& Balances - Are They Needed
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.
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.
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
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.)
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
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.
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has only recently been replaced by something I suspect even the Commonwealth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
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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.
also have assumed the role of local government providing municipal-type services
in their communities, localities and regions.
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
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.
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.
the Bill was eventually passed in 1976 the then Minister for Aboriginal Affairs
"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. "
things haven't quite worked out the way the politicians had envisaged.
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.
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.
Aboriginal Corporations, whether under state & territory laws or
Commonwealth law, have become central to the social, economic and political life
of Indigenous Australia.
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.
was a review of the ACCA in 1995 but it has never seen the light of day. 12
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.
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
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
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.
the point of checks and balances I want to relate to you a recent event in
Australia concerning a referendum in the Northern Territory.
Northern Territory is not a full member state of the Australian federation, but
government in 1975 has agitated for full statehood within the Australian
the federation. They got their
chance last year via a referendum. They
blew it. I
they blew it because not enough attention was paid to entrenching checks and
into the proposed constitution and because the 30% of the population which is
had their distinctive rights and interests largely ignored.
Aboriginal leaders of the Northern Territory in their own organised, funded and
run constitutional convention made the following points:
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
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
Sacred and significant Aboriginal sites must have constitutional
Aboriginal representatives in parliament: by adopting effective
procedures to ensure Aboriginal representation in the parliament including
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
The right to all levels of education
relation to checks and balances the Aboriginal leadership had this to say.'
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
Measures to ensure fairness in government contracts. 13
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.
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
situation is highly unsatisfactory.
then are the checks and balances in the meantime that need to pervade the
corporations of Australia?
that have yet to be published have discussed this issue in the following way.
writers speak of two types of accountability.
"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.,
internal accountability: accountability to the members of the Aboriginal
group or groups for whom the corporation was established to serve.
reports note that there will inevitably be tension and potential conflict
between maintaining both external and internal forms of accountability.
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'.
the current provisions of the ACA Act organizations meet external accountability
by satisfying regulatory obligations and by complying with service delivery
agreements and contracts.
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.
corporations tend to resist if they are seen to be fundamentally in conflict
with principles of self-determination.
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
the present legal framework, accountability requirements upon Aboriginal
corporations are met internally both through internal governance structures and
consent and consultation procedures.
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
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.
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".
to maximise internal accountability:
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.
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.
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".
within the corporations:
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?
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?
1 For further reference see., "Building on land rights for the Next
Generation, John Reeves QC AGPS August 1998
2 "Unlocking the Future" The Report of the Inquiry into the
Reeves Review of the Aboriginal Land Rights (Northern Territory) Act 1976, August
1999 House of Representatives Standing Committee on Aboriginal and Torres
Strait Islanders Affairs. Can Print Communications P/L.
see -Ian Viner QC "Whither Land Rights in the Northern Territory?
Whither Aboriginal Self Determination?
A Review of the Reeves Report" 1999 401 Australian Indigenous
C Altman, F Murphy & T Rowse (eds) "Level Rights at Risk"
Evaluations of the Reeves Report,
Research Monograph No 14, ANU 1999
3 Ibid. P 39
4 Mantziaris & Salomon "Interpreting the Indigenous
Corporation" (1998) 26 Federal Law Review (forthcoming) p31
5 An Aboriginal person is defined under ACA Act s. 4 as a "member of
the Aboriginal race of Australia" or "a
descendant of an indigenous inhabitant of the Torres Strait
Islands", terms defined in Gibbs v Capewell(1995)54
FCR 503. See also Shaw v
Wolf 389 FCA (unreported Federal Court ofAustralia, Merkel J, Hobart, 20
6 Eg. the Pitjantjatjara Land Rights Act 1981 (SA).
7 Eg. the Aboriginal Land Rights Act 1983 (NSW).
8 Registrar of Aboriginal Corporations, Annual Report 1995-96, at 7 and Annual
Report 1996-97, at 5, Annual Report 1997-98, at 8.
These are the "Native
Title Representative Bodies" required by the Native Title Act 1993
(Cth), Pt 1 1. See also Aboriginal and Torres Strait Islander Commission
(ATSIC), Review of Native Title Representative
10 These are the "Prescribed Bodies Corporate"/ "Registered
Native Title Bodies Corporate" required under the Native Title Act 1993
(Cth), Pt 2 Div 6; Native Title (Prescribed Bodies Corporate) Regulations
(Statutory Rules no.440 of 1994 as amended by Statutory Rules no 120, 1998).
P Sullivan, "A sacred land, a sovereign people, an Aboriginal
corporation: Prescribed bodies and the Native Title Act", Northern
Australia Research Unit Report Series, Report no.3, Australian National
11 Parliamentary Debates H of R 30.9.75 141-141 1
AIATSIS Final Report - Review of the Aboriginal Councils &
Association Act 1976 (Aug 1996) known as the Fingleton report
see Kalkaringi Statement published by the Central Land Council
14 see iv above and Structures for Indigenous Australians on & off
Native Title Land Discussion Paper 6 (yet to be published) Research Project.
Indigenous Law Centre UNSW Nettheim, Craig & Meyers