various forums and mechanisms of the
United Nations. This includes through the Permanent Forum on Indigenous Issues;
the Working Group on Indigenous Populations (which has now been replaced by the
new Indigenous Expert Body which has its first meeting in October 2008); the
Human Rights Council (and previously the Commission on Human Rights); human
rights treaty committee system and various Rapporteurs of the human rights
system; as well as in forums relating to biodiversity, climate change and
intellectual property among others.

The legitimacy of the participation of Indigenous peoples in international
processes has long been accepted by the Australian government and among the
international community.

The participation of Indigenous Australians at the international level has
been important in contributing to the development of human rights standards and
learning from best practice to inform policy development in Australia. It has
also played a key role in providing some accountability for Australia’s
human rights performance.

Since the demise of ATSIC, HREOC has received limited funding from the
federal government to support international engagement by Indigenous peoples.
The Social Justice Commissioner has focused this limited funding on supporting
attendance at the UN Permanent Forum on Indigenous Issues and ensuring that
participation in the Forum is coordinated and that feedback is provided once
people return to Australia.

There is a capacity building element to this process, with support and
mentoring for youth participants, as well as an expert focus with participants
supported who can provide expertise on the thematic issue under discussion in
the Forum.

Through this process, HREOC does not fund the full costs of participation of
individuals at the international level. Instead, it makes a funding contribution
and requires that the organisation that the person is representing also
contributes. Participants also have to meet a series of obligations relating to
activities prior to departing for the Forum, their participation while at the
Forum, and the dissemination of information upon their return.

The HREOC process responds to widespread concerns about a lack of
accountability for international engagement that had existed towards the end of
the ATSIC period. Feedback to date suggests that the process has resulted in a
high quality engagement at the Forum sessions.

The HREOC support only extends to the Permanent Forum on Indigenous Issues,
although it may be extended to also cover the new Indigenous Expert Mechanism of
the Human Rights Council in future years. It does not cover other relevant
forums and processes which impact on Indigenous peoples rights and
interests.

The issue will be whether a new National Indigenous Representative Body has
an overall coordinating role for international engagement to ensure strategic
and well-targeted participation.

It may also be appropriate for HREOC to retain, as part of its educative role
and due to its expertise on human rights, its current role in coordinating
international engagement at the Permanent Forum and to also provide mentoring
support to the new National Indigenous Representative Body to focus its
engagement in such processes.

Research

Good research is essential to good policy and advocacy. The national body
will need to consider whether it needs its own research coordination arm. This
may require commissioning its own research as well as encouraging community
based research in the regions, and expert reports. The community organisations
that are currently facilitating unofficial evaluations of the Northern Territory
intervention in Central Australia are an example of important and timely
community-based research.

Coordination with existing research centres is also important. The
Cooperative Research Centre for Aboriginal Health (CRCAH) brings together
experts from across the country under Aboriginal research leadership. Its work,
and that of other leading research centres such as the Centre for Aboriginal
Economic Policy Research (CAEPR) at ANU, the Desert Knowledge Centre in Alice
Springs, and emerging institutes such as the United Nations University’s
Centre on Traditional Knowledge, could be enhanced by a national body with a
strong commitment to evidence based research. The Australian Institute of
Aboriginal and Torres Strait Islander Studies (AIATSIS), an
Indigenous-controlled national statutory body, is another resource that could be
tapped.

Contrary to popular perception, researchers in Indigenous affairs mostly wish
to see their work have practical effects in improving conditions for Indigenous
peoples. To do this, they need leadership from those working at the coal-face of
Indigenous policy. A national research coordination role for the national body
could assist as a channel of communication between the two. The National Body
could also be expected to be active in encouraging and supporting skills
transfer to, and between, Indigenous researchers.

Facilitation and Mediation

There is a large unmet need for mediation between Indigenous peoples and
non-Indigenous interests where one impacts upon the
other.[108]

This is most obviously the case where the current resource boom expands
mineral exploration and exploitation into Indigenous areas. Native title claims
often provide the focus for mediation. They often also bring up the need to
mediate between, and facilitate decisions among, different Indigenous actors in
the process.

Mediation and facilitation are not only required where there are commercial
interests at stake. Government plans and services frequently have only the most
rudimentary form of consultation processes carried out by people whose main
expertise may not necessarily lie in this area. These are cross-cultural and
intercultural problems that require particular skills and experience.

The realization of human rights also requires recognition of conflicts
between competing rights and the designing of mechanisms for negotiation and
conflict resolution. More specifically, human rights principles require the
development of norms and decision-making processes that:

  • Are democratic and accountable and enjoy public confidence;
  • Are predicated on the willingness of interested parties to negotiate in good
    faith, and in an open and transparent manner;
  • Are committed to addressing imbalances in the political process in order to
    safeguard the rights and entitlements of vulnerable groups;
  • Promote women’s participation and gender equity;
  • Are guided by the prior, informed consent of those whose rights are affected
    by the implementation of specific projects;
  • Result in negotiated agreements among the interested parties; and
  • Have clear, implementable institutional arrangements for monitoring
    compliance and redress of
    grievances.[109]

The Social Justice Report 2005 and 2006 discussed the
difficulties of negotiating Shared Responsibility Agreements between the federal
Government and Indigenous communities due to the power and skills differentials.
The former government had appointed a panel of experts to assist in negotiation
processes for agreements. However, these panels could only be accessed at the
request of the regional Indigenous Coordination Centre Manager and as an
assistance mechanism for the ICC (i.e., for the government). A National
Indigenous Representative Body could provide specialist mediation and
facilitation assistance to Indigenous communities in developing community
planning processes to be fed into a broader regional and State/ Territory-wide
planning process.

A national body could support mediation training and possibly give
accreditation to the best professionals and organisations in this area. If it is
decided that the National Indigenous Representative Body should be an
independent body, it would also be in a good position to provide negotiation,
mediation and facilitation on a fee-for-service basis both to government and to
private industry.

Issue for discussion: Role and functions of a National
Indigenous Representative Body

What should be the roles and functions of a new National
Indigenous Representative Body?

Some options for discussion may include the following roles
/ functions:

  • Advocacy;
  • Policy formulation and advice;
  • Contributing to law reform;
  • Review and evaluation of government programs and service
    delivery;
  • Clearing-house / coordination role;
  • International role;
  • Research;
  • Facilitation and mediation; and / or
  • Other roles/functions?

Issue for discussion: Structure of a National Indigenous
Representative Body

Identifying the overall structure of a National Indigenous Representative
Body that will best meet the needs of Indigenous peoples will depend on many
factors.

It will necessarily be influenced by decisions about the broad principles
that should underpin the organisation, as well as the roles and functions that
the National Indigenous Representative Body undertakes.

Having decided these issues, there will then be a further threshold question
which will need to be addressed in order to design the structure for the
National Indigenous Representative Body. That is how many levels of
representation should the national body have? In other words, should the
national body just involve a national level structure; or should it also include
State and Territory and/ or regional structures.

As noted in section 1 of this paper, a key finding of every review of
national Indigenous representation in Australia has stressed the importance of
ensuring a connection between Indigenous people and communities at the local and
regional level through to the State/ Territory and national level.

This does not necessarily require formal representative structures at the
regional and State and Territory levels. But if such structures are not part of
the overall national body then the organisation will face significant additional
challenges to ensure that it is truly representative and therefore legitimate
and credible as an organisation.

Ordinarily, organisations tend to be broad at the base and narrow at the top.
The national discussion of a future Indigenous body needs to consider how a
‘narrow’ leadership be kept in touch with the ‘broader’
base. Much of the negative reaction against ATSIC related to the fact that it
was seen as too top-heavy and ‘top down’ in its approach.

This issue can be addressed in a variety of ways. Broadly speaking, these
range from:

  • formal mechanisms whereby a National Indigenous Representative Body has
    components that exist at different levels (such as in each State and Territory
    and at the regional level);
  • a mixture of processes to engage different sectors of the Indigenous
    community (such as forums at different levels or membership processes for
    individuals and organisations); or
  • relatively informal processes whereby Indigenous peoples can have their say
    at a national congress or through other processes that draw people together on
    an expert or issue specific basis.

It is important to note that the preferred option may involve a
mixture of these mechanisms. These proposals are not mutually exclusive, and it
may be desirable to seek to ‘mix and match’ from among the many
options available, and to fine tune the way an organisation represents
Indigenous peoples through establishing different forums, levels and functional
units throughout the organisation, each which is representative and responsive
in different ways.

Issue for discussion: Ensuring that a National Indigenous
Representative Body is representative of Indigenous peoples

Should the National Indigenous Representative Body just
involve a national level structure; or should it also include State and
Territory and/ or regional structures?

Could a national body (without State, Territory or regional
structures) effectively represent Indigenous peoples through the conduct of
participatory processes and engagement (such as issue specific forums and
advisory groups, regional or State/ Territory level planning processes, or the
convening of a National Congress)?

Mechanisms for representing Indigenous peoples at the regional
level

As noted above, Indigenous peoples could be represented at a regional level
by a National Indigenous Representative Body through the existence of formal
structures at the regional level, or through more informal processes.

It is notable that the federal government’s arrangements for delivering
services to Indigenous peoples post-ATSIC relies on a network of State Offices
and Indigenous Coordination Centres that are regionally focused. These regions
are based on previous ATSIC Regional Council boundaries.

One option for a new National Indigenous Representative Body would be for it
to include formal regional Indigenous mechanisms based on the same boundaries as
the government’s Indigenous Coordination Centres. This approach was
formally endorsed by the previous government, although the only regional
structure established consistent with this was the Murdi Paaki Regional
Assembly.

As the Social Justice Commissioner has noted in the Social Justice Report
2006
, there is a lack of capacity at the regional level for Indigenous
peoples to ‘organise’ themselves into a regional structure that the
government could then endorse and negotiate with. This approach of regional
Indigenous mechanisms that operate parallel to the government’s ICC
network will therefore require significant support to design appropriate
regional mechanisms, as well as to resource them and make them operational.

At the same time, the government has had ICC offices in operation for several
years now and presumably has developed relationships with Indigenous communities
and sectors within each region. The government therefore has in place the
machinery to support the development of regional Indigenous representative
arrangements should it so desire.

A related option would be to support formal regional mechanisms that are
drawn along different boundaries to the ICC network of offices. This has been
done with a Regional Partnership Agreement with the Ngaanyatjarra Council in
Western Australia.

In this instance, the boundaries of regional mechanisms would be determined
by Indigenous people. It could result in different mechanisms for
representation, rather than a uniform system that is applied across all
geographic areas. Such an approach may provide advantages in ensuring the
legitimacy and credibility of the organisation with Indigenous peoples. It may
also result in disadvantages such as a multiplicity of regional mechanisms that
are too small and accordingly more complex to administer (with reduced economies
of scale) or which have to interact with the government’s regional
structures that are drawn along different boundaries.

A third, informal and more minimalist option would be for a National
Indigenous Representative Body to convene regional forums and planning processes
on a regular or cyclical basis. This could be done directly by the National
Indigenous Representative Body or in partnership with governments (such as the
federal government through the ICC; the state or territory government; and
possibly also the local council). How such an approach would impact on the level
of direct engagement with Indigenous peoples at the regional level would depend
on what other processes for participation existed within the National Indigenous
Representative Body.

Issue for discussion: Relationship between the National
Indigenous Representative Body and Indigenous peoples at the regional
level

What mechanisms should exist for the National Indigenous
Representative Body to engage with Indigenous peoples at the regional level?
Should the National Indigenous Representative Body:

  1. Formally include regional representative mechanisms as part
    of its structure? If so, how should those regions and their boundaries be
    determined?
  2. Convene regional forums and planning processes on a regular
    or cyclical basis? If so, should the representative body seek to conduct these
    itself, or in partnership with governments at the local, State/ Territory and
    federal levels?
  3. A combination of the above? or
  4. None of the above – it should engage through some
    alternative process.

Mechanisms for representing Indigenous peoples at the State or Territory
level

As with determining the appropriate interface at the regional level, it will
also be important to consider whether formal mechanisms or other processes are
needed at the State or Territory wide level. This is particularly given the
significant responsibilities for Indigenous affairs exercised by this level of
government.

In the past, National Indigenous Representative Bodies have not usually dealt
with the States/ Territories very well. They have largely depended on their
State or Territory arms to feed into the national forum and attempted to
influence states from there.

The first government-sponsored national Indigenous organisation, the NACC,
divided the country into electoral constituencies each of which directly elected
a member to the Council. However, the members did little to organise their
electoral regions and there was no coordination at the state level. The NAC,
which superseded the NACC, was more successful at organising regional programs,
though this varied across the country, and did have some state presence, though
state governments did not take this very seriously.

ATSIC had no effective State/ Territory representative organisation but was
usually effective at the regional level with its Regional Councils. The
procedures for electing Commissioners, however, failed to reflect this strong
local support base in the composition of the ATSIC Board.

O’Donoghue’s minority report in the Hiatt inquiry aimed to deal
with this issue by proposing that the replacement for the NACC should be based
in regional organisations feeding into state advisory bodies that comprised both
regional Indigenous representatives and state public
officials.[110] This model was not
accepted when the NAC was established. When Coombs in turn came to review the
NAC he also argued for strong regional assemblies, with a mixed
delegate/electoral base. He felt that these should federate at the state level
to deal with state
governments.[111] O’Donoghue’s 1986 report advocated continuing discussions with state
authorities about their relationship with the national body, but did find strong
support for the concept of state components of the national body being able to
influence state-based
programs.[112]

The lack of strong mechanisms for engaging the states with a national body is
partly due to the states themselves stepping back from responsibility for
Indigenous programs. Following the 1967 referendum there was an assumption by
the states that the Commonwealth would fund and largely administer Indigenous
development. It would do this in two ways. Firstly, it would devise and deliver
its own programs, secondly it would subsidise the states to deliver services
largely through their mainstream public programs.

With the abolition of ATSIC this second tendency increased, though it had
already been identified as an area for reform by the Howard government.
Bi-lateral agreements for the delivery of services to Indigenous peoples have
been signed with most States and Territories. One option would be for a new
National Indigenous Representative Body to become a party to such agreements as
trilateral agreements, appropriately renegotiated.

At the federal level, mainstream departments are currently increasingly
questioning their role in direct service delivery, especially in areas that are
State or Territory responsibilities for non-Indigenous people. Essential and
municipal services, housing and public health are areas where the states are
being encouraged to take up a greater role, while education has always been a
state responsibility.

Greater state involvement in providing Indigenous services is
administratively logical, given the constitutional responsibility of the states.
It may also be desirable to have program administration closer to where the
programs are delivered. Nevertheless, reform of state processes is also
necessary in many areas. It is desirable for a National Indigenous
Representative Body to play a part of this process.

The states often do not have good systems in place for Aboriginal Affairs
because the Commonwealth has been in charge for more than three decades. Nor do
they have a good track record of accounting for Indigenous expenditure through
their mainstream systems.[113] In
the current climate, there is a reasonable argument for a strong state based
component of a national body both to render advice and to monitor performance.
Whether a state component of the national body is directly elected or consists
of delegates from communities and organisations, the state component’s
relationship to the national body needs to be considered.

It is notable that the new federal government has clearly expressed its
intention to reform the relationship between the Commonwealth and the States and
Territories and to end the ‘blame game’ across a range of activities
and service delivery. The Council of Australian Governments is the primary
vehicle for a reform agenda of Commonwealth-State relationships. It would be
appropriate to consider whether a National Indigenous Representative Body could
usefully play a role in advising and interacting with COAG on inter-governmental
reform issues.

The Commonwealth Government is also reviewing the system of Special Purpose
Payments to the states and territories, including by including accountability
measures such as specific Indigenous performance indicators, benchmarks and
targets for service delivery by state and territory governments. Similar
accountability measures are also being considered in the renegotiation of the
Australian Health Care Agreements and will no doubt also be considered in the
context of other bilateral arrangements for housing, education and other issues
as those agreements arise for renegotiation. These may also provide an
opportunity for the new National Indigenous Representative Body to advise the
federal government in order to achieve improved outcomes at the state and
territory level.

Accordingly, some options for the relationship between the National
Indigenous Representative Body and State and Territory governments may
include:

  • State-based mechanisms being a feature of a new National Indigenous
    Representative Body, potentially drawing their representatives from regional
    representative mechanisms;
  • State-based mechanisms that are constituted through other means, such as
    direct election and/ or representation of organisations – these might, for
    example, be constituted outside the framework of the National Indigenous
    Representative Body such as with the new ACT Governments’ Aboriginal and
    Torres Strait Islander Elected Body;
  • The conduct of State-wide policy forums conducted on a regular, cyclical
    basis to feed into the National Indigenous Representative Body; or
  • A combination of these mechanisms.

Issue for discussion: Relationship between the National
Indigenous Representative Body and Indigenous peoples at the State or Territory
level

What mechanisms should exist for the National Indigenous
Representative Body to engage with Indigenous peoples at the State/ Territory
level? How might this influence the significant responsibilities and
under-performance of State and Territory governments on Indigenous
affairs?

If such mechanisms are established, should
they:

  1. draw their membership from regional representative
    mechanisms;
  2. be based on other mechanisms to be determined on a state by
    state basis (including existing state-based representative bodies and advisory
    boards);
  3. be based on the conduct of state-wide policy forums conducted
    on a regular, cyclical basis; or
  4. a combination of the above; or
  5. None of the above?
Should a National Indigenous Representative Body
seek to exert influence at the State and Territory level through a formal or
informal role at the Council of Australian Governments, and/or by participating
in or advising on the negotiation of inter-governmental agreements?

The national structure of the National Indigenous Representative Body

The above sections have addressed the key issues of how many levels of
representation the national body should have as well as the roles and functions
it would exercise. This will have a significant impact in determining the most
appropriate national level structure for the representative body.

Once consensus is achieved on a broad outline of what a National Body should
do, and how it should look, then structural proposals can proceed.

It is important to mention that it is possible to ‘mix and match’
from among the many options available, and to fine tune the way an organisation
represents it membership through establishing different forums, levels and
functional units throughout the organisation, each responsive to the membership
in different ways. A significant issue to consider is how different forums or
mechanisms within the national body would relate to each other to ensure
internal cohesiveness.

The following are a range of issues to be addressed relating to a national
structure for the new National Indigenous Representative Body:

  1. Whether the national structure should be directly drawn from regional and
    State/ Territory levels of the body with delegates nominated to the national
    structure through these mechanisms, or whether it should instead be based on a
    direct election model at the national level;
  2. Whether it should be a membership based organisation, whereby communities,
    organisations or individuals can join the organisation – representation in
    this model would then flow from the participation of individuals or
    representatives of organisations or communities, in the ordinary governance
    processes of the organisation;
  3. Whether the national structure be decided through a process of merit
    selection presided over by a panel of eminent Indigenous
    peers;
  4. Whether or how the national structure of the representative body should
    involve Indigenous peak bodies, other regional or state based Indigenous bodies
    and/or Indigenous service delivery organisations in its activities – for
    example, directly in its decision making or in an advisory role;
  5. Whether at the national level there should be an allocation of positions to
    a national board or executive of representatives for particular sectors of the
    Indigenous community – for example, stolen generations members,
    traditional owners, youth, and Torres Strait Islanders (on the mainland and in
    Torres Strait). Such positions could also be allocated to specific working
    groups or advisory panels to the national body;
  6. How at the national level the National Indigenous Representative Body can
    maintain a gender balance and ensure equal participation and representation for
    Indigenous women; and
  7. Whether there ought to be processes to enable the broad-based participation
    of Indigenous peoples in the national decision making process – such as
    through the convening of an annual policy Congress open to all Indigenous
    peoples (and possibly also Indigenous organisations and/or non-Indigenous
    organisations).

One view may be that it is not necessary to re-invent the wheel,
and discussion should start with improvements to the ATSIC experience, perhaps
based on the Hannaford
review.[114] This would certainly
allow for a narrowing down of the issues.

The ATSIC Review of 2003 had recommended a revised two tier structure for
“a new ATSIC”. It proposed that each regional representative
organisation’s Chair would become a member of a national forum. That
national forum would meet occasionally and would also elect an Executive Council
from a smaller number of its members. The Executive Council would then make the
decisions and run the organisation on a day to day
basis.[115] This may provide a
starting point for how the new National Indigenous Representative Body may
operate.

Some of the issues to be addressed in relation to the options identified
above include:

  • Whether representatives should be chosen by election or by delegation, or
    alternatively whether they should be chosen through a merit selection process
    presided over by a panel of eminent Indigenous peers;
  • Whether particular groups of Indigenous peoples should be directly
    represented on the national body’s structure (eg stolen generations,
    traditional owners, Torres Strait Islanders or youth);
  • How to ensure gender balance and equal representation of Indigenous women on
    a national representative body structure; and
  • The role of non-Indigenous organisations.

Representatives chosen by election or by delegation?

Three distinct ways of reflecting the membership in a board,
council or executive must be considered. By:

  • Direct election: Here members of the organisation participate as
    individuals.[116] They each have a
    vote for a representative.
  • Delegation: In this model, organisations, national Indigenous peak
    bodies, regional and/or state/territory level representative organisations could
    nominate a delegate/s to represent them in the National Indigenous
    Representative Body. The delegate can be selected in a number of ways; elected
    from within the organisation or group, or appointed by its Board, officers or
    elders.
  • Merit selection: In this model, the members of a national executive
    would be selected through a merit selection process by a panel of eminent
    Indigenous people. This process would be used during the establishment phase of
    the representative body. Once the representative body was in place and
    operating, the national executive could then establish its own procedure for the
    selection/ appointment of members in subsequent rounds.

Election

Both the NACC and the NAC held direct elections, while ATSIC had direct
election to Regional Councils and then an indirect election model for other
positions.

ATSIC Regional Councillors were elected from local constituencies. Regional
Councillors then elected the Chairs of the Regional Councils, as well as
Commissioners on the national board (with Regional Councils grouped together
into zones for the purpose of electing a Commissioner). The Commissioners then
elected a Chairperson and Deputy
Chairperson.[117] It was a
complicated system and voter turn out overall was poor, although greater rates
of voter turnout were achieved in remote
areas.[118]

In the reviews before the demise of each of the national organisations the
principle of popular election was often
challenged.[119]

In relation to ATSIC, many electors were unaware of the intricacies of the
ATSIC system beyond the election of Regional Councillors, which made this part
of the process susceptible to political intrigue. The distribution of votes
across the country also favoured remote areas to the disadvantage of Aboriginal
people in urban and densely settled
Australia.[120]

The Hannaford review of 2003 found dissatisfaction with the uniformity of the
electoral model.[121]. It did not
allow for the adoption of different approaches in different regions.

Delegation

Several effective national representative bodies are based on delegates being
nominated by member organisations.

The Australian Council of Trades Unions (ACTU), for example, is constituted
by its affiliated unions, its state branches, provincial Trades and Labor
Councils, and its officers and executive members. It has a Congress which is
made up of delegates from its constituent parts and its
officers.[122]

The Australian Council of Social Service (ACOSS) is similar. There are
Councils of Social Service in each of the States and Territories. The membership
of state Councils differs from State/ Territory to State/ Territory, depending
on the community service organisations that are active there.

In addition, ACOSS members include national organisations representing those
who need social services as well as those who provide them. It includes
religious groups and relevant professional associations as members. It has more
than seventy member organisations.

The eight State and Territory-based Councils each elect a delegate to the
twenty-member Board. The President and Treasurer are elected by the members at
large. National organisations elect six Board members, two are elected by an
Assembly of consumer groups, and the Board itself co-opts a further two
members.[123] This gives very
broad representation of State/ Territory and national interests, service
providers, service receivers and professionals. ACOSS does not directly
represent its members, but advocates on behalf of their constituency, the poor
and the disadvantaged.[124]

No similar national body of Indigenous community service and representative
organisations has been tried. This is despite recommendations for this model in
each of the reviews since 1976. Hiatt did not personally accept the proposal,
but included O’Donoghue’s recommendation for
it.[125] Coombs firmly believed it
would be a more robust structure than the directly elected NAC that he was
reviewing.[126] O’Donoghue
again, in the 1986 consultations that eventually led to ATSIC, proposed a mixed
model of delegates from organisations and communities for regional assemblies,
with national representatives directly
elected,[127] though she admitted
there were some difficulties to be dealt
with.[128]

In these reviews it was particularly felt that coalitions of community
councils and community service organisations would be effective as regional
assemblies, which would be the legitimising basis of state and national
representation. Gerry Hand, past Minister for Aboriginal Affairs, outlined his
preference for Regional Councils to be based on member organisations in his
policy paper Foundations for the Future in 1987. By 1988, when he
introduced the first ATSIC Bill to Parliament, he had dropped it in favour of
direct election.

There are about 2,000 Aboriginal and Torres Strait Islander organisations
registered with the Registrar of Aboriginal and Torres Strait Islander
Corporations, and possibly 5,000 registered nation-wide under all
Acts.[129] There are also
statutory organisations such as the Northern Territory and New South Wales land
councils. All have elected Boards answerable to the membership at Annual General
Meetings. Most can be recalled by Special General Meetings. This can be seen as
a more direct form of democracy than national elections.

The vast majority of these organisations are engaged in delivering some form
of service to Indigenous clients. Normally they are effectively controlled by a
board and senior officials with direct affinity with their local client base.
They very often have a long history of service provision at the local and
regional levels; some thirty years of service is not uncommon. They could offer
an effective basis for a national organisation with a strong regional and
state-based structure.

One problem could arise if the national body is engaged in program delivery.
Most often this will be done through community controlled organisations. When
these organisations form the membership base and send delegates to the national
representative body, questions of fair allocation of resources, evaluation and
accountability arise. Internal quarantine of these functions from perceived
‘interference’ from the Executive would be required.

Merit selection by a panel of eminent Indigenous peers

An alternative option to an election or delegate model is for the executive/
national structure of the representative body to be based on a merit selection
process.

In this model, a call for nominations would be made for people with
particular experience or expertise to sit on the national body. Nominations
would then be assessed by a panel of eminent Indigenous peers based on a series
of criteria which may include factors such as the relevant expertise that the
nominees could contribute to the representative body, geographical spread of
nominees, gender and youth representation and so on.

In order to promote a diversity of views it may be appropriate to limit
nominees to sitting on the national body for a maximum number of terms.

In the first instance, there will be a need for a process to select or
appoint the eminent Indigenous peers who will conduct the nomination process.
Importantly, once the representative body is operational the national board or
executive could then be charged with the responsibility of establishing a
selection process for subsequent terms on the body. On this understanding, and
in the instance that the National Indigenous Representative Body is a government
body, it may be appropriate for the Minister for Indigenous Affairs to appoint
the panel for the first nomination process. In the event that the National
Indigenous Representative Body is not a government body, then another process
for selecting this esteemed peer committee will need to be decided.

Representation of distinct Indigenous groups on the National Body’s
executive

A National Indigenous Representative Body could also put into place
structures to ensure that the voice of distinct groups of Indigenous peoples is
heard in the national body.

There are two main options here – first, it could designate positions
on the national executive structure for distinct groups (e.g. stolen
generations, traditional owners, Torres Strait Islanders, youth etc). Second, it
could establish advisory/ expert panels that don’t directly make the
decisions of the National Body but which are consulted on a range of specific
issues.

Special purpose committees to devise aspects of policy, or to investigate
issues of concern, may be established. These could have non-Indigenous as well
as Indigenous expert advisors. Portfolio committees under the guidance of a
particular Board or Council member may also help to spread the load of
decision-making and produce both better policy proposals and advocacy.

It is important, though, for the structure to balance the need for a broad
base seeking wise input wherever it may be found, with the need for the main
decision making body or executive to remain focused, effective and capable of
swift action.

There may be a number of distinct groups within the Indigenous population for
whom some specific role should be considered. This section considers three such
groups – traditional owners, stolen generations members and youth.

Traditional Owners

Each of the previous national representative bodies in Australia was set up
before the decision of the High Court in Mabo v Queensland (No.2) in
1992. That case established the principle that Indigenous peoples in Australia
had pre-colonial systems of land tenure that could be recognised by Australian
common law.

One important consequence of that recognition has been relatively neglected.
Systems of land tenure cannot exist alone; they are inevitably bound up in
systems of authority and governance, in political systems. These systems of
governance may remain relatively intact in some areas of Australia, or they may
need to be renewed in order to establish organisations that can hold and deal in
native title, in line with overseas experience. A national Indigenous
organisation may offer the opportunity to reinstitute the political dimension in
native title.

There is wide diversity in the ways that Indigenous peoples assert their
traditional ownership. Some have been through formal statutory processes under
Land Rights Acts in the Northern Territory, NSW and South Australia, and to a
lesser extent Victoria. Each of these is quite different.

Some groups establish their traditional rights through involvement in
heritage protection procedures, often through informal agreement with
states-based authorities. Others have fought out native title claims in court
where quite precise details of cultural practice and descent are required.
Consent determinations of native title tend to be less precise about the
boundaries of group membership. Many groups are incorporated under legislation,
while others remain unincorporated or are represented by several corporations.

While there is a tendency across the country for Indigenous groups to
describe themselves as nations defined by language, descent and territory, land
and native title claims have often split groups that naturally belong together.
Disputes over rights to land are also commonplace.

There is, then, no single uniform formula to decide what a traditional
ownership group is, who its members are, and precisely the geographical area it
covers. A procedure for claims to membership of a traditional owner group would
be required of a national traditional owner organisation, but it would be
difficult to achieve one that is both simple and fair. Fairness in
representation would also be difficult to achieve, since some groups are large
and others comprise only a handful of people. With the disparity in group sizes,
experience, and current circumstances it could also be difficult to fairly
recruit many effective individuals from some regions without passing over
regions where there is a wealth of such individuals.

The effectiveness of a ‘united nations’ of Indigenous Australia
could also be questioned. While each nation may be able to contribute an
effective regional voice, they would have difficulty dealing consistently with
State/ Territory governments where the group crosses State/ Territory lines.

Also, many Indigenous peoples do not live on their traditional lands. While
they may not claim to be able to speak for the country where they reside, they
usually do feel strongly about the provision of services in their local region.
There is also a tendency for land-based groups only to develop interest and
expertise in land and heritage issues, they do not usually concern themselves
with health, housing or employment, for example.

With these difficulties considered, if the national discussion does reveal
that traditional ownership needs to be reflected in a national organisation,
perhaps the formation of a traditional owner chamber or forum as part of a
differently organised body would be a suitable option.

Stolen Generations

If it were the general view that traditional owners should be directly
represented in the National Body’s executive there is a further issue that
will need to be addressed. One of the impacts of the forced removal of
Indigenous children from their families is that members of the Stolen
Generations have often lost connection to their culture or traditional lands. Bringing them home notes the consequent difficulties for members of the
Stolen Generations being able to be recognised within traditional owner
groupings (such as being custodians of native title or holders of title under
land rights legislation).[130] Other such processes for recognition would also need to be put into place to
ensure that stolen generations members are not further disadvantaged through the
processes of representation in the new National Indigenous Representative
Body.

Youth

The Indigenous population is an extremely young one, with more than half of
the population under the age of 25 years of age. A National Indigenous
Representative Body needs to grapple with issues facing Indigenous youth for
this very reason.

It can also be argued that ensuring the engagement of Indigenous youth in the
representative structures of the National Indigenous Representative Body is
important so as to ensure ongoing development of an Indigenous leadership and
transitions between generations. It may be appropriate for mentoring
opportunities to be provided to youth participants in a national body to nurture
and support good leadership into the future.

Torres Strait Islanders

The Torres Strait Islanders are a distinct Indigenous group within Australia,
who also require adequate representation in a new National Indigenous
Representative Body. The Torres Strait Islanders fall into two groups, the
first are those living in the Torres Strait, and who are represented at the
regional level through the Torres Strait Regional Authority (TSRA). The TSRA
became an independent statutory authority by amendment to the Aboriginal and
Torres Strait Islander Commission Act 1989
(Cth) in 1994. Post-ATSIC, the
TSRA continues to be the principal Commonwealth agency co-ordinating Indigenous
affairs in the region.[131] The
new National Indigenous Representative Body will have to consider what
mechanisms are needed to liaise with the TSRA, and how this group should be
represented. For instance representation could be through having a delegated
representative of the TSRA on the new National Indigenous Representative Body,
or it could be through the TSRA acting as an advisory group to inform the
National Indigenous Representative Body.

The second group of Torres Strait islanders consists of those living on the
mainland. Although the ATSIC Act (1989) provided mechanisms to ensure
the interests of mainland Torres Strait Islanders were represented, this
group still faced problems in accessing funding bodies, programs and services.
With the abolition of ATSIC these mechanisms no longer exist and the
opportunities for participation by mainland Torres Strait Islanders in
government processes have reduced even further. Given the marginalisation of
this group among other mainland Indigenous groups, it is important to ensure
that the new National Indigenous Representative Body also give consideration for
establishing specific forms of representation for this group. This again could
be through elected representation, to through the establishment of an advisory
body.

Gender balance and ensuring equal participation and representation for
Indigenous women at the national level

A significant issue for a new National Indigenous Representative
Body is how it will ensure gender equality in its operations. This is a
significant issue that ATSIC did not grapple with well. It has been argued that
there is a danger that women can become “merely a ‘special
interest’ group ... rendered invisible within the notion of
‘family.”[132]

A lack of appropriate representation of women and youth in national
Indigenous governance structures, including at the highest levels of office, can
impact on the confidence and legitimacy of the representative body among its
constituents.[133]

The Hannaford Review of ATSIC emphasises the “irreplaceable perspective
[Indigenous women]
contribute.”[134] It found
that gender imbalance in ATSIC’s political structure was in part caused by
insufficient recognition of the role of Indigenous women and matters that impact
significantly on them (such as substance abuse, homelessness and family
violence), as well as inadequate leadership development and a failure to involve
women in formal decision-making
processes.[135]

Consequences included “distorted and
flawed”[136] policy and
program design with limited capability to meet Indigenous women’s
needs[137] and a resultant lack of
participation by women in such programs.

Among the recommendations in the Hannaford review for redressing gender
disadvantage and poor political representation were strategies developed with
the Australian Electoral Commission and a taskforce addressing the reasons for
under-representation.[138] Megan
Davis has argued that a more deliberative democratic process is “not
inimical to Indigenous
culture”[139] and is
corroborated by international legal understandings of
self-determination.[140]

Evidence suggests that institutional structures properly representing the
diversity of Indigenous political culture would be more
sustainable.[141]

Gender-balanced approaches or frameworks identify how social conditions
affect experiences and access to political, economic and social institutions.
The Canadian AFN Women’s Council Gender-Balanced Analysis 2007 suggests
this sort of framework should be “overlaid with a diversity analysis that
considers factors such as race, ethnicity, level of ability and sexual
orientation”.[142]

The role of Non-Indigenous organisations

As noted previously in this Issues Paper, the form of the
organisation will depend on its functions. If it is to provide a uniquely
Indigenous perspective then it cannot involve non-Indigenous people in its core
representative structure.

An issue is whether there ought to be capacity for Associate Membership of
the representative body open to non-Indigenous organisations. This could take
the form of contributing to specialist committees and forums (as for example,
can happen in the National Congress of American Indians in the USA).

Issue for discussion: National structure of a National
Indigenous Representative Body

Should the national structure of the National Indigenous
Representative Body:

  • be based on a delegate model, where regional
    and state/territory levels of the body nominate their representatives to the
    national structure;
  • be based on a direct election model whereby
    Indigenous peoples themselves directly elect representatives to the national
    structure;
  • be based on a model of merit selection by a panel of eminent
    Indigenous peers;
  • involve Indigenous peak bodies and possibly other
    organisations nominating representatives to the national structure, or
    alternative provide for the participation of these bodies in a purely advisory
    capacity;
  • allocate dedicated positions on the national structure for
    designated segments of the Indigenous community – such as stolen
    generations members, traditional owners, youth or Torres Strait Islanders;
  • be required to have an equal representation of Indigenous
    women and men on the national structure;
  • provide for the participation of non-Indigenous organisations
    in an advisory capacity;
  • a combination of the above; or
  • address other factors not mentioned
    here?

Issue for discussion: Formal relationship between the
National Indigenous Representative Body and the federal government and
Parliament

A National Indigenous Representative Body will need to work closely with all
levels of government if it is to be effective in representing the interests of
Indigenous peoples. As noted at the outset, such effectiveness will most likely
come from the body being seen as credible and legitimate by the government as
well as by Indigenous peoples.

Ultimately, however, the issue will emerge as to whether the new National
Indigenous Representative Body should be established as a Commonwealth
government entity (such as a statutory authority) or should be established
through some other means, such as being a non-government organisation either
with or without government funding assistance.

Since 1972, with the beginnings of the NACC, it has been assumed that a
national Indigenous organisation should be part of the formal advisory
mechanisms of government.

Both the NACC and the NAC were established as committees of Aboriginal
affairs administration. ATSIC was a statutory Commonwealth body regulated by its
own Act of Parliament. Each of these organisations struggled to assert its
independence while at the same time remaining part of the fabric of government.

Arguably, a statutory body can meet the requirements of both independence and
privileged access to government.

The fundamental reason for establishing a statutory commission is to improve
the quality of governance of an area of public concern by operating at arms
length from executive government. At the same time, being established by
government charter, it should also have a privileged ability to steer these same
areas of public policy.

In practice, the experience of ATSIC did not bear this out. Government rarely
sought its advice, and rarely took it when offered.

This is no reason to reject this approach entirely, however. Some statutory
authorities such as HREOC, the ALRC, the Productivity Commission, Privacy
Commission, Commonwealth Ombudsman and the Australian Competition and Consumer
Commission do indeed have authority and are influential with government. A
better designed Indigenous Affairs Commission might be more effective than
ATSIC.

Issue for discussion: Establishment of the National
Indigenous Representative Body

Should the National Indigenous Representative Body be
established by government, for example as a statutory authority, or be
established independent of government?

Regardless of whether the organisation itself is to be a governmental
statutory authority or established independently, a tighter relationship with
government than has previously existed must be found. This is particularly
important for two of the national body’s proposed functions: policy advice
to government and review of government performance.

There are a range of options for how a new National Indigenous Representative
Body might operate so as to have a closer relationship to government. For
example:

  • It could have ex-officio membership of the Ministerial Taskforce on
    Indigenous Affairs as well as the Secretaries Group on Indigenous Affairs, and
    therefore have a ‘seat at the table’ where the major decisions on
    Indigenous affairs are made at the federal government
    level.[143] Alternatively, it
    could operate as an advisor to these bodies.
  • It could be invited to participate in discussions of the Council of
    Australian Government (COAG), as well as the various committees of COAG such as
    the Ministerial Council on Aboriginal and Torres Strait Islander Affairs
    (MCATSIA). It must, however, be noted that it would be a very unsatisfactory
    outcome for the new National Indigenous Representative Body to only be invited
    to participate in MCATSIA due to its lack of influence on the overall COAG
    agenda over the past decade.

The National Indigenous Representative Body could also seek to
establish a direct relationship with the federal Parliament, in addition to the
government of the day. A direct relationship with the Parliament will be
extremely important in seeking to establish a bipartisan approach and long term
commitments to Indigenous affairs.

If it were established as a statutory body, the National Indigenous
Representative Body would have a direct reporting relationship with Parliament
through its annual report.

It may be useful for the representative body to also have statutory powers to
enable it to table reports and advice in Parliament from time to time.

A further possibility is for a new National Indigenous Representative Body to
have a role in the committee systems of the Parliament. There are two
possibilities here: a formal role participating in Budget Estimates hearings
(that occur usually twice per year and where Department are held to account for
their expenditure and activities); and a formal role on parliamentary committees
of review (such as a parliamentary committee on Indigenous affairs).

In Senate Estimates committees, Senators question government departments over
their performance in the context of the estimates for their budgets. This is
often effective in targeting problem areas, but it is fragmented. There are some
limitations to this process – in particular, departments and ministers can
only be questioned on operational matters and not on matters of policy.

Similarly, Indigenous programs are spread over several departments. The
Senate Estimates process itself is divided among eight committees. When an
Indigenous affairs responsibility changes portfolios, it can also change the
committee that examines it. When responsibility for Indigenous affairs moved
from the Department of Immigration to the Department of Families and Community
Services its scrutiny passed from the Legal and Constitutional Committee to the
Community Affairs Committee. Arguably, neither of these is appropriate.

Senators have varying degrees of background in Indigenous affairs and cannot
divide their time effectively across all of these committees to get an overview
of the many strands of Indigenous program delivery.

Nonetheless, the power of Senate Estimates committees to call the government
and bureaucracy to account is something that many Indigenous peoples would like
to emulate. This power, though, is fragile. The committees are renewed by
resolution at the beginning of each Parliament, and they are regulated by a
standing order of the Senate that itself could be rescinded or amended by the
Senate.[144]

A second option is a regular committee of review on Indigenous issues. When
the Senate reviewed the Bill to abolish ATSIC and ATSIS the majority recommended
that a Senate Standing Committee be established to regularly consider the
government’s performance in delivering Indigenous development
programs.[145] The minority
report, by government Senators, recommended instead that the current House of
Representative Standing Committee on Indigenous Affairs should become a joint
Parliamentary Committee of both the House of Representatives and the
Senate.[146]

Both proposals suffer some drawbacks from the point of view of meaningful,
rather than merely symbolic, Indigenous input into the process. These committees
are populated by politicians, and thus sometimes mere political instruments. The
political party with control of the chamber may amend or rescind the
regulations. They may control the matters referred to the committees, the
frequency of sitting days, and responses to requests from the committee. The
fragility of these arrangements for the operation of a democratic Parliament,
let alone for a single contentious area such as Indigenous affairs, has been
roundly criticised by the Clerk of the
Senate.[147]

More robust committees, which are established by Acts of Parliament and given
defined functions, do exist. They are less susceptible to direction by the
government of the day. The examples of the Public Accounts and Audit Committee
and the Public Works Expenditure Committee, which reviews proposed
infrastructure expenditure over $10 million, could be explored as models. These
are both joint committees, reporting to both chambers of Parliament.

These committees of the Parliament are powerful bodies. There is still a
question how Indigenous peoples, through their national body, could exert
influence on such committees.

Importantly, there is nothing to say that a National Indigenous
Representative Body could not be given a formal role in such a committee
process.[148] It is not a
requirement of Parliamentary Committees that their members be parliamentarians.
Members of the national body’s Executive, or their delegates, could
comprise these committees in whole or in part. They could be invested with any
legal power that the Parliament sees fit. This could include the protection of
Parliamentary privilege, and the power to conduct hearings, summon witness and
documents, and take evidence under oath. Similarly, the Parliament could provide
for suitable remuneration, support staff and facilities. It would be desirable
for the Indigenous members of such committees to have facilities in Parliament
House to encourage active engagement with the day to day processes of
government.

A University of Melbourne political scientist, John Chesterman, has
alternatively proposed that the membership of such a committee could be elected
by Indigenous peoples at the same time as a general
election.[149] An exclusively
Indigenous committee, with democratically chosen representatives, and all the
powers of Parliamentarians, would be a strong innovative development in
Australian constitutional arrangements for dealing with Indigenous matters. It
could evolve, effectively, into an Indigenous chamber of Parliament.

Issue for discussion: Relationship of the National
Indigenous Representative Body with government and Parliament

What formal mechanisms should be built into the structure of
a National Indigenous Representative Body to ensure that it has a direct
relationship with the federal government and the federal Parliament?

What role should the National Indigenous Representative Body
have in the federal government’s whole of government arrangements?

What formal mechanisms should be built into the structure of
a National Indigenous Representative Body to ensure that it can inform and work
with State/ Territory governments?

Issue for discussion: Resourcing the National Indigenous
Representative Body

A critical issue will be deciding how the National Indigenous Representative
Body is to be funded for its regular activities so that it has the capacity to
undertake the roles and functions that are ultimately decided for the body.

If the national body is to be a statutory arm of government it must be funded
by government to perform its functions.

If the body is a non-government organisation, then the government may still
decide that it is valuable for it to allocate grants to the representative body
even though it is not a government authority. ACOSS, for example, receives about
45 per cent of its funding from
government.[150]

Government funds may be useful, but they may come at a cost of the
independence of the organisation. They may be tied to certain functions not seen
as a priority by the membership, they can put an organisation in the position of
being a proxy for government, they often come with conditions attached such as
limiting the organisation’s ability for public comment on certain
programs, and if withdrawn they can pull the rug out from under the
organisation.

Some of these dangers can be managed by the allocation of block funding for
significant periods with broad reporting requirements at realistic intervals.
The experience of ATSIC and many community organisations with dependency on
government funds may lead to a decision that the organisation needs to find the
majority of its income from independent sources or to have the capacity to
supplement government funding with independent sources of income.

One source could be a foundation fund. The Indigenous Land Corporation and
the NSW Land Council have used this model. An examination of these shows both
benefits and drawbacks.

The ILC draws much of its income from the statutory Indigenous Land Fund (or
Account). Some of its income is from its own operations and investments separate
from the Land Fund. For the first ten years of its operation, 1995 to 2006, the
Commonwealth government provided $120 million per year, indexed for inflation,
to the Land Fund. The indexation increased the payment to $145.7 million by the
end of the ten-year period. After this the ILC was expected to fund itself from
investment of the accumulated capital. By the end of 2004 the ILC was taking
$54.7 million per year of the Land Fund allocation for its operations and the
Land Fund stood at $1.42
billion.[151]

On the face of it this is a good model, but there are problems. In the first
year of dependence entirely on the Fund the ILC was able to draw down only $4
million, when it had expected in the region of $45 – 50
million.[152]

The ILC is bound by statute only to take the ‘realised real
return’ of the fund. The first constraint on this return is the level of
interest the fund may earn. The Fund is required to invest in a conservative
manner, determined by Department of Finance rules. It seems to have chosen bank
bills which in 2007 returned it
6%.[153] To get the ‘real
return’ it needs to compensate the fund for the effects of inflation,
before the ILC can take what remains. The ILC legislation determines that
inflation is measured using the ‘non-farm product deflator’ index
rather than the Consumer Price Index (CPI). This type of inflation has been
running high due to the resources boom and the rising price of commodities.

In short, a high inflationary factor and a modest rate of return on the
investment combined to provide much less cash than the ILC needed. In addition,
there is a further difficulty with the way the draw down is calculated. The ILC
is required to compute the real return over the previous two years performance
of the fund. Taking the entire return in one year reduces the Fund’s
profit in that year to zero for the purposes of the next year’s
calculation.

The lesson here is to be realistic about the funds investment strategy,
balancing risk against the need for a robust return. Secondly, the formulas
which are applied to adjust for inflation and to calculate the amount available
must also be realistic.

The NSW Land Council ran into difficulties for different reasons. The NSW
Land Council was established by legislation in 1983 and funded by a levy of 7.5%
of land taxes in the state, which lasted for 15 years. In each year, half of the
amount collected was allocated to the operation of the Land Council and the
remainder placed in an investment
fund.[154] When the 2005 review
was undertaken the Land Tax levy had ended, the investment fund stood at about
$550 million of which the NSW Land Council could draw about $20 million per year
without affecting the viability of the
fund.[155]

The review found that this was not enough to meet the NSW Land
Council’s obligations. In essence the NSW Land Council had heavy
obligations in providing funding to a wide network of local Land Councils which
had great disparity in needs and access to resources - many of which were
struggling.[156] The lesson here,
clearly, is to be realistic about the true costs of the obligations of the
organisation when establishing the fund.

An option for building a foundation fund for the representative body, could
be in the form of a statutory levy on production as restitution and compensation
for the historical loss of Indigenous resources and productive capacity. This
could be modelled on the NSW fraction of land tax, or some other tax equivalent.
These funds should be sustainable, recurrent and indexed appropriately.

Reconciliation Australia, which is the privately incorporated company that
superseded the statutory Council for Aboriginal Reconciliation, has also found
that the size of its foundation grant from government in 2003 is not enough to
meet its needs. It supplements its income with corporate and philanthropic
donations, often tied to particular projects. It still negotiates with
government for long term funding on the basis that it provides services of value
to government policy objectives.

Although a foundation fund is a useful option, its limits must be realised.
It must be large because the returns are small relative to the size of the fund.
Secondly, service organisations are always spending into an increasingly costly
environment, with prices rising all the time. While the fund can be adjusted for
inflation so that it always retains the same value in real terms, the
organisation faces mounting costs with only a slight increase in annual income
from the rising quantum of the fund. Businesses compensate themselves for
inflation by raising prices.

It seems inescapable that an organisation wishing to be substantially
independent of government will need to raise at least some of its income
elsewhere. This could be from:

  • Donations;
  • Membership fees; and/or
  • selling products and services.

A credible and effective National Indigenous Representative Body
could be granted charitable status so that donations to it are tax deductable.
Donations could then be used to supplement its operational costs, for specific
projects, or to supplement any establishment fund to contribute to the long term
sustainability of the organisation.

A further option for government funding may be for the funding level to be
independently set by the Commonwealth Grants Commission, in the same way that
Special Purpose Grants and General Purpose Payments are allocated to the states
and territories.

The organisation could also sell services to governments and private
organisations. Such services could be research into particular issues which it
would be in a unique and privileged position to carry out, consultations over
policy proposals, development of policy papers, and facilitation and mediation
between Indigenous peoples and private interest groups.

Issue for discussion: Resourcing the National Indigenous
Representative Body

How should the National Indigenous Representative Body be
funded so as to ensure it has a secure, ongoing source of funding? For example,
should the body:

  • receive government funding;
  • be granted charitable status so that it can raise
    donations;
  • have an establishment fund to provide a capital base for the
    organisation;
  • charge membership fees to organisations and
    individuals;
  • charge for the delivery of services and products;
  • a mix of the above; and/ or
  • other options.

Conclusion: Scoping a National Indigenous Representative
Structure

In crafting a new national Indigenous voice there is a solid foundation of
experience to build on from FCAATSI to ATSIC. This Issues Paper has provided
some background on these experiences while putting up possible forms that a
future national Indigenous representative structure might take. Some of the
suggestions in this paper may not be supported. Equally, some ideas not
canvassed here will be forthcoming in the national discussion process that this
paper has aimed to contribute to.

The Issues Paper does not promote any particular model over another, and
after discussion much work will remain to be done on the detail of formal
structural matters.

If this Issues Paper stimulates and channels Indigenous energy towards a
strong and effective new national voice, then it will have served its purpose.


[1] United Nations High Commissioner for Human Rights, Fact sheet No.9 (Rev.1), The
Rights of Indigenous Peoples, www.unhchr.ch/html/menu6/2/fs9.htm.
[2] This research was in accordance with the following commitment that I made in the Social Justice Report 2006: ‘The Social Justice Commissioner will
work with Indigenous organisations and communities to identify sustainable
options for establishing a national Indigenous representative body. The
Commissioner will conduct research and consultations with non-government
organisations domestically and internationally to establish existing models for
representative structures that might be able to be adapted to the cultural
situation of Indigenous Australians, as well as methods for expediting the
establishment of such a body given the urgent and compelling need for such a
representative body.’ Quoted in Aboriginal and Torres Strait Islander
Social Justice Commissioner 2006, Social Justice Report 2006, Human
Rights and Equal Opportunity Commission, Sydney.
[3] Hiatt, LR et al. 1976, National Aboriginal Consultative Committee, Report of Committee of
Inquiry,
Parliamentary Paper 343/1976, Commonwealth Government Printer,
Canberra. p9.
[4] Federal Council
for the Advancement of Aborigines and Torres Strait Islanders, 1977, Minutes
and Proceedings of the Twentieth Annual Conference
(incorporates 1975
Constitution), 9 and 16 April, Canberra, unpublished
proceedings.
[5] Read, P 1990,
“Cheeky, Insolent and Anti-White”: the FCAATSI Split of Easter
1970’, Australian Journal of Politics and History 36/1
[6] Weaver, SM 1983,
‘Australian Aboriginal Policy: Aboriginal Pressure Groups or Government
Advisory Bodies Part 1’, Oceania, Vol. 54 No. 1. p1.
[7]Ibid. p3.
[8]Ibid. p6
[9] Hiatt, LR et al. 1976, National Aboriginal Consultative Committee, Report of Committee of
Inquiry,
Parliamentary Paper 343/1976, Commonwealth Government Printer,
Canberra. pviii. And see generally Weaver, SM 1983, ‘Australian Aboriginal
Policy: Aboriginal Pressure Groups or Government Advisory Bodies Part I’, Oceania, Vol 54. No. 1.
[10] Weaver, SM 1983,
‘Australian Aboriginal Policy: Aboriginal Pressure Groups or Government
Advisory Bodies Part I’, Oceania, Vol 54. No. 1. p7.
[11] Hiatt, LR et al. 1976, National Aboriginal Consultative Committee, Report of Committee of
Inquiry,
Parliamentary Paper 343/1976, Commonwealth Government Printer,
Canberra. pviii.
[12] Weaver,
SM, 1983, ‘Australian Aboriginal Policy: Aboriginal Pressure Groups or
Government Advisory Bodies Part II’, Oceania, Vol 54. No. 2.
p104
[13] O’Donoghue, L
1986, An Aboriginal and Islander Consultative Organisation, Australian
Government Publishing Service, Canberra.
p27.
[14] Coombs, HC 1984, The
Role of National Aboriginal Conference,
Australian Government Publishing
Service, Canberra. p9.
[15] Ivanitz, M 2000, ‘The Demise of ATSIC? Accountability and the Coalition
Government’, Australian Journal of Public Administration, Vol. 59,
No. 1. p4.
[16] Aboriginal and
Torres Strait Islander Commission 1993, Review of the Operation of the
Aboriginal and Torres Strait Islander Commission Act 1989
(Cth), Australian
Government Publishing Service, Canberra. p9. And Aboriginal and Torres Strait
Islander Commission 1998, Review of the Operation of the Aboriginal and
Torres Strait Islander Commission Act (1989)
Cth, Aboriginal and Torres
Strait Islander Commission, Woden ACT. p10.
[17] Aboriginal and Torres
Strait Islander Commission 1993, Review of the Operation of the Aboriginal
and Torres Strait Islander Commission Act 1989
(Cth), Australian Government
Publishing Service, Canberra. p16.
[18] Aboriginal and Torres
Strait Islander Commission 1998, Review of the Operation of the Aboriginal
and Torres Strait Islander Commission Act 1989
(Cth), Aboriginal and Torres
Strait Islander Commission, Woden ACT.
p10.
[19] Hannaford, J, Huggins
J, and Collins B, 2003, Review of the Aboriginal and Torres Strait Islander
Commission: Public Discussion Paper,
Department of Immigration &
Multicultural & Indigenous Affairs, Canberra. p14.
[20] Behrendt, L 2005, Briefing Paper No 5: National Representative Structures, Ngiya Institute
for Indigenous Law, Policy and Practice, Sydney. p9.
[21] Altman, J 2004,
‘Practical Reconciliation and the New Mainstreaming: Will it Make a
Difference to Indigenous Australians?’, Dialogue, Vol. 23 No. 2.
p42.
[22] Behrendt, L 2005, Briefing Paper No 5: National Representative Structures, Ngiya Institute
for Indigenous Law, Policy and Practice, Sydney. p9. And Sanders, W 1994
‘Reconciling Public Accountability and Aboriginal Self-Discrimination/Self
Management: Is ATSIC Succeeding?, Australian Journal of Public
Administration,
Vol. 53, No. 4. p480.
[23] Behrendt, L 2005, Briefing Paper No 5: National Representative Structures, Ngiya Institute
for Indigenous Law, Policy and Practice, Sydney. p25. And Hannaford, J, Huggins
J, and Collins B, 2003, Review of the Aboriginal and Torres Strait Islander
Commission: Public Discussion Paper,
Department of Immigration &
Multicultural & Indigenous Affairs, Canberra. p30.
[24] Westbury, N 2005,
‘Shifting Our Thinking – The Future Engagement between Governments
and Indigenous Australians Post ATSIC’, Public Administration Today, Vol. 4. p27.
[25] Hannaford, J, Huggins J, and Collins B, 2003, Review of the Aboriginal and
Torres Strait Islander Commission: Public Discussion Paper,
Department of
Immigration & Multicultural & Indigenous Affairs, Canberra. p32.
[26] Wootten, H 2004,
‘Self Determination After ATSIC’, Dialogue, Vol. 23 No. 2.
p20.
[27] Behrendt, L 2004,
Habeas Corpus’, Arena Magazine, Vol. 73, p26.
[28] Ivanitz, M 2000, ‘The
Demise of ATSIC? Accountability and the Coalition Government’, Australian Journal of Public Administration, Vol. 59, No. 1.
pp8-9.
[29] Please note: this
list does not include state and territory level bodies, such as state-based
education communities.
[30] Sanders, W 2002, ‘Good Governance for Indigenous Communities and Regions:
More diverse than unified, as much process as structure.’ Indigenous
Governance Conference 3-5 April, Canberra. p5.
[31] Sanders, W 1995,
‘Reshaping governance in Torres Strait: the Torres Strait Regional
Authority and beyond’, Australian Journal of Political Science, Vol. 30 No. 3.
[32] Arthur,
W and Sanders, W 2001, ‘Autonomy rights in Torres Strait: From whom, for
whom, for or over what?, Centre for Aboriginal Economic Policy Research,
Discussion Paper No. 215. p11.
[33] MacDonald, E 2007,
‘The Torres Strait Regional Authority: Is it the Answer to Regional
Governance for Indigenous Peoples?, Australian Indigenous Law Reporter, Vol. 11 No. 3. pp43-54.
[34] Aboriginal and Torres Strait Islander Social Justice Commissioner 2005, Social Justice Report 2005, Human Rights and Equal Opportunity
Commission, Sydney.

[35] Aboriginal and Torres Strait
Islander Social Justice Commissioner 2006, Social Justice Report 2006, Human Rights and Equal Opportunity Commission, Sydney. p15.

[36] Aboriginal and Torres Strait
Islander Social Justice Commissioner 2005, Social Justice Report 2005, Human Rights and Equal Opportunity Commission, Sydney. pp118-120.
[37] Murdi Paaki Regional
Assembly 2007, Regional Plan 2007, GHD Pty. Ltd., Brisbane. p8.

[38] Australian Bureau of Statistics Website (available at: http://www.abs.gov.au/AUSSTATS/abs@.nsf/ProductsbyCatalogue/14E7A4A075D53A6CCA2569450007E46COpenDocument;
and ABS Table: 4705.0 4705.0 Table 43, Census Counts, Indigenous
Status-1991-2006 – available at
http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4705.02006?OpenDocu…)

[39] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2005
, HREOC, Sydney, 2005,
p127.
[40] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2005
, HREOC, Sydney, 2005,
p129.
[41] Aboriginal and
Torres Strait Islander Social Justice Commissioner 2005, Social Justice
Report 2005,
HREOC, Sydney. pp115-117.
[42] Aboriginal and Torres
Strait Islander Social Justice Commissioner 2004, Social Justice Report 2004, HREOC, Sydney. p112.
[43]Ibid.
[44] Aboriginal and
Torres Strait Islander Social Justice Commissioner 2005, Social Justice
Report 2005,
HREOC, Sydney. p114.
[45] Aboriginal and Torres
Strait Islander Social Justice Commissioner 2004, Social Justice Report 2004, HREOC Sydney, p115.
[46] Victoria Department of Premier and Cabinet website: Advisory Bodies (available
at:
http://www.dpc.vic.gov.au/CA256D8000265E1A/page/Guidelines+and+Procedur…)
[47] Aboriginal and Torres Strait Islander Commissioner 2005, Social Justice
Report 2005,
HREOC, Sydney, p116.
[48] Government of South
Australia 2008, viewed 3rd June 2008 at
http://www.ministers.sa.gov.au/news.php?id=2692.
[49] DCHS ACT, “Representative Arrangments for Aboriginal and
Torres Strait Islander People in the ACT” brochure, 2008 (available at: http://www.dhcs.act.gov.au/__data/assets/pdf_file/0015/16305/brochure_7_December_2007.pdf);
John Stanhope , Media Release,“Nominations Open Monday for Elected
Body”, 26 May 2008 (available at:
http://www.chiefminister.act.gov.au/media.asp?section=24&media=3808&id=…).

[50] Aboriginal and Torres Strait
Islander Social Justice Commissioner 2005, Social Justice Report 2004, HREOC Sydney, pp79-80.
[51] The Aboriginal and Torres Strait Islander Social Justice Commissioner has also
noted that in the context of mainstreaming Indigenous service delivery,
consideration needs to be given to the recruitment and retention of Indigenous
staff, cultural awareness training for agencies and appropriate recruitment
processes for staff working in Indigenous service delivery areas. Aboriginal and
Torres Strait Islander Social Justice Commissioner, 2004, Social Justice
Report 2004
, HREOC, Sydney, p126
[52] National Congress
of American Indians Constitution, By-Laws and Standing Rules of Order as amended
February 28 2007, viewed 3 June 2008 at http://ncai.org/NCAI.org/Home.9.0.html.
[53]National Congress of
American Indians Constitution, By-Laws and Standing Rules of Order
adopted
November 14, 1944, current as amended February 28, 2007.
[54] NCAI Constitution Art. II.
Sec. B. la-b 2007.
[55] NCAI
By-Laws Art. VIII 2007.
[56] NCAI Constitution Art. II. Sec. D 2007.
[57] NCAI Constitution Art. II.
Sec. F. 2007.
[58] NCAI By-Laws
Art. III. Sec. B. ld. 2007.
[59] NCAI By-Laws Art. IV. Sec. H. 1.
2007.
[60] NCAI Constitution Art.
III 2007.
[61] NCAI Constitution
Art. III. Sec. D. 2007.
[62] NCAI By-Laws Art. IV Sec. G. 2007.
[63] NCAI By-Laws Art. VII. Sec.
A. 2007.
[64] National Congress
of American Indians Constitution, By-Laws and Standing Rules of Order as amended
February 28 2007, viewed 3 June 2008 at http://www.ncai.org.
[65] National Congress of
American Indians Constitution, By-Laws and Standing Rules of Order as amended
February 28 2007, viewed on 3 June 2008 at http://www.ncai.org/State-Tribal_Relations.92.0.html
[66] NCAI By-Laws. Art. III.
Sec. C. 2007.
[67] NCAI By-Laws
Art. VI. Sec. L. 2007.
[68]http://www.afn.ca/rticle.asp?id=3.
[69]http://www.afn.ca.
[70] Assembly of First Nations
Renewal Commission, 2005, A Treaty Among Ourselves Report
[71] See for example: Annual General Assembly Resolution No. 22/2007 July 10, 11,
& 12, Halifax, NS on the subject: First Nation Chiefs, the only legal and
traditional representatives of all First Nations’
people.
[72]Assembly
of First Nations Resolution No. 21/2007
July 10, 11& 12, 2007, Halifax,
NS.
[73] Josefson E 2007
‘The Saami and the National Parliaments – Channels for Political
Influence’, Galdu Cala Journal of Indigenous Peoples Rights No. 2,
Guovdageaidnu/Kautokeino, Norway. p8.
[74]Ibid. p20.
[75] The Finnish Sami parliament was established in 1972; Norway’s was
established in 1989.
[76] Ahren M, Sheinin M and Henrikson JB 2007 ‘The Nordic Sami Convention:
International Human Rights, Self Determination and other Central
Provisions’, Galdu Cala Journal of Indigenous Peoples Rights No. 3,
Guovdageaidnu/Kautokeino, Norway.
[77] They are however recognised in Norway’s Constitution s110a which enforces
a positive State duty to create conditions enabling the Sami to preserve and
develop language, culture and way of life. In accordance with recommendations of
the Sami Rights Committee Report 1984 and international law, the State
interprets this as encompassing the material foundation or basis for culture
(i.e. land, natural resources and other economic conditions): see Act No. 56 of
12 June 1987 and parliamentary debate on the
Bill.
[78]Sametingslag [Sami Assembly Act] 1992:
1433
[79] Josefsen E 2007
‘The Saami and the National Parliaments – Channels for Political
Influence’, Galdu Cala Journal of Indigenous Peoples Rights No. 2,
Guovdageidnu/Kautokeino, Norway. p15. p10, 15,
20-21
[80]Ibid
p15

[81] Sami have not yet been represented in the Finnish parliament (Aikio, P 1994,
‘Development and the political status of the Sami people of Finland’
in Majority-Minority relations, The case of the Sami in Scandinavia, Diedut No. 1.). Sami in Norway have no direct representation through fixed seats
but have been elected to the Norwegian parliament and government via party and
approved lists, and a national Sami People Party (Sámeálbmot
bellodat
) (Josefsen E 2007 ‘The Saami and the National
Parliaments-Channels for Political Influence’ Galdu Cala Journal of
Indigenous Peoples Rights
No. 2., Guovdageaidnu/Kautokeino Norway pp16-17).

[82] A form of Sami business fund was created nationally in Sweden (Target 1), as
well as an ‘all-Sami’ fund (Interreg III) where Norway, Finland,
Sweden and Russia are working jointly for the development and reinforcement of
Sami business and cultural
life.
[83] With the support of the EU’s subsidiarity principle, an improved form of
self-determination has been achieved as a result of the Swedish Sami parliament
and other publicly elected bodies being responsible, and making decisions, for
the use of the funds, as well as prioritising work to
undertake.
[84] Te Puni Kokiri (2007) Statement of Intent 2007-10, available online at: http://www.tpk.govt.nz/en/in-print/our-publications/corporate-documents/soi-2007/page/5/,
accessed 26 June 2008; Statistics New Zealand (2007) Communities: Maori,
available online at: http://www.stats.govt.nz/NR/rdonlyres/3E2AAEF9-1E77-4591-B047-09028D6F29EB/23497/MaoriPopEstAt30Jun1.xls,
accessed 26 June 2008.
[85] Te Puni Kokiri (2007) About Us: Maori Trust Office, available online at: http://www.tpk.govt.nz/en/about/mto/,
accessed 26 June 2008.
[86] Mc Gill, G., (1997) ‘Reserved Seats in Parliament for Indigenous Peoples:
the Maori Example’, Research Note 51, 1996-7, available online at: http://www.aph.gov.au/library/pubs/RN/1996-97/97rn51.htm,
accessed 25 June 2008. And Waitangi Tribunal (1994) ‘Maori Electoral
Optional Report’, pp, available online at: http://www.waitangi-tribunal.govt.nz/reports/viewchapter.asp?reportID=C04FF009-8245-455E-9BF2-A8998413132F&chapter=1,
accessed 25 June 2008.

[87] Joseph, P., (2008) The Maori Seats in Parliament, New Zealand Business
Roundtable May 2008; Tahana, Y., (2008) Abolish Maori Seats, Roundtable Urges,
New Zealand Herald, 30 May 2008, available online at: http://www.nzherald.co.nz/topic/story.cfm?c_id=252&objectid=10513372,
accessed 25 June 2008.
[88] Te Puni Kokiri (2007) Statement of Intent, available online at: http://www.tpk.govt.nz/en/about/strategic/,
accessed 25 June 2008.
[89] New Zealand Treasury (2007) Economic and Financial Overview 2007, available
online at: http://www.treasury.govt.nz/economy/overview/2007/02.htm,
accessed 25 June 2008; Office of Treaty Settlements (2002) Healing the past,
Building a future: A guide to Treaty of Waitangi Claims and Negotiations with
the Crown, p12.
[90]Ibid p11.
[91] Office of
Treaty Settlements (2002) Healing the past, Building a future: A guide to Treaty
of Waitangi Claims and Negotiations with the Crown, p26.
[92] Treaty of Waitangi Fisheries Commission (2002) ‘what it means for you:
Summarising the Report for Agreement’, available online at: teohu.maori.nz/archive/allocation/ahu_whaku_mua/ahu_whakamua_summary.pdf
-,
accessed 25 June 2008.
[93] Weaver, SM 1983,
‘Australian Aboriginal Policy: Aboriginal Pressure Groups or Government
Advisory Bodies Part II’, Oceania, Vol.54 No. 2. p9; Hiatt, LR et al. 1976, National Aboriginal Consultative Committee, Report of
Committee of Inquiry,
Parliamentary Paper 343/1976, Commonwealth Government
Printer, Canberra. p75.
[94] Palmer, K 2004, ATSIC: Origins and Issues for the Future, a Critical Review
of Public Domain Research and Other Materials,
AIATSIS Research Discussion
Paper 12, Research Programme, Australian Institute of Aboriginal and Torres
Strait Islander Affairs, Canberra. p9.
[95] Peate, VG, Platow, MJ and
Eggins, RA 2008 ‘Collective voice and support for social protest among
Indigenous and non-Indigenous Australians: Considering the role of procedural
fairness in an intergroup conflict of interest’, Australian Journal of
Psychology.
pp1-11.
[96] O’Donoghue, L 1986, An Aboriginal and Islander Consultative
Organisation,
Australian Government Publishing Service, Canberra. p43.
[97] These
principles are also reflective of the five principles (collaboration, regional
need, flexibility, accountability and leadership) underpinning the ‘new
arrangements’ for the administration of Indigenous affairs at the federal
level post-ATSIC, cited in Aboriginal and Torres Strait Islander Social Justice
Commissioner, 2004, Social Justice Report 2004 , HREOC, Sydney, p84-85.
[98] It should also be recognised that ATSIC only ever had responsibility for a
limited range of programs. The Senate Select Committee into the abolition of
ATSIC in 2005 found that ATSIC often took the blame for programs it was not
funded to provide (Senate 2005: 13). It lost responsibility for health programs
in the early years of its operation. By 2005 only 15% of its $1.1 billion
allocation was available for discretionary programs. The remainder was mandated
by government and largely quarantined for the Community Development Employment
Projects (CDEP) program and the Community Housing and Infrastructure Program
(CHIP). In all, ATSIC accounted for less than half of all Commonwealth
government expenditure on Indigenous programs (Senate 2005: 13-15).
[99] Behrendt, L 2005,
Habeas Corpus’, Arena Magazine, Vol. 73, pp5,6,25;
Hannaford, J, Huggins J, and Collins B, 2003, Review of the Aboriginal and
Torres Strait Islander Commission: Public Discussion Paper,
Department of
Immigration & Multicultural & Indigenous Affairs, Canberra. p62.
[100] Behrendt, L 2005,
Habeas Corpus’, Arena Magazine, Vol. 73, p7.
[101] Hannaford, J, Huggins J,
and Collins B, 2003, Review of the Aboriginal and Torres Strait Islander
Commission: Public Discussion Paper,
Department of Immigration &
Multicultural & Indigenous Affairs, Canberra. p19.
[102] ALRC Website available at:
http://www.alrc.gov.au/about/index.htm
[103] Mendes, P 2006, Inside the Welfare Lobby: A History of the Australian Council
of Social Service,
Sussex Academic Press, Eastbourne (UK).
pp1-6
[104] Colebatch, HK (ed)
2006, Beyond the Policy Cycle: the Policy Process in Australia, Allen and
Unwin Crows Nest (NSW).
[105] Department of Prime Minister and Cabinet and Australian National Audit Office, Better Practice Guide: Implementation of Programme and Policy Initiatives
– Making Policy Matter,
Commonwealth of Australia, Canberra 2006,
Chapter
6.
[106] Working Group on Indigenous Populations, Standard-setting: Legal commentary
on the concept of free, prior and informed consent
. Expanded working
paper submitted by Mrs. Antoanella-Iulia Motoc and the Tebtebba Foundation
offering guidelines to govern the practice of Implementation of the principle of
free, prior and informed consent of indigenous peoples in relation to
development affecting their lands and natural resources
, UN Doc:
E/CN.4/Sub.2/AC.4/2005/WP.1, 14 July 2005, paras 56-58,
p15.
[107] The Social Justice Commissioner has also suggested convening an annual
conference on service delivery to Indigenous communities, or even the
establishment of a national Indigenous non-government organisation peak body, as
other mechanisms for information sharing and achieving better linkages between
regional representative structures and the national, (Source: Aboriginal and
Torres Strait Islander Social Justice Commissioner, 2004, Social Justice
Report 2004,
HREOC, Sydney, p106-107).
[108] See for example the research work of the Indigenous Facilitation and Mediation
project at AIATSIS on this topic: http://ntru.aiatsis.gov.au/ifamp/.
[109] Extracted from: Working Group on Indigenous Populations, Standard-setting:
Legal commentary on the concept of free, prior and informed consent
. Expanded working paper submitted by Mrs. Antoanella-Iulia Motoc and the
Tebtebba Foundation offering guidelines to govern the practice of Implementation
of the principle of free, prior and informed consent of indigenous peoples in
relation to development affecting their lands and natural resources
, UN Doc:
E/CN.4/Sub.2/AC.4/2005/WP.1, 14 July 2005, paras 56-58,
p15.
[110] Hiatt, LR et al. 1976, National Aboriginal Consultative Committee, Report of
Committee of Inquiry,
Parliamentary Paper 343/1976, Commonwealth Government
Printer, Canberra. pp117-129.
[111] Coombs, HC 1984, The
Role of the National Aboriginal Conference,
Australian Government Publishing
Service, Canberra. pp58-59.
[112] O’Donoghue, L
1986, An Aboriginal and Islander Consultative Organisation, Australian
Government Publishing Service, Canberra. p32.
[113] Langton, M 1994,
‘Self-Determination: Overhauling the Administrative Practices of
Colonisation’ in P. Jull, M. Mulrennan, M. Sullivan, G. Crough and D. Lea
(eds), Surviving Columbus: Indigenous Peoples, Political Reform and
Environmental Management in North Australia,
North Australia Research Unit,
Australia National University, Darwin. Pp133-134.
[114] Hannaford, J, Huggins J,
and Collins B, 2003, Review of the Aboriginal and Torres Strait Islander
Commission: Public Discussion Paper,
Department of Immigration &
Multicultural & Indigenous Affairs, Canberra.
[115] Hannaford, J, Huggins J,
and Collins B, 2003, Review of the Aboriginal and Torres Strait Islander
Commission: Public Discussion Paper,
Department of Immigration &
Multicultural & Indigenous Affairs, Canberra. pp78-80.
[116] It is also possible
that, such as in the National Congress of American Indians, organisations also
have a number of votes allocated to
them.
[117] Hannaford, J,
Huggins J, and Collins B, 2003, Review of the Aboriginal and Torres Strait
Islander Commission: Public Discussion Paper,
Department of Immigration
& Multicultural & Indigenous Affairs, Canberra. pp24-26.
[118] Behrendt, L 2005, Briefing Paper No 5: National Representative Structures, Ngiya Institute
for Indigenous Law, Policy and Practice, Sydney,
pp37-38.
[119] Hiatt, LR et
al.
1976, National Aboriginal Consultative Committee, Report of Committee
of Inquiry,
Parliamentary Paper 343/1976, Commonwealth Government Printer,
Canberra. pp57-62; Coombs, HC 1984, The Role of the National Aboriginal
Conference,
Australian Government Publishing Service, Canberra. pp20-23;
Hannaford et al 2003, Review of the Aboriginal and Torres Strait
Islander Commission: Public Discussion Paper,
Department of Immigration
& Multicultural & Indigenous Affairs, Canberra. pp45-46.
[120] Behrendt, L 2005, Briefing Paper No 5: National Representative Structures, Ngiya Institute
for Indigenous Law, Policy and Practice, Sydney. pp32-36.
[121] Hannaford et al, 2003, Review of the Aboriginal and Torres Strait Islander Commission:
Public Discussion Paper,
Department of Immigration & Multicultural &
Indigenous Affairs, Canberra. pp45-46
[122] ACTU 1985 Constitution,
Rules and Standing Orders. Unpublished Document.
[123] Mendes, P 2006, Inside the Welfare Lobby: a History of the Australian Council of Social
Service,
Sussex Academic Press, Eastbourne (UK). pp1-2.
[124]Ibid. p1.
[125] Hiatt et al 1976, National Aboriginal Consultative Committee, Report of Committee of
Inquiry,
Parliamentary Paper 343/1976, Commonwealth Government Printer,
Canberra. pp117-129.
[126] Coombs, HC 1984, The Role of the National Aboriginal Conference, Australian Government Publishing Service, Canberra. pp25-28,37.
[127] O’Donoghue, L
1986, An Aboriginal and Islander Consultative Organisation, Australian
Government Publishing Service, Canberra. pp27-28.
[128]Ibid. p31.
[129] Rowse, T 2005,
‘The Indigenous Sector in Austin-Broos’, D and G McDonald (eds) Culture, Economy and Governance in Aboriginal Australia, University of
Sydney Press, Sydney. p208.
[130] Human Rights and Equal
Opportunity Commission, Bringing them home, HREOC Sydney 1997,
pp202-206.
[131] For an
overview of the TSRA see Chapter
2.
[132] Davis, M 2008
‘Indigenous women’s representation and the proposal for a new
national representative body’, Indigenous Law Bulletin, Vol. 7, No.
4.
[133]Ibid.
[134] Hannaford et al 2003, Review of the Aboriginal and Torres Strait Islander Commission:
Public Discussion Paper,
Department of Immigration & Multicultural &
Indigenous Affairs, Canberra.
[135]Ibid.
[136] Davis, M 2008
‘Indigenous women’s representation and the proposal for a new
national representative body’, Indigenous Law Bulletin, Vol. 7, No.
4.
[137] Hannaford et al, 2003, Review of the Aboriginal and Torres Strait Islander Commission:
Public Discussion Paper,
Department of Immigration & Multicultural &
Indigenous Affairs, Canberra.
[138]Ibid.
[139] Davis, M 2008
‘Indigenous women’s representation and the proposal for a new
national representative body’, Indigenous Law Bulletin, Vol. 7 No.
4.
[140]United Nations
Declaration on the Rights of Indigenous Peoples
2007 GA Res 61/295, UN Doc
A/RES/47/1
[141] Davis, M 2008
‘Indigenous women’s representation and the proposal for a new
national representative body’, Indigenous Law Bulletin, Vol. 7, No.
4; AFN Women’s Council Gender-Balanced Analysis 2007.
[142] AFN Women’s
Council Gender-Balanced Analysis 2007. p2.
[143] This could draw on the
experiences of the Council for Aboriginal Development (CAD) established as a
subsidiary body of the NAC in 1977(as discussed in section 1 of this paper) as
well as the lessons from the current Ministerial Taskforce and Secretaries
Group.
[144] Viewed at http://www.aph.gov.au/sentate/pubs/briefs/brief05.htm.
[145] Senate, 2005, After
ATSIC-Life in the Mainstream?
Select Committee on the Administration of
Indigenous Affairs, unpublished report, viewed April 8 2008 at http://www.aph.gov.au/Senate/committee/Indigenousaffairsctte/report/final/report.pdf.
p112.
[146]Ibid. p134.
[147] Evans, H 2007,
‘The Senate’, in Hamilton, Clive and Maddison, Sarah (eds) Silencing
Dissent: How the Australian Government is Controlling Public Opinion and
Stifling debate, Allen and Unwin, Sydney.
[148] Sidoti, E 2007,
‘Indigenous Political Representation: A Parliamentary Option’
unpublished concept paper, Whitlam Institute, University of Western Sydney.
[149] Chesterman, J 2008,
‘Forming Indigenous Policy Without Representation Will Fail’, The
Age,
4th March.
[150] Mendes, P 2006, Inside the Welfare Lobby: A History of the Australian Council of Social
Service,
Sussex Academic Press, Eastbourne. (UK). p5.
[151] Indigenous Land
Corporation, 2004, Annual Report, Adelaide.
[152] Senate 2006 Standing
Committee on Community Affairs, Hansard, May 30.
[153] Senate 2007 Standing
Committee on Community Affairs, Hansard, May 28.
[154] ALRAR Task Force, 2005 Structure, representation, Governance and Benefits, 2004-2005 Review of
the Aboriginal Land Rights Act 1983, Issues Paper 2, unpublished report. P17.
[155]Ibid.
[156]Ibid. pp19-21.