Social Justice Report 2003: Chapter 3: Indigenous participation in decision making – Transforming the relationship between government and Indigenous peoples

Social Justice Report 2003

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Chapter three: Indigenous participation in decision making – Transforming the relationship between government and Indigenous peoples

The twin pillars of the government's approach to Indigenous policy in 2003 continued to be practical reconciliation, with its emphasis on service delivery in core areas of disadvantage, and mutual obligation, with its emphasis on reciprocity and individual responsibility. Through both of these policies, the government has identified moving Indigenous people beyond welfare dependency and enabling Indigenous participation in program delivery and design as key features of its approach.

Within this framework, there has been increased attention over the past year to the nature of the relationship between government and Indigenous peoples. There has been a lot of talk from governments about the need to change the way they interact with and provide services to Indigenous peoples and communities. This has largely occurred as a result of the significant policy focus of Indigenous peoples and governments on capacity building and governance reform in recent years, and progress in 2003 in advancing the whole-of-government community trials by the Council of Australian Governments. It has also been influenced by the conduct of a number of significant inquiries during the year, including parliamentary inquiries into national progress towards reconciliation and capacity building in Indigenous communities, as well as the conduct of the Indigenous business review, and the review of the role of the Aboriginal and Torres Strait Islander Commission (ATSIC). [1]

Debates during the year about the relationship of Indigenous peoples and government have identified three key, inter-connected, issues. First, the need to change the way government interacts with Indigenous peoples. For governments, the emphasis here has been on the need to change the way services are provided to Indigenous peoples, including through improved coordination between governments and among government agencies. Second, the need to build the capacity of Indigenous communities, coupled with demands for improved corporate governance among Indigenous organisations. Third, the need to review the structures and operations of ATSIC, such as through introducing improved corporate governance mechanisms and by making ATSIC more representative and participatory.

Indigenous peoples and governments alike have focused on the importance of these issues during the past year. There are, however, differences on how to best address these issues. This chapter examines current debates about the nature of government service delivery, building the capacity of Indigenous communities, and ATSIC reform. Ultimately, a key focus of the chapter is on the role of ATSIC as a critical agent in facilitating change to the relationship of Indigenous peoples and government. It makes proposals for a changed relationship between Indigenous peoples and governments by ensuring the effective participation of Indigenous peoples in decision making and addressing Indigenous issues within a framework of promoting sustainable development.

A relationship of dependence - Challenging the existing service delivery approach

Indigenous peoples seek to challenge the underlying basis of their relationship to governments in Australia. Indigenous peoples have increasingly come to realise that the current system perpetuates a cycle of dependency and is also not contributing to or promoting sustainable improvements in Indigenous communities and individual well-being.

As ATSIC noted in 2002, 'it is now widely recognised that Indigenous programs have perpetuated dependence, not development. Our communities have had to face arbitrary, complex, inconsistent and inflexible demands from program providers.' [2]

From the 1970s through to the present, a particular operational environment has been established which has consisted of governments funding Indigenous organisations to provide services to Indigenous people. Despite criticising the failure of this community development model (and of the self-determination principle that underpins it) there has been virtually no change in the underlying basis of this relationship since the current government came into power in 1996, and a continuity in government approaches since the 1970s. [3]

ATSIC have described this operating environment as a 'directed community services' model:

Current funding arrangements for Indigenous organisations are ... directed in that it is the various Commonwealth, State and Territory government agencies that decide the functional areas and guidelines for expenditure. The agencies determine also whether particular applicants' proposed projects are of high enough priority within those guidelines to warrant funding and, if funded, they hold the grantees accountable for the expenditure of funds according to those guidelines. The current arrangements constitute a directed community services model in at least two other senses. First, the arrangements envisage that the major purpose of the funding is the provision of services to people within the community and, second, when the arrangements direct resources to incorporated bodies they conceive of those bodies as non-government community service organisations ... [4]

This approach has created 'a model of dependency on two levels - from government to organisation, and from organisation to clients' . [5] The first level of dependency in the existing approach to Indigenous service delivery is of Indigenous organisations to government agencies:

A very significant proportion of Australian Indigenous organisations are service delivery agencies that are totally dependent on annual grant funding arrangements from one or more of a range of government departments and agencies. Even though some of the larger organisations have been in existence for at least ten years their continued existence, and functioning, are dependent on changing government priorities and budget allocations. The primary activity of many of the organisations is the delivery of government services in accordance with government programs and priorities. Few of the Indigenous organisations have clearly defined service or other responsibilities other than those set out in their often limited and outdated constitutions. Very few have the legal authority to exercise any governmental responsibilities apart from those delegated through the terms of their grant ... [6]

The Royal Commission into Aboriginal Deaths in Custody identified changing this relationship of dependence - which disempowers Indigenous people through governmental control - as integral to achieving the equal enjoyment of rights by Indigenous peoples. [7]

While Indigenous organisations have become dependent on government agencies under this approach, Governments have also become dependent on such organisations as agents for service delivery. This is also problematic. In its 1996 review of the Aboriginal Councils and Associations Act 1976 (Cth), the Australian Institute of Aboriginal and Torres Strait Islander Studies identified the following structural problems with the present system of funding service delivery:

• being application based, the initiative for program design rests largely outside the authority of the funding agency;
• furthermore, the funding agency generally cannot directly influence in advance the nature and composition of the applicant groups;
• it follows that matters of critical importance to the equitable, effective and efficient delivery of publicly-funded services (such as representativeness, consultation and staff engagement) cannot be built into the planning for service provision at an early stage;
• accordingly, the planning and implementation of service provision is compromised by the need to accept the groups intended to provide the service in the form in which they have already incorporated themselves;
• accountability controls are then applied via the conditions of grant and enforcement of compliance with the incorporation law concerned;
• but this is largely ex post facto accountability (by grant acquittance and audited financial statements) and cannot cure basic defects which might exist in the group's suitability and capability as the service provider, stemming from its manner of incorporation;
• thus handicapped in its capacity to plan for service provision, the funding agency's efforts to ensure performance of funding objectives are frustrated;

• service provision by existing corporations is less than satisfactory so new corporations are established - and the whole process begins again. [8]

The second level of dependency is of Indigenous people to Indigenous organisations. The activities of Indigenous organisations are substantially defined and controlled by government decision making processes over which Indigenous peoples exercise minimal, if any, control. As a result, such organisations are based on non-Indigenous models of governance and do not necessarily reflect the priorities and needs of Indigenous communities. As stated by ATSIC:

[T]he overall legal frameworks within which Indigenous organisations operate do not adequately provide for the establishment of Indigenous models of governance. 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 substantive jurisdictional responsibilities, few are prepared even to consider negotiations with Indigenous peoples. As a result, Indigenous people's governance structures ... have not developed beyond the establishment of incorporated associations. [9]

This operating environment continues today. In the words of ATSIC, it 'has in many cases replaced one form of dependence with another. Not the welfare dependency of the Pearson theory, but the dependence on permanent service delivery by external agencies'. [10]

Concerns about dependency on permanent government service delivery are accompanied by concerns that this service delivery model is not delivering long term and sustainable improvements in Indigenous communities.

The current approach reduces the idea of development 'to one of 'community development' devoid of any economic dimension' and provides 'little encouragement to Indigenous economic development since the resourcing of Indigenous organisations does not increase with increases in economic activity in their local area'. [11] Service delivery of itself brings few economic benefits.

The discussion in chapter 2 and the statistics provided in Appendix 1 illustrate this. They show that there is no evidence that the existing service delivery model is achieving sustained improvements in Indigenous well-being. There is no consistent forward trend in reducing inequalities compared to the broader Australian population and there is a very real prospect of a worsening in the situation of Indigenous peoples over the next decade.

As a consequence of these factors, Indigenous people seek to move from a position of dependency on government service delivery to being active participants in governing their own communities. This requires a changed approach by governments and Indigenous organisations and communities.

Overall, it requires two main but inter-related changes. First, it requires changes to the approach of government to funding in order to increase Indigenous participation and control.

Twelve years ago the Royal Commission into Aboriginal Deaths in Custody made recommendations for longer term, more flexible funding arrangements which would ensure increased Indigenous participation and control. In particular, it recommended the introduction of triennial block grant funding for Indigenous organisations and that this funding be allocated through a single source with one set of audit and financial requirements combined with maximum devolution of power to the communities and organisations to determine the priorities for allocating such funds. [12]

These and similar recommendations have been reiterated time and again over the past decade. This includes through the landmark report of the Commonwealth Grants Commission on Indigenous Funding in 2001. As the discussion in chapter 2 and Appendix 2 of this report demonstrates, addressing these issues is also a key priority of the COAG whole-of-government trials through the concepts of shared responsibility and of a 'joined up' approach to government activity and pooled funding.

Second, it raises challenges for Indigenous people to develop structures that are capable of interacting with governments while also being representative of and accountable back to Indigenous communities and people. This requires building the capacity of Indigenous communities to be self-determining as well as reforming the structures of ATSIC to provide effective representation within government at the regional, state and national levels. It is this second set of challenges that this chapter focuses on.

In ATSIC's Annual Report for 2002-03, the acting Chairman describes the challenge facing Indigenous communities and ATSIC as follows:

A central issue is how to empower people at the community and regional levels, so that policies and service delivery are driven by the people and the communities themselves. In this vision of the world as it should be, service delivery by governments and agencies is driven by the needs of the community rather than by one-size-fits-all policies and models which are imposed from above and afar. We want Indigenous people and communities to drive change and shape their own futures. But that means we have got to get two things right:

• the capacity of community members and the community as a whole to make good policy and to campaign and negotiate for the outcomes they want; and
• the good governance and self-management of Aboriginal and Torres Strait Islander people at national, regional and local levels.

'Capacity building' and 'good governance' are buzz words around at the moment. But the issues that they cover are fundamental. Basically, they mean building the skills of all Indigenous people to improve ourselves, to shape our own lives, to run our own affairs, and to take our rightful place as a unique part of Australian society.

Whichever way you look at it, capacity building and good governance lie at the heart of our [i.e., ATSIC's] current agenda. How we deal with them will determine our future. Our focus must be to build the framework of capacity and governance within which we can develop relevant, well-researched policy reflecting what Indigenous people want, and oversee the delivery of effective programs flowing from those policies. Aboriginal and Torres Strait Islanders need a renewed, reinvigorated, focused and high performing ATSIC. Dare I say it: the nation needs 'a new ATSIC'. [13]

Facilitating Indigenous participation and moving beyond welfare dependency - The government's approach

A key focus of the government, in implementing its practical reconciliation and mutual obligation policies, has been on processes for fostering Indigenous participation and moving Indigenous people beyond welfare dependency. [14] The central element of the government's approach to these issues has been a focus on the need for partnership and shared responsibility between government and Indigenous peoples. As the Minister for Immigration, Multicultural and Indigenous Affairs stated in August 2003:

[There is a] need to recognise that there is a partnership of shared responsibility between governments and Indigenous people. Governments and outsiders alone cannot effect the necessary changes.

• Indigenous Australians have rights like all other Australians - rights to education, health services and the like. Governments therefore have obligations to provide those services in a fair, reasonable and appropriate way.

• But rights and responsibilities are inseparable, and there is a view, well founded I believe, that the responsibility of the individual has not been given sufficient attention. [15]

Recent developments in the government's position on fostering Indigenous participation and the objective of moving Indigenous people beyond welfare dependency can be briefly summarised as follows. [16]

In 2002, the Minister for Immigration, Multicultural and Indigenous Affairs set out a five point plan for Indigenous affairs which consists of:

• implementing a shared responsibility approach between Government and indigenous people that recognises that each side has rights and obligations;

• shifting the emphasis of policy towards the needs of individuals and families, with a focus on 'empowering individuals as members of families and communities rather than viewing the Indigenous world through the construct of community', and considering 'the functioning of Indigenous organisations to identify whether they are providing services that can demonstrate tangible outcomes'; [17]

• tackling substance abuse, particularly alcohol, as a major health priority and 'as a absolute necessity in terms of breaking the shackles of family violence, welfare dependency and the like'; [18]

• pursuing English literacy and numeracy as the most basic foundation to securing the long-term economic self-sufficiency of Indigenous people; and

• ensuring that mainstream funding caters to Indigenous needs to enable better targeting of Indigenous specific resources. [19]

In responding to the Commonwealth Grants Commission's report on Indigenous funding, the government also committed to a series of guiding principles for equitable provision of services to Indigenous people. These principles seek to identify the basic requirements and parameters for effective and equitable approaches to service delivery to address Indigenous disadvantage. They include:

• flexibility in the design and delivery of services, and the importance of developing partnerships and shared responsibilities with Indigenous peoples;
• developing a long term perspective in funding, design and implementation of programs;
• improving access to mainstream services for Indigenous peoples and access to services being based on need and equity;
• improving coordination of service delivery within and between governments;
• improving community capacity in order to achieve sustainable outcomes for Indigenous communities; and

• improving data collection to enable performance reporting of outcomes and better alignment of resources to need. [20]

Two processes are also seen as central to the government's 'shared responsibility' approach. First is building the capacity of Indigenous communities and governance reform. As stated in the government's submission to the parliamentary inquiry into capacity building in Indigenous communities, the government's overall approach is to 'locate capacity building firmly at the heart of policy and programme design ... An emerging policy challenge for governments ... is to actively support Indigenous people in their efforts to develop the individual and community capacity necessary to achieve self-management and self-reliance'. [21]

Second, agreement making processes were identified as the mechanism for implementing the government's shared responsibility and partnership approach. In August 2002, the Minister stated that 'we need agreements that are a two-way undertaking that change the relationship from one of passive welfare dependency to a much more equal relationship' based on empowerment. [22] Such agreements, he stated, should be guided by principles of involvement of the local Indigenous community in decision making; shared responsibility; flexibility to meet local circumstances; and an outcomes focus with clear benchmarks to measure progress.

As noted in Chapter 2, the government has also made a series of commitments through the communiques of the Council of Australian Governments. These include investing in community leadership initiatives and promoting links between Indigenous people and the private sector to increase economic independence. The whole-of-government community trial initiative has also been discussed at length in Chapter 2 and Appendix 2 of this report.

The government has also initiated a number of inquiries and reviews in 2002 and 2003 on matters that are related to these priorities and this approach. These include:

• Inquiry into capacity building in Indigenous communities, commenced by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in July 2002 and still underway;
• Review of the Aboriginal and Torres Strait Islander Commission, which delivered its final report in November 2003 and which will form the basis of legislative proposals for reforming ATSIC in ߔ
• The Indigenous Business Review, which is due to report shortly; and

• Review of the Aboriginal Corporations and Associations Act 1976 (Cth) in 2002, with the government recently announcing that it would introduce legislative amendments to the Act in 2004 to improve the effective of Indigenous organisations; [23]

In the Social Justice Report 2002, I examined the approach of the government in some detail. I sought to establish whether government activity and programs backed up the weighty commitments that they make or whether the broader approach of the government to Indigenous issues, particularly through the confines of practical reconciliation, constrained the enabling environment in which such directions were to be implemented.

Overall, I have noted the significance of the government's commitments to improved coordination and efficiency in service delivery, on focusing on building the capacity of Indigenous communities and in seeking to enter into partnerships of shared responsibility with Indigenous peoples to promote economic development. The commitments of the government offer significant potential for making real advances in the situation of Indigenous peoples.

I have also expressed concern, however, that the government appears reluctant to relinquish any control over decision making or resource allocation and accordingly, that they have set a narrow basis for the relationship with Indigenous peoples. [24] As noted in the previous chapter, the absence of any benchmarking and agreement of targets in the short, medium and longer terms also means that the government's approach lacks a longer term perspective to issues of funding, program design and implementation.

There are a number of implications that flow from the government's approach that are relevant in considering developments in fostering Indigenous participation in decision making processes and seeking to move Indigenous peoples beyond welfare dependency.

First, the government's approach is a narrow one in that it is primarily directed to improving the existing service delivery framework. While the government seeks to engage Indigenous people in making this system more responsive to their needs, the primary focus of the government is not on transforming the current approach. The focus is on addressing the needs of Indigenous people (at the individual, family and community level) as disadvantaged citizens and on improving their access to citizenship entitlements. Distinct cultural attributes of Indigenous peoples are secondary concerns in this framework.

Second, as a consequence, the process of re-drawing the boundaries of the relationship between Indigenous peoples and government through partnerships and agreements does not contemplate a change in the relationship based on acknowledgement of distinct Indigenous identity and cultures or recognition of the distinct status and inherent rights of Indigenous peoples. It is not based on recognising Indigenous jurisdictions or on sharing power. This distinguishes the government's approach from a treaty process and from the broader comprehensive agreement making approach proposed by ATSIC in the mid-1990s in negotiations on a social justice package. [25]

Third, the government's focus in on achieving greater efficiency and outcomes for Indigenous peoples from within the existing service delivery framework. The government is not, for example, contemplating radical change to existing financial commitments and approaches to addressing Indigenous disadvantage. Instead it is focused on improving the performance and accessibility of existing mainstream programs and services; freeing up Indigenous specific services to address issues that cannot be addressed through these mainstream services; improving the allocation of existing funding on the basis of need; and addressing fragmentation of service delivery that exists across government departments and between governments. These are important issues to focus on, but without a broader frame of reference they confine the scope of the relationship between government and Indigenous peoples.

Ultimately, these factors suggest that the government's approach, and their efforts to date to engage Indigenous peoples, do not seek to transform the existing model of service delivery to Indigenous peoples. Instead, they focus on improving the effectiveness of the existing approach and consequently, the outcomes achieved by it in relation to Indigenous disadvantage.

The government's approach is not, however, completely closed. Their commitment to capacity building in Indigenous communities and governance reform of Indigenous organizations offers much potential to unshackle the constraints that exist through the current service delivery approach and has the potential to lead to more radical transformation in the relationship into the future.

Capacity building in Indigenous communities and governance reform

In setting out a human rights framework for reconciliation, the Social Justice Report 2000 noted the pivotal importance of building the capacity of Indigenous peoples and supporting Indigenous governance structures. Such a focus, the report suggested, provides 'the potential for a successful meeting place to integrate the various strands of reconciliation' by tying together 'the aims of promoting recognition of Indigenous rights with the related aims of overcoming Indigenous disadvantage and achieving economic independence'. [26]

The Social Justice Report 2001 then provided an overview of developments in relation to community capacity building and governance reform, and provided some detailed case studies of current developments. [27] That report referred to capacity building and governance as follows:

Capacity building relates to the abilities, skills, understandings, values, relationships, behaviours, motivations, resources and conditions that enable individuals, organisations, sectors and social systems to carry out functions and achieve their development objectives over time. [28]

Governance concerns the structures and processes for decision making, and is generally understood to encompass stewardship, leadership, direction, control, authority and accountability. [29]

There is currently an emerging consensus among governments and Indigenous peoples in Australia about the importance of supporting governance reform and capacity building of Indigenous communities. These terms are now reflected in the policy approaches of all Australian governments and commonly appear in debates about Indigenous policy.

There are four main features of developments over the past few years relating to capacity building and governance reform that I highlight in this chapter.

a) The existence of significant capacity in Indigenous communities

The first is that the significant attention paid over the past three years to issues of governance and capacity building in Indigenous communities has demonstrated that there already exists much capacity at the community level.

There are numerous examples of the ingenuity and initiative of Indigenous peoples in developing solutions to meet their local needs. These range across all areas of life for Indigenous people as well as all areas of government activity. They include justice related issues, health, education, employment and training, through to business development, dealing with substance abuse, healing, processes for applying customary law and improved community coordination. As an example, Figure 1 over the page provides a case study of the approach of the Murri School in Queensland in addressing Indigenous educational achievement in a culturally appropriate and community controlled environment.

The Murri School in Acacia Ridge, Queensland, has been in operation since 1986. The aim of the Murri School is to 'promote the development of Indigenous students as independent and skilled people who are culturally, morally, and socially responsible, employable, capable of self-fulfilment and of contributing to society.' [30]

The Murri School is the only Independent Aboriginal owned and controlled school in Queensland. [31] The Murri School is fully registered with Education Queensland, the Association of Independent Schools Queensland and the Commonwealth. The Murri School is governed by an eight member board comprised of Indigenous Elders, Indigenous professional/business people, Indigenous academics and a school staff representative. The community-controlled nature of the Murri School allows it to be truly reflective of its students and community's needs.

17 years on, the Murri School has a total of 54 teaching and non-teaching staff (the majority being Indigenous) and now provides schooling to approximately 250 Indigenous students from years one through to year 11 as well as adult students through its skills share centre, Kulkathil. In 2004, the Murri School will be equipped for preparatory school and year 12 enrolments.

Not only is the Murri School an outstanding example of the benefits of culturally appropriate teaching methods, curricula and schooling environment, it is also a model example of how to involve the community, with respect to recruitment of local Indigenous people to the day-today operations and management of the school. It could be said that the Murri School is a model for balancing the mainstream expectations and outcomes of education with the cultural needs of its students and community. [32]

Examples of community initiatives such as this have predominately been brought to the attention of governments, policy makers and Indigenous communities through the following events and processes over the past two years : [33]

• The first national Indigenous governance conference convened by Reconciliation Australia, ATSIC and the Australian Institute of Aboriginal and Torres Strait Islander Studies in ߒ [34]

• The Northern Territory's Indigenous economic forum of May ߓ [35]

• The Northern Territory's Indigenous governance conference ('Building effective governance') of November ߓ [36] and

• The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquiry into capacity building in Indigenous communities, which commenced in July 2002 and is due to report in the first half of 2004. [37]

These conferences, forums and inquiries have revealed that activities currently taking place in Indigenous communities all across Australia encompass a startling variety of processes and cover an enormous range of activities. While these activities achieve varying levels of success and generally operate under difficult conditions, their mere existence provides an antidote to the regular public image of Indigenous people which almost entirely defines our people as victims and according to the disadvantage that many of us suffer, and which presents our communities as dysfunctional and riddled with problems.

As Reconciliation Australia notes, 'the Building Effective Governance conference in the Northern Territory in November (2003) for example, uncovered multiple positive initiatives unknown even to other Territorians'. [38] The identification of positive stories about Indigenous peoples 'having a go' and seeking to change the circumstances that exist in communities, has two main benefits. It suggests that problems that exist in Indigenous communities are not insurmountable and can be challenged; and it chips away at the negative portrayal of and misconceptions about Indigenous peoples.

The realisation that there is already a significant accumulation of capacity and skills in communities also provides a platform for reform. As the Centre for Aboriginal Economic Policy Research note:

The capacities of individual Indigenous community members can certainly be increased, through education, training, and experience ... However, it should also be noted that in our experience it is often the case that many Indigenous community members have enormous capacities, acquired from past experience and training, but they are somewhat reluctant to use those capacities in difficult organisational environments. Community members get burnt out in such environments and end up withdrawing from them, either as employees or active members of governing bodies. [39]

A key challenge is therefore to identify existing capacity in Indigenous communities and to understand and deal with the circumstances that prevent this capacity from being fully utilised.

b) The importance of capacity building in building a more effective service delivery framework

The second feature of the attention to capacity building and governance reform in Indigenous communities in recent years is the growing realisation of the integral role that these issues play in addressing the deficiencies of the existing service delivery approach.

Building community capacity and promoting good governance in Indigenous communities is increasingly being seen as necessary to developing a more effective service delivery framework that can contribute to sustainable development in Indigenous communities.

In a discussion paper released in 2003, Mick Dodson and Diane Smith explore the linkage between capacity building and sustainable development. They sought to consider in the Australian context one of the main findings of the Harvard Project on American Indian Economic Development, namely, that there is a vital link between governance and sustainable development. [40]

They approached the issue by identifying the key ingredients for sustainable development and examining these according to the level of local control that Indigenous communities presently have over them. They state:

On the evidence available, many Indigenous communities and their organisations have been going about development backwards, getting caught up in issues over which they have little or no control. The most common way communities and organisations proceed is to focus all their energy on:

They describe this approach as a 'tatslotto approach' to economic development which 'produces the inevitable outcome - the odds are against winning and most of the time communities lose their money'. [42] They argue that international best practice and research suggests that instead of this focus, Indigenous communities should focus on issues over which they exert a high level of control:

[T]he key ingredients over which Indigenous communities can currently exercise the greatest degree of control are their own local processes and structures for governing themselves, and their local development policies and strategies. Communities and their representative organisations can create the local conditions for more legitimate and broadly representative rule, more effective decision-making, capable delivery of services and collective action.

Arguably then, the best approach for communities to follow in trying to achieve sustainable economic development would be to focus initially on those key ingredients over which they have the greatest degree of local control: that is, their governance arrangements ... [43] [T]hey should concentrate on building up stable, capable and legitimate governing institutions, structures and processes. [44]

Dodson and Smith suggest that based on international evidence, 'it is only when effective governance and holistic development strategies are in place that economic and other development projects have the chance of becoming sustainable'. Or put differently, 'sustainable development is - fundamentally - a governance issue'. [45]

This creates a challenge for Indigenous communities and organisations:

Communities do not have to suspend all development initiatives until they get their governance in order, but neither should they embark on new development initiatives without also commencing the harder work of building effective governance. For many communities and their organisations this may mean having to create a whole new mindset; and it will be hard not to fall back into reactive mode. [46]

It also creates challenges for government in supporting the building of such capacity and appropriate governance. These include not locking Indigenous communities into a service delivery model that is not responsive to their needs and which distracts or dilutes the focus of Indigenous peoples from establishing and pursuing their own priorities, as well as providing appropriate recognition of the role of Indigenous people in setting priorities and developing processes for allocating funds on this basis.

c) The importance of corporate governance standards

The third, related, feature to emerge from the focus on capacity building and governance reform in recent years is an identified need to improve corporate governance in Indigenous communities and of Indigenous organisations.

This issue has received extensive public coverage during the past year in relation to the operations of ATSIC and prompted the introduction of a 'separation of powers' within ATSIC by the Minister for Indigenous Affairs in early 2003. As ATSIC's Chief Executive Officer notes, there was also a significant level of 'negative reports on ATSIC published in the media that intensified from February 2003, and which drew strength from a widespread public acceptance that ATSIC had not been vigorous in pursuing problems of accountability'. [47] The issue of improved corporate governance for ATSIC is discussed in the next section of this chapter.

Corporate governance is an issue that has also been prominently reflected in the media following allegations of fraud and mismanagement among some Indigenous organisations. In Western Australia, for example, a parliamentary committee inquiry was established during the year into the handling by the WA Health Minister of allegations of financial impropriety relating to a peak Indigenous representative body.

The most recent review of the Aboriginal Councils and Associations Act 1976 (Cth), conducted in 2002, highlights a range of challenges for Indigenous communities and government relating to corporate governance standards. [48]

It is estimated that there are nearly 3000 associations incorporated under the Aboriginal Councils and Associations Act , fulfilling a range of diverse functions in relation to Indigenous communities. Associations incorporated under the act play an integral role in delivering services to Indigenous communities at the federal, state and territory level. A vast majority of these associations are non-profit organisations delivering services to Indigenous communities, such as health, housing, employment and legal services. There is great fragmentation of service delivery through the vast range of corporations that exist in communities, with a loss of economies of scale and lack of focus on the holistic needs of communities.

As the Review notes, 'the formation and regulation of corporations is a very prominent feature of Indigenous social and economic life'. [49] While this is very much a reflection of the level of dependency of Indigenous people on government services, the prominence of regulatory systems in Indigenous communities comprises a level of intrusiveness into Indigenous lives that is experienced by no other group of people in Australian society.

The reliance of governments on Indigenous organisations to deliver government services creates a high level of dependency for Indigenous peoples on these organisations. The consequence of this is that 'whole Indigenous communities may be dependent on the services provided by a corporation. When such corporations fail, there may be no alternative service providers'. [50] The standard of corporate governance thus has a major impact on service delivery and accessibility of programs for Indigenous peoples.

As the Review notes, the Aboriginal Councils and Associations Act has been in operation for more than 25 years and has not been amended in the past decade. Since the act was introduced, however, there have been 'significant changes in the circumstances of Indigenous peoples and in the uses which Indigenous people make of corporations' as well as in corporate governance standards. [51] These changes range from broader Indigenous involvement in program delivery, legal recognition of Indigenous rights (such as native title), and significant changes to the approach to corporate regulation.

As a consequence of this, the Review concludes that the Act is now out of date, suffers from a series of technical shortcomings and that successive amendments to the act prior to 1992 have meant that it has drifted from its original legislative purpose. This legislative purpose, the provision of a statute of general application to provide Indigenous people with a simple and flexible mean of incorporation, also reflects an outmoded conception of corporate governance and does not reflect changes that have taken place in the relationship of Indigenous peoples and governments. [52] As a consequence, 'the incorporation statute has now itself become a source of disadvantage for Indigenous people'. [53]

Despite this, incorporation of Indigenous organisations under the act is often 'involuntary' in the sense that Indigenous organisations are required to incorporate to comply with legislative provisions and government policy. Under certain circumstances, for example, Indigenous organisations are required to incorporate under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and Native Title Act 1993 (Cth). Similarly, governments have 'adopted policies of 'self-management' which give the responsibility for the delivery of a wide range of essential services ... to Indigenous communities themselves. Government funding bodies often require the communities to form corporations before they are eligible to receive the funding to perform these services'. [54]

There are consequences to such 'involuntary' incorporation, including:

• People who would not have otherwise formed a corporation, and who may not understand the consequences or technical requirements of incorporation are required to do so.
• The requirement for incorporation can force together Indigenous groups which would not otherwise have joined together, and which might not share the same views or goals, making the corporation vulnerable to destabilising competition between groups.

• The requirement for the establishment of community-based organisations to perform community services can result in confusion between the membership of the community or group and the membership of the corporation itself. [55]

ATSIC have similarly noted concerns about the incorporation of community-based organisations that has occurred over the last thirty years which has occurred through a 'reactionary' process with 'no real strategy underpinning the proliferation of incorporated bodies'. They note that the culturally inappropriate structures of these organisations have led to organisations being 'dominated by larger families'. Ultimately, this process 'commonly did not contribute to social capital and, in fact, often undermined existing capacities' with the consequence that 'the effects of this history now have to be 'undone'.' [56]

In essence, government policy and legislative requirements have foisted on Indigenous peoples regulatory frameworks that contribute to an absence in Indigenous organisations of what the Harvard Project on American Indian Economic Development refers to as a 'cultural match'. As Dodson and Smith explain:

Underlying ... principles of good governance is the issue of legitimacy and mandate. Each community and region will have to find some degree of match or 'common ground' between the types of governing structures and procedures it wants to develop, and the culturally based standards, values and systems of authority of community members. For example, common ground must be found about issues such as who should hold power, how power should properly be exercised, how decision making and disputes should be handled, and about the respective rights and responsibilities of different members and leaders. The more a governing body finds some cultural 'fit' or 'match' in these matters, the more it will secure the ongoing mandate of its members ...

Cultural match is not simply a matter of importing romanticised views of traditional Indigenous structures or authority, and expecting them to handle economic development decisions, financial accounts and daily business management. Creating a cultural match is more about developing strategic and realistic connections between extant cultural values and standards, and those required by the world of business and administration ... [W]hile Indigenous governance arrangements need to be informed by local cultural standards if they are to be regarded as legitimate by community members, the governing arrangements also have to work - governing bodies have to be practically capable of responding and taking action in the contemporary environment. [57]

The Review of the Aboriginal Councils and Associations Act concluded that, on the basis of the concerns expressed about the Act, there is a pressing need for reform to the corporate governance regulatory framework for Indigenous organisations. The Review recommended two main aspects to this reform: the provision of 'special regulatory assistance' for Indigenous peoples, through the provision of measures for the corporate regulator (currently the Registrar of Aboriginal Corporations) to assist and encourage directors of corporations to develop the skills and good governance practices necessary for long term viability of corporations; and significant reform to the Aboriginal Councils and Associations Act , but maintenance of an Indigenous specific incorporation approach. [58] Accordingly, the Review proposes the introduction of a new Indigenous Corporations Act. [59]

On 15 January 2004, the Minister for Immigration and Multicultural and Indigenous Affairs announced that the government was shortly to introduce proposed legislative reforms to the Aboriginal Councils and Associations Act. These proposed amendments are intended to:

• rationalise the number of corporations through a focus on pre-incorporation scrutiny and support for alternatives to incorporation;
• provide conferencing opportunities to encourage agencies to resolve co-ordination issues;
• provide accredited training for Directors and members of corporations;
• expand assistance for dispute resolution; and

• establish a 'rolling program of 'healthy corporation' checks tailored to Indigenous corporations, coupled with more streamlined responses to critical problems'. [60]

The provision of greater support for addressing corporate governance issues in Indigenous organisations and amending the Aboriginal Councils and Associations Act are vital components in seeking to build the capacity of Indigenous communities. The government's proposed legislation should be treated as of the highest priority. This should be reflected in the treatment of the draft legislation in the legislative programme in Parliament. The draft legislation must also be subject to broad consultation, given the necessity that any legislative reform should facilitate rather than obstruct the development of Indigenous organisations that achieve an appropriate 'cultural match' between cultural legitimacy and corporate governance requirements.

d) Definitions of capacity building and a reform agenda

The fourth main feature to emerge from the focus on capacity building and governance in Indigenous communities over recent years is that, despite the convergence of views on the need for capacity building and governance reform, there is no commonly agreed definition of what capacity building is, nor an agenda for progressing capacity building and governance reform in a whole of government and holistic manner.

Submissions to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquiry into capacity building in Indigenous communities (herein referred to as the parliamentary inquiry into capacity building) reveal that there are significant differences in the understanding of what the terms capacity building and governance reform mean to different governments, service delivery agencies and Indigenous peoples and organisations. [61] The Australian Institute of Aboriginal and Torres Strait Islander Studies comment in their submission to the Inquiry on the widespread and uninformed use of the term capacity building and it's permeation across all levels of public policy and research. [62]

Submissions reveal that different organisations apply the term capacity-building to refer to anything from political processes, self-determination, Indigenous rights, citizenship rights, corporate governance, self-governing community structures, regional autonomy, government service delivery reform, education and training, partnerships, economic development to sustainable development. Some of these descriptions equate potential outcomes of capacity building with the process of capacity building.

The lack of a common understanding of what capacity building and governance reform entail promotes policy confusion. It is a significant problem that has the potential to render commitments by governments to support such processes meaningless. As ATSIC have stated:

In this country the rhetoric of capacity building has been adopted by state governments and by Commonwealth agencies ... What is missing is an agreed setting for the programs and activities which, these agencies claim, incorporate capacity building or capacity development processes. Each agency derives its own view of capacity building and development, and there is a danger that this reinforces the stovepipe program environment. [63]

A potential consequence of this policy confusion is the adoption of an extremely limited approach to capacity building that equates developing the capacity of Indigenous organisations and communities with improving the delivery of government services. This has the potential to co-opt the process of capacity building so that it reinforces the characteristics of the existing system, with all the structural problems noted earlier in this chapter. As I discuss in Chapter four in relation to developments on the Anangu Pitjantjatjara Lands, this raises the concern that the emphasis of governments on capacity-building could amount to nothing more than a bureaucratisation of what was formerly called community development.

This limitation is implied in the terms of reference of the parliamentary inquiry into capacity building which requires the Committee to examine 'strategies to assist Aboriginals and Torres Strait Islanders better manage the delivery of services within their communities'. [64] The Committee has, however, been presented with arguments from many witnesses and in many submissions urging that it not make the mistake of confining discussions about capacity development to the realm of service delivery.

ATSIC Commissioner Kim Hill referred to the need for capacity development to be applied outside a formal service delivery framework by the Committee as follows:

The terms of reference are limited to service delivery only. If the aim of the inquiry is to overcome disadvantage and failing policies then we have to look beyond just service delivery. I believe the inquiry should be based on the human element of the problems which we face and not on service delivery. It should be about how our people can become full and active partners with agencies as part of our participation in the economic, political and social environment of Australia. So capacity building should concentrate on the participation of people, with human and citizenship rights, rather than on organisations, which are only deliverers of such services to the communities. In terms of access and equality, I think governments have a responsibility to provide services. The inquiry should not just be looking at ways to hand over this responsibility to communities; it has to take a broader view of capacity building-or capacity development, which is the term I prefer to use. [65]

In their submission to the inquiry, the Fred Hollows Foundation emphasises the importance of acknowledging the broader structural environment within which capacity building strategies take place:

[C]apacity building and service delivery must take place in a broader context of policy and funding arrangements which are likely to constitute significant barriers to these approaches. [66]

They note the following seven structural issues relating to the approach of governments that impacts on the successful implementation of capacity development initiatives:

• The current socio-economic and health status of remote communities and their members;
• Lack of basic infrastructure in which 'capacity-building' can occur;
• The lack of availability of services and lack of funding equity;
• The complexity of Government funding arrangements and lack of coordination of services at various levels of Government;
• Lack of sustainability in Government programs - the impact of electoral and funding cycles;
• The lack of accountability of Government departments to achieve measurable outcomes in the delivery of services; and

• The lack of Indigenous control of decision-making. [67]

Failure to acknowledge and address these features of the existing service delivery model will result in any benefits from capacity building only ever being marginal or short-term. This is also illustrated by the case study of infrastructure provision in remote communities provided in Figure 2 below.

Figure 2 - Case study: Achieving sustainable improvements in the provision of water and sanitation services to remote Indigenous communities

In 1994, the Race Discrimination Commissioner at HREOC published a report on the state of water and sanitation systems in ten remote Aboriginal and Torres Strait Islander communities. [68] The report identified significant problems in the supply of water and sanitation services to these communities, and made a number of recommendations relating to community control in service provision, training and employment opportunities, and developing sustainable solutions to infrastructure needs. One of the recommendations of the report was for HREOC to return to the ten communities considered in the report after five years to evaluate progress in addressing the recommendations.

In 2001, the acting Race Discrimination Commissioner published the findings of this evaluation (which had been undertaken for HREOC by the Centre for Appropriate Technology). [69] The Review identified improvements in services in the ten case study communities. It specifically noted improvements in technical delivery, consultation processes and the cultural appropriateness of service delivery processes. The review found, however, that the delivery of water and sanitation services to these communities had not addressed the core issues and recommendations of the 1994 water report.

The Review identified the difficulty of sustaining meaningful Indigenous community involvement within a service delivery framework that is not linked to longer-term institutional or strong local or regional frameworks. As a result, 'resources revolve around the project' and projects become 'one-off, isolated interventions instead of being one stage in a longer process of community development and planning'. Community involvement in the project 'becomes an event within the project rather than one part of a strategic, long term process for community improvement.' [70]

Such a process is only beginning to become a reality in Australia today. Many solutions currently 'applied' continue to view recipients as beneficiaries, often using urban or peri-urban solutions and standards without holistic consideration of remote social, economic and environmental realities and resources. To move towards sustainable development, a conceptual shift needs to take place whereby the notion of 'beneficiaries' is replaced by that of 'consumers of services'. When services are 'consumer driven', demand has reached a point where there is significant appreciation and understanding from consumers about what they can and cannot afford, and how the system they have chosen works.

As with the Water Report, this review concludes it is imperative that the design and implementation of systems that deliver water to Australia's Indigenous communities reflects a cooperative process of negotiation, community education, forward planning and cultural awareness. Factors influencing the process might include affordability, technical appropriateness, current service delivery structures and the level of skills and resources available in the community. Clearly the involvement of Aboriginal and Torres Strait people as 'empowered consumers' is paramount to sustainable water provision, regardless of the capital outlay or the necessity for external technical expertise. [71]

For people to be "active consumers", i.e. actively involved in service delivery, they need to have the capacity to make the decisions about the kinds of services they need. To make decisions about these services people first of all need for these issues to be high enough up their priority list to think about them. They also need to be able to access the resources and support to work on their own agendas. [72]

They argue that the definition of successful service provision must undergo a radical shift from being the technical perfection of a project to whether services are used, sustainable and have an impact on health and quality of life. [73] Success cannot be measured by a well-administered program that is not utilised by the people it is meant to serve. CAT note:

Capacity building in this sense is about people developing the ability to take action and make change according to their own agenda. It is essential that space is created for community's agendas to emerge. Driving a project according to an external agenda does not support the development of self-reliance. [74]

It is essential that capacity building be properly understood as complementary to reforming government approaches to service delivery and not as a substitute for such reform. As ATSIC state:

ATSIC believes that appropriate service delivery and a developmental approach [that incorporates capacity building] are different and that these differences need to be understood by everyone involved in service delivery in Indigenous communities. Both are required, and the best outcomes are obtained when there is a synergy between the two. [75]

To address the lack of an agreed framework for advancing capacity building, ATSIC has developed an integrated framework for progressing capacity building and promoting sustainable development in Indigenous communities. ATSIC have recommended to the parliamentary committee into capacity building that this framework be adopted through the Council of Australian Governments and form the platform from which all governments would work with Indigenous communities. ATSIC have also entered into a partnership with OXFAM International to provide technical assistance within ATSIC to pilot this approach. This framework is an important initiative and is considered in more detail in the next section.

ATSIC's framework for capacity building and sustainable development

ATSIC's framework for capacity building and sustainable development has its origins in a number of reports and discussion papers that have been prepared by or for ATSIC over the past six years. These include the discussion paper and report on greater regional autonomy; [76] scoping paper on resourcing self-determination; [77] the Dillon report on service delivery in Doomadgee and Palm Island; [78] discussion papers on capacity building; [79] and other documents. [80]

Each of these documents reveals a continual engagement by ATSIC, and one that has generally not been acknowledged, on finding new and improved ways to exert its leverage and utilise its functions to achieve lasting improvements in Indigenous communities. As the 2001 discussion paper Changing perspectives in ATSIC states:

More than ten years after the establishment of ATSIC, more than twenty five years after the establishment of the Department of Aboriginal Affairs, socio-economic indicators for many of the Indigenous peoples of this country are still a source of shame. The question being asked both internally and externally is whether there are some aspects of the way ATSIC does business which do not have a positive impact on these indicators ... [81]

The history of our structure (ie, ATSIC), and the history of our programs and program priorities, tend to enshrine the 'service delivery' approach to community development. Service delivery is of course an agreed function of government. But, in the words of Paul Streeton, 'we know very little about how to transform social services, adequate food and certain institutional arrangements into long, healthy, productive, creative, enjoyable lives'. The continued adherence to a service delivery model - at the expense of seeking additional approaches to dealing with endemic social and economic issues confronting some Indigenous communities - means that this transformation is still some way in the future. [82]

As ATSIC notes in its submission to the parliamentary inquiry into capacity building, they have made 'a concerted effort' over the past three years to understand the limitations of the current service delivery model [83] and to identify ways of overcoming them. They emphasise international trends in development practice, which has moved from 'the needs-based approach (needs determined by external experts) of the 1970s to activities based on theories of participation, capacity building and capacity development'. [84] Their integrated framework for capacity building and sustainable development is the product of this consideration.

The focus of ATSIC's integrated framework is on capacity development, involving the active participation of Indigenous peoples in decision-making processes. Capacity is defined as 'the abilities, skills, understandings, values, relationships, behaviours, motivations, resources and conditions that enable individuals, organisations, sectors and social systems to carry out functions and achieve their development objectives over time'. [85] The focus on capacity development rather than capacity building emphasises two things - that considerable capacity already exists at the community level; and that the emphasis is on a continual process rather than on completing an activity.

This approach is characterised by broad based participation and a locally driven agenda; building on local capacities; ongoing learning and adaptation; long term investment by government agencies; integration of activities at various levels to address complex problems; and a systems approach to problem solving. It aims to enhance skills, abilities and resources; strengthen understandings and relationships; and address issues of values, attitudes, motivations and conditions in order to support sustainable development. [86]

In accordance with this, there are three defining features of ATSIC's approach. The first is that it is a people-centred developmental approach focused on building the human and social capital necessary for Indigenous participation in planning, organising and administering programs. As stated in the Dillon Report:

[C]ommunity development [87] is about people development, not service delivery. It is participatory in nature, specific and not focused on compliance. It is about process. It is about engagement of people of their well being. No amount of ... programs will bring about development in people unless (the programs) ... are linked to a community development process ... (Such a process) ... is supplementary to the service delivery function of governments. [88]

Second, it emphasises process elements such as access to choice, participation in planning, and access to decision making. ATSIC states:

What distinguishes capacity development from service delivery is its holistic nature, and its suggestion that individuals, families, and organisations have a definite and active part to play in the process - rather than as passive recipients of services ... if the program is simply delivered to passive recipients, dependency is reinforced and capacity is not strengthened ... [C]apacity development recognises the importance of thinking about individuals, organisations, programs, policies, etc, as part of a broader whole rather than as discrete, or loosely connected concerns. It requires change in the way 'problems' are addressed. The traditional service delivery mode, which breaks a large issue into separate chunks ... does not necessarily deal with the 'whole' - or the space between the inter-related elements. [89]

The third is that a capacity development approach incorporates a focus on sustainability, continually re-assessing whether a program or project can become self-sustaining or how to maintain the impact of a program intervention in a community over time. ATSIC see this as involving a subtle change form the current service delivery approach, which focuses on the following key stages:

• Where are we now? (current situation);
• Where do we want to be? (vision, goals);
• How do we get there? (planning, strategies);
• Did we get there? (monitoring, evaluation);
• Where are we now? (Current situation);

• and so forth. [90]

By contrast, the capacity development approach introduces a new element to this cycle as follows:

• Where are we now? (current situation);
• Where do we want to be? (vision, goals);
• How do we get there? (planning, strategies);
• Did we get there? (monitoring, evaluation);

• How do we stay there? (sustainability);

• Where are we now? (Current situation);

• and so forth. [91]

ATSIC's integrated framework for capacity building and sustainable development is reproduced in figure 3 below.

Figure 3: ATSIC's integrated capacity building framework for sustainable development [92]

These are essentially participative interventions.

These align organisations structures to Indigenous decision-making processes.

• ICCT Community Trial Sites
• DoTARS Sustainable Regions

These will lead to homogenous, policies programs driven by joint strategic planning rather than submission based interventions.

This framework highlights that there are three levels of interventions for capacity development - the community level; Indigenous organisations; and government level (including ATSIC). There are different approaches needed for each level. The focus of capacity building strategies for individuals and community members is on empowerment, with interventions to be essentially participative. For Indigenous organisations the focus is on governance and aligning organisational structures to community-based Indigenous decision-making processes. At the government level, the focus is on integration and whole-of-government coordination and cooperation.

As ATSIC Commissioner Kim Hill noted at a public hearing for the capacity building inquiry:

all three (levels or tiers of activity) have to embark on a new relationship with capacity building as a key focus. Concentrating on communities will not make any significant changes. Agencies have to change the way they deal with and interact with communities and community people. For communities, I believe, the aim is empowerment. For organisations, the aim is appropriate government systems. For agencies, the aim is to have a whole of government approach with community aims in mind. [93]

ATSIC's framework suggests that by reforming and improving the way Indigenous organisations and government undertake their obligations and responsibilities to individuals, families and small groups, the resulting space will reinvigorate the strengths and creativity of Indigenous people and communities. Indigenous community capacity will be given the opportunity to emerge and be supported if the surrounding structures reform (and develop) their existing practices. Community-based organisations can do this by seeking to align their organisations structures to Indigenous decision-making processes and government can integrate and coordinate their policies and programs to facilitate strategic planning (at the regional and community level) rather than submission based interventions.

ATSIC describes the different focus and emphasis at each level as follows:

Community level: A focus on empowerment using participative community asset development techniques. 'Family/clan panning could also include participation in situational analyses, demographic projection and feasibility assessment of economic development aspirations. These approaches mean local responses to local issues and active involvement in identifying problems and contributing to solutions'. [94]

Community organisations: A focus on good governance. 'ATSIC recognises and endorses the broader role of Indigenous community-based organisations, and believes that (this) integrated framework ... will reinvigorate community-based organisations in a way that will build human and social capital, as well as capacity.' [95] 'The potential of community -based organisations as vehicles for community capacity building depends on good governance, including how representative they are of individuals, families and small groups (with their private interest) that make up 'community'. Negotiation of roles and responsibilities between organisations, and between organisations and kinship based groupings, is a critical aspect of organisational reform. Changes to legislative and regulatory frameworks are required to enable culturally appropriate forms of governance'. [96]

Government: A focus on whole-of-government approaches. 'The diversity and complexity of contemporary Indigenous societies and cultures point to the need for location specific responses by service delivery agencies in all jurisdictions. Such location specific responses should be driven by local and regional perspectives, through community and regional plans, and by formalising a shared partnership arrangement through agreement making, based on those plans'. [97] 'Whole of government engagement with whole-of-community would build on the emerging capacities within communities and constituent groups, as well as government agency representatives, and allow flexible service delivery across coordinated agencies in all jurisdictions. Agencies would deal with communities in structured planning environments (Sec. 13 and Sec 94 of the ATSIC Act, 1989 are critical in the application of this strategy)'. [98]

In their submission to the parliamentary inquiry into capacity building, ATSIC highlight two crucial issues to drive change across each of these levels.

The first is concentrating on local level planning processes that 'can better match 'vertical' sectoral resource supply systems with local development planning so as to build integrated 'horizontal' environmental, economic, social and governance systems' . [99] ATSIC intends to develop a model of local level planning that has the following features:

• is participative, raises awareness and empowers;
• incorporates or is consistent with principles of mutual obligation and sustainable development;
• supports the development of greater economic self-reliance which working to reduce passivity and dependency;
• can be part of the process of program and service delivery reform by better matching planning and coordination to local level need; and

• integrates community planning with ATSIC Regional Council planning processes. [100]

The second is building the internal capacity of ATSIC (and in its present form, ATSIS) as well as the wider bureaucracy to support and manage a developmental approach with communities. To this end, ATSIC/ATSIS signed a Memorandum of Understanding (MOU) with OXFAM International in early 2003 to undertake joint development activities aimed at building the capacity of ATSIC/ATSIS officers.

The first activity under the MOU is a capacity building training program being trialled with ATSIC/ATSIS staff in three regional offices (Cairns (Qld), Kalgoorlie (WA) and Bourke (NSW)). There are two stages to the training - the first stage and level is staff in regional offices to understand and implement a developmental approach; and the second stage and level for regional managers and more senior staff to manage staff and programs in undertaking a developmental approach. [101] The purpose of the training is not to turn ATSIC/ATSIS staff into development workers but instead to institute within the agency an understanding of capacity development principles to apply within a service delivery environment. The trial is managed by the Community Development and Education branch of ATSIS, working in conjunction with the ATSIC Board. An advisory committee is oversighting the initiative and will evaluate its progress.

Capacity building and governance reform - an agenda for change

Overall, it can be seen that there have been significant advances in the past three years in relation to capacity building initiatives. There is a broader acceptance of the need for capacity building and governance reform within Indigenous communities and to changing the way that governments go about delivering services. There is also a broader acknowledgement of the breadth of initiatives currently underway to address the overall circumstances of Indigenous peoples. This is let down, however, by the lack of a consistent understanding of what capacity building entails which promotes a more limited focus purely on the operations of existing service delivery mechanisms.

The proposal of an integrated capacity development approach by ATSIC demonstrates the potential for transforming the relationship of Indigenous peoples and government through a focus on governance reform and capacity building. It provides a holistic, whole-of-government approach that serves as an agenda for change. The adoption of this framework would not only provide a long term framework and vision for improving Indigenous well-being, it would also ensure that all governments proceed in addressing capacity development issues with a consistent understanding of the goals and objectives of such a process. Many current initiatives of governments - such as the COAG whole-of-government trials, proposals to reform corporate governance standards relating to Indigenous corporations, and agreement making with ATSIC - fit within or is consistent with this integrated framework.

On the basis of the issues discussed in this section, I have chosen to make the following recommendations to advance progress on capacity building in Indigenous communities.

10. That COAG adopt ATSIC's Integrated framework on capacity building and sustainable development as a central component of its Reconciliation Framework.

12. That the Minister for Aboriginal and Torres Strait Islander Affairs (Cth) ensure that reform of the Aboriginal Councils and Associations Act 1976 (Cth) is treated as a high priority of the federal government and ensure extensive consultation is undertaken with Indigenous peoples about proposed amendments to the legislation. Any proposed legislative reforms should be in accordance with the recommendations of the 2002 review of the Act's operation. In particular, proposed amendments should recognise the need for special regulatory assistance for Indigenous organisations and maintain a distinct legislative framework for regulation outside of the Corporations Act as a special measure.

Strengthening the role of the Aboriginal and Torres Strait Islander Commission

This chapter and the previous chapter have highlighted a number of positive developments as well as deficiencies in the current approach of the government to Indigenous policy. Both the positive initiatives currently underway and outstanding concerns point to the need to strengthen the role of ATSIC as a way of facilitating increased and improved Indigenous participation in decision making processes. On this basis, I have chosen to conclude this chapter by presenting an agenda for reforming the role and functions of ATSIC. Such reform is needed to extend ATSIC's influence and to support ATSIC in adopting an expanded leadership role within government, as well as to facilitate greater Indigenous participation in the processes of government.

I particularly focus on the challenges of greater regionalisation and strengthening the influence and leadership role of ATSIC at the national level. [102] These are crucial issues for advancing capacity building in Indigenous communities, improving accountability of governments to Indigenous peoples and ultimately, in creating a new relationship between Indigenous peoples and governments. They are also issues which will in all likelihood dominate debates about Indigenous issues in 2004, with proposals for legislative reform to ATSIC likely to be debated in Parliament in the first half of the year.

a) Developments in 2003 - Corporate governance issues and the ATSIC Review

Much of the focus on Indigenous issues in 2003 centred on the performance of ATSIC and proposals for reforming its structure and functions.

During the year, the Minister for Immigration, Multicultural and Indigenous Affairs issued directions to ATSIC aimed at preventing conflicts of interest in funding decisions by ATSIC's elected officials. [103] These directions prevented ATSIC from making grants or loans, or offering contracts or guarantees to organisations in which ATSIC full-time office holders were directors or in which they had a controlling interest. The purpose of the directions was to address both 'the perception of conflicts of interest in ATSIC' and 'the potential for serious conflict of interests when an ATSIC officeholder is also a director of a body seeking ATSIC funding'. [104]

These concerns about conflicts of interest led the Minister to announce on 17 April 2003 that the government had decided to strip ATSIC of over $1 billion in funding by creating a new executive agency to manage ATSIC's programs in accordance with the policy directions of the ATSIC Board. [105] The basis of this decision was to promote good governance and accountability; address the 'current breakdown in community confidence in ATSIC'; allow ATSIC to refocus its attention on 'more significant policy issues' rather than be distracted by 'the micro-management focus on ATSIC's own spending'; and to enable the Board and Regional Councils to take 'a more strategic approach in future so that their influence is extended - not only with regard to the programs for which they are directly responsible, but also by enabling them to engage with mainstream agencies with greater credibility and authority'. [106]

The newly created Aboriginal and Torres Strait Islander Services (ATSIS) commenced operations on 1 July 2003. The Minister issued directions to ATSIS on 1 July 2003 requiring it to:

• take all reasonable steps to ensure that ATSIS conforms to the policies and strategic priorities established by ATSIC, and reflects the priorities set by ATSIC Regional Councils in their regional plans;
• facilitate linked approaches with other government agencies and coordinate its activities to achieve 'effective synergies with overall Government policies and priorities' as well as have 'appropriate regard to overall Government policies and priorities';
• take all reasonable steps to allocate resources on the basis of relative need, taking account of the availability of alternative services, as well as the supplementary nature of ATSIS funding and the priorities for addressing relative need spelt out by the ATSIC board;
• ensure best practice in its relationship with service providers, for example through adopting outcome-based funding and performance-based contracts;
• ensure compliance with the conflict of interest directions described above; and

• work in partnership with the ATSIC Board and Regional Councils, including by providing support for regional planning and policy development. [107]

The Minister declared that the creation of ATSIS was to be an 'interim' measure pending the outcomes of the review of ATSIC announced in 2002.

This review of ATSIC produced a discussion paper in June 2003 expressing significant concerns about the way ATSIC currently operates. [108] In November 2003 it released its final report, titled In the hands of the regions - a new ATSIC, with recommendations for reform. The final report of the Review Team acknowledges the importance of ATSIC:

ATSIC should be the primary vehicle to represent Aboriginal and Torres Strait Islander peoples' views to all levels of government and to be an agent for positive change in the development of policy and programs to advance the interests of Aboriginal and Torres Strait Islander Australians. [109]

Ultimately, however, they conclude that ATSIC:

is in urgent need of structural change. ATSIC needs the ability to evolve, directly shaped by Aboriginal and Torres Strait Islander people at the regional level. This was intended when it was established, but has not happened. ATSIC needs positive leadership that generates greater input from the people it is designed to serve. One of its most significant challenges is to regain the confidence of its constituents and work with them and government agencies and other sectors to ensure that needs and aspirations are met. ATSIC also has to operate in a fashion that engages the goodwill and support of the broader community. [110]

The report of the Review Team particularly emphasises the need to improve the connection between ATSIC's regional representative structures and national policy formulation processes. The Review Team state that:

As it currently operates, the review panel sees ATSIC as a top down body. Few, if any, of its policy positions are initiated from community or regional levels. The regional operations of ATSIC are very much focused on program management. To fulfil its charter, engage its constituency and strengthen its credibility, ATSIC must go back to the people. The representative structure must allow for full expression of local, regional and State/Territory based views through regional councils and their views should be the pivot of the national voice ... [111]

In terms of capacity building, this identifies a challenge to develop a 'cultural match' between the structures of ATSIC and Indigenous peoples at the local level to ensure that ATSIC is representative and participative.

Significantly, the Review Team note that public perceptions of how ATSIC have performed have been burdened by unrealistic expectations, with the organisation blamed for failures which lie outside its control. They have noted that:

In the wider public arena, perceptions of ATSIC's performance have been influenced by a number of factors totally beyond its control. It is true that most Australians had not appreciated the extent of inequality and injustice suffered by Aboriginal and Torres Strait Islanders until the Royal Commission into Aboriginal Deaths in Custody started making its findings public ... Similarly, the inquiry into the separation of children from their families, which report in 1997, uncovered a period of history and ongoing pain that Australian society had swept under the carpet ... Some of the initial goodwill extended to ATSIC began to fade when these factors kept creating an impression that little progress was being made on the difficult issues. [112]

Similarly, they note that ATSIC has also not lived up to unrealistic expectations of what it can achieve:

[I]n many eyes ATSIC has not lived up to expectations ... ATSIC was intended to be a supplementary funding body and was never intended, or funded, to be the provider of all programs and services to Aboriginal and Torres Strait Islander people. Its establishment did not absolve mainstream agencies from their responsibility to meet their obligations to Indigenous citizens. The hopes pinned on the organisation - that it could and would effect instant change were not realistic. [113]

They state that these unrealistic expectations have also operated to shield governments from being accountable:

mainstream Commonwealth and State government agencies from time to time have used the existence of ATSIC to avoid or minimise their responsibilities to overcome the significant disadvantage of Aboriginal and Torres Strait Islander people. Because public blame for perceived failures has largely focused, fairly or unfairly, on the Aboriginal and Torres Stair Islander Commission, those mainstream agencies, their ministers and governments have avoided responsibility for their own shortcomings. This avoidance of accountability and responsibility must be overcome with the new ATSIC ...

Accordingly, they approach the issue of reform of the role of ATSIC pragmatically, stating that:

A more realistic recognition that ATSIC cannot be the vehicle to serve all Indigenous needs for government services is the starting point for defining the areas where ATSIC can work and make a difference. This means that ATSIC 's role must be more positive, focused and clearly defined. [114]

b) The ATSIC Review's proposal for a 'new ATSIC'

The report of the Review Team outlines the Review Team's vision of what a reformed ATSIC should look like. They consider that ATSIC reform should result in an organisation that:

• Enables Aboriginal and Torres Strait Islander people to build a future grounded in their own histories and cultures within the broader Australian framework;
• Represents and promotes the views of Aboriginal and Torres Strait Islander people, including their diversity of opinion;
• Vigorously pursues the interests of Aboriginal and Torres Strait Islander people through partnerships with Aboriginal and Torres Strait Islander communities, governments and other sectors of Australian society;
• Influences priorities, strategies and programs at the national, State/Territory and regional level;
• Minimises and streamlines the government interface with Indigenous communities;
• Promotes good Indigenous governance;
• Recognises the complexity of relationships between Aboriginal and Torres Strait Islander individuals, communities, organisations and governments and the values and limitations created by this;
• Is an equal partner in all negotiations, resourced adequately to achieve this equality, and commands goodwill and respect;
• Increases women's participation and expression of views;
• Ensures that there is transparent accountability of all organisations that are funded to provide services for Aboriginal and Torres Strait Islander people;
• Maintains its unique status;

• Recognises that ATSIC is a key player, but not the only player, that seeks to advance the interests of Aboriginal and Torres Strait Islander Australians with government and others. [115]

To achieve this vision, the Review Team recommends a revised structure for ATSIC that includes the following features:

• The retention of ATSIC's 35 Regional Councils;
• The replacement of the ATSIC Board, which is currently constituted of 18 zone commissioners, with two new structures - a national body and a national executive;
• The new 'national body' would be the governing body of ATSIC and determine ATSIC policy, primarily through the development of a national plan which would be drawn from ATSIC Regional Council plans and ultimately form the basis of the policies and programs of all governments;
• The 'national body' would meet at least twice every four years;
• The new 'national body' would have 38 members and be comprised of the 35 elected Regional Council chairs, the chair of the Torres Strait Islander Advisory Body and the chair and deputy chair of the new 'national executive';
• The new 'national executive' would be delegated by the 'national body' the role of leading ATSIC and advocating on behalf of ATSIC on a day to day basis;
• The new 'national executive' would have up to10 members, comprised of 8 people elected by the 'national body' including a chair and deputy chair, as well as up to 2 people appointed by the Minister from elected regional councillors;
• A series of national committees would be established to provide policy input to the 'national body' to ensure the incorporation of regional priorities into national planning, with membership drawn from the 'national body' and 'national executive';
• The Regional Council planning process would be accorded higher status in establishing ATSIC's priorities; and

• The elected and administrative arms of ATSIC (and presently ATSIS) would be reunified in one organisation with a clear delineation of roles incorporated into the ATSIC Act. [116]

The ATSIC Review Team observes that this proposed 'new ATSIC' is underpinned by a number of principles. These include that:

• ATSIC should be the peak State/Territory and national body, which advocates for the development of Aboriginal and Torres Strait Islander communities;
• The regional councils (and relevant members of the national body) should provide the State/Territory policy interface with the governments co-coordinating regional activities;
• Representatives from each State/Territory should then constitute the national body, achieving a direct relationship between the regional, state and national levels;
• The national body should provide the policy interface for the Australian Government setting and advocating a national strategic direction and monitoring progress against ATSIC's national plan to reinforce the accountability of program and service providers;
• ATSIC's primary focus should be on building strong local communities through development and implementation of a needs-based regional plan;
• State/Territory and national programs should be informed by, and undertake activities consistent with, regional plans;
• All government funded programs should be subject to an independent assessment of outcomes; and

• The role of elected officials should be clearly delineated from that of the administration. [117]

Overall, the ATSIC Review Team made 67 recommendations which broadly address issues of the relationship between ATSIC and Indigenous peoples, the federal government, the states and territories, and between its elected and administrative arms. [118]

c) Responding to the ATSIC Review's proposals and the conflict of interest directions

In supporting the reunification of ATSIC and ATSIS, I support the retention of the conflict of interest directions within ATSIC by which ATSIC's elected representatives would continue to set policy priorities and to decide the broad program allocation of funding but not have any involvement in making individual funding decisions. The reunification of ATSIC's structure would overcome a potential tension that has been created through the creation of ATSIS whereby it is required to 'take all reasonable steps to ensure that ATSIS conforms to the policies and strategic priorities established by ATSIC' on the one hand, and 'coordinate its activities to achieve effective synergies with overall Government policies and priorities as well as have appropriate regard to overall Government policies and priorities' on the other hand.

Despite supporting these recommendations, however, I also have reservations about the Review Team's proposals for the creation of a national body and national executive in the format that they propose. I also consider that the Review Team's model does not provide adequate support to ATSIC's national structure and consequently would not provide ATSIC with sufficient leverage or powers to undertake a broader role of monitoring performance by other government agencies (at all levels) and in setting priorities to apply across government.

I am also concerned that there are also significant gaps in the Review Team's analysis which overlook issues relating to the broader service delivery environment in which ATSIC operates, as well as deficiencies in the model that it proposes.

In August 2003, I made a submission to the ATSIC Review Team following the release of its discussion paper. In that submission it was noted that the Review Team 'does not appropriately contextualise ATSIC's role within the broader framework of government policy making and delivery of services relating to Indigenous peoples'. [119] There are two aspects to the concern that I had initially expressed to the Review Team in this regard that have not been addressed in their final report.

First, is that the Review Team had on the one hand acknowledged that ATSIC has wrongly been used as a scapegoat for failures by governments in addressing key areas of Indigenous disadvantage yet on the other hand replicated this scape-goating itself. In their final report, the Review Team acknowledge that ATSIC is not primarily responsible for service delivery to Indigenous people and that its funding is of a supplementary nature. Despite this, they also set out the following test for determining the accountability of ATSIC:

The Review Panel believes that the real test of accountability within ATSIC is whether, at the community level, Aboriginal and Torres Strait Islander Australians are actually getting the outcomes that the investment by agencies at all levels of government is designed to achieve. [120]

As quoted above, the expectations on which such a test of accountability is based were described by the Review Team itself as 'not realistic'. Such a test also does not provide the 'more positive, focused and clearly defined' role for ATSIC that is needed, based on a 'more realistic recognition that ATSIC cannot be the vehicle to serve all Indigenous needs for government services'. [121] This test of accountability wrongly conflates ATSIC'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.

It is one thing to suggest that ATSIC should strive to improve Indigenous peoples' lives - something that they undoubtedly do. But it is entirely a different thing to hold them accountable for the failure of successive governments to address the consequences of history and to do so within a system in which ATSIC exercises a marginal role.

The second related concern is that the Review Team's report does not acknowledge the broader framework of government policy making and service delivery in which ATSIC operates. This includes recognition of the significant under-funding in key areas of Indigenous marginalisation, which is a key factor in preventing needs-based funding from being implemented (as the Commonwealth Grants Commission's inquiry into Indigenous funding clearly demonstrated).

This is also reflected in the failure of the ATSIC Review Team to acknowledge a number of recent initiatives undertaken by ATSIC to reform the way that it operates and to advocate for changes to the way the existing service delivery environment operates. A number of these processes have been referred to earlier in this chapter (culminating in ATSIC's Integrated framework for capacity building and sustainable development). Ironically perhaps, one of its criticisms of ATSIC's current approach is that it is a 'top down body' where its regional operations 'are very much focused on program management' - the very criticism that ATSIC has made about the constrained environment in which it operates.

Perhaps the most disappointing feature of the Review Team's final report, however, is the lack of detailed discussion and recommendations relating to supporting more flexible structures at the Regional Council level. The Review Team's discussion paper devoted significant attention to proposed reforms to strengthen ATSIC's Regional Council structure. It identified three models for strengthening Regional Councils which they termed the regional authority, regional council and devolution models. In the final report, the Review Team note that:

At Regional council meetings and in discussions with the panel, Aboriginal and Torres Strait Islander people expressed their desire to build their personal capacities and those of their organisations. While many supported a model for great regional autonomy and for regional councils to be replaced by regional authorities, they indicated a need for more capacity building and resources in order to achieve this goal. [122]

On this basis, the Review Team's final report contains no recommendations relating to including provisions in the ATSIC Act to allow regional council structures to evolve over the longer-term in accordance with the aspirations of Indigenous peoples within the various council regions. Such proposals have now been under discussion since the conduct of ATSIC's Section 26 review in 1998 and the regional autonomy consultations of 1999 and 2000 without result.

ATSIC have also responded to the Review Team's final report by stating that the proposal for a new 'national executive' and 'national body' is flawed and unacceptable on the basis that it extinguishes the right of Regional Councillors to vote directly for their full-time national representatives and drastically reduces the full-time Indigenous representation at the national level. [123] They state:

While seeking to improve representation the report proposes to:

This ... is about the capacity of Indigenous Australians to be properly represented at the national, State and regional levels. This (proposed structure) would impose an intolerable burden on the proposed new executive, particularly as it and the new national body over time would be increasingly held responsible for the ongoing crisis in Indigenous communities by the Indigenous community as well as by mainstream Governments seeking to identify a convenient scapegoat for their own shortcomings. It would be impossible for two full-time representatives - a Chair and Deputy Chair - to carry out all the many national tasks and responsibilities which are required to represent effectively the interests of Aboriginal people and Torres Strait Islanders, nationally and internationally.

The national body of 35 Regional Chairs which would elect most members of this executive would be dominated by those States with the most regional councils. With the best will in the world, genuine national representation from all States and Territories could not be guaranteed. [124]

ATSIC have also noted that the Review Team's proposed model for a 'national body':

would set ATSIC up to fail because the larger 'national assembly' would meet only once every two years while the national executive was too small a body which could not faithfully represent Indigenous people nationally and would be greatly under-resourced with only two full-time members. [125]

In the alternative, ATSIC have proposed that ATSIC Elections be extended so that ATSIC Commissioners are directly elected at the same time as ATSIC Regional Councillors, and that subsequently, all Regional Councillors then elect the Chair of the Commission (rather than the current approach where the Regional Councillors elect the Zone Commissioner, and the Zone Commissioners elect the Chairperson). [126]

I join with ATSIC in its concerns about the proposals for a 'national body' and 'national executive'. I note however that in general, there is much potential in the Review Team's proposal that there be a new mechanism such as the proposed 'national body' to involve Regional Council Chairs in establishing national priorities and policies. It is desirable that such a 'national body' determine ATSIC policy, primarily through the development of a national plan which would be drawn from ATSIC Regional Council plans.

It is fanciful, however, to suggest that a national body comprised of such a membership and charged with such responsibilities could effectively acquit their responsibilities to Indigenous peoples through the national body, particularly when the national body would only be meeting once every two years.

The infrequency of meetings of the proposed 'national body' combined with the reduced size of the national board (or new 'national executive') could significantly impact on the ability of ATSIC to advocate for reform at the national level, and on its ability to develop national policies. This would consequently affect its ability to influence the approach of other government departments and different governments. As I noted in my submission to the ATSIC Review's discussion paper:

ATSIC'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 ATSIC's current powers from the national to the regional level but instead an enhancement of the existing powers at both levels. [127]

Consideration could, however, be given to an intermediate position whereby the ATSIC Board of Commissioners or equivalent 'national executive' is retained and charged with the day to day responsibilities of advocating ATSIC's position at a national level. Such a body would need to address issues of representativeness. Such a body could then be supported by a national congress or 'national body' made up of all Regional Council Chairs which meets with the Board of Commissioners on a regular basis (perhaps 3 to 4 times per year) to determine ATSIC's national policies and priorities.

d) Proposed features of a 'new ATSIC'

Having identified a number of concerns with the ATSIC Review Team's proposed reforms to ATSIC, it is important to identify ways in which ATSIC could be reformed to meet the key objectives identified by the ATSIC Review.

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? [128]

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, ATSIC's current powers must be enhanced at the each of the national, state/territory, and regional levels. As noted above, what is required to make ATSIC more effective is not a redistribution of ATSIC'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.

In my submission to the ATSIC Review Team, I identified the following proposals for strengthening ATSIC at the national, state/territory and regional level.

• Reform to ATSIC at the national level

There must be sufficient attention paid to the importance of ATSIC maintaining a strong voice at the national level. Any diminution of ATSIC'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.

In my submission to the ATSIC Review, I proposed a number of mechanisms to enhance ATSIC's powers at the national level 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.

In particular, I have suggested that ATSIC's existing 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) ; [129]

• 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. [130] ATSIC's national role should be enhanced by ensuring that it has a permanent role in the COAG and MCATSIA processes.

• Reform to ATSIC at the state / territory level

I also support enhancing the structure of ATSIC for interface with state and territory government through improved support for ATSIC's State Advisory Committees (SACs). There are two key issues that must be addressed to achieve this goal.

First, ATSIC's governing legislation should 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 by being extended to authorise 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 ATSIC'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 ATSIC'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.

It would be appropriate for ATSIC'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 ATSIC'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.

• Reform to ATSIC at the regional level

The ATSIC Review report 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, in my submission to the ATSIC Review I supported the transition to what the Review Team described as a devolution model, 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.

e) The challenge of ATSIC reform

Overall, the acting Chairman of ATSIC identifies the challenges that currently face ATSIC as follows:

The challenge for ATSIC is to become the core organisation which:

• develops the policies and programs to deliver what Aboriginal people and Torres Strait Islanders need and want;
• play a key role to ensure that they are implemented across government; and

• holds governments, agencies and service providers - including ATSIC itself - accountable for achieving outcomes. [131]

The ATSIC Review goes part of the way to identifying an agenda for change to ATSIC to meet these objectives. There is, however, a need to go beyond what the Review Team have proposed and ensure that there is no relative weakening in ATSIC's national structure while also increasing the focus on supporting innovation at the regional level.

Reform of ATSIC is a critical aspect in achieving the effective participation of Indigenous peoples in decision making processes and supporting sustainable development. The extent to which the government supports ATSIC over the coming year to more effectively drive an agenda for change, including by providing it with sharper legislative powers, will be the litmus test of their commitment to achieving sustainable improvements in Indigenous communities.

Conclusion

This chapter has highlighted the increased attention over the past year to the nature of the relationship between government and Indigenous peoples. There is clear dissatisfaction with the way that the current service delivery model operates to reinforce Indigenous dependency on government services rather than promote sustainable development. Capacity building in Indigenous communities and governance reform of Indigenous organisations is increasingly being seen as a panacea for overcoming the limitations of this approach.

Despite this, capacity building initiatives are progressing within the existing service delivery model and with little reform to this system. There is also a lack of agreement on an agenda for change into the future, which again operates to restrain reform to within the strictures of the existing approach of governments. This needs to change. As ATSIC have outlined in their Integrated framework for capacity building and sustainable development, there needs to be reform at the governmental, organisational and community levels simultaneously if there is to be any transformation in the relationship of Indigenous peoples to government. The focus needs to be broader than improved efficiency of Indigenous organisations. No amount of change at one level of the system will result in sustainable improvements for Indigenous peoples if it is not accompanied by reform at the other levels.

A key challenge in this is reforming the role of ATSIC so that there is an appropriate cultural match between ATSIC's organisational structure and its constituents, Indigenous peoples at the local level. ATSIC also needs to be strengthened so that it is equipped to exercise a more pivotal role in policy making at all levels of government - particularly through strengthening its ability to monitor the performance of government.

In committing to an approach defined by partnerships and agreements, capacity building and a more targeted role for ATSIC in the broader policy framework, the government has opened up the potential for significant and lasting reform in the relationship of government with Indigenous peoples. There are clear limits in these commitments - it is not, for example, underpinned by any recognition of Indigenous rights or distinct cultural attributes of Indigenous peoples; and it is not clear that these commitments envisage much change to existing forms of service delivery.

Whether this potential is realised will depend on the legislative reform program that the government embarks on in ߔ their willingness to be increasingly innovative and flexible with service delivery arrangements; and the commitments that they are prepared to make at the inter-governmental level. Realising this potential will also, of course, depend on the efforts of Indigenous peoples and ATSIC as they seek to define a new relationship with government.

1. Of these inquiries and reviews, only the ATSIC Review and the inquiry into national progress towards reconciliation released final reports in 2003.

2. Aboriginal and Torres Strait Islander Commission, Annual Report 2001-02, ATSIC Canberra 2002, p33. NB: The Commission is herein referred to as ATSIC.

3. For an analysis of this approach and the government's position on self-determination see: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, HREOC Sydney 2002, Chapter 2, especially pp8-11. (Herein: Social Justice Report 2002 ).

4. ATSIC, Resourcing Indigenous development and self-determination - A scoping paper, Australia Institute, Canberra 2000, p4.

5. ATSIC, Changing perspectives in ATSIC - from service delivery to capacity development, ATSIC Canberra 2001, p4.

6. ATSIC, Resourcing Indigenous development and self-determination - A scoping paper, op.cit, p21.

7. Royal Commission into Aboriginal Deaths in Custody, National Report - Volume 1, AGPS Canberra 1991, pp 9-10.

8. Australian Institute of Aboriginal and Torres Strait Islander Studies, Final Report of the Review of the Aboriginal Councils and Associations Act 1976, AIATSIS, Canberra 1996, Volume 1, pp145-146 as cited in ibid, pp27-28.

9. ATSIC, Resourcing Indigenous development and self-determination - A scoping paper, op.cit, p22.

10. ATSIC, Changing perspectives in ATSIC - from service delivery to capacity development, op.cit, p4.

11. ATSIC, Resourcing Indigenous development and self-determination - A scoping paper, op.cit, p5.

12. Royal Commission into Aboriginal Deaths in Custody, National Report - Volume IV, AGPS Canberra 1991, p21.

13. Acting Chairperson's review in: ATSIC, Annual Report 2002-2003, ATSIC Canberra 2003, p9.

14. Note: The government's approach places considerable emphasis on achieving outcomes in employment in order to address Indigenous welfare dependency. The Social Justice Report 2001 provided a detailed analysis of the government's mutual obligation approach to welfare reform and employment issues. See: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001, HREOC Sydney 2001, Chapter 2 and Chapter 3 (Herein: Social Justice Report 2001 ). It set out and analysed the key role of the Indigenous Employment Policy and Community Development Employment Projects Scheme and the then newly commenced trial of Community Participation Agreements. While it is acknowledged that mutual obligation and employment form a key part of the government's overall approach to Indigenous issues, this chapter is not focussed specifically on these issues.

15. Ruddock, P, 'ATSIC and its future', Speech, Bennelong Society Conference - An Indigenous Future? Challenges and Opportunities, 29 August 2003, online at www.bennelong.com.au /, , p2.

16. See further: Ruddock, P, 'ATSIC and its future', ibid. ; Ruddock, P, 'Agreement making and sharing common ground', Speech, ATSIC National Treaty Conference, 29 August ߒ Ruddock, P, 'Changing direction', Speech, ATSIC National Policy Conference - Setting the agenda, 26 March ߒ Department of Immigration, Multicultural and Indigenous Affairs, Government response to the Commonwealth Grants Commission Report on Indigenous Funding, DIMIA Canberra ߒ and Department of Immigration, Multicultural and Indigenous Affairs, Submission - House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs' inquiry into capacity building in Indigenous communities, DIMIA Canberra 2002. These documents (except the Bennelong society speech) were considered in detail in: Social Justice Report 2002, Chapters 2 and 3.

17. Ruddock, P, 'ATSIC and its future', op.cit, p2.

18. ibid.

19. Ruddock, P, 'Changing direction', op.cit, pp7-8.

20. Department of Immigration, Multicultural and Indigenous Affairs, Government response to the Commonwealth Grants Commission Report on Indigenous Funding, op.cit, p3.

21. Department of Immigration, Multicultural and Indigenous Affairs, Submission - House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs' inquiry into capacity building in Indigenous communities, op.cit, p20.

22. Ruddock, P, 'Agreement making and sharing common ground', op.cit, p3.

23. Minister Vanstone, 'Indigenous organisations to benefit from reforms', Press Release, 15 January 2004.

24. For details, see: Social Justice Report 2002, Chapters 2 and 3.

25. For the relevance of this approach see: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000, HREOC Sydney 2000, Chapter 4 (Herein: Social Justice Report 2000 ).

26. Social Justice Report 2000, p107. See also Social Justice Report 2001, Chapter 3.

27. Social Justice Report 2001, Chapter 3. The focus of that chapter was on the necessary requirements for capacity building to be effective and contribute to sustainable improvements in the well-being of Indigenous peoples, as well as case studies of recent governance and capacity building initiatives.

28. Social Justice Report 2001, p67, citing: ATSIC, Discussion paper on ATSIC's approach to community capacity building, Unpublished paper, ATSIC Canberra 2001, p1.

29. ibid, citing: ATSIC, Regional autonomy for Aboriginal and Torres Strait Islander communities - Discussion paper, ATSIC, Canberra 1999, p22.

30. Aboriginal and Islander Independent Community School, Handbook, p2.

31. Examples of Aboriginal community controlled schools and colleges in other states and territories include Papunya School (Northern Territory), Institute for Aboriginal Development (Alice Springs, Northern Territory); Tranby College (Glebe, New South Wales); Tauondi College (Port Adelaide, South Australia); and Batchelor College (Batchelor, Northern Territory).

32. Further information on the Murri School can be obtained by emailing info@murrischool.bigpond . I would also like to express my gratitude to the Murri School for the assistance they provided HREOC staff in compiling this case study.

33. For an overview of research on capacity building and governance in Indigenous communities in Australia, see Dodson, M and Smith, D, 'Governance and sustainable development: Strategic issues and principles for Indigenous Australian communities' Discussion Paper 250 / 2003, Centre for Aboriginal Economic Policy Research, Canberra 2003, pp3-4. Available online at: www.anu.edu.au/caepr/discussion2.php .

34. See: www.reconciliation.org.au/media/speeches.asp .

35. See: www.indigenousforums.nt.gov.au/

36. See: www.governanceconference.nt.gov.au/

37. See: www.aph.gov.au/house/committee/atsia/indigenouscommunities/inqinde.htm

38. Reconciliation Australia, 2003 Reconciliation Report, Reconciliation Australia, Canberra 2003, p11.

39. Centre for Aboriginal Economic Policy Research, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, CAEPR,Canberra 2002, p4.

40. Dodson, M and Smith, D, op.cit, p1.

41. ibid, p11.

42. ibid, p12.

43. ibid., p11.

44. ibid, p12.

45. ibid.

46. ibid.

47. ATSIC, Annual Report 2002-03, ATSIC Canberra 2003, p10.

48. Corrs Chambers Westgarth Lawyers, Anthropos Consulting, Dodson, M, Mantziaris, C, and Rashid, S, A Modern Statute for Indigenous Corporations: Reforming the Aboriginal Councils and Associations Act, Office of the Registrar of Aboriginal Corporations, Sydney, 2002.

49. ibid, p7.

50. ibid.

51. ibid, p1.

52. ibid, p2.

53. ibid.

54. ibid, p6.

55. ibid.

56. ATSIC, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, ATSIC, Canberra 2003, p5.

57. Dodson, M and Smith, D, op.cit, pp18-19.

58. Corrs Chambers Westgarth Lawyers, Anthropos Consulting, Dodson, M, Mantziaris, C, and Rashid, S, op.cit, pp8-13.

59. See: ibid, pp16-30.

60. Minister for Immigration, Multicultural and Indigenous Affairs, Indigenous organisations to benefit from reforms, Media Release, 15 January 2004.

61. The submission of the Western Australian government to the House of Representatives inquiry into capacity building is a good illustration of this. It is a collection of statements and policies from different agencies and departments of the government and reveals different understandings and approaches between these agencies.

62. Australian Institute of Aboriginal and Torres Strait Islander Studies, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, 28 August 2002, pg 4 & 5.

63. ATSIC, Changing perspectives in ATSIC - from service delivery to capacity development, op.cit, p6.

64. House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Terms of reference - Inquiry into capacity building in Indigenous communities, online at: www.aph.gov.au/house/committee/atsia/indigenouscommunities/inqinde.htm , 11 November 2003.

65. Hill, K, Hansard - House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquiry into capacity building in Indigenous communities, 27 November 2002, p209.

66. Fred Hollows Foundation, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, Fred Hollows Foundation, Sydney 2002, p1.

67. ibid, p4.

68. Race Discrimination Commissioner, Water report, HREOC Sydney 1994.

69. Race Discrimination Commissioner, Review of the Water report, HREOC Sydney 2001. See also: Grey-Gardner, R and Walker, B, 'What lies beneath: Sustainable groundwater management for communities of Indigenous people', Speech, International Association of Hydrogeologists, International Groundwater conference - Balancing the groundwater budget, Darwin ߒ Centre for Appropriate Technology, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, CAT, Alice Springs 2003.

70. Race Discrimination Commissioner, Review of the Water report, op.cit, p61.

71. ibid, pp71-72.

72. Centre for Appropriate Technology, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Inquiry into Capacity Building, CAT, Alice Springs 2003, p10.

73. ibid, p11.

74. ibid, p14.

75. ATSIC, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, op.cit, p5.

76. ATSIC, Report on greater regional autonomy, ATSIC Canberra ߐ and ATSIC, Regional autonomy for Aboriginal and Torres Strait Islander communities - Discussion paper, op.cit.

77. ATSIC, Resourcing Indigenous development and self-determination - A scoping paper, op.cit.

78. ATSIC, Review of Indigenous communities of Doomadgee and Palm Island, ATSIC Canberra 2000 (Herein Dillon report ).

79. ATSIC, Changing perspectives in ATSIC - from service delivery to capacity development, op.cit., and Gerritson, R, Community capacity building: An ATSIC Discussion paper, Unpublished, ATSIC 2001.

80. For example: ATSIC, Directions for change - ATSIC 2001/02 Budget outlook, op.cit..

81. ATSIC, Changing perspectives in ATSIC - from service delivery to capacity development, op.cit., p3.

82. ibid, p13.

83. ATSIC, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, op.cit, p5.

84. ATSIC, Changing perspectives in ATSIC - from service delivery to capacity development, op.cit., p5. Note: developments in theories relating to development and sustainability since the 1970's are discussed in detail in the Native Title Report 2003, Chapters 1 and 2.

85. ibid, p7 . This was the definition adopted by the Social Justice Report 2001 and discussed earlier in this chapter.

86. ibid, p9.

87. Note: There are slight variations in the terminology used by ATSIC over the past three years as their approach has evolved.

88. ATSIC, Dillon Report, op.cit, p2.

89. ATSIC, Changing perspectives in ATSIC - from service delivery to capacity development, op.cit., .pp7-8.

90. ibid, p10.

91. ibid, p11.

92. ATSIC, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, op.cit, p8.

93. Hill, K, Hansard - House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquiry into capacity building in Indigenous communities, 27 November 2002, p210.

94. ATSIC, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, op.cit, p9.

95. ibid , p3.

96. ibid., p9.

97. ibid, p4.

98. ibid., p9.

99. ibid, p7.

100. ibid.

101. For details of OXFAM's approach see: OXFAM Community Aid Abroad, Submission to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs - Inquiry into Capacity Building in Indigenous Communities, OXFAM, Melbourne 2003.

102. The discussion in this section is based on: Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to the ATSIC Review, HREOC Sydney 2003 (Herein: Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to ATSIC Review ). Available online at: www.humanrights.gov.auhttps://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice

103. The Directions were issued on 24 December 2002 and amended on 3 February 2003.

104. Ruddock, P, 'Directions to ATSIC concerning conflicts of interest', Press Release, 24 December 2002, www.minister.immi.gov.au/atsia/media/ruddock_media02/r02080.htm , 12 December 2003.

105. For an overview of the directions see: ATSIC, Annual Report 2002-03, op.cit, pp10-11, 17-18.

106. Ruddock, P, 'Good governance and conflicts of interest in ATSIC', Press Release, 17 April 2003, www.minister.immi.gov.au/atsia/media/ruddock_media03/r03028.htm , 12 December 2003.

107. ATSIC, Annual Report 2002-03, op.cit ¸ p11.

108. Hannaford, J, Huggins, J and Collins, B, Review of the Aboriginal and Torres Strait Islander Commission, Public Discussion Paper - June 2003, Commonwealth of Australia, Canberra 2003, online at: www.atsicreview.gov.au .

109. Hannaford, J, Huggins, J and Collins, B, In the hands of the regions - Report of the Review of the Aboriginal and Torres Strait Islander Commission, Commonwealth of Australia, Canberra 2003 (Herein ATSIC Review Report), p24 and Recommendation 2.

110. ibid, p5.

111. ibid, p32.

112. ibid, p30.

113. ibid.

114. ibid, p30.

115. ibid, p25.

116. ibid, pp7-8, 14-15.

117. ibid, p26.

118. See: ibid, pp8-13.

119. Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to ATSIC Review, p3.

120. ATSIC Review Report, op.cit, p69.

121. ibid, p30.

122. ibid, p36.

123. ATSIC, 'A stronger ATSIC regionally and nationally', Press Release, 5 December 2003, p1.

124. ibid.

125. ATSIC, 'A new ATSIC - in the hands of the people', Press Release, 8 December 2003, p1.

126. ibid.

127. Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission to ATSIC Review, op.cit, p1.

128. ATSIC, Directions for change, op.cit, p1.

129. 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, Department 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).

130. 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, www.hreoc.gov.au/social_justice/senate_submission/index.html .

131. ATSIC, Annual Report 2002-2003, ATSIC Canberra 2003, p2.