Report on the Review ATSIEB Act€¦ · Web view3.15-4pm. Joanne Chivers, ATSIEB Board member....

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

Terri Janke

Commissioned by:

http://www.act.gov.au/

ContentsAcknowledgements..................................................................................................3

Introduction.................................................................................................................4

Review terms of reference.......................................................................................5

Report structure.......................................................................................................6

Abbreviations...........................................................................................................6

Executive Summary.................................................................................................7

1. Background and overview of the ATSIEB Act....................................................18

1.1 Objects.........................................................................................................19

1.2 Functions.....................................................................................................21

1.3 Governance.................................................................................................23

1.4 ATSIEB Elections.........................................................................................24

1.5 Administrative support..................................................................................25

1.6 Analysis of the Act’s framework...................................................................26

2. Key issues..........................................................................................................27

2.1 Things that work...........................................................................................27

2.1.1 Aims of the Act......................................................................................27

2.1.2 Pass on views to the ACT Government.................................................27

2.1.3 Advocacy and Representation: reports and key documents.................29

2.1.4 Programs and Design Services.............................................................31

2.1.5 Monitoring and Reporting: Hearings......................................................32

2.1.6 Communication with non-government entities.......................................33

2.1.7 ATSIEB Election process......................................................................33

2.1.8 ATSIEB Structure aims to represents a complex community................34

2.1.9 Size and term of ATSIEB.......................................................................35

2.1.10 Chair and Deputy Chair positions.......................................................35

2.1.11 Resignations......................................................................................36

2.1.12 Leave.................................................................................................36

2.1.13 ATSIEB Meetings...............................................................................36

2.1.14 Disclosure of interest..........................................................................36

2.2 Things that need improvement.....................................................................38

2.2.1 ATSIEB functions..................................................................................38

1Review of the Aboriginal and Torres Strait Islander Elected Body Act 2008

2.2.2 Focus of ATSIEB risks becoming administrative...................................39

2.2.3 Communication with Aboriginal and Torres Strait Islander Community.40

2.2.4 Engagement with Aboriginal and Torres Strait Islander people.............41

2.2.5 United Ngunnuwal Elders Council.........................................................42

2.2.6 Community forums................................................................................43

2.2.7 ‘Issue of concern’ and individual complaints.........................................44

2.2.8 Limitations of the Directors-General meetings.......................................45

2.2.9 Fostering Community Discussion..........................................................47

2.2.10 Sacred or Significant Cultural Material...............................................47

2.2.11 Research............................................................................................48

2.2.12 Limitations of hearing process............................................................49

2.2.13 Propose Programs and Design Services...........................................49

2.2.14 Key Indigenous organisations............................................................50

2.2.15 Section 10 and non-government entities............................................51

2.2.16 Consultative Bodies of ACT Government...........................................51

2.2.17 Communication systems....................................................................51

2.2.18 Comprehensive consultation..............................................................52

2.2.19 Managing Conflict of Interest: implementation...................................52

2.2.20 ATSIEB Election low votes.................................................................53

2.2.21 Candidates for Election......................................................................55

2.2.22 Inconsistency re: Timetable between ATSIEB Act and Electoral Act. 57

2.2.23 Removal of a member........................................................................58

2.2.24 Part-time vs Full-time.........................................................................58

2.2.25 ATSIEB is under-resourced...............................................................59

3. Recommendations for moving forward...............................................................60

4. Outside of scope of terms of reference...........................................................64

4.1 Independence of ATSIEB.............................................................................64

4.2 Traditional custodians..................................................................................65

Conclusion................................................................................................................65

Appendix 1 – Consultations...................................................................................66


Acknowledgements

I would like thank all those that met with me and provided comments and feedback. I acknowledge the input of Rod Little, Chair of ATSIEB and Diane Collins, Deputy Chair of ATSIEB, the members and secretariat of ATSIEB; the ACT Directors-General that I met with; Julie Tongs and Craig Ritchie from Winnunga Nimmityjah Aboriginal Health Service (AHS); Kim Davison of Gugan Gulwan Youth Aboriginal Corporation and the staff of the Office of Aboriginal and Torres Strait Islander Affairs, especially Craig Leon and Gil Eshman; and the minutes takers Terry Edwards, Maria Vincent and Kerry McGuire. I would also like to acknowledge assistance from my team at Terri Janke and Company; Sarah Grant, Taryn Saunders, Martyn Gray (intern), Andrew Pitt and Veronica Dounis.

Currency: 5 December 2015

Written by:

Terri Janke, Solicitor Director

Terri Janke and Company

PO Box 780

Rosebery NSW 1445

Email: [email protected].

Phone: 02 9693 2577.


mailto:[email protected]

Introduction

The Aboriginal and Torres Strait Islander Elected Body Act 2008 (ACT) aims to enable all Aboriginal and Torres Strait Islander people in the ACT to have a strong democratically elected voice. The law has been operational for 7 years and there have been many successes and challenges in this period.

I have been engaged to independently review the Aboriginal and Torres Strait Islander Elected Body Act to consider how the Elected Body can be strengthened to effectively undertake its role under the objects and functions of the Act.

In undertaking the Review, I consulted widely with Aboriginal and Torres Strait Islander people and ACT Government officers, to ascertain their views on how the model for an Elected Body, as outlined in the Act, was working. These consultations took the form of face to face meetings, community focus group sessions and roundtables. The consultations are outlined in Appendix 1.

The Review also sought feedback from the public through the ACT Government Time to Talk website. We received 57 submissions to a survey on whether the functions of the Act were effective in meeting the objects of the Act.

The scope of this Review is to examine the components of the Act and associated policies and procedures that have assisted the Elected Body in fulfilling the objectives and functions of the Act. I undertook wide consultations to canvas views on this.

I was asked to focus on Aboriginal and Torres Strait Islander community consultation. It was relevant to consider the Aboriginal and Torres Strait Islander community’s view of whether the ATSIEB Act ensured maximum opportunity for the voice of Aboriginal and Torres Strait Islander people living in the ACT to reach decision-makers in government.

In undertaking the review I also consulted widely with the Elected Body and members of the Aboriginal and Torres Strait Islander Sub-Committee of the ACT Public Service Strategic Board; officer from the ACT Government and identified community stakeholders.

The Review also required examination of the effectiveness of supporting administrative and governance arrangements in giving intent to the objects and functions of the Act.

It is important to note that the Review is about examining the mechanisms of the Act in an effort to make recommendations for improvement in the legal model within which ATSIEB operates. The Review is not a performance review of the ATSIEB. The many comments received during the consultations have been useful in guiding


my recommendations for changes to the aims, objectives and operations of the Act; and improvements to supporting administrative and governance arrangements.

The areas I suggest for improvement are not a reflection of the performance of the Elected Body or any of its members. Rather, they are suggestions to clarify and improve the legal parameters under which ATSIEB operates, so that the work of ATSIEB can better align with the objects of the Act. ATSIEB has performed its functions under the Act.

I have inserted stakeholders’ views where they are relevant to the area of the Act being discussed. It is important to note that they are not my views and that they are represented in order to provide context.

Review terms of referenceThe Review aims to:

inquire and make general recommendations as to the aims, objectives and operations of the Aboriginal and Torres Strait Islander Elected Body Act 2008;

inquire into and make recommendations as to whether the administrative and operational provisions within the Act require any changes to facilitate and improve the efficacy of the Act;

report all findings and recommendations, incorporating public responses following a period of consultation;

recommend improvements into the effectiveness of the Elected Body to undertake its role and functions of the Elected Body as intended by the Aboriginal and Torres Strait Islander Elected Body Act 2008; and to

identify the impediments to the Elected Body operating effectively in the context of its role and functions as described in the Aboriginal and Torres Strait Islander Elected Body Act 2008.


Report structure

In Part 1 of this Report, the background and context of the Aboriginal and Torres Strait Islander Elected Body Act 2008 will be discussed.

Part 2 reports on the findings which incorporate public responses received during the consultation period. I have divided these findings into things that work and things that need improvement. This section identifies the impediments to the Elected Body operating effectively.

Part 3 sets out the recommendations for changes to the objects and functions of the Act, and improvements in the administrative and governance arrangements supporting the Elected Body in fulfilling its aims and objects of the law.

Part 4 highlights some additional issues canvassed in consultations which come outside of the Review terms of reference, but are important related issues that I would like to draw to the attention of the ACT Government in an effort to assist them towards effective engagement with Aboriginal and Torres Strait Islander community.

Abbreviations

ACT Australian Capital Territory

ATSIEB Aboriginal and Torres Strait Islander Elected Body

ATSIC Aboriginal and Torres Strait Islander Commission

COAG Council of Australian Governments

CSD Community Services Directorate

OATSIA Office of Aboriginal and Torres Strait Islander Affairs

RAP Reconciliation Action Plan

UNEC United Ngunnawal Elders Council


Executive Summary

Introduction

The Aboriginal and Torres Strait Islander Elected Body Act 2008 (ACT) aims to enable all Aboriginal and Torres Strait Islander people in the ACT to have a strong democratically elected voice. Terri Janke conducted extensive consultations to inquire whether the objects, functions and administrative and operational provisions of the Act enable the fulfilment of the aim of the law.

Part 1 Background and Context of ATSIEB Act 2008

ATSIEB was enacted to provide a representative voice for Aboriginal and Torres Strait Islander people, and to keep the ACT government accountable.

It is commonly stated that ATSIEB was established in reaction to the demise of the Aboriginal and Torres Strait Islander Commission. There are similarities in the Aboriginal and Torres Strait Islander Commission Act and the Aboriginal and Torres Strait Islander Elected Body Act, but ATSIEB is not intended to cover the scope that ATSIC had.

The ATSIEB Act has four main parts:

1. Establishment and functions of ATSIEB2. ATSIEB Members3. ATSIEB Meetings4. ATSIEB Elections.

The ATSIEB Act establishes a democratically elected body with functions that cover roles of facilitation, representation and advocacy; research; consultation; monitoring and reporting; and advice on protection of Aboriginal and Torres Strait Islander cultural material. These functions of the ATSIEB Act are very wide and the role of ATSIEB is not well understood by the Aboriginal and Torres Strait Islander community.

There are 7 ATSIEB part-time members, elected for 3 year terms.

ATSIEB is statutorily required to meet at least 6 times a year, to conduct community forums at least twice a year, and to consult with the United Ngunnawal Elders Council.

In addition, ATSIEB meets with Directors-General every month, and conducts hearings at the end of the year. This has resulted in a high level of work for ATSIEB members but has tended to move from the higher level strategic work to more administrative work.

In implementing the ATSIEB Act, ATSIEB is provided with a Secretariat of 2.5 staff, and has a budget of approximately $400,000.


ATSIEB has limited capacity to fulfil all the functions in the Act to the level they would like to and what is expected of them by the Aboriginal and Torres Strait Islander community.

Part 2 Key Issues

2.1. Things that work

The objects set out in section 3 are mostly all still relevant. ATSIEB is highly valued as providing a voice, and maximum participation, for Aboriginal and Torres Strait Islander people. It aims to ensure coordination of government policies and advance the economic, social and cultural development of Aboriginal and Torres Strait Islanders in the ACT. However, ATSIEB should not be considered to be responsible for all Aboriginal and Torres Strait Islander programs and services of the ACT Government. It does not have any powers or budget.

The opening sentence to section 3 should be updated to be consistent with language in the Declaration on the Rights of Indigenous Peoples.

ATSIEB has performed its function as set out in the Act to pass on the views of Aboriginal and Torres Strait Islander people on issues of concern to the Minister. ATSIEB is highly valued by ACT Government in this function, however, there is concern that ATSIEB needs to be more representative and consult with the community about the things that put up to government.

Advocacy and representation has been advanced by ATSIEB through community forums, and a range of key documents such as the ACT Aboriginal and Torres Strait Islander Agreement 2015 – 2018.

ATSIEB has proposed a range of programs and services in carrying out its function under section 8(f). This includes the ACT Crime Prevention Strategy and the launch of the community bus. However, there is concern that ATSIEB is undertaking program implementation and getting involved in day-to-day decisions.

In meetings it’s monitoring and reporting functions, the ATSIEB has been highly praised for the hearings process conducted each year. However, these are not legislated and there is a lack of clarity around the process of delivering reports to the ACT Government and the ACT Government reporting back to ATSIEB.

In its communication with non-government entities, ATSIEB is seen to have an important role with non-Aboriginal and Torres Strait Islander organisations in helping with engagement with the Aboriginal and Torres Strait Islander community. The key Aboriginal and Torres Strait Islander organisations however have disengaged with ATSIEB and do not view them as advocating on their behalf.


The ATSIEB Election Process set out in the Act is satisfactory in delivering a democratically elected ATSIEB. All adult Aboriginal and Torres Strait Islanders living in the ACT can vote because the Act includes those enrolled and those that are entitled to enrol to vote. This aspect is not widely known by the Aboriginal and Torres Strait Islander community and should be promoted.

ATSIEB’s structure of 7 members, with a chair and a deputy chair, and terms of 3 years, is working. Although there were suggestions that there should be co-Chairs; specific positions for issues and sections of the community; and limited terms, the Act sets out a democratic process that sections of the Aboriginal and Torres Strait Islander community can use to ensure their views are represented.

Many people considered that a small number of the Aboriginal and Torres Strait Islander community vote. In 2012, the ATSIEB Act was amended to include flexible voting processes during NAIDOC Week. This resulted in an increase in the vote from 173 in 2011 to 374 in 2014.

There are administrative provisions relating to resignations and leave that are working well.

The ATSIEB meeting provisions set out the frequency, presiding members, quorum and voting as well as conduct at meetings. These provisions are satisfactory.

The disclosure of interest provisions are clearly designed to provide a clear process. ATSIEB has also adopted a Code of Conduct that promotes values and behaviour aligned to the Nolan Principles – Seven Principles of Public Life.

2.2. Things that need improvement

The functions of the ATSIEB Act are too wide and there is a general view among Aboriginal and Torres Strait Islander people that the Act has no power. There is confusion about the role of ATSIEB. The functions are interpreted widely, and need to be reduced to a strategic high level role.

The focus of ATSIEB risks becoming too administrative in the carrying out of its function under section 8(f), to propose programs and design services.

Communication with the Aboriginal and Torres Strait Islander community in furtherance of the functions in section 8(a) to (e) were seen as a key focus of ATSIEB. However, the community forum mechanism in the law was seen as being limiting. A more comprehensive consultation approach was called for.

The Act’s ability to deliver engagement with the Aboriginal and Torres Strait Islander people is set out mainly in its election process and the community forum. The ATSIEB election model is sound but there is a problem with engagement in elections, community forums and community consultation.


This will not be fixed legislatively but is really about relationship building. A strategic approach is required. Researching a community profile would assist highlight some of these shortfalls.

ATSIEB must consult with the United Ngunnuwal Elders Council in carrying out its function. The Act has no details as to the frequency or topics. ATSIEB does consult with UNEC however there have been difficulties due to the infrequency of UNEC meetings. There is a need for parameters to be set around consultations between both these entities. The relationship between UNEC and the ACT Government is outside the scope of this Review but needs to be addressed to clarify ATSIEB’s functions. There is inconsistency with the ATSIEB Act and the Heritage Act concerning who is consulted about cultural material.

ATSIEB has conducted community forums in meeting its obligations in section 11 of the ATSIEB Act. However, these are generally not well favoured by Aboriginal and Torres Strait Islander people who call for a more flexible and comprehensive consultation plan. It was noted that section 13 of the Act only requires ATSIEB to invite the representative Aboriginal organisations under the Heritage Act 2004, and that all Aboriginal and Torres Strait Islander organisations should be invited.

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

The Directors-General meetings, whilst praised by the ACT Government, were seen by the Aboriginal and Torres Strait Islander community as not being transparent. There was evidence that individual ATSIEB members were including Aboriginal and Torres Strait Islander representative groups in meetings. Where this occurred there were good results. To streamline the process, consideration should be given to sharing learnings across directorates from what is working well. This could include setting up standard agendas, KPIs and guides on what matters are discussed in these meetings.

There is more to be done in fostering community discussion. Many Aboriginal and Torres Strait Islander people saw this as a shortfall. There is evidence that ATSIEB is attempting to engage people in the debate, but there should be more collaboration and trust building so that the whole community is involved.

The function of the Act that requires ATSIEB to consult with UNEC if asked on a matter of cultural material protection in 8(j) is inconsistent with the Heritage Act. In any case, it seems that ATSIEB refers any Ngunnuwal cultural material matters to UNEC and does not advise ACT Government. This section should


limited to Ngunnuwal cultural material and not all Aboriginal and Torres Strait Islander cultural heritage, which I consider was its intention.

There are limitations of capacity that have hindered ATSIEB in carrying out its research functions. Although those I spoke to who were involved in the drafting of this law said that it was the intention that ATSIEB work with ACT Government to set the research agenda, ATSIEB’s ability to require research to fulfil its functions is limited to bringing in expertise of OATSIA or the directorates, who often prioritise their work over the ATSIEB research agenda.

The hearings process is seen as a key function of the ATSIEB but it is not legislative. There are no parameters around reporting and accountability of Government. This should be legislated for, so that the powers and processes are clearly outlined.

The proposing and design of services function has potential to lead the ATSIEB into administrative tasks. ATSIEB must take a high level approach such as was done when it established the Partnership Agreement.

Section 10 provides that ATSIEB may communicate with non-government entities providing a service or administering a program. There is confusion that this allows ATSIEB to deal with complaints.

Section 3(e) objects states that the Act provides for advice to be given on appropriate representation of Aboriginal and Torres Strait Islander people living in the ACT on consultative bodies established by the ACT Government. This should be a function of the Act. The intention of the section is to allow for wider representation of skilled and appropriate Aboriginal and Torres Strait Islander people on advisory groups.

ATSIEB has done well to set up a website, e-communications and reports. Some feedback requested more diversity in the communication material included letters, face to face meetings and plain English versions of reports.

There were questions about the effectiveness of the ATSIEB elections due to the low voter turnout. However, as noted this has improved dramatically after the changes to the ATSIEB Act in 2012 so that around 11% of the Aboriginal and Torres Strait Islander voting population take part in the election. It is a non-compulsory vote which would be difficult to make compulsory. There is much more to be done in promoting ATSIEB’s value, and the importance of voting.

More should be done to encourage candidates for elections to promote their policies and positions, so that voters can make informed decisions. Also, candidates should be made aware of the obligations so they can fully consider taking it on.

There is an inconsistency between section 118 of the Electoral Act 1992 and Section 29 of the ATSIEB Act relating to the election timetable. At row 4, the


ATSIEB Election timetable states that the order of the ballot paper is to be decided ‘as soon as practicable after nominations’ and the Electoral Act states ‘as soon as practicable after 12 noon on the last Wednesday before polling starts’. This should be the same.

An ATSIEB member may be removed from their position because of ‘misbehaviour’ but there is no interpretation of what this means. There is a need for some guidance on this point.

There was debate about whether the part-time status of members in section 14(b) was sufficient given that large amount of work that ATSIEB members report that the position requires. Once the functions are clarified and guidelines set, consideration should be given to whether there is justification for full-time positions.

Part 3 Recommendations

General

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

Changes and clarifications to provisions in the Aboriginal and Torres Strait Islander Elected Body Act 2008 (ACT)

Objects

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

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

Functions

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

a. Change 8(f) – ‘to propose programs and services’.


b. Change Section 8(j) to refer to Ngunnawal cultural heritage, and move this function to section 9, consultation etc. with UNEC.

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

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

UNEC

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

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

Community Forums

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

10. Review of clauses 11 – 13 relating to the community forums:a. The forums should not be the only legislative mechanism for

canvassing the issues of concern for Aboriginal and Torres Strait Islander people and consideration of mechanisms for ATSIEB to develop a wider consultation plan;

b. The wider Aboriginal and Torres Strait Islander community should be invited including key Indigenous organisations.

c. The review should consider how ATSIEB will report back.

11. Amendments to section 13 should require invitation to key Indigenous organisations, UNEC and representative organisations – and further establish.

Hearings

12. A new division should be included in Part 2 of the ATSIEB Act that provides power to ATSIEB to conduct hearings and the process of tabling reports, and the response by the ACT Government. This division could detail the communications between ATSIEB and the Aboriginal and Torres Strait


Islander community regarding the hearings and a clear process for how the community feeds into the questioning; the reporting processes to the ACT Government, and ACT Government response to ATSIEB and timeframes.

Elections

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

Improvements to the effectiveness of the Elected Body in effectuating the provisions in the Act

Dealings with ACT Government

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

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

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

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

Dealings with the Aboriginal and Torres Strait Islander Community

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

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


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

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

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

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

Dealings with UNEC

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

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

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

Discussions with non-government entities

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

Elections and voting

28. Campaign to get more candidates – for instance, kits for candidates to communicate their policies and positions.

29. Continue to work towards increasing the voter turnout at elections.


30. Promote the fact that the ATSIEB Elections allow voting from Aboriginal and Torres Strait Islander people who are eligible to vote, but not necessarily enrolled to vote.

ATSIEB Governance

31. To assist with meetings under s 25 of the Act, governance documents for managing meetings and workflow should be developed.

32. Governance training for ATSIEB members about director duties, conflict of interest and ethics – to be included at induction, and on-going.

33. Clarify misbehaviour for the purposes of removal of a member provisions. Section 19 should also allow Chair to advise Minister where a member is recommended for removal.

Part 4 Outside the scope of the terms of reference

There were comments about whether ATSIEB should be an independent entity if it is to objectively undertake its role to monitor and report on the effectiveness and accessibility of the ACT Government’s Aboriginal and Torres Strait Islander programs.

The relationship between traditional custodians and the ACT Government requires consideration which is outside the scope of this Review. Once worked out, section 9 of the ATSIEB Act may need amendment or be potentially removed. In the interim, it is advisable that the ACT Government establish how it consults with all traditional owner groups in the ACT. There is a need for consistency between the ATSIEB Act and the Heritage Act.

Conclusion

The ATSIEB Act established a democratically elected model that gives a voice to Aboriginal and Torres Strait Islander people. The ATSIEB is recognised for the value it brings to government and community, and should be maintained, but improved by the recommendations outlined in this Review.


1. Background and overview of the ATSIEB Act

The Aboriginal and Torres Strait Islander Elected Body Act 2008 (the ATSIEB Act) was passed in the ACT Legislature in 2008 and came into effect on 15 May 2008. The main focus of the Act is to ensure maximum participation by Aboriginal and Torres Strait Islander People in the ACT in the formulation, co-ordination and implementation of government policies that affect them.1

According to Jon Stanhope, then Chief Minister when ATSIEB was established, the idea of the Elected Body came from a need to deal with the fact that the Council of Australian Governments (COAG) decided to abolish the Aboriginal and Torres Strait Islander Commission. When the COAG announced their intention to abolish ATSIC in 2004, Stanhope was concerned about the loss of democratic representation for Aboriginal and Torres Strait Islander people within government. He then led the ACT government to enact a law to set up a representative entity to continue to allow an Indigenous voice. It was intended to establish a model that could be followed by other states and territories. But this did not happen. The Australian Capital Territory has been, and remains, the only state or territory with an Aboriginal and Torres Strait Islander Elected Body.

According to the Act’s Explanatory Statement, the Aboriginal and Torres Strait Islander Community Consultative Council consulted with the ACT Aboriginal and Torres Strait Islander community on the possible structure of a representative body in 2006.

Despite the fact two years passed from this consultation stage to the passing of the Act, many people stated in the consultation for the Review that the Act was rushed, and that there was limited consultation with Aboriginal and Torres Strait Islander people.

The intention of the ATSIEB Act however, was never to create a miniature ATSIC for the Australian Capital Territory. Its purpose was to establish a voice of Aboriginal and Torres Strait Islander people. This link with the Aboriginal and Torres Strait Islander Commission has tended to create a misconception in the Aboriginal and Torres Strait Islander community concerning the roles and functions of ATSIEB. The ATSIEB Act may have some similarities in its objects to the ATSIC Act, however, it does not have the extensive framework and powers that underpinned ATSIC.

1 Explanatory Statement, Aboriginal and Torres Strait Islander Elected Body Bill 2008.


1.1 Objects

The Aboriginal and Torres Strait Islander Elected Body Act has the following objects:

Section 3 – Objects

The objects of this Act are, in recognition of the disadvantaged position of Aboriginal and Torres Strait Islander people living in the ACT—

(a) to ensure maximum opportunity for the voice of Aboriginal and Torres Strait Islander people living in the ACT to reach decision-makers in the government and its agencies; and

(b) to ensure maximum participation of Aboriginal and Torres Strait Islander people living in the ACT in developing and implementing government policies affecting them; and

(c) to ensure coordination by government agencies in developing policies affecting Aboriginal and Torres Strait Islander people living in the ACT without detracting from, or diminishing, the responsibilities of those agencies to provide services for the broader community; and

(d) to further the economic, social and cultural development of Aboriginal and Torres Strait Islander people living in the ACT; and

(e) to provide for advice to be given on appropriate representation of Aboriginal and Torres Strait Islander people living in the ACT on consultative bodies established by government agencies.

Three of the objects of the ATSIEB Act mirror the objects of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).

ATSIEB 3(b) – ‘maximum participation’ is based on the ATSIC Act section 3(a).ATSIEB 3(c) – ‘ensure coordination’ is based on the ATSIC Act section 3(d).ATSIEB 3(d) – ‘to further the economic, social and cultural development; is based on the ATSIC Act, section 3(c).

However, the ATSIEB Act does not reproduce the ATSIC Act object 3(b) ‘to promote the development of self-management and self-sufficiency among Aboriginal persons and Torres Strait Islanders.’ Rather, the ATSIEB includes clause 3(a) – to ensure maximum opportunity for the voice of Aboriginal and Torres Strait Islander people to reach decision makers; and 3(e) - to provide for advice to be given on appropriate representation of Aboriginal and Torres Strait Islander people living in the ACT.


http://www.austlii.edu.au/au/legis/cth/num_act/aatsica1989478/s.html#torres_strait_islander

http://www.austlii.edu.au/au/legis/cth/num_act/aatsica1989478/s.html#aboriginal_person

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:

a) to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them;

b) to promote the development of self-management and self-sufficiency among Aboriginal persons and Torres Strait Islanders;

c) to further the economic, social and cultural development of Aboriginal persons and Torres Strait Islanders; and

d) 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.

According to Larissa Berhrendt who wrote extensively about the governance of the ATSIC, ATSIC had both an administrative and elected arm and so it had to play a delicate balancing act as a representative voice for Aboriginal and Torres Strait Islander peoples at the national level while also operating as a government agency.2 She points to the fundamental issue:

‘To fulfil this responsibility ATSIC needed the active cooperation and involvement of Commonwealth agencies and State and Territory governments. This in turn required an interface backed by executive authority from the Department of Prime Minister and Cabinet. This authority was never given to ATSIC and the activities of Prime Minister and Cabinet were often to the contrary to ATSIC’s stated policies and intentions.’3

There is a similar predicament with ATSIEB. ATSIEB has the role as a representative voice but also functions to monitor and report on the effectiveness

2 Larissa Behrendt, ‘The abolition of ATSIC – Implications for democracy,’ Democratic Audit of Australia – November 2005, http://library.bsl.org.au/jspui/bitstream/1/679/1/200511_behrendt_atsic.pdf

3 Ibid, p 3.


and accessibility of ACT government programs to the Aboriginal and Torres Strait Islander community.

1.2 Functions

ATSIEB has the following functions (Section 8):

(a) to receive, and pass on to the Minister, the views of Aboriginal and Torres Strait Islander people living in the ACT on issues of concern to them;

(b) to represent Aboriginal and Torres Strait Islander people living in the ACT and to act as an advocate for their interests;

(c.) to foster community discussion about—

(i) issues of concern to Aboriginal and Torres Strait Islander people living in the ACT; and

(ii) the functions of ATSIEB; and

(iii) this Act.

(d) to conduct regular forums for Aboriginal and Torres Strait Islander people living in the ACT and report the outcomes of those forums to the Minister;

(e) to conduct research and community consultation to assist ATSIEB in the exercise of its functions;

(f) to propose programs and design services for Aboriginal and Torres Strait Islander people living in the ACT for consideration by the government and its agencies;

(g) to monitor and report on the effectiveness of programs conducted by government agencies for Aboriginal and Torres Strait Islander people living in the ACT;

(h) to monitor and report on the accessibility by Aboriginal and Torres Strait Islander people living in the ACT to programs and services conducted by government agencies for the general public;

(i) when asked by the Minister, to give the Minister information or advice about any matter stated by the Minister;

(j) when asked by a government agency or another person, and in consultation with UNEC, 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 and Torres Strait Islander people living in the ACT;


http://www5.austlii.edu.au/au/legis/act/consol_act/aatsieba2008448/s6.html#conduct

http://www5.austlii.edu.au/au/legis/act/consol_act/aatsieba2008448/s6.html#conduct

(k) any other function given to ATSIEB by the Minister;

(l) any other function given to ATSIEB under this Act or another territory law.

Some of the above functions are influenced by the ATSIC Act. For instance:

Section 8(f) of the ATSIEB Act concerning the proposing of programs and design of services is similar to Section 7(a) of the ATSIC Act.

Section 8(g) of the ATSIEB Act concerning the monitoring and reporting on the effectiveness of programs is similar to the section 7(b) of the ATSIC Act.

Section 8(i) of the ATSIEB Act concerning Ministerial requests is similar to section 7 (f) of the ATSIC Act.

Section 8(j) of the ATSIEB Act concerning protection of cultural material is similar to section 7(g) of the ATSIC Act.

Section 8(k) of the ATSIEB Act concerning other functions given by the Minister is similar to section 7(k) of the ATSIC Act.

Section 8(l) of the ATSIEB Act concerning any other function given by this Act or territory law is similar to section 7(j) of the ATSIC Act.

The 12 functions in s 8 of the ATSIEB Act are wide and cover the following roles:

Facilitation Representation and Advocacy Research Consultation Monitoring and Reporting Advice on the protection of Aboriginal and Torres Strait Islander cultural

material.

To meet its functions, the ATSIEB Act has the following provisions:

Consultation with UNECSection 9 provides that ATSIEB must consult with and consider the view of United Ngunnawal Elders Council. (UNEC)

Communication with Non-Government SectorSection 10 provides that ATSIEB must communicate with a non-government entity providing a service or administering a program used by Aboriginal and Torres Strait Islander people living in the ACT.

Community ForumsSection 11 provides that ATSIEB must conduct a community forum on areas of interest to Aboriginal and Torres Strait Islander people living in the ACT at least twice each financial year. Section 12 requires ATSIEB to tell people about the community forums at least 14 days before the forum. Section 13 states that ATSIEB must invite someone from a representative Aboriginal organisation under the Heritage Act 2004


to participate in each community forum and also sets out principles for conducting those forums.4

1.3 Governance

The ATSIEB Act also addresses the governance of ATSIEB by providing for its structure and the formalities of its meetings.

Section 14 provides that ATSIEB have 7 elected members holding office on a part-time basis.

The term of office corresponds to the date they are elected to the date of the result of the next ATSIEB election. Elections occur approximately every 3 years.

The ATSIEB Act also provides for the following:

ATSIEB ChairThe ATSIEB Chair is elected for three years, by majority vote of ATSIEB members at an ATSIEB meeting.5

ATSIEB Deputy ChairThe ATSIEB Act contains a position for an ATSIEB Deputy Chair who is elected by majority vote of ATSIEB.6 The Deputy Chair takes on a role of Chair when the Chair is vacant.

Removal of MembersThere are provisions relating to the removal of ATSIEB members which empower the Minister to remove an ATSIEB member if they break the law in exercising their functions; for misbehaviour and if they become bankrupt.

Provision for LeaveSection 20 of the ATSIEB Act provides for leave. ATSIEB may allow the ATSIEB chair to take leave, and the ATSIEB Chair can allow ATSIEB members to take leave unconditionally or conditionally, but it must not be for longer than a year.

MeetingsATSIEB is required to hold meetings at least 6 times a year.7

To have a quorum there must be at least 5 ATSIEB members present.8 Questions put to ATSIEB are decided on a majority of votes, but if equal, the presiding member has the deciding vote.9 Conduct at ATSIEB meetings are also generally provided for.10

4 Section 13(2) – for instance, the forum should focus on the particular area of interest to be discussed; must be open and transparent and should lead to sustainable decisions by involving effective community engagement.5 Section 15, ATSIEB Act 6 Section 16, ATSIEB Act7 Section 21, ATSIEB Act8 Section 23, ATSIEB Act9 Section 24, ATSIEB Act 10 Section 25, ATSIEB Act


Executive Officer of a Government Agency invited to ATSIEB meetingSection 26 provides that ATSIEB may invite an executive officer of a government agency to attend ATSIEB to discuss any issues relating to the function of ATSIEB or the government agency.

Disclosure of interestAn ATSIEB member must disclose a material interest on an issue being considered, or about to be considered, by ATSIEB.11 They may not be present when ATSIEB considers this decision. Material interest is widely defined to include a direct or indirect financial interest or an direct or indirect interest that could conflict with the proper exercise of the ATSIEB member’s functions in relation to an issue being considered by ATSIEB.

1.4 ATSIEB Elections

To address the representative functions, the Act sets up a system for democratically held elections in Part 3.

ATSIEB Elections must be held every three years.12 The ACT Electoral Commission must take reasonable steps to tell people about the ATSIEB Elections.13

ATSIEB Elections are non-compulsory.

Aboriginal and Torres Strait Islander people living in the ACT that are enrolled to vote, or entitled to enrol to vote can participate in ATSIEB Elections.

The Act, along with the ACT Electoral Act, sets up the nomination processes.

There is provision for a review panel to be established prior to an election, to review any decision made by an Aboriginal and Torres Strait Islander liaison offer at an election booth, about whether an elector is Aboriginal or Torres Strait Islander, or lives in the ACT.14

11 Section 27, ATSIEB Act 12 Section 29A, ATSIEB Act.13 Section 30, ATSIEB Act.14 Section 125A, ACT Electoral Act


1.5 Administrative support

There are no provisions in the Act that deal with administrative support, budget or resources to the ATSIEB.

If you compare this to the ATSIC model, ATSIC had both an elected arm and an administrative arm. It also had a substantially bigger budget than the ATSIEB.

Currently the ATSIEB Secretariat has two full time permanent staff and another worker is shared with OATSIA for 2.5 days a week. The main focus of the ATSIEB Secretariat is on coordination and logistics of meetings and members. There is a policy position shared with OATSIA.

OATSIA help ATSIEB develop policy papers and submissions, and have in the past assisted with research.

Funding to ATSIEB has been around the $400,000 per annum mark. This amount covers staffing costs, elected body member stipends and logistics, with $40,000 for ATSIEB discretion.

To deal effectively with government, the ATSIEB members have taken portfolios and meet with the Directors-Generals each month. This practice was adopted in 2011 when the ACT Government restructured to form new directorates. ATSIEB members’ portfolios are not defined in the Act. Recent changes to the MLAs in the ACT may impact how ATSIEB divides its portfolios.

Portfolios of ATSIEB members

Rod Little (Chair) Chief Minister, Treasurer & Economic Development

Diane Collins (Deputy Chair) Justice & Community Safety (includes ACT Policing and the Human Rights Commission)

Maurice Walker Health

Richard Allan Territory & Municipal Services

Ross Fowler Education & Training (includes CIT and other educational institutions)

Tony McCullough Environment & Planning

Jo Chivers Community Services


1.6 Analysis of the Act’s framework

The main aim of the ATSIEB Act is to provide a representative voice for Aboriginal and Torres Strait Islander people and to keep the ACT government accountable. This is why the approach of the law has been to set up a model where ATSIEB is to conduct community forums as a key consultation method for the government to canvas the views of Aboriginal and Torres Strait Islander people in formulating laws and policy.

The ATSIEB Act established a democratically elected body which arguably provides the mandate for ATSIEB to be representative. ATSIEB was envisaged to be an independent Aboriginal and Torres Strait Islander body, removed from the ACT government. However, ATSIEB has certain functions that set up Ministerial control, such as its function to give the Minister information or advice about any matter.15 Furthermore, the Minister has statutory powers to remove ATSIEB members.16

There are two functions in the Act relating to powers to monitor and report on the impact of the ACT Government’s policies although there are no detailed provisions as to how ATSIEB is to do this. The power to invite executive officers of a government agency to ATSIEB meetings ‘to answer questions or provide information about the functions of the government agency’ is the only legislative power that the ATSIEB has to fulfil these two functions.17

Since 2009, ATSIEB has conducted annual hearings in the ACT Legislative Assembly. Furthermore, since its second term, ATSIEB has been meeting with Directors-General on a monthly basis, in order to influence programming and policies. These developments are not legislatively provided for, but are arguably in the spirit of the functions of the Act, which are aimed at monitoring,, reporting and proposing programs as well as designing services.18

The key issues for ATSIEB are balancing its statutory roles as a facilitation and representative body, an adviser on policy and services and a monitor and reporter; and performing these roles with limited resources and support. There are also other issues that relate to the governance and support structures and operational measures put in place to support ATSIEB in exercising its functions.

15 Section 8 (i), ATSIEB Act16 Section 19, ATSIEB Act17 Section 26(2), ATSIEB Act18 See, s 8, ATSIEB Act


2. Key issues

2.1 Things that work

2.1.1 Aims of the Act

The ACT Aboriginal and Torres Strait Islander Elected Body Act 2008 is considered an important model for Aboriginal and Torres Strait Islander empowerment and participation in government. Aboriginal and Torres Strait Islander community members and ACT Government officers supported the ATSIEB model in principle because it is a framework for a representative voice.

The overwhelming majority supported the ATSIEB Act but considered that it needed clarification with respect of its functions.

Some comments included:

The ACT ATSIEB model seems to be the best example in Australia of a Government and a representative Aboriginal body relating to each other in a way that is almost in accordance with the main principles of the UN Declaration on the Rights of Indigenous peoples.

I fully support ATSIEB but I am hoping the review will improve the Model. ATSIEB is useful; it just probably was not implemented, fully funded and

supported by ACT Government. Overall ATSIEB is an informative body that represents Aboriginal and/or

Torres Strait Islander people. It promotes effectively to the community and also provides updates on what they are working on and what policies they are acting on. When I say somewhat effective, I believe that while they are able to voice concerns unless we have people in power listening to those concerns, the issues are never fully addressed.

Most of the ACT Government Directorate Generals and MLAs that I spoke to praised the ATSIEB model. The Directorate Generals acknowledged that the ATSIEB was invaluable to assist them with getting feedback for their policies and programs.

2.1.2 Pass on views to the ACT Government

The ATSIEB Act contains the function to ‘receive, and pass on to the Minister, the views of Aboriginal and Torres Strait Islander people living in the ACT on issues of concern to them.’19 It also contains the provision to ‘report the outcomes of the

19 Section 8(f), ATSIEB Act.


community forums to the Minister”20 and to monitor and report on the effectiveness and accessibility of programs.

ATSIEB advises the ACT Government by meeting with Directors-General and reporting to the Minister and ACT public servants. Currently, ATSIEB meets regularly with the Minister of Aboriginal and Torres Strait Islander Affairs.

ATSIEB members have taken portfolio positions and meet with Directors-General regularly. These portfolio meetings were adopted in 2011 establish strong engagement between the directorates and ATSIEB. ATSIEB members considered that these meetings were an effective way for them to influence ACT Government policy and services because it enabled them to raise issues and make suggestions and in a less formal environment.

Most Directors-General spoke highly of the Directors-General portfolio meeting arrangements. The practices employed in these meetings varied between agencies. Some Directors-General felt that the meetings focussed on reporting, but hoped the agenda would be more strategic in the future. Directors-General expressed a strong commitment to work together more strategically so that ATSIEB can have an input into the budget and setting targets.

Some feedback from ACT Government officials include:

Great work being done – the Partnership Agreement is a key document that allows government develop a whole of government approach via an implementation plan.

Getting more strategic in our approach – finding them useful as a key consultation mechanism for RAP, and also for developing policy.

The consultation with the ATSIEB is valuable but can be very lengthy – there needs to be more structure around the process.

The Aboriginal and Torres Strait Islander community is complex and dealing with ATSIEB allows directorates to address engagement with the community.

The meetings provide support on how to engage and get advice. The monthly Director-General meetings range from just telling the members

what gets done, to working strategically and setting goals and measures to drive how directorates will deal with ensuring that their programs and services are effective and accessible.

There were differences between how each Directorate approaches the Director-General meetings and for this reason I consider that this measure also needs improvements which will be discussed in Part 2.2.

20 Section 8(e). ATSIEB Act.


2.1.3 Advocacy and Representation: reports and key documents

ATSIEB has the function to ‘represent Aboriginal and Torres Strait Islander people living in the ACT on issues of concern to them’.21 ATSIEB played a key role in instigating the need for a whole of government approach and comprehensive consultation. ATSIEB developed a comprehensive list of reports and key documents that have established a strong framework. Key documents include the ACT Aboriginal and Torres Strait Islander Agreement 2015-2018, and the ACT Aboriginal and Torres Strait Islander Justice Partnership 2015-2018 which have been derived from the Strategic Plan and the Community Priorities documents, which were the result of ongoing community consultation undertaken by ATSIEB since 2012 through to 2015. ATSIEB hosts its own website and issues communiques and E-messages via email to a wide range of community representatives and organisations on a regular basis.

ATSIEB has established strategic directions and has developed a long term plan for improving the Aboriginal and Torres Strait Islander Community economic, social and cultural development of people living in the ACT, as per objects in 3(d) of the ATSIEB Act. The ACT Aboriginal and Torres Strait Islander Agreement 2015-18 which ATSIEB co-authored alongside the ACT government, broadly aims to improve the services, community safety, social networks, learning experiences, and overall empowerment of Aboriginal and Torres Strait Islander people, whilst committing to respectful relations with their culture.22 This represents a successful exercise of ATSIEB’s advocacy function under s 8(b), and aligns with object 3(d) of the Act.

ATSIEB has developed the ACT Aboriginal and Torres Strait Islander Community Priorities 2014-2017. The priorities include: health, schooling and early childhood, safe communities, governance and leadership, economic participation, and healthy homes.23 The priorities were selected through community engagement and contribution from ATSIEB members. The plan spans from 2014-2017 and aims to tackle many of the issues facing the ACT Aboriginal and Torres Strait Islander community.

Each priority aims to strengthen communication between the Aboriginal and Torres Strait Islander community and governmental or non-governmental agencies. Each priority also establishes quarterly roundtables, contributes to establishing sustainable advocacy, and develops frameworks that strengthen the Indigenous community. Furthermore, they aim to engage stakeholders, contribute and advocate for

21 Section 8(a), ATSIEB Act 22 ACT Government and ATSIEB, ACT Aboriginal and Torres Strait Islander Agreement 2015-18, May 201523 ACT Government, ACT Aboriginal and Torres Strait Islander Community Priorities 2014-2017, May 2014.


acknowledging Aboriginal and Torres Strait Islander people, and develop strategies for joint economic development.24

The ACT Aboriginal and Torres Strait Islander Justice Partnership 2015-2018 is viewed as a successful output of ATSIEB. The Partnership aims to reduce the number of Aboriginal and Torres Strait Islander victims and offenders. The Partnership was established because although Aboriginal and Torres Strait Islander people make up 1.5 per cent of the population, they are 17.7 per cent of the population in detention.25 This Partnership signifies an important milestone for ATSIEB. It gives the Aboriginal and Torres Strait community an opportunity to see the work ATSIEB can do in tandem with the government. This Partnership also establishes a monitoring and reporting framework, under which a small working group reports quarterly to ATSIEB and the Aboriginal and Torres Strait Islander sub-Committee to the ACT Public Service Strategic Board. ATSIEB also has additional monitoring and reporting processes through its hearings, Director General Meetings, Strategic Oversight Group of the Partnership, Community Services Directorate Aboriginal and Torres Strait Islander Affairs Subcommittee.26 ATSIEB has an important and diverse role in the oversight of this partnership, a good combination of its functions under ss 8(g) & (h) and object 3(c) under the ATSIEB Act.

In September 2015, ATSIEB released Protocols for working with Aboriginal and/or Torres Strait Islander peoples,27 a practice resource for public, private and not-for-profit sector. ATSIEB also worked with Gugan Gulwan Youth Aboriginal Corporation and ACTCOSS in developing these protocols.28 These protocols play a significant role in relation to the ACT Relationship Principles of the ACT Aboriginal and Torres Strait Islander Agreement 2015 – 2018. These protocols are available to all directorates and the guide was recently commended to all directorates to utilise.

The strategic plan, the partnership agreement and the Aboriginal and Torres Strait Islander Justice Partnership 2015-2018 represent holistic framework approaches to representing and expressing the issues of concern for Aboriginal and Torres Strait Islander Australian Capital Territorians. However, there is sense from the Aboriginal and Torres Strait Islander community that they do not understand how their interests were considered in the development of the Plan and the Partnership agreement. This may be due to the length of time since ATSIEB undertook consultation stages, but also indicates a need for ATSIEB to stay connected with the Aboriginal and Torres Strait Islander community. ATSIEB documents are not accessible in that they do not communicate how these agreements inform government. There is work to be

24 ACT Government, ACT Aboriginal and Torres Strait Islander Community Priorities 2014-2017, May 2014.25 Simon Corbell, Aboriginal Justice Partnership to address over-representation, Media Release, 27 July 2015.26 ACT Government and ATSIEB, ACT Aboriginal and Torres Strait Islander Justice Partnership 2015-18, 34.27 ATSIEB, Protocols for working with Aboriginal and/or Torres Strait Islander peoples, September 2015.28 Ibid, p.3


done on messaging and re-consulting on the community towards this objective. Currently the ATSIEB uses its website, e-mails and forums; however there is room for improvement which will be discussed below

2.1.4 Programs and Design Services

ATSIEB has the function to propose programs and design services.29 ATSIEB has been able to do so by making recommendations in reports from hearings and advocating at meetings with directorates. Examples include proposing support for Aged Care and Disability facilities. The ACT Aboriginal and Torres Strait Islander Agreement 2015-2018 allows for ATSIEB to work strategically with ACT Government towards implementing and formulating programs and services.

Some examples of initiatives cited by ATSIEB regarding their contribution includes:

2012 – Second Term Highlights 30

ACT Aboriginal and Torres Strait Islander Whole of Government Agreement ACT Crime Prevention Strategy: a Justice Reinvestment Framework Launch of the Aboriginal and Torres Strait Islander Community Bus National Indigenous Youth Parliament ACT Government’s Aboriginal and Torres Strait Islander Service Delivery

Framework

2012 – Third Term Highlights 31

Aboriginal and Torres Strait Islander Elected Body – Community Priorities 2014 -2017

ACT Aboriginal and Torres Strait Islander Agreement signed – joint partnership between the ACT Government and ATSIEB to address policy and program development; provide input into budget planning processes and delivery of services to the community

Aboriginal and Torres Strait Islander Justice Partnership signed – addresses over-representation of Aboriginal and Torres Islander peoples in the criminal justice system

NSW/ACT Aboriginal Legal Service – funding secured to deliver community justice programs (formerly delivered by the Aboriginal Justice Centre)

2.1.5 Monitoring and Reporting: Hearings

29 Section 8(f), ATSIEB Act30 ACT Aboriginal and Torres Strait Islander Elected Body, Second Term Highlights Flyer 201231 ACT Aboriginal and Torres Strait Islander Elected Body, Third Term Highlights Flyer 2014 - 17


ATSIEB conducts hearings at the end of each year. The hearings were developed so that ATSIEB could ask pertinent questions of Ministers and decision makers and thereby fulfil its monitoring and reporting functions under the ATSIEB Act. The hearings process is not outlined in the legislation. Currently, Directors-General attend the hearings along with their policy staff including Indigenous staff.

Many people praised the hearings and recognised it as a key way that ATSIEB can keep government accountable and also be representative of Aboriginal and Torres Strait Islander people. Some comments included:

The hearings provides a democratic voice where Aboriginal and Torres Strait Islander people can demand answers to why things aren’t working for them in Government.

There is no clear process on reporting back to the ATSIEB.

There was also some discussion that the questioning needs to be more rigorous and the ACT Government should be more diligent in its response. Some suggested that Ministers should attend hearings.

The hearings also provide a key opportunity for ATSIEB to represent the interests of the Aboriginal and Torres Strait Islander community.32 In preparing for the hearings, ATSIEB canvasses the community for questions that they should put to Ministers. This allows the community to engage in the process. The hearings are also open to the public, and are recorded in Hansard, which strengthens the transparency of the process.

The hearings allow ATSIEB to investigate how the ACT government has been overcoming Indigenous disadvantage. The first ATSIEB report33 states in its introduction that the overall objective of the estimates hearings is to investigate how the ACT has been performing as against Overcoming Indigenous Disadvantage Key Indicators (OID) reports.34 ATSIEB noted that these OID reports are a guide to determining how best to measure the effectiveness of ACT government services and programs. The linking to the Closing of the Gap policy is in line with Government policy and COAG’s commitment to the Indigenous Reform Agenda. The second ATSIEB report35 follows this inquiry as does the third ATSIEB report.

A consistent difficulty mentioned by ATSIEB in its hearing reports is that the process does not provide effective measurements on outcomes. A key issue for ATSIEB is to work with the ACT Government to identify measures and set agreed reporting indicators.32 Inovact Consulting, Facilitating establishment of the ACT Aboriginal and Torres Strait Islander Elected Body, 29 November 2012.33 ACT Aboriginal and Torres Strait Islander Elected Body, Report on the outcomes of the Aboriginal and Torres Strait Islander Elected Body Estimates Hearing 2008 – 2009, ACT Office of Aboriginal and Torres Strait Islander Affairs for the ACT Aboriginal and Torres Strait Islander Elected Body.34 Productivity Commission - http://www.pc.gov.au/research/ongoing/overcoming-indigenous-disadvantage/key-indicators-201435 ATSIEB, Second Report to the ACT Government 2011, p, 6.


There were further limitations mentioned. The process of preparing reports takes undue time due to lack of resources.36 There is also no clarity about the follow up and what remedies are available if nothing is done by the ACT Government.

2.1.6 Communication with non-government entities

Section 10 provides that ATSIEB may, in exercising its functions, communicate with non-government entities providing a service or administering a program used by Aboriginal and Torres Strait Islander people in the ACT. Sub-section 2 allows ATSIEB to discuss matters relating to the service with the CEO of the agency. This section does not make the non-government entity accountable to ATSIEB for its operations.37

Feedback from mainstream non-government entities was strongly supportive of ATSIEB.

However, the Aboriginal and Torres Strait Islander organisations have disengaged from ATSIEB. They feel that ATSIEB, as the representative body for the Aboriginal and Torres Strait Islander community, should be advocating Aboriginal and Torres Strait Islander organisations.

Whilst ATSIEB has performed this function satisfactorily, feedback from consultations indicates that ATSIEB’s implementation of this function has evolved beyond providing advice to become drawn into design and delivery decisions. Some examples include being involved in the implementation of projects, and being on implementation committees. Undertaking the roll out of ACT Government programs and services could impact ATSIEB’s ability to objectively review their accessibility and effectiveness.

2.1.7 ATSIEB Election process

The provisions for electing ATSIEB members give a sound process for ATSIEB to be a democratically elected voice. Although people raised issues with the low vote and suggested alternatives such as appointing members, or changing to a compulsory vote, my view is that the voting processes outlined in the Act are generally working and therefore should remain. The issues to be addressed lay in implementation and engagement.

There is more to be done in encouraging Aboriginal and Torres Strait Islander people to vote. Already to this end, ATSIEB instigated changes to the ATSIEB Act after the

36It was noted by the consultant report by Inovact that the ATSIEB Hearing Report from the December 2011 hearing took almost a year to complete Inovact, p. 1037 S10 (3) ATSIEB Act


second election, so that voting could occur during NAIDOC Week. ATSIEB has also provided advice where polling booths should be placed and also worked with the ACT Electoral Commission to enable voting by inmates at the Alexander Maconochie Centre. This resulted in an increase of the vote from 173 in 2011 to 374 in 2014.

The ACT Electoral Commission’s oversight of the elections is also working well. There is evidence that the Commission and the ACT Government are working towards providing better notice of elections to the Aboriginal and Torres Strait Islander community. This should continue so that there is maximum opportunity for all Aboriginal and Torres Strait Islander people to exercise their vote.

2.1.8 ATSIEB Structure aims to represents a complex community

ATSIEB aims to represent the Aboriginal and Torres Strait Islander community. Many people said that Aboriginal and Torres Strait Islander community was complex. There are the local traditional custodians including Ngunnawal, Nambrie, Ngarigo and Aboriginal and Torres Strait Islander people from other areas. Many Aboriginal and Torres Strait Islander people have come to the ACT for work, health or study purposes, and they do not necessarily engage in ACT government matters.

The aim of ATSIEB was to ensure that the diversity of the Aboriginal and Torres Strait Islander community, approximately, 6000 people, had a say in government. In part, the ATSIEB Act aimed to provide this by establishing for an elected group of Aboriginal and Torres Strait Islander people, with community relationships and connections.

However, to acknowledge the role of the local custodian groups, the legislation included a clause that compels that ATSIEB to consult with United Ngunnawal Elders Council (UNEC). This requirement should generally remain.

I consider that the mechanisms of the ATSIEB Act for nominations and elections do allow for any Aboriginal and Torres Strait Islander person over 18 to put their hand up for election to the ATSIEB.

There was discussion about whether there should also be positions on the Elected Body for specific sections of the Aboriginal and Torres Strait Islander community such as Ngunnawal; gender based; issues based; youth and elder or Torres Strait Islander. In my view, the current model does allow for these sections of community to nominate, and should not be changed.



There should be specific positions for Ngunnawal and traditional custodians on ATSIEB because as they are first peoples to this country, and have inherent rights as local Indigenous people.

If we allocate positions for issues, gender or for specific clans, this would be more like an appointed group. The power of ATSIEB is that it is elected.

Torres Strait Islanders have lived in the ACT for a long period of time and their knowledge is invaluable to the work of ATSIEB. Therefore there should be a position for a Torres Strait Islander member, like the ATSIC Model had an office for Torres Strait Islander issues.

2.1.9 Size and term of ATSIEB

The ATSIEB Act provides that there are 7 members of ATSIEB.38 This appears to be working well particularly given that the current number of directorates is 7. ATSIEB members are elected for three years, and may be re-elected. Most people consider the three year term was satisfactory however many people in the Aboriginal and Torres Strait Islander community consultations considered that ATSIEB members should have a maximum term of six years for consecutive years in office. It was felt that after two consecutive terms, candidates should step down and allow others the opportunity to become an ATSIEB member. People also felt that there needed to be a cap on the number of years a person could hold a position. In my opinion, the democratic process set up in the ATSIEB Act allows for voters to initiate change in ATSIEB. Rather than cap terms in the legislation, this should be left to democratic processes.

2.1.10 Chair and Deputy Chair positions

The current legislation provides for a Chair and Deputy Chair of ATSIEB. There was some suggestion that there should be two Chairs – a male and a female position, similar to National Congress and UNEC, to take into account a gender balance. Some responses in consultations included that this model will be more culturally appropriate. However, in my opinion, the current structure where there is Chair and a Deputy Chair is working to provide effective leadership of ATSIEB.

2.1.11 Resignations

The provisions relating to resignations are satisfactory. A member may resign by giving notice in writing. Furthermore, a member must resign if they no longer live in

38 Section 14(a), ATSIEB Act


the ACT. This is working however the process for filling vacancies is contained in the mechanisms of the Electoral Act. Given that there have been a number of resignations in office, this process to be communicated clearly to the Aboriginal and Torres Strait Islander community.

2.1.12 Leave

Section 20 of the ATSIEB Act provides for leave of ATSISEB members. ATSIEB may allow the ATSIEB Chair to take leave, and the ATSIEB Chair can allow ATSIEB members to take leave unconditionally or conditionally, but it must not be longer than a year. There is scope for discretion, as these powers are exercised by ATSIEB and not HR of the ACT Government. This section appears to be satisfactory, however there was some discussion about the implementation processes. I have been advised that a policy currently exists for ATSIEB members to seek approval for leave be formally applied for in writing, and signed off by the Chair or other member exercising the power of ATSIEB. I do not recommend any changes to this administrative provision.

2.1.13 ATSIEB Meetings

The administrative and operational details for ATSIEB meetings outlined in Division 2.3 are generally satisfactory. There was no adverse feedback about these provisions. The frequency of meetings is set at 6 per year, and the process for calling meetings, presiding over the meetings; quorum , voting and conduct, and inviting executive officers of government agencies do not require amendment.

2.1.14 Disclosure of interest

There are conflict of interest disclosure procedures in section 27 of the ATSIEB Act. Whilst on the ATSIEB, members have the duty to act in the best interests of ATSIEB. The code of conduct and duties of ATSIEB members is highlighted at induction, but should continuously be brought to the attention of members at meetings.

ATSIEB members are ACT Part-time Public Office Holders and as such each member has formally declared they ‘have read and agree to abide by the guidelines set out in the ACT Government Boards and Committees Code of Conduct and the ACT Code of Ethics (Section 9 of the Public Sector Management Act 1994)’.

As per the ACT Government Boards and Committees Handbook, ATSIEB has developed its own specific code of conduct which requires all members to commit to


pursue the values and behaviours aligned to the Nolan Principles – Seven Principles of Public Life.39 This document sets a strong framework for managing conflict of interests.

39Endorsed 19 October 2015.


2.2 Things that need improvement

2.2.1 ATSIEB functions

Many people felt that the functions as listed in the ATSIEB Act are too wide. They look to ATSIEB to take a leadership role to represent, advocate and keep ACT government accountable.

There is also a lack of clarity in the Act about how these functions are implemented. There is no capacity for ATSIEB to deliver on all of them, and limited resources and support. There are also no functions that give decision making powers to ATSIEB.

Some feedback received in consultations included: It is impossible for ATSIEB to be responsible and address all functions of the

Act due to the seven members working full-time in other positions and overall scope of work to be undertaken;

There is a lack of clear understanding of the Elected Body’s functions. The ATSIEB functions listed in the Act are wide but there are no powers to

require action from the ACT Government to do things.

Many Aboriginal and Torres Strait Islander people noted the lack of decision making powers given to ATSIEB in the Act. ATSIEB can recommend and influence but do not allocate funding and implement programs. ATSIEB has no executive powers and should not be seen as responsible for every Indigenous issue that arises in the ACT. ATSIEB has no budget to allocate, and does not directly set policies and programs.

Despite this, ATSIEB tend to be held up by the community as being responsible for ACT Government policies. In this respect, they are a buffer between the ACT government and the Aboriginal and Torres Strait Islander community. The danger is that the misconceptions about ATSIEB’s role actually directs attention away from the ACT Government’s directorates who actually have the responsibility for Indigenous policy and service delivery; and also have the responsibility to widely consult all members of the public, including Aboriginal and Torres Strait Islanders.

Part of the confusion could possibly be due to the widespread misinterpretation of s 3(c) of the Act to mean that ATSIEB’s role is to coordinate government policies. Section 3(c) provides that one of the objects of the Act is: ‘to ensure coordination by government agencies in developing policies affecting Aboriginal and Torres Strait Islander people living in the ACT without detracting from, or diminishing, the responsibilities of those agencies to provide services for the broader community’. It needs to be communicated to the community that 3(c) is merely a broad objective that is hoped to be achieved by government via the enactment of the Act, and that ATSIEB is envisaged as facilitating that objective. ATSIEB has a consultative,


facilitation and monitor role. It is not responsible for the provision of ACT program and services for Aboriginal and Torres Strait Islander people living in the ACT.

2.2.2 Focus of ATSIEB risks becoming administrative

There is a lack of clarity in the Act as to how ATSIEB’s functions are to be implemented. This has resulted in ATSIEB taking on tasks such as review of policies and getting involved in day-to-day decisions regarding the implementation of programs and services in furtherance of its s 8 (f) function. This occurs mostly around the Directors-General meetings with portfolio members.

The ATSIEB Act should be adjusted to avoid this for several reasons. Firstly, as a matter of governance, ATSIEB should keep to high level strategic decisions and its advocacy role. The separation of powers is a key principle of good governance. ATSIEB reviews on a yearly basis the relevant programs and services at the Estimate Hearings pursuant to its ss 8(g) & (h) functions under the Act. If care is not taken to exclude decisions relating to administration from s 8(f), ATSIEB could find itself in the compromising position of having to review programs that it had a strong hand in implementing. This should be avoided.

Separating the day-to-day administration of the programs from its review and monitoring function allows ATSIEB to maintain its independence, and importantly, the perception of its independence. Under standard governance principles, ATSIEB should restrict its involvement with government programs and services to strategic and policy advice in exercising its existing function under s 8(f) of the Act, and leave the administration of those services to the public service or relevant administrator. This is consistent with ATSIEB’s ss 8(g) & (h) functions as well as the separation between governance and management outlined in the Indigenous Governance Toolkit. 40 Section 8(f) of the ATSIEB Act should be amended to clarify this distinction.

It has been well established in this Review that ATSIEB’s capacity is constrained by its funding limitations, wide functions and high expectations and voluntary membership. By establishing itself as the entity which needs to sign off on the administrative decisions of various programs and services, ATSIEB also risks stretching its capacity and creating a backlog of programs and services awaiting its authorisation for administrative acts, which is contrary to governance intent established in the Act as I have stated above.

40 Australian Indigenous Governance Institute, Indigenous Governance Toolkit, 5.1 Roles, responsibilities and rights of a governing body (3 December 2015) <http://www.reconciliation.org.au/governance/toolkit/5-1-roles-responsibilities-and-rights-of-a-governing-body>


Additionally, as a matter of practice, my view is that the directorates are coming to ATSIEB for tasks that could be done by the directorate Indigenous staff; Office of Aboriginal and Torres Strait Islander Affairs and/or the RAP committees.

It was evident from my consultation that many felt that ATSIEB was a feature of the ACT Government, which made it easier for government directorates to engage with Aboriginal and Torres Strait Islander people. This leads to dissatisfaction and disconnection. It is important therefore to set boundaries between strategy and operational roles.

Some feedback received in consultations included:

ATSIEB is to doing the policy and program work rather than being an advocacy body. ATSIEB should focus on monitoring and keeping the ACT Government accountable to Aboriginal and Torres Strait Islander people that access and use essential government services.

ATSIEB is supposed to play an advocacy role on behalf of the people but spends more time with government.

2.2.3 Communication with Aboriginal and Torres Strait Islander Community

The role of ATSIEB is not clearly understood, especially by the Aboriginal and Torres Strait Islander community. Many people questioned what ATSIEB did and how it gets an informed position on Aboriginal and Torres Strait Islander issues. Whilst ATSIEB has its own website and has published reports, a communique newsletter, and sends emails to its network, people wanted more relevant publications. Again, capacity and lack of resources has hindered ATSIEB in getting this message across. There have been recent improvements to this and I note that ATSIEB has already conducted or been involved with six community forums this year around important issues such as mental health, drugs, constitutional recognition and domestic violence.

However, there needs to be more administrative and operational guidance in the Act beyond the community forum provisions in ss 11- 13 as to how ATSIEB exercises its democratic mandate to maintain an ongoing dialogue with the Aboriginal and Torres Strait Islander community. This will help ATSIEB to have a more measured approach to exercising its functions, and will strengthen its alignment with the objects (in particular ss 3 (a)-(c)) of the Act.


A lot of people know about the ATSIEB but they don’t understand what they do. Young people don’t get involved. It’s always the same crowd.

If you don’t know the members, you don’t get to hear about what is happening.


People asked how ATSIEB gets its information to pass on to the government on issues that impact Aboriginal and Torres Strait Islander people.

2.2.4 Engagement with Aboriginal and Torres Strait Islander people

The ATSISEB Act provides for ATSIEB to engage with the general Aboriginal and Torres Strait Islander people by conducting regulation forums, research and community consultation. There is also the engagement via the democratic process of the elections.

ATSIEB has made some headway in increasing engagement in the election. Voting numbers increased significantly after changes to the Act after the 2011 election. , There was a rise in numbers from 173 in 2011 to 374 in 2014.

However, in the broader context of the legal model, there is an absence of administrative and operational guidance in the Act beyond the community forum provisions in ss 11- 13 as to how ATSIEB is to engagement with the Aboriginal and Torres Strait Islander community. As I mentioned above, community engagement underpins the democratic function of ATSIEB and the objects and functions of the ATSIEB Act.

Generally, ATSIEB need to improve their engagement with Aboriginal and Torres Strait Islander people. This includes raising the voting numbers, increasing attendance at community forums and attracting candidates for ATSIEB positions.

This will not be an easy task and requires a strategic approach with research on the profile the Aboriginal and Torres Strait Islander community and getting a better understanding of its membership. Getting a community profile is an objective of ATSIEB. For example, one theory put forward for the limited engagement by Aboriginal and Torres Strait Islander people is the fact that large numbers of Aboriginal and Torres Strait Islander people living in the ACT come from outside of the ACT to work in government. These people still connect with their home communities and may eventually return to their communities of origin. This has the effect that a number of Aboriginal and Torres Strait Islander people living in the ACT for work disengage from ATSIEB. Whilst they are supportive of ATSIEB, their focus is on Aboriginal and Torres Strait Islander issues that operate at a Commonwealth government level.


2.2.5 United Ngunnuwal Elders Council

Section 9 of the ATSIEB Act requires ATSIEB to consult with and consider the view of the UNEC, when exercising its functions. 41 UNEC stated that this has not been occurring satisfactorily. The Elders stated that this has never occurred, and some Elders had never met members of the current Elected Body. In my meeting with UNEC, the group expressed an interest to meet with, and work with the Elected Body. The UNEC noted that they had lobbied for the creation of ATSIEB, and would like to see the relationship between the two entities improved. UNEC expressed that they continue to support the existence of the Elected Body.

UNEC stated in that meeting that they would like to be referred and consulted on matters relating to land and the relationship of traditional custodians to the land, such as cultural tourism and interpretation of places and sites.

UNEC asked that ATSIEB should meet with UNEC four times a year, each quarter. ATSIEB expressed that it has been difficult to meet with the UNEC and engage with them due to logistics.

There is no agreement or underlying framework that sets up the parameters of the relationship between UNEC and the ACT Government. This has impacted on the relationship between UNEC and ATSIEB. The communications between the two entities are constrained.

Both UNEC and ATSIEB disagree over whether ATSIEB is properly exercising the requirement to consult with UNEC under s 9 of the Act. As s 9 currently stands, ATSIEB has arguably not failed to exercise its requirement to consult, but there is clearly a need to clarify the parameters of that requirement for the benefit of both parties.

The status of UNEC as representatives of traditional custodians with inherent rights over their lands and cultures in the ACT region should not be abrogated via the ATSIEB Act.

The scope of the UNEC and its relationship with the ACT Government requires consideration which is outside the scope of this Review. Once worked out, section 9 of the ATSIEB Act may need amendment or be potentially removed. In the interim, it is advisable that the ACT Government establish how it consults with all traditional owner groups in the ACT. There is a need for consistency between the ATSIEB Act and the Heritage Act.

41 Section 9, ATSIEB Act.


2.2.6 Community forums

The ATSIEB Act puts a legislative focus on the community forums to be a mechanism of canvassing people’s views. The Act provides for ATSIEB to ‘conduct regular forums for Aboriginal and Torres Strait Islander people living in the ACT and report the outcomes of those forums to the Minister.’42 The community forum process outlined in section 11 of the Act states that ‘ATSIEB must conduct a community forum on areas of interest to Aboriginal and Torres Strait Islander people living in the ACT at least twice each financial year.’ Every Aboriginal and Torres Strait Islander person living in the ACT is eligible to participate. 43

Many Aboriginal and Torres Strait Islander people don’t have faith in these forums, feeling the agenda is already set, and that the forums are held at times that are inappropriate. However, there is evidence that ATSIEB has attempted to address the accessibility of forums by providing a community bus, and also holding community forums at times that were around the clock, to take into account the fact that people worked.

There is a need for a deeper strategy to address this lack of engagement. Towards this end, ATSIEB is aware of the need to raise its profile and conduct further community forums.44

Members of the mainstream service provider organisations value the forums as a way to assist them to engage with the Aboriginal and Torres Strait Islander communities. The Aboriginal and Torres Strait Islander organisations do not consider the forums to be an adequate model to properly their canvas views. They seek more meaningful interaction.

Some people felt unsafe to air their views at forums noting that the conduct of the participants (including ATSIEB members) at forums was not always inviting. There is a need to explore options for better facilitation of Forums and develop a code of conduct to be followed by all participants.

Some more feedback included:

At many of the consultation sessions, Aboriginal and Torres Strait Islander people expressed concern that the forums were not accessible.

There is a perception that ATSIEB controls agenda by itself rather than listening to the needs of the community. The community does not know how to get their issues on the agenda.

42 Section 8(d). Aboriginal and Torres Strait Islander Elected Body Act 200843 Section 11(2), Aboriginal and Torres Strait Islander Elected Body Act 2009

44 http://www.canberratimes.com.au/act-news/act-group-making-its-mark-in-aboriginal-and-islander-welfare-20140813-103hfv.html


The times and days were questionable. Some comments included that the forums were held at times that working people could not attend. Also, they were held at Yarramundi Aboriginal and Torres Strait Islander Cultural Centre, where it was difficult for people to attend.

The following community forums were held in 2015 organised by ATSIEB:

10 February 2015 – ACT Prevention on Violence against Women and Children

12 February 2015 – Constitutional Recognition Forum – 25 community members attended

24 March 2015 – AMC – (numbers unknown)

17 June 2015 – ACT Consultation Forum Crystal Methamphetamine (Ice)

31 July 2015 – Mental Health Forum – 10 community members attended

2 October 2015 – CEO’s forum – 12 community members attended.45

The following community forums were held in 2013:

17 September 2013 – CEO Forum on the Community Plan – 15 participants

20 September 2013 – Community Forum on the Community Plan – 20 participants

22 November 2013 – NDIS & Care and Protection Community Forum – 23 participants

12 December 2013 – Sports and Recreation & AJA Community Forum – 8 participants.46

2.2.7 ‘Issue of concern’ and individual complaints

The Act uses the language ‘issue of concern’. Section 8(a) describes one of ATSIEB’s functions being ‘to receive, and pass on to the Minister, the views of Aboriginal and Torres Strait Islander people living in the ACT on issues of concern to them.’ Further, section 8(c) includes the function ‘to foster community discussion about (i) issues of concern to Aboriginal and Torres Strait Islander people living in the ACT.’ There is scope in this definition to include individual issues as well as

45 Email Maria Vincent 19 October 2015.46 Email Maria Vincent 19 October 2015.


greater systemic issues. The limitations on the time of the Elected Body members has resulted in their attempting to be strategic and to only advance issues of concern that have a systemic impact. Some people expressed this as a limitation of the ATSIEB model. The expectation is that ATSIEB should help disempowered individuals to raise concerns about access to services and programs. The first ATSIEB did a lot of this type of advocacy work. However, subsequent ATSIEBs have taken a more strategic focus to deal with the more systemic ‘issues of concern’ purely because of limiting time and resources.

There is a need for a balance to be struck as to how ATSIEB deals with individual issues that highlight community concerns or takes each complaint or concern. The approach should be to direct ‘issues of concern’ to complaints handling mechanisms within government and keeping oversight, using the influence of the ATSIEB to ask questions about processes. I heard one community member proudly tell me that ATSIEB had assisted them with their issues in this way, however, there were two others who felt neglected and belittled when their issues were not seen as important enough for ATSIEB. Again, this is an issue that arises from the legal mechanisms of the Act in combination with the limits on ATSIEB’s resources, and will move closer to a resolution if the Act provides greater clarity on the meaning of ‘issues of concern’.

There is a need to provide culturally appropriate information to the Aboriginal and Torres Strait Islander community about making complaints about services, as well as a guide for ATSIEB members and the Secretariat to assist them communicate more effectively with the complainants.

2.2.8 Limitations of the Directors-General meetings

Whilst it was noted above that the meetings with Directors-General have been in part working, there are some limitations of this approach. The following points require addressing:

There is a risk that ATSIEB is asked to do a great range of things, and some are operational tasks. Some of these may be better directed to OATSIA who are better resourced. There should be protocols for Directors-General’s about what issues to take to ATSIEB and which ones can go to OATSIA or the Indigenous policy staff, and when to consult with the wider Aboriginal and Torres Strait Islander community.

There is no consistency in the nature of what is put on the agenda, and there is a concern that the process is used to tick off policies for the Directorates.

Unlike the hearing process, generally the meetings with the Directorate-Generals are not transparent to the Aboriginal and Torres Strait Islander


community. The Aboriginal and Torres Strait Islander community do not know what gets discussed at these meetings and what information is imparted. I did hear that one ATSIEB member brings in the key consultative group representatives to the D-G meetings. This facilitative approach is to be commended as it brings in its expertise and skills, gives the voice to the group and a direct connection.

There is also confusion when there are differences between the advice from ATSIEB and advice from Aboriginal and Torres Strait Islander policy staff within the directorates. This indicates the need for greater communication and clarity over the processes of engaging and canvassing Aboriginal and Torres Strait Islander perspectives when developing policies. There is a need across the board management for policy tools to guide staff. For example, the development of the Policy Management Protocols and the Checklist for Policy Impact Assessment can assist staff across government with Indigenous engagement and policy development.

Some related feedback included:

There is a danger that ATSIEB members are becoming policy advisers. But they are not trained nor have skills and knowledge to advise Directorates alone.

ACT Government Directorates are using ATSIEB as the one stop shop for approval of policy.

Options raised in consultation for better management included:

Setting KPIs for Directorate-Generals to meet re: Aboriginal and Torres Strait Islander Affairs for a consistent approach across government

Protocols for what matters get taken up to ATSIEB and those that can be referred to OATSIA

Toolkit for Managers on dealing with Aboriginal and Torres Strait Islander issues

Consistent framework for impact assessment of policies on Aboriginal and Torres Strait Islander people

Consistent framework for how ACT Government engages Aboriginal and Torres Strait Islander people, organisations and Elected Body.

The ATSIEB currently sits in CSD. Moving it to the Chief Minister’s Office would enhance a whole of government approach.


2.2.9 Fostering Community Discussion

ATSIEB has the function to foster community discussion about issues of concern to Aboriginal and Torres Strait Islander people living in the ACT; the functions of ATSIEB; and this Act.47 In part ATSIEB meets this objective through a number of ways including the community forums, its publications, website and E-newsletter. The ICE Forum is an example, but ATSIEB has also led debates on Constitutional Recognition.

Again, the impediments to ATSIEB achieving this include its lack of time and resources to conduct discussions. However, they also need to get smarter about how they link in with Directorates and partner with key organisations to take advantage of opportunities. There is evidence ATSIEB is already doing this with Directorates and NGOs but greater partnership needs to be developed with key Indigenous organisations.

As noted above, the forums are a limited way of fostering discussion. They are prescribed in the law and therefore have become a focus of how to engage the community. Other options to foster discussion include meeting face to face with community and preparing white papers on issues. These however, both require resources which ATSIEB does not currently have at its disposal.

2.2.10 Sacred or Significant Cultural Material

ATSIEB has the function, ‘when asked by a government agency or another person, and in consultation with UNEC, to recommend any reasonable action it considers necessary to protect Aboriginal and Torres Strait Islander cultural material or information considered to be sacred or significant by Aboriginal and Torres Strait Islander people living in the ACT.’48 In my consultations, I was told that ATSIEB refers any inquiries directly to UNEC.

Whilst the intention of this clause appears to be to recognise the authority of UNEC to maintain, control and protect its cultural material, the inclusion of ‘Aboriginal and Torres Strait Islander’ is confusing because it is a generic reference. In my meeting with UNEC, the group confirmed that their authority is over Ngunnawal cultural material and not all Aboriginal and Torres Strait Islander cultural material.

47 Section 8(c.), ATSIEB Act48 Section 8(j), ATSIEB Act.


For any other Aboriginal or Torres Strait Islander cultural material, ATSIEB should consult with that relevant group in accordance with cultural protocols and the Declaration on the Rights of Indigenous Peoples.

Another point to consider here is the consistency of this section 8(j) with the ACT Heritage Act 2004. This Act provides for the protection of Aboriginal objects, places and traditions, and for Aboriginal and Torres Strait Islander representation and consultation in the heritage and land planning and development system to achieve appropriate conservation of the ACT’s natural and cultural heritage places and objects, including Aboriginal places and objects49 The Act identifies representative Aboriginal organisations under section 14 of the ACT Heritage Act 200450 to participate in each community. These organisations are:

Buru Ngunawal Aboriginal Corporation Little Gudgenby River Tribal Council King Browns Tribal Group (formerly - Consultative Body Aboriginal

Corporation on Indigenous Land and Artefacts in the Ngunnawal Area) Ngarigu Currawong Clan.51

UNEC was not granted status as a representative Aboriginal organisation.

This inconsistency of dealing with Aboriginal heritage causes confusion with ACT Government about how to consult and engage community about heritage, place naming and cultural tourism issues.

2.2.11 Research

ATSIEB has the function to conduct research to assist the Elected Body in exercising its functions. However, according to ATSIEB, its ability to perform this function is hindered by its lack of capacity in terms of inadequate staffing and resources. ATSIEB has conducted some research and has plans for more including research on the community profile, international comparatives for autonomous Indigenous models, and a long term ‘planning seven generations’ strategy.

Issues that ATSIEB have experienced when requesting OATSIA and directorates to undertake research is that ATSIEB requested research takes a lower priority than the core work of these agencies. For this reason, ATSIEB has not been able to successfully develop a research agenda to assist them with their goals.

49 ss 9, 13, 14, 17 18(c), 31, 45 and part 8 of the Heritage Act 2004.50 These organisations are declared by the Minister responsible for Heritage to be representative Aboriginal organisations u8nder section 14(7). http://www.legislation.act.gov.au/a/2004-57/current/pdf/2004-57.pdf51 http://www.legislation.act.gov.au/ni/2006-298/current/pdf/2006-298.pdf = notifiable instrument


2.2.12 Limitations of hearing process

Whilst highly regarded, the hearings process has no formal legislative backing or process. The ACT Government has no formal obligation to respond to reports and keep focussed on addressing the issues contained therein. Some consideration needs to be given to formalising this role. The hearing process is an important process of ATSIEB.

A process for the ACT Government formally responding to the Report needs to be included in the Act. For example, like the State of the Environment Report.

Many of the Aboriginal and Torres Strait Islander people wanted ATSIEB to be more critical of government ineffectiveness. They expressed disappointment at the lack of powers of ATSIEB. However, in my opinion, the monitoring and reporting functions provide ATSIEB with considerable influence to keep ACT Government to account. The hearings power and process needs to be legislated and a process clearly stated, which will improve ATSIEB’s ability to fulfil the objects the Act, namely s 3 (e).

2.2.13 Propose Programs and Design Services

Another key function of ATSIEB is ‘to propose and design services for Aboriginal and Torres Strait Islander people living in the ACT for consideration by the government and its agencies.’52 Many people felt that this should not be the function of the Elected Body. The development of programs is moving more into policy work. The Elected Body is there to be representative of the community and set strategic vision for dealing with issues of concern. It is a political voice for Aboriginal and Torres Strait Islander people and was not intended to deliver the services of ACT Government. The risk is getting too involved in the machinery of government rather than holding it to account.

ATSIEB was considered to have done well in developing the Partnership Agreement and the Justice Agreement. Many of the government people I spoke to considered these to be great initiatives. The Elected Body was praised for having a role in the development of these. However, some members of the Aboriginal and Torres Strait Islander community stated that by signing agreements like the Partnership and Justice Agreements, ATSIEB is working for government rather than being an independent body. This has led to a diminished level of trust of ATSIEB.

52 Section 8(a), Aboriginal and Torres Strait Islander Elected Body Act 2008


2.2.14 Key Indigenous organisations

The relationship between the two key Aboriginal and Torres Strait Islander organisations and the Elected Body should be fruitful and supportive.

The Aboriginal and Torres Strait Islander organisations can be consulted with at community forums53 and via the section 10 discussions with non-government entities under the ATSIEB Act.

There is no specific obligation under the Act for ATSIEB to consult with Aboriginal and Torres Strait Islander key organisations, only the reference in section 10 which states that ‘ATSIEB may, in exercising its functions, communicate with a non-government entity providing a service or administering a program used by Aboriginal and Torres Strait Islander people living in the ACT.’54

This puts Aboriginal and Torres Strait Islander organisations in the same position as non-Indigenous NGOs who provide services to Aboriginal and Torres Strait Islander people. In addition, the wording, ‘may communicate’ creates no requirement for consultation.

For community forums, ATSIEB has the positive obligation to ‘invite someone from each body declared to be a representative Aboriginal organisation under the Heritage Act 2004,55 section 14 to participate in each community forum.56 I tried to contact these organisations, and only got through to one. The Chair of the RAO that I spoke to said he had never been contacted by the Elected Body, and did not know about the work of ATSIEB.

Key Aboriginal and Torres Strait Islander organisations expressed concerns about ATSIEB, stating that they are not supported by it. There are currently only 2 left, and the demise of some key organisations in the past 4 years has led to concerns that the ACT government is not supporting the operation and sustainable development of Aboriginal controlled organisations.

53 Section 13, ATSIEB Act.54 Section 10, ATSIEB Act. 55 These organisations are declared by the Minister responsible for Heritage to be representative Aboriginal organisations under section 14(7). http://www.legislation.act.gov.au/a/2004-57/current/pdf/2004-57.pdf

56 Section 13(1), ATSIEB Act.


2.2.15 Section 10 and non-government entities

Section 10 provides that ATSIEB may, in exercising its functions, communicate with a non-government entity providing a service or administering a program used by Aboriginal and Torres Strait Islander people in the ACT. Sub-section 2 allows ATSIEB to discuss matters relating to the service with the executive officer of the agency. This section does not make the non-government entity accountable to ATSIEB for its operations.57

There is confusion about whether section 10 is intended to allow ATSIEB to deal with complaints about the services of government entities funded to provide services and programs. The role of ATSIEB should not be to police organisations about governance issues or public complaints. These should be handed over to the Minister and government to deal with appropriately. These entities have funding agreements that include provisions relating to compliance with their governance and other obligations. The section does state that the communications that ATSIEB has with the non-government entities is for exercising its functions which does include monitoring and reporting on the effectiveness of programs and accessibility. Protocols around these communications could make the intention of this clause clearer.

2.2.16 Consultative Bodies of ACT Government

The objects of the Act state that ATSIEB is to provide for advice to be given on appropriate representation of Aboriginal and Torres Strait Islander people living in the ACT on consultative bodies established by government agencies.58 Many people reported a tendency for ATSIEB members to hold these positions. This was criticised because it did not acknowledge the expertise of the Aboriginal and Torres Strait Islander community by allowing skilled and experienced Aboriginal and Torres Strait Islanders to participate on consultative bodies, and advise Directorates.

2.2.17 Communication systems

Many Aboriginal and Torres Strait Islander people said that they did not feel that the communication systems used by ATSIEB were adequate to reach the wider Aboriginal and Torres Strait Islander community. For instance, the website and 57 Section 10 (3) ATSIEB Act58 Section 3(e.) ATSIEB Act


communiques did not cater for the audience. The complex reports and information was not seen as accessible. Some suggestions to improve communications included:

Send flyers, hard copy newsletters or letters to community organisations or individuals to inform them about forums (by mail or email).

Meet with people. Use radio, television and media; Use local free newspapers.

2.2.18 Comprehensive consultation

As discussed above, the function to conduct regular community forums in section 8(d) is considered too rigid. Whilst there is also the function to ‘conduct research and community consultation’, most people expressed their strong view that they wanted to see more face to face time with the Elected Body members.

The Aboriginal and Torres Strait Islander community wants ATSIEB to spend more time in the community to hear their concerns and to communicate how they are advancing them within ACT Government.

Many felt that the Elected Body members were never available and did not attend many Aboriginal and Torres Strait Islander community events. In defence of the Elected Body, these members work full time, and have family obligations, so being constantly available to the community has its limitations.

People said that ATSIEB did not come back to the community. There is no ongoing communications, so people forget the agendas set in past meetings, and disconnect with the strategic plan of ATSIEB.

2.2.19 Managing Conflict of Interest: implementation

The ineffectiveness of managing members’ conflicts of interest was also raised in consultations. Points people raised related to ATSIEB members wearing too many hats, being on boards of other entities and the personal connections of members. These types of issues are often raised in governance, and are covered by conflict of interest disclosure procedures in section 27 of the ATSIEB Act. Whilst on ATSIEB, members have the duty to act in the best interests of ATSIEB. The code of conduct and duties of ATSIEB members should be highlighted at induction, and continuously reminded to members at meetings.


ATSIEB members are ACT Part-time Public Office Holders and as such each member has formally declared they ‘have read and agree to abide by the guidelines set out in the ACT Government Boards and Committees Code of Conduct and the ACT Code of Ethics (Section 9 of the Public Sector Management Act 1994)’.

As per the ACT Government Boards and Committees Handbook, ATSIEB has developed its own specific code of conduct which requires all members to commit to pursue the values and behaviours aligned to the Nolan Principles – Seven Principles of Public Life.59

Another consistent issue raised was whether or not ACT Government staff should be members of ATSIEB. People noted this was a conflict and although being attempted to be managed, it was not satisfactory.

It was felt that the inclusion of ACT Government staff on the Elected Body raised complex conflict of interest issues. There were concerns expressed about whether this is being managed transparently. In managing this issue, ATSIEB ensures that the ACT Government employee does not have the ATSIEB portfolio that he or she works in. There was mixed reports whether this worked administratively. People noted that the inclusion of ACT government staff on ATSIEB potentially contributed to the imbalance between ATSIEB taking a strategic high level role and taking on a more administrative approach. Some people noted that the perception issue that potentially the whole of ATSIEB could be made up of ACT Government staff, and this would not be seen by the Aboriginal and Torres Strait Islander community as being independent of government.

2.2.20 ATSIEB Election low votes

Many people noted that the voter turnout for the elections was low. This was argued to indicate a lack of engagement of the Aboriginal and Torres Strait Islander community with ATSIEB. People made comments such as, ‘if people aren’t voting, they won’t engage.’

The voting numbers at the 2014 were 374 total votes which it a significant increase of almost 200 votes since the 2011 election.

59Endorsed 19 October 2015.


Percentage of voting Aboriginal and Torres Strait Islander Population in ACT

2008 4,043 Aboriginal and Torres Strait Islanders in the ACT

2,156 Estimated voting population (based on 2006 Census)

227 people voted 10.5%







Compare this to the non-compulsory election for Aboriginal and Torres Strait Islander Commission,

- In 2002, Canberra had 4 vacancies and 10 people were nominated. 265 people voted.


- In the 1999, there were 4 vacancies and 6 people were nominated. 212 people voted.

Engaging with the ACT Aboriginal and Torres Strait Islander Community is difficult. As one respondent put it: ‘The Aboriginal and Torres Strait Islander community in the ACT is transient and temporary. Aboriginal and Torres Strait Islander people come for jobs and then leave after a few years. If they think they are going to leave and return to their home communities, they are not going to engage.’

Options discussed included making the vote the same time as ACT Government elections; making the vote compulsory and allowing for appointments to the body.

The option of making the vote compulsory was discussed, and it was considered that an option could be to have ATSIEB elections alongside ACT elections. This may be too hard to implement as the electoral roll does not have a cultural identifier for Aboriginal and Torres Strait Islander. Would you fine people for not voting? The Act allows people who are not on the electoral roll to vote, as long as they are entitled to be enrolled to vote. Would these people also be potentially fined if they do not vote? Due to these difficulties, I am against making the voting compulsory.

There was some confusion around who was eligible to vote. For instance, some discussions canvassed whether people abstained from voting because they did not want to be fined for not voting in other elections. Some people were not on the electoral role for personal reasons. However, ATSIEB Elections allows votes from all Aboriginal and Torres Strait Islander people who are enrolled to vote, or who are eligible to enrol to vote.60

Some comments related to whether the voting geographic region should be changed to cover Jervis Bay and/or the NSW regions around the ACT such as Queanbeyan and Yass where many Indigenous people live. These Aboriginal and Torres Strait Islander people use services of key Aboriginal and Torres Strait Islander organisations, and essential services such as health, in the ACT.

2.2.21 Candidates for Election

There was concern that the number of candidates standing for election is low, which does not provide a wide choice of skills and interest groups. The number of candidates in previous elections has been 13 (2008 Election), 15 (2011) and 14 (2014).

People expressed concern that there were no specific skills that members needed and no length of time that they must be living in the ACT. This is a feature of the

60 1.5, Part 1.2 Modifications of Part 9, p. 26, ATSIEB Act.


democratic process of voting. By contrast, in a skills-based board, membership is set out to ensure a range of skills are being represented on the board.

The ATSIEB Act provides that a person is eligible to be a member of ATSIEB if they are Aboriginal or Torres Strait Islander; over 18 years of age, and enrolled or entitled to be enrolled, for an electorate in the ACT who has not under a sentence of imprisonment for 1 year or longer for a conviction.61

Some options put forward to get a wider skills base including having a board that was appointed and elected, like the AIATSIS Committee. Other suggestions included having allocated positions for certain sections of the community such as having a Ngunnawul representative, Torres Strait Islander representative, women representative and youth representative. However, ATSIEB members must act in the best interests of all Aboriginal and Torres Strait Islander people if elected, regardless of which specific communities they come from. I do not support the holding of positions for specific groups, but note that it is possible for groups and organisations to nominate candidates.

It was suggested that the Aboriginality of the candidates needed further confirmation prior to the candidate being accepted. The Act states that a person has to be an Aboriginal and Torres Strait Islander person.62 There is a nomination form, which requires the candidate to make a declaration as to their Aboriginality.

Campaigning was also discussed in consultations. Some people mentioned that they attended the Meet the Candidate night, but felt that the information was very general and only about the candidates personally. They wanted to know more about what the candidate would do for Aboriginal and Torres Strait Islander people if they were elected.

Examples of some feedback on campaigning include:

Potential candidates should be made aware of: the amount of work involved, that it’s a part time role which can require a full time workload, the required commitment, dealing with work, family, community expectations and other competing demands;

Candidates should campaign in the lead up to the elections by meeting with the community to promote themselves, share ideas and promote how they will represent the community to government;

On polling day, candidates should have people handing out ‘how to vote’ information; and there should be more information about the candidate’s priorities.

61 Section 31 ATSIEB Act and Part 1.2 Modifications of Part 9 (Arrangement for elections), 1.5 Eligibility62 Section 1.7 (2.A), p. 27


Nominations of candidates – there is a need to actively attract more candidates to nominate – voting for chair, or making the Chair position a full time paid position may attract more people to step forward.

Some comments were around the system of voting and the preference counting. There needs to be more understanding of the Hare-Clark proportional representation system. Some people said the vote should be only for one person. More understanding of this system would be beneficial.

2.2.22 Inconsistency re: Timetable between ATSIEB Act and Electoral Act

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

There is a contradiction in the timing of the draw for positions of candidate names on the ballot paper. Section 118 of the Electoral Act 1992, as applied by the Aboriginal and Torres Strait Islander Elected Body Act 2008, says “The commissioner must determine by lot the order in which the names of the candidates will appear on the ballot paper as soon as practicable after 12 noon on the last Wednesday before the polling start date for the election.”

Section 29 of the Aboriginal and Torres Strait Islander Elected Body Act 2008 however, displays Table 29 outlining the ATSIEB election timetable and, at row 4, states that the “order of ballot paper decided” is to be held “as soon as practicable after the nominations for candidates are declared.”

These two different clauses provide a contradictory date for the same event. In 2014 s 118 would have produced a ballot draw date of 2 July 2014, while s 29 made the date 3 June 2014.

In practice in 2014, the draw for position was held on the same date, and performed directly following, the declaration of nominations on 3 June. This process is consistent with the process followed for ACT Legislative Assembly elections where s118 prescribes that the draw for positions will be held ‘as soon as practicable after the candidates have been declared’.

The Electoral Act 1992, as applied by the Aboriginal and Torres Strait Islander Elected Body Act 2008 should be amended to fix this error prior to the 2017 ATSIEB election.


2.2.23 Removal of a member

The Act includes provisions for removal of members by the Minister for reasons that include contravention of a territory law in relation to the exercise of member’s function; misbehaviour in relation to the exercise of a member’s function; bankruptcy; if convicted, or found guilty of an offence that carries a term of a year imprisonment or more.63

Queries in respect of this are whether the Minister should be able to make that decision, or whether this something that should be responsibility of the Chair of ATSIEB- unless the member is the Chair of ATSIEB.

The consultations raised issues with the interpretation of ‘misbehaviour’. The Act does not provide guidelines for how this is interpreted. Conduct of members has been identified as an issue in the past but has been addressed by the adoption of a Code of Conduct.

2.2.24 Part-time vs Full-time

Section 14 (2)(b) provides that ATSIEB members hold office on a part-time basis. There were comments received about the high level of work for ATSIEB members and that there were limitations on members being able to fulfil their roles satisfactorily. Suggestions ranged from making all the ATSIEB members full time, to making the Chair and Deputy Chair full time, or the Chair only full time.

In consultations, many Aboriginal and Torres Strait Islander people said that the Chairperson’s role was key to the success of the relationship building with the community. It was felt that role should be a full time position, or at least, should be better remunerated in order to attract candidates. Similar views were stated by Aboriginal and Torres Strait Islander people about the Deputy Chair position, and some people suggested all members should be full time.

The views of the ACT government differed. One view was that the Elected Body monitors the role of the ACT government and should not be seen to be ‘paid’ by it. Raising the level of stipend would be preferred.

Comments included:

Being part time means I can’t get to all the meetings that the community expects of me. Especially ones that are during work hours. (An ATSIEB member)

63 Section 19, ATSIEB Act 2008


Members are part-time and community expectations are they should be doing a full-time role such as playing a full representational role, being visible at all community events, forums and meetings. It raises the issue of part-time verses full-time as they can only do the work based on resources allocated. They are being paid at a part time rate while doing a fulltime job.

The Chair, Deputy Chair and Members should be full time positions – it is impossible for the members to hold full time jobs and do a good job for the community on a part time basis.

The stress of juggling full time jobs and being an Elected Body member can be overwhelming.

Once the functions of the ACT are clarified and there are established guidelines for the matters put to ATSIEB, it is expected that the workload should focus on high level strategy work and representation. At this point, the duties of the ATSIEB members should be reviewed to consider whether role is full-time or part-time.

2.2.25 ATSIEB is under-resourced

The ATSIEB lacks resources and capacity to fulfil its functions administratively.

The budget for ATSIEB is approximately $400,000 per annum which is for administration and secretariat support. The ATSIEB budget has been allocated for the 2015 – 2016 year at $407,000 for administrative support and resources. This has hindered the work of ATSIEB. For instance, the report from last year’s hearings has taken a year to produce. ATSIEB has no resources to do this, and an independent consultant was commissioned to prepare the report.

Some comment received about improving administrative capacity included:

Increasing ATSIEB staff Use of secondees from other Directorates Making the positions of the Chair and Deputy full time positions Making all the positions on ATSIEB full time Using sub-committees and working groups to advance specific issues

between meetings Using key community people on committees to bring in expertise.


3. Recommendations for moving forward

General

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

Changes and clarifications to provisions in the Aboriginal and Torres Strait Islander Elected Body Act 2008 (ACT)

Objects

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

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

Functions

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

c. Change 8(f) – ‘to propose programs and services’. d. Change Section 8(j) to refer to Ngunnawal cultural heritage, and move

this function to section 9, consultation etc. with UNEC.

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

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


UNEC

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

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

Community Forums

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

10. Review of clauses 11 – 13 relating to the community forums:a. The forums should not be the only legislative mechanism for

canvassing the issues of concern for Aboriginal and Torres Strait Islander people and consideration of mechanisms for ATSIEB to develop a wider consultation plan;

b. The wider Aboriginal and Torres Strait Islander community should be invited including key Indigenous organisations.

c. The review should consider how ATSIEB will report back.

11. Amendments to section 13 should require invitation to key Indigenous organisations, UNEC and representative organisations – and further establish.

Hearings

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

Elections

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


Improvements to the effectiveness of the Elected Body in effectuating the provisions in the Act

Dealings with ACT Government

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

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

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

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

Dealings with the Aboriginal and Torres Strait Islander Community

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

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

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

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

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


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

Dealings with UNEC

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

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

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

Discussions with non-government entities

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

Elections and voting

28. Campaign to get more candidates – for instance, kits for candidates to communicate their policies and positions.

29. Continue to work towards increasing the voter turnout at elections.

30. Promote the fact that the ATSIEB Elections allow voting from Aboriginal and Torres Strait Islander people who are eligible to vote, but not necessarily enrolled to vote.

ATSIEB Governance

31. To assist with meetings under s 25 of the Act, governance documents for managing meetings and workflow should be developed.


32. Governance training for ATSIEB members about director duties, conflict of interest and ethics – to be included at induction, and on-going.

33. Clarify misbehaviour for the purposes of removal of a member provisions. Section 19 should also allow Chair to advise Minister where a member is recommended for removal.

4. Outside of scope of terms of reference

The focus of this Review was to examine the aims and objectives in the current ATSIEB Act. However, there were some important issues raised in the consultations that I would like to highlight.

4.1 Independence of ATSIEB

There were comments about whether ATSIEB should be more independent if it is to objectively undertake its role to monitor and report on the effectiveness and accessibility of the ACT Government’s Aboriginal and Torres Strait Islander programs.

There were some discussions about the options for ATSIEB to be set up as its own entity within government, perhaps as a Secretariat like the Law Reform Advisory Committee. ATSIEB itself wanted to conduct more research into autonomous models that could be funded by the ACT Government. See for example, the Independent Competition and Regulatory Commission.

Comments relating to this surrounded the following points:

They should have their own office with access to staff (more than the current 2.5 staff members), computers and telephones.

They should not be administered near OATSIA as this is confusing. It would make sense for ATSIEB to be located with the Chief Minister’s Office.

In fact, this is where ATSIEB was when it was first established. It would allow the whole of government perspective needed to fulfil the objects and function of ATSIEB. ATSIEB would also have more clout than where it currently is. This would also put the agenda of Aboriginal and Torres Strait Islander affairs in the mainstream.

There was also some discussion by Aboriginal and Torres Strait Islander people that there was a need for an independent representative body outside of the government mechanisms.


4.2 Traditional custodians

The relationship between traditional custodians and the ACT Government requires consideration which is outside the scope of this Review. Once worked out, section 9 of the ATSIEB Act may need amendment or be potentially removed. In the interim, it is advisable that the ACT Government establish how it consults with all traditional owner groups in the ACT. There is a need for consistency between the ATSIEB Act and the Heritage Act.

Conclusion

The ATSIEB Act established a democratically elected model that gives a voice to Aboriginal and Torres Strait Islander people. ATSIEB is recognised for the value it brings to government and community, with limited resources, in giving a range of perspectives and distilling information from the Aboriginal and Torres Strait Islander community. The shortcomings of ATSIEB however are evidenced in the low vote, the lack of support for the community forums and the disengagement of key members of the Aboriginal and Torres Strait Islander community.

ATSIEB has performed to its functions as evidenced by its reports, key agreements and the hearing process. The ATSIEB Act must confirm its fundamental purpose of giving a voice to the people, not being the voice. This should be done by clarifying the functions, allowing for more comprehensive consultation and establishing the hearings within the legislation.

The ATSIEB Act should be maintained, but improved by the recommendations outlined in this Review.


Appendix 1 – Consultations

Overview of Consultations

Community Meetings ApproxIndigenous Sports Interests 5ACT Torres Strait Islander Corporation 6Alexander Maconochie Centre (AMC) 32ACT Govt network - AIATSIS 6Gugan Gulwan 50Yuruana Centre 30West Belconnen Child & Family Centre 3Indigenous Business Breakfast 2ANU - Tjabal Centre 3Winninga Nimmityjah 3Total 140


ACT Government ApproxDirectorate Generals 6Other face to face meetings 19Other ACT Govt agencies 4Minister Berry 2ACT Govt reps 2Total 33Consultation methods ApproxATSIEB 7ACT Government Roundtable 35Community Roundtable 20ACT Government meetings DG and senior staff 10Community Forums 140UNEC 10Individual Face to face 20Survey responses 52Emails, calls, discussion at events 20Total numbers consulted 314


CONSULTATION LIST

ATSIEB REVIEW – MEETINGS HELD

1 July 2015

9.30–10am Teleconference with Reference Group, Chaired by Kathy Leigh, Head of Service, CMTEDD

6 July 2015

3–5pm Craig Leon and Gill Eshman, ACT Aboriginal and Torres Strait Islander Office

13 July 2015

3– 4pm Teleconference with Gill Eshman, ACT Aboriginal and Torres Strait Islander Office to review methodology

22 July 2015

9.30 – 10am Meeting with Robynne Forester (half hour)

10–11am Rod Little, Director, National Congress of Australia’s First Peoples

1–2pm Steve Paillas, Minister Berry’s Adviser , ACT Government

2–3pm Natalie Howson, Chair of ATSI Sub-Committee

30 July 2015

9–1pm Contact ATSIEB members individually by email

5 August 2015

9.30-10am Contact with Sub-Committee members individually by email


7 August 2015

9am–12pm Attend ATSIEB Meeting at Aboriginal and Torres Strait Islander Cultural Centre

1.30–2.30pm Consultation with Julie Tongs and Kim Davidson, CEO, Winnunga Nimitja

11 August 2015

10–10.30am Teleconference with Gill Eshman, ACT Aboriginal and Torres Strait Islander Office re Issues Paper

19 August 2015

10am–1pm General Community Discussion Roundtable 1 Consultation

2–4pm ACT Government Roundtable Consultation

25 August 2015

11am– 12pm Aboriginal and Torres Strait Islander Sub-Committee Meeting

1–2pm Oliver Kickett, Manager, Social Legislation Policy and Programs, Justice and Community Safety Directorate, ACT Government

2.30–3.30pm John Stanhope, ex-Chief Minister now working at Winnunga

4–5pm Craig Dukes, Director Ngunnawal Centre

31 August 2015

8.30–9.30am Brendon Moyle, Senior Advisor, Prime Minister and Cabinet

10–11am Gary Biles, Director General, Territory and Municipal Services Directorate

12–2.30pm Minister Yvette Berry, ACT Government

4.15–5pm Nicole Feely and another, ACT Health Director General


1 September 2015

3–3.30pm Teleconference Michael Ramalli, Regional Manager, Department of Prime Minister and Cabinet

9 September 2015

9.30–10am Teleconference Craig Leon, Senior Manager for Strategic Policy, Office of Aboriginal and Torres Strait Islander Affairs

14 September 2015

12–12.30pm Teleconference Craig Leon, Senior Manager for Strategic Policy, Office of Aboriginal and Torres Strait Islander Affairs

15 September 2015

9.30–10.30am Alison Playford, Director General,ACT Justice and Community

Safety Directorate

12–1pm Susan Heylar, Director, Council of Social Services

1.30–2.15pm Jacinta Evans, Student Engagement Education and Training Directorate

16 September 2015

10.30-12pm Terrence Williams, former Chair, ATSIEB

12.30-1.30pm Minister Shane Rattenbury, ACT Legislative Assembly

2.30–3.30pm Yvonne Mills and Alicia Hodges, ACT Government Health

6.30–7.30pm Community Focus Group Meeting, Hellenic Club

Indigenous Sports Community (5 people in attendance)

20 September 2015

11am-4pm Community Focus Group Meeting, St Benedict’s Church Community Centre Samantha Faulkner, ACT Torres Strait Islander Corporation (6 people in attendance)


21 September 2015

9-11am Community Focus Group Meeting, Alexander Maconochie Centre

(approx. 30 Aboriginal and Torres Strait Islander inmates attended)

12-1.30pm Dr Helen Watchirs, ACT Human Mabo Room AIATSIS

ACT Government Employees Network (5 people in attendance)

3.30–4.30pm Dr Chris Bourke, Member of the Legislative Assembly

22 September 2015

10-10.30am Kathy Leigh, Director-General, Director General’s Office, ACT Government

11-2pm Community Focus Group Meeting

Gugan Gulwan - followed by lunch Youth Aboriginal Corporation (approx 50 people in attendance)

3-3.30pm David Nicol, Under Treasurer, Treasury and Economic Development Directorate, ACT Government

23 September 2015

9-10am Geoff Richardson, Assistant Secretary, Indigenous Engagement Branch, Program Implementation Taskforce, Department of the Prime Minister and Cabinet

10.30-12.30pm Community Focus Group Meeting, CIT Reid

Caroline Hughes, Director, Yuruana Centre, Canberra Institute of Technology (consultation with 2 Aboriginal and Torres Strait Islander classes – approx. 30 people plus staff)

12.50-1.30pm Dr Maxine Cooper, Auditor-General and Brett Stanton, Director Performance Audits, ACT Audit Office

2-4pm Community Focus Group Meeting, West Belconnen Child and Family Centre

Shona Chapman (3 people in attendance)


29 September 2015

9.30-10.30am Ross Fowler, ATSIEB Board member

2.30-3.30pm Maurice Walker, ATSIEB Board member

3.30-4.30pm Richard Allen, ATSIEB Board member

30 September 2015

7.30-9am Community Focus Group Meeting, A Bite to Eat Café Chifley

Carl Currey, Kerri Timm (2 people attended)

10-11am Diane Collins, ATSIEB Board member

11.30-12.30pm Community Focus Group Meeting, 11 Moore St Canberra City

Ros Brown, United Ngunnawal Elders Council

1.15-2pm Dianne Joseph, Director General, Education

3.15-4pm Joanne Chivers, ATSIEB Board member

4-5pm Tim Wong and Darren Chong, Euroka Gilbert, Environment and Planning Directorate, ACT Government

1 October 2015

11.30-1.30pm Community Focus Group Meeting

Tjabal Indigenous Higher Education Centre

Anne Martin, Asmi Woods, ANU

2-4pm Community Focus Group Meeting, Board Room

Beth Sturgess, Winninga (drop in Session for staff and patients)

22 October 2015

9am-5pm Minister’s Stakeholder – Key Findings roundtable


Report on the Review ATSIEB Act€¦ · Web view3.15-4pm. Joanne Chivers, ATSIEB Board member....

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Transcript of Report on the Review ATSIEB Act€¦ · Web view3.15-4pm. Joanne Chivers, ATSIEB Board member....