Checks & Balances - Are They Needed

Mick Dodson, Aboriginal & Torres Strait Islander Social Justice Commissioner

Ladies and gentlemen,

My first duty is to acknowledge and pay my respects to the Atiawa peoples on whose traditional lands we meet.  It is good to be here on your ancestral lands. Over two centuries of colonization of the Indigenous Peoples of Australia we have seen the domination by the newcomers of systems of governance alien to the ancient systems of peoples whose country they had invaded.

The invaders never sought to, nor did they wish to understand or appreciate Indigenous governance and Indigenous Law which had existed for thousands of years.  Nothing much has changed in their attitudes despite the passage of more than 200 years of residency.

The initial approach of the invaders was to eradicate the first Australians and to destroy our systems of laws, governance, society and traditions.  This didn't work.  Our forbears didn't give up as easily as the new order had expected.

So then - when they realised we were not going to die out, the era of 'protection' took hold and persisted into the 1930's.  What this simply meant is that our people were gathered up and placed into reserves, government settlements and church-run missions. (These former settlements and missions today form the focus of much indigenous governance in Australia.)

Late in the 1930's the governments of the former British colonies and the Australian federation adopted the racist policy of assimilation.  War prevented its full implementation - but it was up and running and the national gospel of Aboriginal policy by the late 1950's early 60's.

In 1967 the Federal constitution was amended by referendum empowering the Commonwealth Government to make special laws for Aborigines and Torres Strait Islanders.  Although the political struggle by Indigenous Australians (and our friends) against assimilation began well before the referendum - that referendum was probably its death knell.

Early into the 1970s, official government policy became “self determination”. This has only recently been replaced by something I suspect even the Commonwealth government doesn't know well, or can explain – it is called “self empowerment”.

The combination of the constitutional mandate to the Commonwealth and the adoption of self determination as official policy ushered in a dramatic shift in the way in which we were governed and the opportunities for our own form of governance.

At a national level we went from an Aboriginal Affairs Council consisting of solely white men through what has been seen as an intermediate stage of a National Aboriginal Consultative Council (all Indigenous) then a National Aboriginal Conference/Congress to the Aboriginal and Torres Strait Islanders Commission (ATSIC) which is still with us today.

We have also seen during the last two and a half decades, a burgeoning Commonwealth bureaucracy dealing with indigenous affairs, coupled with countless new legislative measures.  Aside from the statute that established ATSIC; the most important (in the context of this conference) has been the Councils and Associations Act.  Local government statutes, Land Rights and Native Title Laws have also played their part.

Land rights

The Land Rights struggle began in 1788 with Indigenous resistance to British intrusions and persisted well into this century through resistance and conflict over the ever increasing demand for land by the intruders.  Where the violent resistance ended the political struggle took over.

The modern ‘Land Rights movement’ arguably began with the Gurindji ‘walk off’ from the Wave Hill Pastoral Lease in the 1960s and resistance of the Yirrkala clans to a Bauxite mine on their ancestral lands in NE Arnhem Land in the Northern Territory.

The struggle of the Gurindji and the Yolgnu received support and assistance from around the country and internationally. It culminated in the commonwealth government’s enactment of the Aboriginal Land Rights (Northern Territory) Act 1976.  This Law is still regarded as the high-water mark of Land Rights Legislation in Australia.

There was a recent review of the Act commissioned by the Commonwealth.  The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs has since responded to that review by rejecting most of its recommendations.1

Significantly that Committee laid down some core principles in their report 2 which effectively is an invitation to the Government to re-establish self determination as the centre piece of its indigenous peoples policy.

These core principles relate to autonomy (a word I do not like) in land management and future economic and social development.3 But what is crucial in this report is the first recommendation.  It says that the NT land rights act should not be amended unless the traditional owners in the NT at first understand the nature and purpose of any amendment and secondly, and more importantly, as a group have given their consent to those amendments.

I know of no other occasion where a standing committee of the commonwealth parliament has recommended to that parliament that it first obtain the consent of Aboriginal people to legislation affecting them before embarking on amendments.  Furthermore, the standing Committee recommended that those Aborigines living in the NT but who are not Traditional Owners be consulted and be given an opportunity to express their views about any proposed amendments.  This is a crucial turnaround and I hope the commonwealth government sees the good sense in these recommendations and adopts them.

The Aboriginal Councils & Associations Act 1976 [ACAA]

Returning to that other piece of legislation I mentioned, the Aboriginal Councils and Associations Act 1976. This act provided a means by which bodies could be formed to do other things aside from hold and manage land (like the Land Trusts and Land Council under NT Land Rights Act).  We saw an explosion of organizations under this and state and territory based legislation during the 1970's and 1980's.

These bodies are engaged in a plethora of activities. They were established for myriad purposes from supply of services such as health, housing, legal aid etc, to other purposes such as culture and sport.

Many also have assumed the role of local government providing municipal-type services in their communities, localities and regions.

Two commentators have said: 4

"In the past two decades, Australia's indigenous people have used the corporate form as a vehicle for political representation and political self-management. The incorporation of an indigenous corporation may occur under regimes of general application such as the Corporations Law, under State or Territory incorporated associations legislation, government or community services legislation or co-operatives legislation.  Alternatively it may occur under statutes reserved for (this purpose),5 such as special enactments of State or Federal Parliament,6 land rights legislation,7 or the Aboriginal Councils and Associations Act 1976 (Cth) ("the ACA Act').  With close to 3,000 associations incorporated under it, 8 the ACA Act is the most visible vehicle for the incorporation of indigenous bodies.  Incorporation under this Act is expanding rabidly due to the Native Title Act's requirement that new ACA Act corporations be created to facilitate the lodgement of native title claims9 and to act as the trustees or agents of holders of native title.  "10

When the government introduced the legislation their intention was to provide a vehicle, which while flexible, would allow those communities to control their funds and property.

When the Bill was eventually passed in 1976 the then Minister for Aboriginal Affairs said:11

"What is so important about this measure is that it will recognise cultural differences between the Aboriginal and non-Aboriginal societies and enable Aboriginal communities to develop legally recognisable bodies which reflect their own culture and do not require them to subjugate this culture to overriding Western European legal concepts.  "

Well things haven't quite worked out the way the politicians had envisaged.

Many of the problems with the Act can be put down to the way in which it has been administered and the effect of successive amendments.  And as I have said the latest registrar has also taken a very inflexible and legalistic approach to the incorporation process, particularly the rules of the associations, which in turn invariably thwart the aspirations of culturally appropriate governance regimes for particular indigenous groups.

Another factor has been the total resistance by registrars together with the bureaucracy and now incorporations under 'Councils' provisions of the Act. I suspect this was done to appease their state and territory colleagues who see local government as a matter within the exclusive legal domain of themselves and not a matter for the Commonwealth to legislate on.

Nevertheless, Aboriginal Corporations, whether under state & territory laws or Commonwealth law, have become central to the social, economic and political life of Indigenous Australia.

What worries me is that the emphasis on process and procedure and the insistence on rules and regulation has imposed a new form of legal assimilation on indigenous people.  The highly onerous reporting and audit requirements preoccupy corporation administrators and the people get forgotten.  Accountability has become synonymous with getting a good audit rather than delivering and being accountable for an effective service to Aboriginal people.

There was a review of the ACCA in 1995 but it has never seen the light of day. 12

My purpose today is not to dwell on the shortcomings of the legislative mechanisms available in Australia, in particular the ACAA- but to illustrate that in Australia we still have not got it right so far as purpose built legislation for indigenous governance is concerned.

I now turn my focus to the question of the need for checks and balances although I think we are really talking about accountability in this context. I intend to illustrate one indigenous point of view on checks and balances later in this presentation.

Obviously the stringent audit and reporting requirements that surround the administration of the ACAA provide some check on the excesses of these corporations.  This to me is one way traffic, it provides some comfort to government and other funding agencies like ATSIC but provides little in the way of accountability and answerability to the people who have become reliant on these structures.

Checks and Balances

What I'm talking about here in the context of indigenous corporations, and local government entities is not what we would consider in the normal course of constitutional arrangements in a modem democracy.  This is not strictly about the separation of powers, the independence of the judiciary and the fundamental political and human rights of the citizen.  Although there are some parallels.

On the point of checks and balances I want to relate to you a recent event in Australia concerning a referendum in the Northern Territory.

The Northern Territory is not a full member state of the Australian federation, but since

self government in 1975 has agitated for full statehood within the Australian constitution

and the federation.  They got their chance last year via a referendum.  They blew it. I

think they blew it because not enough attention was paid to entrenching checks and

balances into the proposed constitution and because the 30% of the population which is

indigenous had their distinctive rights and interests largely ignored.

The Aboriginal leaders of the Northern Territory in their own organised, funded and run constitutional convention made the following points:

·        The proposed constitution did not have their consent and was not based on principles of equality, coexistence and mutual respect and was rejected

·        Aboriginal peoples of the Northern Territory had a right to self determination and an inherent right to self government and that must be recognised in any Northern Territory constitution

·        Any Northern Territory constitution must recognise Aboriginal law through Aboriginal law makers, and Aboriginal structures of law and governance.  They were willing to negotiate in good faith on these and all matters requiring negotiation.  Good faith had not been present in the elaboration of the proposed Northern Territory constitution.

·        Interestingly, no changes to a constitution could be made without a majority of electors at a referendum BUT ALSO “by a majority of the peoples of the Aboriginal nations of the Northern Territory."

·        Aboriginal land rights must be respected and have constitutional protection

·        Sacred and significant Aboriginal sites must have constitutional protection. 

·        Aboriginal representatives in parliament: by adopting effective procedures to ensure Aboriginal representation in the parliament including multi-member electorates

·        The guarantee, by entrenchment, of human rights law in the constitution including the absolute prohibition of discrimination on such grounds as race, sex, language and religion.

·        There must be constitutional guarantees for equal access to essential services and infrastructure, such as health, education, roads, clean water, communications and employment and special measure must be taken for people living remotely.

·        The right to all levels of education

In relation to checks and balances the Aboriginal leadership had this to say.'

"that any Northern Territory constitution must provide effective mechanisms for accountability of governments, including.,

·        Freedom of information legislation

·        An independent adequately resourced ombudsman's office

·        An independent adequately resourced auditor general

·        An independent commission against corruption

·        An independent electoral office

·        Adequate provision for judicial and administrative review of government decisions

·        Measures to ensure fairness in government contracts. 13

Although I believe some important checks are missing from this last list it illustrates the frustration felt by Aboriginal people in the experience that is self government in the Northern Territory, and also the problems with the ACAA.

The problem has manifested itself in the incorporation process.  The Registrar of Aboriginal Corporations has refused to incorporate groups which have put forward rules that reflect their cultural obligations and community need in terms they have worked out and which suit them.

This situation is highly unsatisfactory.

What then are the checks and balances in the meantime that need to pervade the

Aboriginal corporations of Australia?

Two recent reports14 that have yet to be published have discussed this issue in the following way.

Accountability

The writers speak of two types of accountability.

(1)     "external accountability: accountability to outside bodies such as finance providers (e.g. the state, financial institutions or trade creditors), regulatory authorities, government and the general public.,

(2)     internal accountability: accountability to the members of the Aboriginal group or groups for whom the corporation was established to serve.

The reports note that there will inevitably be tension and potential conflict between maintaining both external and internal forms of accountability.

They claim, and I agree, that the two forms of accountability are linked. Organisations which develop effective corporate governance and service delivery mechanisms which maximise internal accountability also generally demonstrate good financial and other types of external accountability'.

External accountability

Under the current provisions of the ACA Act organizations meet external accountability by satisfying regulatory obligations and by complying with service delivery agreements and contracts.

This presents difficulties for many indigenous groups because on the one hand they are locked into developing and maintaining effective management and accountability regimes in their corporation, while on the other they are more concerned with internal priorities rather than those of the wider system.

Indigenous corporations tend to resist if they are seen to be fundamentally in conflict with principles of self-determination.

The way in which individuals and local groups view their rights and interests can also clash with the need to maintain external accountability.  The pressure of culturally-based obligations to kin and the best use of scant resources pose difficult problems for the governing committees and staff of Indigenous corporations in dealing with formal standards of accountability.

Internal accountability

Under the present legal framework, accountability requirements upon Aboriginal corporations are met internally both through internal governance structures and consent and consultation procedures.

"Indigenous views will differ from bureaucratic ones: Whilst these legal requirements are intended for indigenous peoples' benefit, it is important to stress that internal accountability must in large part be measured from the point of view of the indigenous group.  Measures of accountability in mainstream bureaucratic culture, such as an organisation's financial management practices, representativeness, responsiveness to its constituents, and equity of access to its services may not necessarily correlate with how indigenous people perceive the corporation’s performance".

The paper adds:

Accountability issues for indigenous people are relate to the identification, decision making and dispute resolution issues.  The fact that indigenous priorities tend to centre on local and particular interests and groupings rather than broad ones, means that accountability itself will be measured against how these are affected, rather than on whether the corporation is attempting to be accountable to the group as a whole.

They point out that there are a number of consequences connected to these factors.  Although the paper is about native title corporations the point is highly relevant to Indigenous governance corporations as the way in which Internal accountability is seen may not be through the eyes of the group as a whole but by specific subgroups or individuals within the larger group.  "As a result, whether or not the corporation is seen as being internally accountable will always be potentially subject to internal dispute".

Mechanisms to maximise internal accountability:

Indigenous corporations generally have a bad track record in developing mechanisms and procedure to resolve internal disputes.  Corporations need to define precisely to whom they should be accountable in given circumstances rather than establishing measures directed at the whole group.  The way and the format in which information is conveyed to internal stakeholders is vitally important.  The way in which review and grievance procedures are designed must include appropriate mediation and arbitration procedures which actually cater to the needs of individuals and groups.  In terms of external accountability the legislation at present only provides for arbitration in disputes - this is clearly unsatisfactory.

"In addition, corporations need to have consultation mechanisms in place that take account of the internal structure of the group, the distribution of rights and interests, and the complex arrangement of indigenous authority.

These matters should also be considered when designing mechanisms through which concerns or grievances about proposed decisions may be raised and handled, and through which such decisions can be reviewed".

Accountability within the corporations:

Questions also surround accountability within the corporation itself. For example, to whom are the staff of the corporation accountable?  The corporation, it's members, or the entire indigenous group?

How are staff to be protected when, despite the care they have exercised in a matter, a subgroup or individual expresses intense opposition because they are attempting to assert rights that are not accepted by others?