“Building a sustainable National Indigenous Representative Body”
By Tom Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner
Human Rights and Equal Opportunity Commission
Speech for the AIATSIS Seminar Series - Indigenous Public Policy: Responses from the Ground
Australian Institute of Aboriginal and Torres Strait Islander Studies/
Charles Darwin University
4 August 2008, 12.30pm
I would like to begin today by paying my respects to the Ngunnawal peoples, the traditional owners of the land where we gather today. I pay my respects to your elders, to the ancestors and to those who have come before us.
Can I also thank Patrick Sullivan and AIATSIS for the invitation to speak in this seminar series on the issue of the establishment of a new National Indigenous Representative Body.
I would also like to thank Patrick and his colleagues at the National Centre for Indigenous Studies at the ANU for all their work on the research that contributed to the report I will speak about today.
I recently spoke on this issue, also at AIATSIS’ invitation, at the 2008 National Native Title Conference, in Perth. Some of you may have had the opportunity to be there. I would like to start today by reiterating something I said on that occasion. I said,
Discussions about a National Indigenous Representative Body are not a theoretical debate. Nor is it something that is disconnected from the critical issues facing our communities, as some people would have you believe. A National Indigenous Representative Body has to be a fundamental component of the Indigenous policy landscape if we are to make lasting progress in improving the conditions of Indigenous people and our communities.1
The need for a National Indigenous Representative Body is something that is widely agreed upon by both Indigenous people and government.
The new federal government is committed to supporting a National Indigenous Representative Body. In the budget portfolio statement for Indigenous Affairs released as part of the federal budget in May, the Minister for Indigenous Affairs has stated that:
The Government went to the election with a commitment to set up a national representative body to provide an Aboriginal and Torres Strait Islander voice within government. We will soon begin formal discussions with Indigenous people about the role, status and composition of this body.
They have now commenced a range of consultation processes, to take place over the next four months, in relation to a representative body.
Without proper engagement with Indigenous people, governments will struggle in their efforts to make lasting progress in improving the conditions of Indigenous people and in our communities.
A National Indigenous Representative Body is a fundamental component of any future action if we are to achieve positive change.
Despite the widespread consensus on the need for such a body, there is still considerable divergence on what kind of body this should be? How should it be structured? What kind of membership will it need and how will that membership be determined? What role should it have? How should it be funded? What is its relationship to government and how will it be accountable to Indigenous peoples?
To assist the debates around these issues I have released an Issues Paper on this subject entitled, “Building a Sustainable National Indigenous Representative Body – Issues for Consideration”.
This research project was carried out following a commitment I made in my Social Justice Report 2006. In that report I said that I “will work with Indigenous organisations and communities to identify sustainable options for establishing a national Indigenous representative body”. I described the need for such a body to be established as “urgent and compelling.”
In 2007, I conducted a select tender process and ultimately hired the National Centre for Indigenous Studies at the Australian National University to conduct research. That research, that has been incorporated into this Issues Paper that was released in July 2008, comprised of three questions, namely:
- First, what lessons can be learned from mechanisms for representing Aboriginal and Torres Strait Islander peoples at the national, State/ Territory or regional level that have previously existed or that are currently in place?
- What lessons can be learned from mechanisms for representing Indigenous peoples that have been established in other countries? and
- What options are there for ensuring that a National Indigenous Representative Body is sustainable?
Copies of the Issues Paper can be downloaded from the HREOC website (www.humanrights.gov.au/social_justice/repbody/index.html).
As the Issues Paper is over a 100 pages, I have also produced a shorter 8 page Community Guide. The Community Guide highlights the key findings and questions raised in the Issues Paper and presents them in a simpler and more accessible form. Copies of the Community Guide are available for you here today and on the website.
The Issues Paper looks at lessons we can learn by looking at other representative mechanisms for Indigenous people that currently exist, or have previously existed, in Australia and overseas.
The final part of the paper also identifies a series of issues that are important to consider in establishing a National Indigenous Representative Body, such as the guiding principles, role and functions, structure and membership, its relationship with governments and parliaments and, of course, funding for such a body.
I should point out that the research does not substitute for broad-based consultation with Indigenous communities. Indeed, the research does not state a preference for a particular model for a representative body – it merely identifies some of the many issues that need to be considered in the formulation of a National Indigenous Representative Body.
The debate on a new National Indigenous Representative Body, which I anticipate will be a rigorous and lively debate, will have to contend with two important dimensions – firstly that of the past and secondly, that of the future.
In terms of the past, a new body will have to deal with the history and legacy left by ATSIC. I think the greatest problem ATSIC faced was that it was ‘blamed’ for the lack of progress in addressing Indigenous disadvantage, despite the simple fact that it did not have many of the responsibilities for service delivery required to achieve this goal. Although the ATSIC review of 2003 did not recommend the abolition of ATSIC, it is important that a new body should not be about reviving ATSIC.
In fact, I see significant benefits for a new National Indigenous Representative Body to not exercise the service delivery responsibilities of government.
As for all other Australians, let government be responsible for delivering services to Indigenous citizens. We don’t want to take the blame for second class treatment by government anymore.
So while we can draw on the lessons learnt from ATSIC, we also need to look beyond the ATSIC model as we set out the expectations for a new national Indigenous representative body.
Secondly, in terms of the future, a new representative body will have to operate in a vastly changed environment from when ATSIC existed. This is an environment with:
- Concrete commitments from government to Closing the Gap, with a partnership approach at the centre of this process;
- A renewed focus on reconciliation, following from the national Apology to the stolen generations;
- A whole of government system for delivering services to Indigenous people where the primary responsibility resides with mainstream government departments; and
- Significant environmental challenges facing all Australians, and where the traditional knowledge, practices and land use of Indigenous peoples will have a significant role to play in preserving the quality of life of all Australians.
A new National Indigenous Representative Body will also be created within the context of rapid advances internationally in the recognition of the rights of Indigenous peoples – developments which the new Australian Government has indicated it supports and respects.
Most importantly here is the recognition through the human rights treaty committees of rights to effective participation by Indigenous peoples in decision making that affects us. That is, a right to be at the table. And of course, the passage of the Declaration on the Rights of Indigenous Peoples which articulates our rights as Indigenous peoples, including rights to our own forms of organisation, to be engaged with on a basis of mutual respect and good faith by governments.
I would now like to delve in more detail into what were some of the lessons learned from the other models, and what were some of the issues that are identified for consideration in the Issues Paper.
So what are the lessons learnt?
In looking at what lessons we can learn from other models, the research firstly looked at past national Indigenous representative bodies in Australia including:
- The Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCATSIA),
- The National Aboriginal Consultative Committee (NACC),
- The National Aboriginal Conference (NAC), and
- The Aboriginal and Torres Strait Islander Commission (ATSIC).
The research identified a number of reasons why these bodies did not work as effectively as they intended, including:
- Not having clearly defined relationships with governments, Indigenous communities and organisations, and other stakeholders;
- Not having clear roles and functions, which meant Indigenous people’s expectations were not always met;
- Having too many functions – including advocacy, policy development, program delivery and evaluation – which created conflicting responsibilities;
- A lack of resources – this made it difficult to undertake the full range of responsibilities;
- Difficulty in successfully representing a wide diversity of Indigenous concerns – from urban to remote communities; women, young people, stolen generation members etc.;
- A tension between the expectations of Indigenous Australians for a strong organisation to represent their views and the preference of governments for them to act only as ‘advisory’ bodies.
Secondly, the Issues Paper looked at a range of national, state/ territory and regional Indigenous representative bodies currently operating in Australia including:
- National peak Indigenous bodies
- Land councils and native title representative bodies
- State/ territory representative and advisory bodies, and the
- Torres Strait Regional Authority.
Each category of bodies illustrated different approaches to structure, what function, membership and the processes for determining membership of the representative body. These are useful to look to when considering what would be the best approach for a new national Indigenous representative body.
Each of these groups of bodies tends to operate within different realms. The peak bodies are predominantly sector based and operate more at the national level.
- The Torres Strait Regional Authority is specific to the Torres Strait islands.
- The land councils and native title representative bodies are based around recognition of land ownership and operate more at the regional level, and
- The recently elected representative group here in the ACT and advisory committees, such as those in South Australia and Victoria and mooted for Queensland, operate more at the state/ territory level.
In terms of government arrangements, there are a number of key governmental bodies that have been formed at the federal level, the most recent of which is the Cabinet Committee on Indigenous affairs – previously known as the Ministerial Taskforce on Indigenous Affairs.
But importantly, the government arrangements for service delivery have largely been mainstreamed into general government departments and shifted focus to the regional level through Indigenous Coordination Centres, shared responsibility agreements and regional partnership agreements.
However, none of these bodies, nor the combination of them, can adequately provide the comprehensive representation that would be met by a National Indigenous Representative Body.
A key lesson that came out of examining these different bodies was that a new National Indigenous Representative Body will need to consider how it relates to each of these existing bodies.
In particular, it became obvious that the new National Indigenous Representative Body will have to consider how to interface with the Torres Strait Regional Authority to ensure Torres Strait Islander participation at the national level, and how to separately include the representation of mainland Torres Strait Islanders in the national body.
Thirdly, the research examined indigenous representation in four other countries, some of which you may be familiar with already:
- The United States’ National Congress of American Indians. With a membership of tribe members, this is an independent advocacy group that talks to government on policy development and monitors government policies. It is financially independent.
- Canada’s Assembly of First Nations. Its Membership includes all First Nations citizens who elect community representatives to the assembly. It operates as an independent advocacy body, although it is funded by government.
- Sweden’s Sami Parliament. As a parallel indigenous parliament, its role is to monitor government rather than providing self-governance. It is both a publicly elected body and a public authority funded by the Swedish Government.
- New Zealand’s Māori electorates and dedicated government agencies. Māori electorates provide indigenous representation in the national parliament. There are also a range of government bodies that represent Māori interests, such as the Ministry of Māori Development, the Māori Office Trust, the Waitangi Treaty Tribunal and the Waitangi Treaty Fisheries Commission. These bodies have indigenous members, but not necessarily elected members.
These overseas models operate in different contexts and demonstrate different strengths and weaknesses on issues such as self-governance and the influence they have with government. Interestingly, none of the overseas models performs a service delivery role on behalf of government.
So what are the key issues?
The Issues Paper that I have released identifies a series of important areas to consider in establishing a new National Indigenous Representative Body. They include:
- What should be the guiding principles for such a body?
- What roles and functions should it have?
- What kind of structure will it need?
- How is membership determined?
- What relationship should it have with governments and parliaments at the federal and state/ territory level? And
- How should it be funded?
Both the Issues Paper and the Community Guide go into these in more detail, but for today I want to highlight some of the ideas that have arisen in considering these issues.
Indigenous peoples’ vision of what they want from a National Indigenous Representative Body will have a fundamental impact on what the eventual body will look like. Some foundational principles for such a body could include that it have:
- Legitimacy and credibility with both governments and Indigenous peoples
- ‘Two-way’ accountability - to government and to Indigenous peoples and communities
- Transparency - in its operations, membership, elections, policy making and financial processes
- Representativeness – such as whether it is truly representative of the diverse range of Indigenous peoples – and I’ll come back to this one shortly
- A consistent and ‘connected’ structure – with clear links to Indigenous peak bodies and Indigenous organisations at the state, territory and regional levels, and
- Independent and robust advocacy and analysis.
To achieve its goals, a National Indigenous Representative Body could also be expected to:
- Play a leading role in making a new partnership between governments and Indigenous people
- Ensure Indigenous people contribute to and lead policy development on Indigenous issues
- Provide an Indigenous perspective on broader government issues, such as climate change or homelessness
- Be a strong and consistent advocate for the rights of Indigenous peoples
- Ensure proper mechanisms are in place to monitor the performance of governments on Indigenous issues
- Ensure government commitments, such as ‘Closing the Gap’ on health inequality etc, are supported by comprehensive, long-term and evidenced-based action plans.
As Indigenous peoples, we need to debate what we see as the ultimate purposes of the representative body.
To me, when we start to consider this issue there are two major factors that we need to think about in detail. The first is, do we want a body that is truly representative of all the different groupings of Indigenous peoples in its composition?
Or do we want a body of ‘Indigenous people representing and advocating for the Indigenous nation’?
Let me explain. If it is to be truly representative, this could mean that it has capacity to ensure the representation of stolen generations, traditional owners, youth, Torres Strait Islanders on the mainland and in the Torres Strait, as well as a regional balance and possibly even a tribal/ clan balance. I have not included gender in this list of different groupings for the simple reason that to me, this is a non-negotiable aspect of a representative body – whatever its composition and representative structure, it must have a gender balance to be credible.
The alternative to this is that whatever structure is decided, it then has a responsibility to consult and engage widely with all of the different groups and interests among the Indigenous polity with the effect that the views it puts ultimately ‘represent the Indigenous nation’.
These are two different things, and they will have a significant influence on what structure and processes are adopted by a new representative body.
The second major issue is what do we mean by independence? I hear all the time that Indigenous peoples want a representative body that is independent in its operations. But what I don’t hear is what this means.
For instance, in some discussions my office has had, a number of commentators and Indigenous peoples have pointed to the example of HREOC as a credible, independent body. This is despite us being government funded and set up under legislation.
We are independent in that government has no capacity to direct our work program or censor our views. It has, however, in the past and unfortunately continues today, to starve us of the funding capacity necessary to most effectively discharge our role.
It is important to note that HREOC has some differences from the ATSIC model – which was also a statutory authority model. The powers of the Minister are much more limited in relation to HREOC than it was with ATSIC, for example.
Ultimately, we need to be very sophisticated in how we address this issue. Ultimately, the representative body will need to be persuasive with both government and Indigenous peoples to be effective. Independence is about the body being able to advocate free from constraints imposed by government and also to operate in a way that is not captured by certain interest groups among the Indigenous population. It will be critical for us to tease out what we mean by independence – what we expect of such independence - as this will have a significant impact on the design and processes of the representative body.
This leads to the next key issue – what are the role and functions of the body?
The body could encompass a wide range of roles and functions from service delivery, policy formulation, monitoring and evaluation, advocacy, research and international advocacy.
The body will need to have an effective balance in roles and functions, without creating too many conflicting responsibilities. In terms of service delivery for example, the body can have a strong impact on program delivery by setting priorities, contributing to planning processes and monitoring government service delivery, but without actually being involved in program delivery. The body could also have a strong impact in undertaking effective advocacy and developing good policy, based on good research.
Personally, I don’t support the representative body exercising a service delivery role. Why? Because it is a reality that there is no intention for any government – state, territory or federal, to hand Indigenous people the level of control we would need for this to be effective. The result is that when we take on a piecemeal service deliver role – we get the blame for the failure of the whole of government to not meet its responsibilities.
I see us having a more effective role in having a coordinated process where the role of the rep body is to engage with Indigenous peoples and direct the priorities for service delivery and to identify the key expectations for service delivery.
I see the new representative body as the opportunity for a rigorous accountability system being put into place for government activity – for the first time ever.
In terms of the structure of the body, I would like to highlight two questions which will be important to consider:
- How will the national leadership keep connected with the broad base of Indigenous people and communities at the local and regional level through to the state/ territory and national level? and
- What should the structure of the national body look like?
Some of the ways in which a new National Indigenous Representative Body could engage with Indigenous people, communities and organisations at the regional and state/ territory level, include:
- Formal mechanisms – where the national body draws its members from national, state/ territory or regional representative bodies, holds regular state-wide policy forums or develops other regional-level mechanisms
- Approaches that engage different sectors of the Indigenous community
- Informal processes where Indigenous peoples can have their say, for example at a national congress or forums that bring people together around specific issues.
Equally there are also a number of ways in which a new National Indigenous Representative Body could be constituted, such as:
- Delegates who are nominated by regional and state/ territory levels of the body or by direct election
- A membership-based organisation, made up of communities, organisations or individuals who choose to join
- Involving Indigenous peak bodies, regional or state/ territory based Indigenous bodies or Indigenous service delivery organisations in its activities and decision-making
- Designating positions be allocated to the national body, or specific working groups, to represent particular sectors of the Indigenous community, such as women, stolen generation members, traditional owners, young people or Torres Strait Islanders
- A process of merit selection coordinated by a panel of eminent Indigenous peers
- A combination of these approaches.
We also need to ensure there is a gender balance in the new national body, as well proper participation of young people.
We must also make sure there are appropriate opportunities for the broad-based participation of Indigenous people in the body’s decision-making process, while still recognising the need for the body to remain focused, effective and capable of swift action.
To effectively represent the interests of Indigenous Australians, a National Indigenous Representative Body must work closely with all levels of government. The new body could be established as a commonwealth government entity, such as a statutory authority, or as a non-government organisation.
The different options have implications for the level of independence of the body as well as its proximity to government and its capacity to influence government. Such a body needs to build and maintain a closer relationship with government to be effective in its policy advice and review of government performance.
Finally, how the body is funded is critical to its ability to take on the roles and functions that are eventually decided. This could be through government funds, private donations, membership fees and/ or selling products and services, or even through establishing an ‘Indigenous future fund’.
The funding base will also be critical in terms of establishing the independence of the representative body. We should fully explore models like an Indigenous future fund as well as charitable status so that a representative body can be funded through a mix of public and private processes. Ultimately, what this will be about will be making the body ‘government proof’ so that the dictates of any particular government cannot destroy the integrity of the representative body with the stroke of a pen and a slash of the budget.
In identifying and discussing such issues, the paper poses a series of questions in relation to each of the issues. The questions have been included to assist in thinking about what factors may need to be considered and decided in determining a new National Indigenous Representative Body. I encourage you to look at these questions, a list of which is also provided at the back of the Community Guide.
To conclude, I have previously made a call to Indigenous people and the federal government, and it’s a call I would like to repeat today:
That a new National Indigenous Representative Body should be funded and begin operating by July next year.2
There is a lot of work to be done if we are to achieve this, and to do so in a manner that ensures a deep engagement with the Indigenous population to ensure that a representative body is truly representative and is therefore capable of meeting the needs and aspirations of our communities.
The Commonwealth Government has started a six month process of consultations on a proposed national Indigenous representative body. This includes:
- 17 regional consultations around Australia between 29 July and 1 September 2008.
- A comprehensive mail out to Indigenous organisations informing them about the consultation process and inviting submissions.
- A process for people to lodge written submissions by 19 September 2008.
- A national roundtable meeting of Indigenous leaders in late October 2008.
- Community workshops/ consultations facilitated by the network of 30 Indigenous Coordination Centres and possibly by government business managers in the NT.
- Consultations with peak Indigenous organisations.
- Consultations with state and territory governments. and
- Further testing and refining of a proposed model.
The aim of this process is to allow for widespread engagement with Aboriginal and Torres Strait Islander peoples across the country to gain feedback on the Indigenous community's aspirations and preferred model(s) for a National Indigenous Representative Body.
More information on these government consultation processes is available at the FaHCSIA website:
I hope people will engage with that process. And when I say engage I mean either to participate in the consultations to express your views or, if you have problems with the process as established, to raise those issues as well.
The Issues Paper I have produced is intended to be a resource for both government and Indigenous people to use in the consideration of these issues.
The key questions identified in the Issues Paper, and replicated in the Community Guide, can provide a useful foundation for discussions on the issue.
My hope is that we can establish a National Indigenous Representative Body that engages with the different sections of the Aboriginal and Torres Strait Islander community – be it women, our youth and children, communities in different geographical locations, traditional owners or stolen generations members.
And I hope that a representative body will operate in such a way as to inspire and support our people, while also holding governments accountable for their efforts, so we may ultimately enjoy equal life chances to all other Australians.
Please remember, from self respect comes dignity, and from dignity comes hope.
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Speech on “Sustainable options for Australia’s new national Indigenous representative body”, Native Title Conference 2008, 4 June 2008, Perth (available at: http://www.humanrights.gov.au/about/media/speeches/social_justice/2008/20080604_representative_body.html)