�����鱨վ

Submission to the Review of
ATSIC

by the Aboriginal and Torres
Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity
Commission

20 August 2003

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Also available:

• Summary
  of submission to ATSIC Review - Social Justice Commissioner calls on
  government to strengthen ATSIC

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1) Introduction

2) Comments
on the discussion paper

3)
Overview of the Social Justice Commissioner's proposal for ATSIC

4) Issues
concerning ATSIC at the regional level

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1) Introduction

This submission is
made by the Aboriginal and Torres Strait Islander Social Justice Commissioner
on behalf of the Human Rights and Equal Opportunity Commission. [1]
It responds to the public discussion paper titled 'Review of the Aboriginal
and Torres Strait Islander Commission - June 2003'.

The submission specifically
discusses the following issues:

• Strengthening
  ���ճ�����’s national advocacy, monitoring and evaluation roles;
• Strengthening
  the interaction of ATSIC with state and territory governments; and
• Supporting the
  evolution of the ATSIC regional council structure.

Overall, the submission
argues that in order for ATSIC to represent Indigenous peoples effectively
its current powers must be enhanced at the each of the national, state/territory,
and regional levels. What is required to make ATSIC more effective is
not a redistribution of ���ճ�����’s current powers from the
national to the regional level but instead an enhancement of
the existing powers at all levels. Particular attention should be devoted
to:

• strengthening
  the overall role of ATSIC at the national level in monitoring service
  delivery by all government agencies and setting the national policy
  agenda;
• enhancing the
  capacity of ATSIC regional councils to undertake an expanded role in
  regional planning and service delivery by providing additional powers
  to enter into agreements on a regional or statewide basis; and
• providing flexibility
  to adjust the structure of the regional council to best meet local needs
  (for example, through providing the capacity to develop alternative
  governance arrangements such as a regional authority or other suitable
  structures).

The Social Justice
Commissioner also supports the maintenance of a ‘separation of powers’
between the elected and administrative arms of ATSIC, but does not support
the creation or maintenance of a separate agency such as Aboriginal and
Torres Strait Islander Services or the mainstreaming of service delivery.

Section 2 of the
submission provides some broad contextual comments about the Review’s
discussion paper. Section 3 gives an overview of the Commissioner’s
proposals for reform of ATSIC. Section 4 examines in greater detail the
potential for enhancing the ATSIC structure at the regional level, with
particular regard to the devolution and regional authority models proposed
in the Review’s discussion paper.

2)
Comments on the discussion paper

At the outset, the
Social Justice Commissioner wishes to commend the Review Team for their
concise overview of issues relating to ATSIC. In particular, the Commissioner
agrees with the Review Team’s view that ‘ATSIC should be the
peak State/Territory and National body, which advocates for the development
of Indigenous communities’ and that the ‘National Body should
provide the policy interface for the Commonwealth Government setting and
advocating a national strategic direction’ (key principles for ‘a
new ATSIC’, pp6-7 of the Discussion Paper). The Social Justice Commissioner
also commends the Review Team’s focus on strengthening ATSIC at
the regional level and on the central role it places on ���ճ�����’s
Regional planning processes for setting the priorities for all service
delivery for Indigenous peoples.

The Commissioner,
however, has a number of concerns about matters raised in the Discussion
Paper. Many of these concerns stem from the anecdotal nature of the Discussion
Paper and its failure to refer to significant research and data relating
directly to the issues under consideration. These concerns fall into three
broad categories.

First,
the discussion paper does not refer to reviews and consultations previously
conducted on the exact issues raised in the discussion paper. These reviews
should provide greater guidance to the proposals identified by the Review
Team and would also ensure that the Review does not ‘reinvent the
�ɳ����’.

For example, the
Discussion Paper’s main proposals share much in common with the
proposals in the Section 26 Review of ATSIC in 1997/1998 and
���ճ�����’s consultations and Report on greater regional autonomy
from 1999/2000. Of particular importance is the finding of both of these
reviews that there was wide support for enhancing the role of ATSIC regional
councils, but that there was not support for sweeping changes to the ATSIC
regional structures. Instead, there was a preference among Indigenous
peoples for reform to ���ճ�����’s regional structure to be incremental
and to be built on enhancing the existing regional council structures
rather than imposing more extensive regional authority style structures.

Both reviews made
significant recommendations as to how this might best be achieved, including
through reform of the ATSIC Act 1989. These reviews, as well
as ���ճ�����’s options paper from 2000 titled ‘Resourcing Indigenous
development and self-determination - a scoping paper’, provide valuable
guidance to the issues under consideration in the review. The implications
of the findings of the these reviews, the proposals in the options paper,
and the findings of successive Social Justice Reports on related
issues are discussed more fully in the body of this submission.

Second,
the discussion paper does not refer to existing reviews and data that
address issues raised anecdotally with the Review Team which were subsequently
reflected in the discussion paper. Had the review referred to this research
a number of comments that are noted in the discussion paper might not
have been included on the basis that they could not be relied on as correct.

For example, paragraph
6.18 of the discussion paper states:

Some argued that
legal services, for example, should be outsourced to provide both civil
and criminal services, with the successful civil cases cross funding
the criminal matters, ensuring the employment of Indigenous Australians
as a pre-requisite within contracts.

The recent evaluation
of ���ճ�����’s legal and preventative services program by the ATSIC
Office of Evaluation and Audit identifies a number of significant problems
with this comment. The main finding of the recent audit was that Aboriginal
and Torres Strait Islander Legal Services (ATSILS) ‘are providing
legal services at a cost that is significantly lower than that paid by
mainstream Legal Aid Commissions (LACs) for legal work undertaken on a
referral basis by private practitioners, and that this is achieved at
a level of client satisfaction no different from that reported by LAC
��������Գٲ�.’ [2] The Review also notes that there
is significant room for improvement in the way that mainstream legal services
(ie, LACs) deliver supplementary services to Indigenous clients, and also
that ATSILS are substantially under-funded to achieve their purposes.

The comment in the
discussion paper also does not adequately reflect the role of ATSILS in
providing preventative and diversionary services to reduce the rate of
adverse contact of Indigenous peoples with the criminal justice system
and assistance in family violence matters, in addition to providing culturally
appropriate, equitable and accessible legal aid. It also fails to recognise
the vital role of Aboriginal Field Officers in legal services. These are
core issues that are obscured by the simplified comment in the discussion
paper.

Third,
the discussion paper does not appropriately contextualise ���ճ�����’s
role within the broader framework of government policy making and delivery
of services relating to Indigenous peoples. The discussion paper acknowledges
that ATSIC has wrongly been used as a scapegoat for failures in areas
over which it has no program responsibility (for example, health). Yet
in some sections the discussion replicates this criticism, implying, perhaps
unintentionally, that ATSIC has failed as the livelihoods of Indigenous
peoples have not been substantially improved over the past decade.

Paragraph 6.55-6.57
of the discussion paper reflects this problem. Paragraph 6.55 conflates
���ճ�����’s accountability (as demonstrated through normal auditing
requirements which apply to all government agencies and through which
ATSIC has demonstrated a high level of accountability) with effectiveness
in improving Indigenous peoples’ lives. [3] ATSIC
is also criticised for its failure to ensure that all service delivery
to Indigenous people derives from a needs-based formula and is sufficiently
outcomes-focused (although the review does rightfully acknowledge that
���ճ�����’s Community Housing and Infrastructure Program is one of the
few programs at any level of government that is needs-based and well-targeted).

Ultimately, missing
from this analysis of the broader framework of government policy making
and service delivery is recognition of the significant under-funding in
key areas of Indigenous marginalisation. This is a key factor in preventing
needs-based funding from being implemented (as the Commonwealth Grants
Commission’s inquiry into Indigenous funding clearly demonstrated).
The discussion paper also lacks sufficient recognition of the significant
attention that ATSIC pays to this issue (see for example the policy document
‘Directions for change’ released ahead of the 2001 budget
cycle). This is not to say that ATSIC cannot improve the way that it advocates
about this issue – it is the Commissioner’s view that at present
ATSIC under-utilises its existing powers and has the capacity to exert
greater influence on the national policy agenda – but it is to say
that the discussion paper over-stretches the test for whether ATSIC is
accountable or not.

3)
Overview of Social Justice Commissioner’s proposal for ATSIC reform

This section of the
submission provides an overview of the Commissioner’s proposal for
the reform of ATSIC. Specific issues relating to the regional level are
then addressed more fully in the remainder of the submission.

The Commissioner
believes that ATSIC has appropriately identified the starting point for
any discussion of program design and service delivery for Indigenous peoples
in its 2001 budget advocacy document titled Directions for change.
ATSIC stated that for all programs and policy proposals ‘the values
and aspirations that are meaningful to, and express priorities of, Australia’s
Indigenous peoples must be the basis for the policy approaches being taken.’
Accordingly, the question that they saw as being the central one was:

Will this activity
enhance Indigenous people’s capacity to achieve what is important
to them and, in its development and implementation, contribute to the
empowerment of Indigenous peoples and the achievement of their
objectives and priorities?

Proposals for reform
of ATSIC should be considered in light of this overall objective for all
government service delivery to Indigenous peoples. This requires that
ATSIC be representative at the regional level and must be able to reflect
the objectives and priorities identified at this level up to the state/territory
and national levels.

It also requires
that ATSIC must have the capacity to set the agenda and subsequently evaluate
the performance of other government agencies at both the federal and state/territory
level in achieving this objective.

To achieve this,
���ճ�����’s current powers must be enhanced at the each of the national,
state/territory, and regional levels. Crucially, what is required to make
ATSIC more effective is not a redistribution of ���ճ�����’s
current powers from the national to the regional level but instead an
enhancement of the existing powers at both levels. It should also
be noted that at present, ATSIC does not fully utilise its existing powers
at either the national or regional level. There remains much potential
for ATSIC to achieve many of the objectives identified in the ATSIC Review
within its existing structures and powers.

a) ATSIC at the national level

The Commissioner
is particularly concerned that there must be sufficient attention to the
importance of ATSIC maintaining a strong voice at the national level.
Any diminution of ���ճ�����’s role at the national level will ultimately
affect its ability to influence the national policy agenda and will lead
to less effective advocacy for Indigenous peoples. This will be the case
even where a diminution of the national focus is accompanied by an enhanced
role for regional councils.

At a broad structural
level, the Social Justice Commissioner supports the retention of the so-called
‘separation of powers’ within ATSIC in which elected representatives
continue to set policy priorities and to decide the broad program allocation
of funding but do not have any involvement in making individual funding
decisions. The Commissioner does not, however, support the continuation
of a separate service delivery agency (such as Aboriginal and Torres Strait
Islander Services (ATSIS)) to achieve this and queries the efficiency
of this measure. A unified ATSIC structure that has functions of advocating
for Indigenous peoples, setting policy objectives and priorities, and
delivering services and programmes is feasible, achievable and the preferred
option.



Similarly, the Commissioner considers that it would be a retrograde step
to ‘mainstream’ service delivery currently delivered by ATSIC/ATSIS
to other government departments – for example, by moving responsibility
for the Community Development Employment Projects (CDEP) or Community
Housing and Infrastructure Program (CHIP) to either the Department of
Family and Community Services or the Department of Employment and Workplace
Relations.

There are several
reasons why the Commissioner does not support such mainstreaming. First,
ATSIC has developed considerable expertise through running programs such
as the CDEP and CHIP. Many innovations in program design have resulted
from ���ճ�����’s leadership role in delivering these programs; the CDEP
program, for example, has become a model for the mainstream ‘work-for-the-dole’
scheme. If these were transferred to mainstream agencies, there is some
potential for the corporate knowledge that ATSIC has developed in these
areas to be lost. There is also greater opportunity for a ‘silo
mentality’ to emerge whereby individual departments are focused
solely on areas of service delivery within their ambit, with the result
that communication and coordination between service providers is not maintained
and the delivery of Indigenous programs becomes more disparate.

The current ATSIC
structure, on the other hand, provides a focal point for policy and program
development and easy access to direct input from the state and regional
levels. The Social Justice Report 2001 provided a case study
of the first community participation agreement which was developed at
Mutitjulu in 2000-01. This case study demonstrates these problems –
it was the lack of coordination of different mainstream government services
and the lack of sufficient interagency commitment that proved to be one
of the main obstacles to the success of this major capacity-building initiative.
[4]

Secondly, as the
Commonwealth Grants Commission report on Indigenous funding noted, ATSIC
programs (most notably CHIP and CDEP) are among the best targeted and
outcomes focused of all programs delivered at any level of government.
There is accordingly not a performance issue that must be addressed which
would justify moving these programs to other departments.

Third, mainstream
government departments do not have a good record in delivering services
to Indigenous people. ATSIC was established as a supplementary funder
because of gaps in service delivery to Indigenous peoples by mainstream
Commonwealth and state / territory agencies. It would be counterproductive
to pursue alternative arrangements that replicate the original circumstances
that led to ���ճ�����’s establishment. Additionally, while access to
mainstream programs is a crucial issue that must be addressed, it does
not negate the necessity for continued Indigenous-specific services. Indigenous-specific
service providers constitute an important adjunct to mainstream services
as they are in a position to develop culturally appropriate programs,
to foster specialist expertise and corporate knowledge, and to target
needs specific to Indigenous families and communities. ATSIC remains the
most appropriate structure for running these specific programs because
of its structure’s capacity to facilitate comprehensive networks
from regional through to national levels that can provide Indigenous advice
in policy development and program delivery.

Fourth, removal of
any role in service delivery will distance ATSIC from decision-making
processes as well as remove any leverage ATSIC has in negotiating with
all levels of government. This is likely to impact particularly at the
state and territory level. It is unlikely that enhancing ���ճ�����’s
national monitoring and evaluation functions could redress this issue
and provide ATSIC with the level of influence that it would possess through
maintaining program responsibilities.

In the Commissioner’s
view, ���ճ�����’s powers at the national level should be enhanced to
provide increased ability to set national objectives and to monitor and
evaluate the performance of other government departments in addressing
the service delivery needs of Indigenous peoples. It is noted that ATSIC
has extensive powers which could be used for this purpose under Section
7 of the ATSIC Act but that these powers are not fully utilised at present.

These powers should
be enhanced by strengthening the scrutiny role of ATSIC over service delivery
and program design by other government departments. This could be achieved
through amendments to the ATSIC Act which:

• empower ATSIC
  to set the objectives and guiding principles for service delivery to
  Indigenous peoples across all issues (which they can do under the present
  legislation), but also to empower them to be able to develop legally
  binding directions for service delivery agencies that accord with these
  principles;
• require the Minister
  to table in Parliament all such directions set by the ATSIC Board;
• provide that all
  directions issued by the ATSIC National Board and subsequently tabled
  in Parliament have the status of legislative instruments (or delegated
  legislation); [5]
• require all government
  departments to include in their annual reports to Parliament information
  as to how they implement the directions of the ATSIC Board in delivering
  relevant services and programs;
• empower ATSIC
  to evaluate how government departments and agencies (at all levels)
  comply with these directions in delivering services. Consequent to this
  would be providing powers to ATSIC to request documents from government
  agencies at all levels (the Social Justice Commissioner has such a power
  under the Human Rights and Equal Opportunity Commission Act 1986)
  and to require government officials (including secretaries of departments)
  to appear before the ATSIC Board to inform the Board of the department
  or agency’s approach and any action that they are taking to address
  deficiencies in their department’s performance or compliance;
• provide for regular
  scrutiny of compliance with these directions by the Australian National
  Audit Office or through an enhanced Office of Evaluation and Audit within
  ATSIC; and
• provide for scrutiny
  processes by the Parliament, including through ATSIC reporting to Parliament
  about deficiencies in department’s complying with directions and
  for parliamentary committees to scrutinise the actions of departments
  through specific inquiries or senate estimate processes.

Legislative instruments
remain subject to the scrutiny of the Parliament and may be disallowed
on the passage of a motion by one of the houses of parliament. Providing
ATSIC with the power to issue legally binding directions would create
a direct relationship between the ATSIC Board, the elected representatives
of Indigenous peoples, and the federal Parliament, the elected representatives
of the whole Australian community. Such recognition of ATSIC would be
appropriate.

ATSIC should also
have an enhanced monitoring role at the inter-governmental level. Current
processes at this level, such as through COAG commitments and Ministerial
Councils including the Ministerial Council on Aboriginal and Torres Strait
Islander Affairs, have provided an ineffective monitoring framework. For
example, I have previously expressed concerns in relation to the monitoring
of Bringing them home by MCATSIA on behalf of COAG due to the insufficient
information that is publicly reported which limits the accountability
of governments, as well as the lack of consultation with Indigenous peoples
and lack of independence in the evaluation of governmental progress. [6]
���ճ�����’s national role should be enhanced by ensuring that it has
a permanent role in the COAG and MCATSIA processes.

Finally, on the issue
of monitoring and evaluation at the national level, the Commissioner notes
that any enhanced scrutiny role for ATSIC must be consistent with other,
existing, forms of monitoring at the federal and inter-governmental level.
It should not result in duplication of activities and reports. It is my
view that the enhanced monitoring role for ATSIC proposed above would
not create any duplication of existing monitoring processes.

It is the Commissioner’s
view that at present there is no duplication of monitoring activity through
the Steering Committee for Commonwealth / State Service Provision’s
annual report on key indicators of Indigenous well-being; the Productivity
Commission’s ‘blue book’ on service delivery at a whole
of government level; the Australian National Audit Office’s audits
of Indigenous programs at the federal level (including those of ATSIC/ATSIS);
the ATSIC Office of Evaluation and Audit’s reviews of Indigenous
policy (such as recent reviews of performance monitoring frameworks across
all areas, [7] and the review of legal and preventative
services); and the Aboriginal and Torres Strait Islander Social Justice
Commissioner’s annual reports to Parliament on social justice and
native title issues. Each of these processes is complementary. An enhanced
national structure and role for ATSIC, including the ability to issue
directions, could provide greater accountability of governments in building
on the findings of these significant monitoring processes. ATSIC are ideally
placed to ensure that its activities and these existing processes are
coordinated within a clear national policy direction.

b) ATSIC at the state / territory
level

In recent years there
have been significant developments at the state and territory level in
the relationship between governments and ATSIC. A number of partnership
agreements have been entered into to guide the relationship . [8]
For example:

• In June 2002 the
  Victorian government entered into an agreement with ATSIC that has resulted
  in elected ATSIC officials, ATSIC public servants and representatives
  of Victorian government departments and agencies forming an Aboriginal
  Advisory Council to the Premier; and
• In October 2001,
  the Western Australian government and ATSIC signed the Statement
  of Commitment to a new and just relationship between the government
  of Western Australia and Aboriginal Western Australians which has
  resulted in the creation of an Indigenous Affairs Advisory Committee
  comprised of the Director-Generals of state departments and the ATSIC
  State Council.

A key issue for ATSIC
is how their State Advisory Committees (SACs) are empowered so that they
have the authority to undertake any activity that is agreed with the relevant
state or territory through such agreements and partnerships.

This partnership
approach has some similarities with the proposals in the ATSIC Review
discussion paper relating to ATSIC State Advisory Committees. The discussion
paper, however, goes further by proposing that SACs be provided legislative
access to State/Territory government departments and that these structures
could become the sole Indigenous advisory structure at the State/Territory
level.

The Social Justice
Commissioner considers that these proposals, while commendable for their
ambition, are ambiguous. It is not clear, for example, who would legislate
the access of ATSIC State Advisory Committees to state and territory governments
(i.e., the Commonwealth in the ATSIC Act or each state and territory government?).
If it is the Commonwealth, then this process may face significant constitutional
barriers; if the states and territories it is equally unclear how a federal
agency would be directed by legislation at the state / territory level.

The Social Justice
Commissioner supports the enhancement of the structure of ATSIC for interface
with state and territory governments. In particular, the Commissioner
supports enhanced State Advisory Committees (SACs) as the focal point
for interaction at the state-wide level. There are two key issues that
must be addressed to achieve this goal.

First, the Commissioner’s
preference is for ���ճ�����’s governing legislation to provide for the
organic growth of the relationship between ATSIC and state and territory
governments. The ATSIC legislation should provide the minimum features
of the State Advisory Committee structure and extend to authorising SACs
to enter into agreements with state and territory governments. The ATSIC
Act should provide that the SACs are empowered to undertake any activity
that falls within the terms of any such agreements between ATSIC and the
relevant state or territory. This should extend to agreeing on funding
arrangements whereby the SAC may pool state or territory funds with Commonwealth
funds, and run state or territory programs. This may require that a mechanism
is included in the ATSIC Act for agreements struck with state or territory
governments to be scheduled to the Act, in order that it is clear what
���ճ�����’s powers extend to in this regard.

Second, there remains
a significant problem of accountability for service delivery to Indigenous
peoples at the state and territory level. Very few parliaments in the
states and territories have extensive audit and parliamentary committee
structures to hold state departments and agencies accountable for their
service delivery. The distribution of state and territory funds for Indigenous
service delivery is also the area where there exists the least transparency
and greatest cost shifting. It is crucial that ���ճ�����’s role in monitoring
state and territory performance is addressed as a preliminary issue in
expanding the role of ATSIC at the state/territory level.

One of the consequences
of this is that there will need to be great caution exercised to ensure
that an enhanced ATSIC SAC structure does not create additional ambiguities
regarding state and territory service delivery responsibilities or cost-shifting
to the federal level.

In its report on
regional autonomy, ATSIC noted the following main issues relating to the
accountability of state and territory governments to their Indigenous
constituents:

• Different spheres
  of government have failed to meet their responsibilities to Indigenous
  communities, particularly in the delivery of citizenship entitlements;
• State and territory
  agencies are not under any legal obligation to take responsibility for
  service provision to Indigenous constituents or to address longstanding
  inequities; and
• States and territories
  refer their obligations for Indigenous issues back to the Commonwealth,
  usually through ATSIC. [9]

There has been a
longstanding need for clear agreement among the states and the federal
government about their respective responsibilities to Indigenous peoples,
how they will act to meet these responsibilities and the resources to
be committed by all parties. This situation persists despite the existence
of framework agreements between the Commonwealth and the states in different
areas of service delivery. For example, health agreements have been negotiated
in accordance with the Council of Australian Governments (COAG) 1992 National
commitment to improved outcomes in the delivery of programs and services
for Aboriginal peoples and Torres Strait Islanders (The COAG National
Commitment). These framework agreements have been largely ineffective,
as they have been seen as gentlemen’s agreements that apply in principle
only and for which there is no recourse if breached. [10]

���ճ�����’s Regional
Autonomy report suggested that state and territory accountability could
be improved through the adoption of a more active leadership role by the
Commonwealth, including forms of leverage to ensure compliance such as
performance conditions on grants to states and territories. In summary,
a need was identified for all Australian governments, led by the federal
government, to:

• have clearly targeted,
  long-term plans which identify redressing Indigenous disadvantage as
  a national priority and which measure progress within an equality framework;
• be transparent
  about the outcomes sought, with adequate performance indicators and
  benchmarks; and
• ensure ongoing
  and independent monitoring and evaluation of outcomes.

The Commissioner
proposes that it would be appropriate for ���ճ�����’s Office of Evaluation
and Audit (OEA) to have its role expanded to focus on state and territory
level service delivery, with a particular view to developing recommendations
for improving the relationship and interaction of ATSIC with the relevant
government. ATSIC should seek to negotiate a funding contribution from
the states and territories for such audits to be undertaken on a regular
basis within their agreement making function. The additional benefit of
this audit process being undertaken by ���ճ�����’s OEA would be the
capacity to tie this work into both the regional level and into the national
policy framework. It would also facilitate comparative analysis on progress
between different states and territories. This would facilitate the identification
of best practice and of transferable models which could then be applied
in other states and territories.

c) ATSIC at the regional level

The ATSIC Review
discussion paper rightly emphasises the need for enhanced powers at the
regional level and for input from the regional and local levels to inform
policy development and decision-making processes at the state / territory
and national levels. The need for more effective regional structures for
ATSIC that prioritise local needs and build greater community-capacity
has long been recognised. This has in part been motivated by a desire
for better representation of community interests, but also in response
to the need to develop structures and arrangements to facilitate improved
service delivery to Indigenous peoples. In regard to service delivery
to Indigenous people, the following issues have been noted:

• Lack of planning
  and poor coordination or duplication of services;
• Lack of clear
  delineation of responsibility for service delivery at federal, state,
  territory and local government levels;
• Fragmented and
  inconsistent policies and programs across governments; and
• Failure to integrate
  Indigenous involvement into the planning and delivery of services.

Problems have also
been identified in relation to the inflexibility and short-term nature
of funding arrangements to Indigenous community organisations. The need
for greater powers for regional councils in terms of setting funding priorities,
determining outcomes, entering purchaser/provider agreements, developing
more representative and effective regional governance arrangements that
have the capacity to facilitate greater Indigenous participation and sustainable
economic development are fundamental and significant issues that deserve
serious consideration.

It is necessary for
all levels of ATSIC to be enhanced in order to address policy and service
delivery issues effectively at a regional level. The profile of ATSIC
representatives, such as ATSIC Commissioners and Regional Chairpersons,
has ramifications for their capacity to represent regional concerns adequately
and to exert sufficient leverage at state and national levels. However,
an outstanding issue that needs to be addressed is that of the level of
state and territory governments’ accountability to their Indigenous
constituents, and the need to have greater transparency in monitoring
the funds and services directed to Indigenous people. Without effective
external evaluation of the states and territories’ performance,
and the capacity for regional planning to identify and to target services
towards specific outcomes at a state level, the potential to address community
needs adequately at the regional level will be greatly limited.

In addition, longer-term
commitments at the level of planning and funding are fundamental to addressing
the outstanding deficits in Indigenous service delivery and the entrenched
nature of Indigenous disadvantage.

Accordingly, the
Social Justice Commissioner supports the transition to the devolution
model in respect to the enhancement of ���ճ�����’s powers at the regional
level with some qualifications. Implementation of the devolution model
must address the following issues effectively:

• The provision
  of the ability for regional councils to enter into agreements. This
  includes:
  • the capacity
    to seek more flexible funding arrangements, including purchaser/provider
    agreements; and
  • enhanced
    regional planning processes that target funds more effectively –
    for example, through an outcomes-based funding approach and longer-term
    funding frameworks.
    
• The need to enhance
  the profile of ATSIC representatives at the state level to ensure that
  regional needs are prioritised. This should include consideration of:
  • Capacity
    to monitor funds directed to Indigenous needs at the state / territory
    level, for example, through review of specific purpose payment arrangements;
  • Empowerment
    of State Advisory Committees to enter agreements with state / territory
    governments; and
  • Strengthening
    of the profile and support for State Advisory Committees at state
    / territory level, including potential parliamentary representation.
    
• The creation
  of flexibility for regional councils to adapt to their local needs through
  developing alternative governance arrangements. This would include:
  • The capacity
    to represent a range of local interests, including those of traditional
    owners;
  • The ability
    to address service delivery needs more efficiently and appropriately
    within a designated region; and
  • The time-frame
    and capacity to develop an appropriate regional model from the ground
    up.

Consideration of
alternative governance arrangements must not be restricted to one model,
such as the regional authority structure adopted in the Torres Strait.
The need for flexibility in developing new forms of governance and the
unworkability of a ‘one-size-fits-all’ model should be recognised.
In addition, the limited applicability of the regional authority model
in meeting the needs of Indigenous people in certain areas, particularly
metropolitan and urban centres, must be taken into account.

Alternatively, the
provision of an ‘opt-out’ mechanism could facilitate a range
of options for increasing regional autonomy by providing existing regional
councils the capacity to enhance their existing powers or to develop further
governance arrangements where appropriate.

4) Issues
concerning ATSIC at the regional level

The remainder of
this submission identifies a number of issues relating to the devolution
and regional authority models as proposed in the review Team’s discussion
paper.

The need for the
continuing evolution of ATSIC as the peak Indigenous advisory body to
facilitate greater autonomy and self-determination for Indigenous people
was noted in the Section 26 Review of the Operation of the Aboriginal
and Torres Strait Islander Commission Act 1989 (Section 26 Review)
undertaken in 1997/98. [11] The Section 26 Review
suggested that:

• The Regional Councils
  be encouraged to make greater use of their existing powers and reforms
  be made to the ATSIC Act to add gradually to the powers of Regional
  Councils [12] (Recommendations 17 and 18), including
  the explicit authority to Regional Councils to enter into agreements
  (Recommendation 19). [13]
• [there be…]
  more detailed work on proposals for regional authorities and that provision
  be made in the Act ‘for the establishment of regional authorities
  after the Commission has considered and reported on the outcomes of
  the studies (Recommendation 20). [14]

In 2000 ���ճ�����’s
consultations on regional autonomy indicated a preference towards maintaining
the existing Regional Council structure, and augmenting the powers and
functions of Regional Councils, rather than a strong movement towards
regional authorities and other bodies. The report of the consultations
(herein the Regional Autonomy Report) identified the following issues
for regional councils:

• Development of
  more flexible funding and accountability arrangements to enable Councils
  to channel funds to areas of greater need at local and regional levels;
• Capacity for
  agreement-making to include receipt of funds by Regional Councils from
  external providers;
• Enhanced regular
  monitoring role of Regional Councils on the range of arrangements for
  the provision of services to the Indigenous people of the region, and
  ways in which effectiveness and co-ordination of services might be improved;
• Need for investigation
  and re-assessment of the historical basis for ���ճ�����’s distribution
  of funds to the regions;
• Need for increased
  monitoring and reporting requirements for State/Territory and Local
  Governments on funding and delivery of programs to address Indigenous
  need;
• Alternative employment
  arrangements, such as the use of private contractors for Regional Councils;
• Improved mechanisms
  for representation of smaller or under-represented community groups;
• Further investigation
  of the use of partnerships or protocol agreements to liaise with other
  regional structures; and
• Provision for
  further modelling and adequate information (possibly a communication
  strategy) for Regional Councils on appropriate structures and approaches
  to regional autonomy and any proposed policy directions that may emerge
  as a result. [15]

The recommendations
of the regional autonomy report supported the Section 26 Review’s
emphasis on prioritising the capacity of Regional Councils to enter into
agreements. It suggested that agreement-making should also form the basis
for further governance arrangements, such as regional authorities, that
would support greater autonomy for Indigenous peoples. It should be noted
that the Social Justice Package proposals made by CAR, HREOC and ATSIC
in 1995 also recommended that the Commonwealth accept ‘the concept
of regional agreements as a framework for establishing a range of formal
relations and settling of outstanding social justice issues on a regional
����������’. [16]

It is important that
any re-modelling of ���ճ�����’s responsibilities at the regional level
address the lack of powers that Indigenous people possess in terms of
self-governance. ATSIC have previously noted that:

Few Indigenous
people can exercise any substantive jurisdictional responsibilities
over matters of the most direct concern to them. They are almost totally
dependent on government funding arrangements designed to deliver programs
and services based on non-Indigenous models of governance. Commonwealth,
state and local governments do not share any of their substantial jurisdictional
responsibilities, few are prepared even to consider negotiations with
Indigenous peoples. [17]

Fundamentally, government
modes of service delivery to Indigenous people to date have operated to
constrain Indigenous social and economic development. As ATSIC have previously
noted:

the debate in Australia
has been confined to improving the prevailing ‘directed community
services model’. This model aims to provide services to Indigenous
people as a category of disadvantaged Australians. Most funding is at
the discretion, as well as the direction, of Commonwealth, State and
Territory government agencies… [18]

This model discourages
economic development in Indigenous communities:

Current funding
arrangements provide little encouragement to Indigenous economic development
since the resourcing of Indigenous organisations does not increase with
increases in economic activity in their local area. Without such a linkage,
the idea of development is reduced to one of ‘community development’
devoid of any economic dimension. Service delivery itself brings few
economic benefits and little stimulus to Indigenous economic advancement
. [19]

Comparative studies
of the relative situations of Indigenous people in settler countries indicate
that greater levels of self-government are associated with improved socio-economic
conditions. [20] The Aboriginal and Torres Strait Islander
Social Justice Commissioner’s Social Justice Reports for
2000-2002 have also emphasised the need to address governance and capacity-building
issues in order to improve outcomes for Indigenous people. The Social
Justice Report 2000 noted that to date there has been insufficient
attention given by governments to processes which ensure greater Indigenous
participation and control over service design and delivery as part of
an overall strategy to redress Indigenous disadvantage and economic marginalisation.
It observed that:

The development
of governance structures and regional autonomy provides the potential
for a successful meeting place to integrate the various strands of reconciliation.
In particular, it is able to tie together the aims of promoting recognition
of Indigenous rights, with the related aims of overcoming disadvantage
and achieving economic independence . [21]

4) (a) The devolution model

The comments in this
section relate to those aspects of the devolution model (as set out at
paragraph 7.19 of the discussion paper) which have not already been discussed
in this submission.

• Commonwealth
  and State/Territory Indigenous Affairs Agreements would be developed,
  with ATSIC as the lead Commonwealth agency to negotiate funding outcomes;
• States/Territories
  would allocate funds geographically, based on need, and delivery would
  be administered through regional purchaser/provider arrangements

The need for more
flexible funding arrangements at the regional level has longbeen recognised
(for example, in the Report on greater regional autonomy and
the CGC Report). In particular, the need for an outcomes approach,
where targets and accountability requirements are set locally, and the
capacity for Regional Councils to enter into agreements with other service
providers, have been emphasised. [22] These observations
have been made in the context of the often rigid and generic program guidelines
for ATSIC and other Indigenous organisations at the national or state
level. The constraints imposed by the current ties on ���ճ�����’s funding
have made it difficult to channel funds to local needs: ‘There was
general consensus that rigid program and accountability guidelines, particularly
those determined at a national level, prevent Indigenous organisations
from delivering effective outputs to their communities.’ [23]

The Report on
greater regional autonomy noted that the ability for Regional Councils
to receive funds from other providers, whether from public or private
sector sources, or to enter agreements as purchasers or providers of services
under the ATSIC Act would provide an opportunity to target funds more
effectively and to increase economic independence. The Report on greater
regional autonomy prioritised the capacity for Regional Councils
to enter into agreements with other service providers in the context of
enhancing the powers of Councils under the ATSIC Act. [24]
In particular, the Report recommends that there should be ‘prioritisation
of agreement-making to inform partnerships with Government and other agencies
as a means of progressing autonomy from the “bottom up” in
preference to further governance structures at this point in time’.
[25]

However, any Commonwealth
and State/Territory Indigenous Affairs Agreements or regional purchaser/provider
arrangements need to be framed within a long-term commitment to addressing
Indigenous disadvantage. To date, the availability of funding on only
a short-term basis has limited the ability of Regional Councils to tackle
issues that are deeply entrenched and systemic in nature. Isolated pilot
projects are unlikely to make significant inroads in these areas. In 1991
the Royal Commission into Aboriginal Deaths in Custody found that the
disempowerment of Indigenous people through governmental control was the
main barrier to the equal enjoyment of rights by Indigenous people. The
Royal Commission made recommendations for longer term, more flexible forms
of funding arrangements which would ensure increased Indigenous participation.
In particular, it recommended that Commonwealth, State and Territory governments
introduce triennial block grant funding for Indigenous organisation, and
that ‘wherever possible this funding be allocated through a single
source with one set of audit and financial requirements but with the maximum
devolution of power to the communities and organisations to determine
the priorities for the allocation of such funds.’ [26]

Similarly, the Canadian
Royal Commission into Aboriginal Peoples recommended a 20-year commitment
to overcoming Indigenous disadvantage and strengthening Indigenous governance
mechanisms. It argued that the social costs of simply ‘maintaining
the status quo’, without taking further steps to address current
disadvantage, would see government expenditures steadily increase over
time with little prospect that it would ever begin to decline. The Commission
argued that a 20-year commitment of programmes of renewal could lead to
significant reductions in the level of annual special programs expenditure
required, and would represent ‘a good investment’.

It is important that
any future structural changes to Indigenous service delivery take on board
the CGC Report’s recommendation that funding arrangements be outcomes-based.
A focus on outcomes takes into account what has been achieved in terms
of the inputs invested in meeting needs: that is, the resources given
to service providers to provide services or facilities, and the outputs
these service providers achieve with their given levels of input, [27]
whereas ‘need’ merely indicates the difference in relative
status between particular groups or individuals – specifically,
‘the difference between an existing situation and an acceptable
one'. [28] The CGC Report notes that:

A question arises
as to whether a needs based allocation of resources should be aimed
at assisting the region where, on average, people are more disadvantaged;
or the region with most disadvantage, even if the individuals in that
region are relatively better off. [29]

The lack of comprehensive,
comparable and up-to-date data necessary in order to construct suitable
regional indexes of relative needs remains an outstanding issue. The poor
coordination of the mix of Commonwealth and state mainstream and Indigenous-specific
programs creates further problems for the development of an equitable
formula based on relative need.

An outcomes-based
approach to the distribution of funds is in keeping with the principle
of substantive equality as it has the capacity to take into account different
variables such as the impact of geographic, economic, and demographic
variables on mainstream programs across the regions, and the varying levels
of Commonwealth, State and Territory involvement in service provision.
It is also able to take into account the investments made over periods
of time, so that assets less easily calculable, such as investments in
organisational capacity and people over a long period, are not jeopardised.
The CGC’s recognition of the necessity of value judgements in determining
outcomes, and the role of Indigenous people at the level of decision-making,
also provides an opportunity to increase their participation.

• service
  delivery at the State/Territory level would involve ATSIC Regional Councils
  and community bodies;
• the
  ATSIC State Advisory Committee (Commissioners and Regional Council Chairs)
  would have legislated access to the State/Territory governments and
  their departments, as the sole Indigenous advisory structure at the
  State/Territory level.

The advantages of
a state-based approach to directing Indigenous funding and service delivery,
particularly the capacity for enhanced and more targeted planning processes
at the regional level, has been identified in numerous reports. It has
been suggested that this approach 'could provide a balance between the
States' responsibilities and the Indigenous peoples' aspirations to control
their own affairs… [s]uch regional level collaborative decision-making
arrangements might be established by building on the present ATSIC structure’.
[30] The Commonwealth Grants Commission has suggested
that such regional arrangements:

could emerge as
a means of linking State level decision making with local community
control over service delivery matters. In some circumstances regional
decision making might even develop as an alternative to State level
processes. [31]

The CGC considered
regional arrangements in which Commonwealth Indigenous specific funds
would be 'allocated to State level Indigenous-controlled bodies that would
include representatives of Commonwealth and state governments and, where
relevant, local government'. [32] In addition, State
funds could be 'combined with the Commonwealth funds and distributed through
this mechanism'. [33] Collaborative decision-making
would occur at the state level between government and Indigenous people,
as well as the oversighting of additional needs to be met at the regional
level.

The recent response
by government to the CGC Report has highlighted the need to re-consider
the optimum mix of Commonwealth and State/Territory programs with the
intention of improving access for Indigenous people to mainstream services
funded by specific purpose payments (SPPs), a move which has the potential
to increase accountability in this area. [34] In its
Report the Commonwealth Grants Commission acknowledged that with the commencement
of the new tax system in July 2000, there was an opportunity for increased
flexibility in the states’ budget priorities. However Indigenous-specific
programs are in competition with mainstream providers for funding:

The challenge for
the States with respect to Indigenous people is to provide effective
services, within their mainstream provision, to a relatively small sub-population
(in all States except the Northern Territory) that has distinctive characteristics
and which requires special approaches to service delivery. [35]

In addition, there
is a longstanding lack of clarity in regard to responsibility for Indigenous
services among the spheres of government increases the potential for cost-shifting,
failure to provide adequate services and an over-reliance on Indigenous-specific
services.

While SPPs provide
an opportunity to target service needs for Indigenous people, there have
been concerns raised about the capacity to monitor the funds directed
to Indigenous people through these arrangements. The Commonwealth’s
limited scope to direct the regional allocation of resources and to monitor
outcomes for Indigenous people or to direct this capacity to the ATSIC
SACs would remain an outstanding issue in a model which devolved responsibility
for Indigenous service delivery to the states and territories. Likewise,
the authority with which ATSIC as the lead Commonwealth agency could negotiate
funding outcomes in this scenario presents a significant issue.

• ATSIC
  Commissioners and Regional Councillors would be elected under the current
  arrangements;

The level of representation
of local interests has been a continuing issue for the ATSIC structure.
This is particularly relevant at the Regional Council level. The Section
26 Review noted that 'for many smaller communities, [there is] a
lack of representation on, and a feeling that their needs tend to be overlooked
by, their Regional Councils'.15 This relates to perceptions that Regional
Councils can be dominated by the interests of certain groups. There is
a further issue concerning potential conflict of interests between traditional
owners or native title holders and resident Indigenous peoples whose ties
are from elsewhere. However, the Report on greater regional autonomy
found ‘wide support for the retention of a representative and democratically-elected
body at the national level to address Government and to coordinate Indigenous
advocacy [and]… to provide “balance” between different
Indigenous groups and interests across the country.’ [36]

The potential to
facilitate alternative arrangements which may provide greater representation
of different and moreover traditional interests within a devolutionary
model needs further consideration. The ATSIC Review discussion paper notes
that there is no ‘one-size-fits-all’ definition of Indigenous
communities and that an effective regional structure should adequately
reflect local diversity (7.2-7.3). Alternatives could include the enhancement
of regional structures through supplementary structures such as Murdi
Paaki Regional Council’s use of ‘community working parties’
and Noel Pearson’s idea of a ‘regional interface’ to
feed input from local groups to Regional Councils and beyond.

The Section 26
Review noted a potential overlap between the Regional Council structure
and 'the development and growth in recent years of other regional structures
such as non-statutory Land Councils in Queensland and Western Australia,
and Native Title Representative Bodies recognised under the Native
Title Act 1993.' To this end, Recommendation 17 c) of the Section
26 Review proposed that Regional Councils be given 'explicit authority
to co-ordinate with the relevant Native Title Representative Body or Representative
Bodies (whose functions are complementary to those of Councils) on native
title issues in the region.' The Report on greater regional autonomy
suggests that:

Without legislating
for this kind of authority for Regional Councils, overlaps between the
functions or interests of Regional Councils and land-based structures
could be resolved at the regional level through protocol agreements
or partnerships, or through mutual representation and coordination at
a regional level (for example, on a regional body or a coordinating
interface/committee of some kind).

Alternatives to local
governance arrangements such as these could be facilitated by the opt-out
model proposed in the ATSIC Review discussion paper, as could the development
of regional governance structures such as regional authorities which might
even provide an alternative to state level processes in appropriate areas.

• ATSIC
  Regional Councils would work with local Indigenous communities to develop
  a needs-based Regional Plan. The Regional Council would work with representatives
  of Local, State/Territory and Commonwealth agencies in the development
  of policies and programs to meet the needs identified within the Regional
  Plans and the delivery of local services;

There is a recognised
need for greater input from the regional and local level to State/Territory
and Commonwealth levels in order to identify service delivery needs and
to set more effective outcomes for Indigenous people. However, the relative
status of Regional Councils as a stakeholder within any planning processes
needs some consideration.

The Report on
greater regional autonomy emphasised that any government efforts
to negotiate governance arrangements with Indigenous peoples should include
the provision of appropriate support and resources, including technical
support to build capacity, long-term funding arrangements and legislative
backing. The CGC Report found that despite the existence of partnership
arrangements between Indigenous people and the Commonwealth and States/Territories,
there was a perception that local needs were unheard and that these arrangements
had little impact on their communities as they were essentially ‘top-down’
processes. The CGC Report states:

There are also
concerns about the unequal status of members of some existing partnership
arrangements, and perceptions that they are not driven by the mainstream
and are not always backed by funding. [37]

• the
  ATSIC elected arm (i.e. the National Board and Regional Councils) would
  have a stronger focus on policy at the Commonwealth and State/Territory
  level and Regional Councils would have the primary responsibility for
  focusing on service delivery;
• Commissioners
  would draw on the needs identified in Regional Plans in performing their
  role as part of the ATSIC State Advisory Committee and the National
  Board;

A stronger focus
on policy for ATSIC State Advisory Committees at the Commonwealth and
state/territory levels has already been pursued in part as a consequence
of the ATSIC Administrative Restructure in July 2000, in which the Regional
Offices took on greater policy, advocacy and research functions to increase
available support for the SACs. Issues remain concerning the status of
the ATSIC elected arm and the relative support for them to implement enhanced
policy and planning functions.

The ATSIC Review
discussion paper mentions that there has been some confusion as to the
respective roles of Commissioners and Regional Chairpersons (4.12). The
Regional Council Model (7.17) and the Regional Authority Model (7.16)
both suggest that the current roles of Regional Chairperson and Commissioners
might be collapsed into each other. But given the greater participation
and workload envisaged for the ATSIC elected arm in negotiating service
delivery arrangements at state/territory level, it would seem appropriate
to maintain both roles, delineate their functions more clearly at national
and state/territory levels, and to provide adequate administrative support
for these positions. While Commissioners might relay the regional and
state level concerns of their constituency to the National Board, the
role of regional chairpersons in advocacy and policy development could
be consolidated further at the state/territory level.

Further to this,
consideration could be given to the status of ATSIC SAC representatives
at the state government level, such as the provision of seats in state
and territory parliaments. The Report on greater regional autonomy
comments as follows:

The Section
26 Review noted that there were 'inadequate support arrangements
for Regional Council Chairpersons, who occupy full-time positions',
especially in light of 'the great pressures on other Councillors'. A
few Councillors suggested that in preference to establishing an alternative
system of regional governance (such as a series of regional authorities
with their own elected representatives), the status of Regional Chairpersons
should be improved by having designated seats for them in State and
Commonwealth governments, (for example, by giving Regional Chairpersons
seats in State Governments). [38]

There might also
be a case for further salaried positions for the elected arm at a ward
level, perhaps in a structure equivalent to local government, given that
Councillors are to have primary responsibility for service delivery.

4) (b) Regional authority
model

The regional authority
model presents the opportunity to increase Indigenous peoples’ control
over decision-making at the regional level. A regional authority would
have greater powers than a regional council in the current ATSIC model,
such as the authority to negotiate and reach agreements with Government
and other funders and service providers, and the ability to undertake
functions normally performed by other services providers . [39]
Potentially these enhanced functions would overcome some of the difficulties
regional councils experience with current budget restrictions through
providing an opportunity for more flexible forms of funding such as block
and pooled funding, and longer term funding cycles. Currently, the Torres
Strait Regional Authority is the only regional authority in operation
in Australia although the prospect of establishing regional authorities
has been considered by Indigenous people in other areas such as the Murdi
Paaki region in NSW, the Kimberley region in WA and Miwatj Council in
Yirrkala, NT.

Two central issues
for a regional authority model are the appropriateness of the application
of a regional authority model across the regions and the need for flexibility
in determining the dimensions of any new governance arrangements. The
Report on greater regional autonomy noted the following issues
were issues raised by the regional authority model:

• The appropriateness
  of regional authorities to particular areas;
• The workability
  and cost-effectiveness of setting up regional authorities, especially
  for smaller regions;
• The potential
  for inequities to be replicated or increased through adopting a regional
  authority model;
• The flexibility
  and potential of regional authority structures to accommodate different
  interests;
• The management
  of accountability for regional authorities and potential for equitable
  funding;
• The need for any
  structural reform to ATSIC involving bodies such as authorities to come
  from the ‘bottom up’; and
• The need for
  a considerable period of time to consider and implement models for regional
  authorities. [40]

Consultations for
���ճ�����’s Report on greater regional autonomy found that
widespread support for the transformation of regional councils into regional
authorities was lacking. Instead, the proposal to build on the ATSIC structure
through the development of regional authorities was received with ‘cautious
or qualified support’, and that greater support was recorded from
'discrete and remote communities ... [rather] than from those in settled
urban and rural centres where communities have often been dispersed'.
[41] It was also 'generally conceded that authorities
were more appropriate to those in remote and northern regions, and that
... it was easier to form a regional authority over remote areas where
Indigenous peoples formed a majority.' [42]

An additional consideration
here was the better access experienced by those living in settled areas
to mainstream services, in comparison to those in remote areas who are
often reliant on a patchwork or services. For those in remote and northern
areas, regional authorities suggest a means of 'finding the appropriate
type of social and infrastructure program to suit people whose distinct
culture alienates them from the demands of some institutions in which
they are governed.' [43]

However, the workability
of a single, one-size-fits-all model was disputed, and the need for flexibility
in determining the dimensions of any new structures was emphasised:

Other Councils
interested in the prospect of establishing authorities, however, emphasised
the need for flexibility. A suggestion was made that there was no need
to identify specific structures for authorities, only to set general
parameters. People could then choose what options were appropriate to
their area. In particular, it was suggested that methods for election
to regional authority structures be kept flexible, with a variety of
models possible. [44]

Concerns were expressed
that the conversion of Regional Councils into a series of independent
regional authorities might amount to a somewhat arbitrary and top-down
application of autonomy that would not take the needs and circumstances
of specific regions into account. The processes for defining new models
should be bottom-up, consultative and sourced with adequate time-frames
rather than determined through the imposition of top-down, legislative
or bureaucratic conditions. The TSRA experience indicates that the establishment
of authorities, or other regional structures and approaches for progressing
autonomy, is a lengthy process requiring the committed cooperation of
government agencies and departments at all levels as well as national
and regional Indigenous organisations. [45] ���ճ�����’s
Report on greater regional autonomy suggested that the issues concerning
regional authorities:

be given further
consideration when more time and resources have been devoted to the
development of regional autonomy structures and approaches, and that
this be secondary to consideration of the development of regional agreements.
In particular, further work needs to be undertaken to develop criteria
that a regional authority would be required to meet. Recommendations
could then be made to the Minister to obtain the necessary legislative
approval for the establishment of a regional authority in any given
case that met the criteria. [46]

The desire for flexibility
was linked to the need for regional authorities to be representative of
the different interests within a particular area. The Report also emphasised
that in order for the development of regional authority structures to
be successful, there must be Indigenous ownership of any forms of regional
governance. Alternatively, the regional authority model has some appeal
in its capacity to provide a vehicle for Indigenous aspirations such as
those expressed by the Aboriginal Nations of Central Australia in the
Kalkaringi statement, that is, ‘the rights of self-determination
and self-government, including recognition of the role of Indigenous governance
structures and the direct Commonwealth funding of Indigenous communities
and organisations, and recognition of customary law’. [47]

The use of an ‘opt
out’ mechanism, as proposed in the ATSIC Review discussion paper
(7.24), in conjunction with the devolution model might provide a satisfactory
option through which Regional Councils could petition the Minister for
alternative arrangements such as a regional authority structure which
may be more appropriate to their area. The ‘opt out’ mechanism
should be flexible enough to consider alternative schemes of representation
and governance structures in addition to regional authorities.

However, concerns
were raised in the Report on greater regional autonomy about
the potential for inequities to emerge between communities if those still
covered by Regional Councils were unable to exercise discretion over the
bulk of funds they received funds from ATSIC or unable to receive funds
from other providers. Some parity could be achieved by enabling Councils
and authorities to have similar and greater powers than Councils currently
possess in relation to funding. In addition, some Councils suggested that
communities with less potential for economic growth or in contexts marked
by continued disadvantage and entrenched racism might be ‘left behind’
with the application of a regional authority model that is more entrepreneurial
in its approach.

A further issue raised
by the ATSIC Review discussion paper’s regional authority model
is the level of representation at a national level and the degree of administrative
support. While the model suggests increased powers for regional authorities
at the level of funding allocation, it is not accompanied by an increase
in powers at the representational level, such as representation at state
and local government levels at least (as discussed above in regard to
the devolution model).

There is also a suggestion
that existing Indigenous organisations would provide local advice, and
‘where necessary constitute local Advisory Committees for advice’
(7.15). However, the level of administrative support and policy development
that would be available to the elected arm at the regional, state and
national levels is not defined. This is a significant issue, given that
the model envisages a formal coordination role for regional authorities
in regard to service delivery by Commonwealth and state/territory agencies
and a regional planning process in collaboration with state/territory
agencies.

Overall, the regional
authority model offers advantages such as increased powers to direct funding
to target areas of greatest need and the capacity to address issues of
service coordination at national, state/territory and regional levels.
However, the model’s indeterminacy about the roles, status and administrative
support for the elected arm at national at national, state/territory and
regional levels needs further consideration. In addition, the issues raised
in ���ճ�����’s Report on greater regional autonomy indicate
that a regional authority model, particularly in a ‘top-down’,
bureaucratic form, is limited in its value for application to all regions.
The use of an ‘opt out’ mechanism, in conjunction with the
devolution model, may provide a satisfactory arrangement for regions to
develop alternative governance structures where appropriate.

---

1.
The submission is made in accordance with the Commissioner's functions
in s46C(1)(b) and (c) of the Human Rights and Equal Opportunity Commission
Act 1986 (Cth).

2.
ATSIC Office of Evaluation and Audit, Evaluation of the Legal and
Preventative Services Program, ATSIC Canberra 2002, Executive Summary,
p1.

3.
Paragraph 6.56 explains the effectiveness test as whether 'at the community
level, Indigenous Australians are actually getting the outcomes that the
investment by agencies at all levels of government is designed to achieve'.

4.
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2001, HREOC Sydney 2001, Chapter 3; see also Smith,
D, 'Community Participation Agreements: A model for welfare reform from
community-based research', CAEPR discussion paper No.223/2001, CAEPR Canberra
2001, p38.

5.
Legislative instruments are governed by the Acts Interpretation Act
1901 (Cth), see section 46A. For an overview of delegated legislation
and the scrutiny role that is exercised over it by the Parliament see
Odgers'; Australian Senate Practice, 9th Edition, Depart of the Senate
Canberra 1999, Chapter 15. An example of a similar legislative instruments
process is Public Service Commissioner Directions. There are many other
variations of such instruments, see for example disability standards issues
under section 31 of the Disability Discrimination Act 1992 (Cth).

6.
See further: Aboriginal and Torres Strait Islander Social Justice Commissioner,
Submission to the Senate Legal and Constitutional References Committee
inquiry into the stolen generation, HREOC Sydney 2000,

7.
Office of Evaluation and Audit, Outcome data measurement. Unfinished
business - Evaluation of data for outcome measurement for selected Indigenous
service delivery programs, ATSIC Canberra 2002.

8.
For an overview of agreements see Aboriginal and Torres Strait Islander
Social Justice Commissioner, Social
Justice Report 2002, HREOC Sydney 2002, Appendix 1.

9.
Aboriginal and Torres Strait Islander Commission, Report on greater
regional autonomy, ATSIC National Policy Office, Canberra 2000, pp
11-12.

10.
House of Representatives Standing Committee on Family and Community Affairs,
Health is life: Report on the inquiry into Indigenous health,
Commonwealth of Australia Canberra May 2000, para 2.56.

11.
ATSIC, Review of the Operation of the Aboriginal and Torres Strait
Islander Commission Act 1989: Report to the Minister for Aboriginal and
Torres Strait Islander Affairs, ATSIC Canberra February 1998.

12.
Recommendations 17 and 18; see ibid, p.26.

13.
Recommendation 19; see ibid, p.28.

14.
Recommendation 20; see ibid, p.34.

15.
ATSIC, Report on greater regional autonomy, op.cit, p38.

16.
ATSIC, Recognition, rights and reform: Report to Government on native
title social justice measures, Canberra ATSIC 1995, p57.

17.
ATSIC, Resourcing Indigenous development and self-determination: a
scoping paper, ATSIC Canberra 2000, p22.

18.
ibid, piv.

19.
ibid.

20.
Moran, 'Housing and health in Indigenous communities in the USA, Canada
and Australia: The significance of economic empowerment' (2000) 7 Aboriginal
and Torres Strait Islander Health Bulletin 1.

21.
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2000, HREOC Sydney 2000, p107.

22.
For further discussion see ATSIC, Report on greater regional autonomy,
op cit, p13.

23.
Ibid, p11.

24.
Following recommendation 17a of the Section 26 Review. See ibid,
p37.

25.
Ibid, p36.

26.
See ATSIC, Report on greater regional autonomy, op cit, p20.

27.
Commonwealth Grants Commission (CGC), Report on Indigenous funding
2001, Canberra CGC 2001, p10.

28.
Ibid.

29.
Ibid, p29.

30.
Ibid, p61.

31.
Ibid.

32.
Ibid, p60.

33.
Ibid.

34.
Federal government, Government response to the Commonwealth Grants
Commission Report on Indigenous funding, Commonwealth of Australia
Canberra June 2002, .

35.
Commonwealth Grants Commission, op.cit, pp55-6.

36.
ATSIC, Report on greater regional autonomy, op.cit,
p10.

37.
Commonwealth Grants Commission, op.cit, p74.

38.
ATSIC, Report on greater regional autonomy, op.cit,
p9.

39.
Ibid, p14.

40.
ATSIC, Report on greater regional autonomy, op.cit, p17.

41.
Ibid, p16

42.
Ibid.

43.
Fletcher, C., 'Aboriginal Regional Australia: the hidden dimension of
community governance', Regional Australia Summit paper, Parliament
House Canberra 27-29 October 1999, p1.

44.
ATSIC, Report on greater regional autonomy, op.cit, p18.

45.
See ibid, pp22-7.

46.
Ibid, p39.

47.
Ibid, p17.

Last updated 22 August 2003.