Skip to main content

Summary - Issues for consideration in the formation of a new National Indigenous Representative Body

 

Issues for consideration in the formation of
a new

National Indigenous Representative
Body

SUMMARY

Download

Introduction

Without proper engagement with Aboriginal and Torres Strait Islander peoples,
(Indigenous peoples) governments will struggle in their efforts to make lasting
progress in improving the conditions of Indigenous people and in our
communities.

At present, there is not a transparent, rigorous process at the national
level for engaging with Indigenous peoples in determining the policy settings
and to hold governments accountable for their performance.

A National Indigenous Representative Body is a fundamental component of any
future action if we are to achieve positive change.

The new Australian Government has acknowledged the importance of addressing
this in the Apology speech. The Government furthered its commitment in March
2008 when, along with the federal Opposition, it signed a Statement of Intent to
work in partnership with Indigenous people and their representative
organisations to achieve equality in health status and life expectancy between
Indigenous and non-Indigenous Australians by the year 2030.

It is now time to flesh out these commitments to ensure the full
participation and input of Indigenous peoples into government decision making at
the national level. This, ultimately, is what the discussion about a new
National Indigenous Representative Body is about.

In 2007 I initiated research to identify the key considerations that will
need to be addressed in establishing a new National Indigenous Representative
Body.[1] The findings of that research
are detailed in the full discussion paper, and summarised here.

The research is premised on the need for a National Indigenous Representative
Body being understood and accepted. It therefore addresses a series of issues
for consideration in the process of establishing a new National Indigenous
Representative Body. Namely:

  • First, what lessons can be learned from mechanisms for representing
    Aboriginal and Torres Strait Islander peoples at the national, State/ Territory
    or regional level that have previously existed or that are currently in place?
  • Second, what lessons can be learned from mechanisms for representing
    Indigenous peoples that have been established in other countries?
  • And third, what options are there for ensuring that a National Indigenous
    Representative Body is sustainable?

The research does not substitute for broad-based consultation
with Indigenous communities.
Indeed, the research does not state a
preference for a particular model for a National Indigenous Representative Body
– it merely identifies the many and varied issues that need to be
considered in the formulation of the new body.

While drawing on valuable lessons of the past, a new National Indigenous
Representative Body will also have to operate in a vastly changed environment
from when ATSIC existed.

I see significant benefits for a new National Indigenous Representative Body
setting the vision for our people’s future, providing guidance to
achieving this and advocating for understanding for the consequences that flow
from our status as the First Peoples of this nation. I do not see that its role
should be focused on delivering the service delivery responsibilities of
government.

My hope is that we can, in partnership with government, develop a new
National Indigenous Representative Body that engages with different sections of
the Aboriginal and/ or Torres Strait Islander community – be it women,
men, our youth and children, communities in different geographical locations,
traditional owners or stolen generations members.

And I hope that a new National Indigenous Representative Body will operate in
such a way as to inspire and support our people, while also holding governments
accountable for their efforts, so we may ultimately enjoy equal life chances to
all other Australians.

A History of National Indigenous Representative Bodies in
Australia

A new National Indigenous Representation Body will not be born into an
historical vacuum. The experience of national Indigenous representation both
within Australia and internationally is well documented. The lessons,
experiences and successes of the past provide a valuable pool of knowledge to
drawn and build upon in considering the formation of a new National Indigenous
Representative Body.

Within Australia, the research examines the structures, strengths and
challenges of the Federal Council for the Advancement of Aborigines & Torres
Strait Islanders (FCAATSI) and the three organisations that have been involved
in national Indigenous representation in Australia: the National Aboriginal
Consultative Committee (NACC); the National Aboriginal Conference (NAC); and the
Aboriginal and Torres Strait Islander Commission (ATSIC).

Drawing on the lessons from the past, there are some key and recurring
factors as to why representative bodies have not been sustainable and have been
hampered in their effective operation.

First, there has been a failure to adequately define the key
relationships between governments, the representative body and other
stakeholders in Indigenous affairs. In this regard there was a lack of clarity
in the relationships between national representative bodies and State and
Territory governmental structures. There were also inadequate links and
processes between the national body and other regional structures and processes.

Second, there has been a failure to clearly articulate and detail the
functions of the representative body in accordance with the stated aspirations
of Indigenous Australians. This included having incoherent organisational
structures that were unable to meet the multiple objectives of a representative
body. There was a lack of clarity both internally within bodies and externally
on the roles and functions of the body, and hence there arose competing and
unmet expectations of representative bodies.

This caused problems particularly where the representative body was not
provided the authority and resources to fully undertake functions such as
program delivery, but was nonetheless expected to fulfil these functions. There
were also tensions that arose from having a single body be responsible for
advocacy, policy development, program delivery and evaluation – which
created conflicting responsibilities. The lack of clarity was accompanied by
inadequate resourcing that limited the capacity of a representative body to
fulfil its multiple objectives.

Third, past representative bodies have also found it difficult
represent a diversity of Indigenous interests, including interests of both urban
and rural/ remote communities as well as interests of specific members of the
community including, Indigenous women and youth.

Finally, each organisation has to varying degrees been constrained by
government and the bureaucracy in pursuing the priorities as identified by
Indigenous peoples. There has been a lack of government support for a strong
independent agenda setting policy organisation, as opposed to a mere advisory
body. Therefore, each organisation has been unable to act with sufficient
independence from government, a core and repeatedly asserted desire of
Indigenous peoples throughout Australia.

Current Mechanisms for Representing Indigenous Peoples at
State/ Territory, Regional and National Levels

Further to the lessons from past national Indigenous representative bodies,
there are also a range of national, State/ Territory, and regional level
Indigenous representative bodies currently in existence in Australia. These
include national peak Indigenous bodies, Land Councils and Native Title
Representative Bodies, the Torres Strait Islander Regional Authority, and the
State/ Territory representative and advisory bodies (such as in the Australian
Capital Territory, South Australia and Victoria).

None of these bodies or the combination of them can adequately provide the
comprehensive representation that would be met by a National Indigenous
Representative Body. However, each category of bodies illustrates strengths and
weaknesses of different approaches to representation that can be usefully drawn
upon in developing a new National Indigenous Representative Body. This includes
understanding how the different models are structured, what functions they
fulfil, how their membership is constituted, and the processes for electing the
representative body.

The representation in the national peak Indigenous bodies is commonly
restricted to the sectoral interests of the organisation. Within their relative
areas of interest the peak bodies can be a valuable source of information and
input. Representation in Land Councils and Native Title Representative Bodies is
limited to Indigenous groups that can demonstrate traditional ownership of areas
covered by the land council or NTRB. However, they are important bodies at the
local and regional level and a valuable source of information and input. The
Torres Strait Regional Authority is a useful model to draw from in terms of how
to structure the membership and functions of a representative body. It also can
be a guide on how to resolve the tensions of having multiple functions of
representation, policy-making and administrative elements within the one body.
For the State and Territory level, it will be important to consider how to
overcome the lack of clarity that existed between past national Indigenous
representative bodies and State and Territory mechanisms by considering how best
to interface with the new State/ Territory mechanisms.

A National Indigenous Representative Body will also have to bear in mind the
current administration mechanisms for Indigenous Affairs that were put in place
post-ATSIC. These arrangements relate primarily to program delivery required to
meet government commitments.

A key feature of these arrangements is the devolution of service delivery to
the regional level, through the ICCs and mechanisms such as the SRAs and RPAs.
It will be important for the new National Indigenous Representative Body to
ensure that clear and consistent mechanisms are in place with the relevant
bodies (i.e. COAG, Ministerial Taskforce on Indigenous Affairs, Secretaries
Group on Indigenous Affairs, the Office of Indigenous Policy Coordination and
regional Indigenous Coordination Centres). This will be important for ensuring
consistency between program delivery by these bodies and the work of the new
National Indigenous Representative Body, particularly in terms of linking
national policy development with regional level program implementation.

Comparisons with National Indigenous Representative Bodies
in Other Countries

The other significant source of information is models employed
internationally. The four overseas models examined include the National Congress
of American Indians (USA), Assembly of First
Nations (Canada), Sami Parliament (Sweden) and the
forms of representation in New Zealand. The forms of representation
included:

  • USA – an independent advocacy body that sits outside of government
    and is financially independent but has active dialogues with government on
    policy development and monitors government policies. The membership base is
    made up of tribe members.
  • Canada - an independent advocacy body. Its independence is limited to an
    extent because it is funded by the government. Its membership includes all First
    nation citizens who elect representatives from their communities to the
    Assembly. It represents a diversity of First Nation people’s interests,
    including the interests of women, those living on reserves and those living in
    urban areas.
  • Sweden - a parallel indigenous Parliament, its role however is limited to
    monitoring government rather than acting an instrument for self-governance. It
    is both a publicly elected body and a public authority that is controlled and
    funded by the Swedish government.
  • New Zealand - Māori
    electorates co-exist with non-representative government bodies such as the
    Ministry of Māori Development, Te Puni
    K
    ōkiri (TPK).
    The TPK, while not being a representative body, is the principal government
    advisor on policy and legislation regarding
    Māori wellbeing.
    Māori interests are also
    represented through other offices and commissions such as the Maori Office
    Trust, the Waitangi Treaty Tribunal and the Waitangi Treaty Fisheries
    Commission. These bodies have indigenous members, but not necessarily elected
    members.

The perceived strengths and weaknesses of the different models
outlined demonstrate that the critical difference between the models is to what
extent self-governance is aspired to and the purchase these structures have with
government. Of note, none of the overseas models adopt a service delivery role
on behalf of government.

Clearly, each of the arrangements for national indigenous representation
described in this part of the Discussion Paper is based on different historical,
cultural and legislative circumstances. However, appropriately adapted, the
indigenous bodies described here offer useful examples that can be referred to
when considering the options for a new National Indigenous Representative Body.

Key Issues for Establishing a Sustainable National
Indigenous Representative Body

Understanding the factors that have been in play in past Indigenous
representative bodies, in State/ Territory and regional representative bodies
and in Indigenous representative bodies overseas highlights what are some of the
key issues that should be taken into account when considering possible forms for
such a body.

This paper is not intended to raise every possible issue that may need to be
considered in establishing such a body. Rather, the intention is to assist in
creating dialogue among Indigenous peoples and government about the key
principles and features for a new National Indigenous Representative Body that
draws on the experiences and lessons of other bodies to date.

It will be up to Indigenous peoples to consider whether there are other
issues that need to be addressed in formulating a new National Indigenous
Representative Body, and indeed whether the issues raised here are the key ones.
The list of key issues identified here should therefore not be seen as
prescriptive or limiting in any way.

Some of the key issues identified as being needed to be addressed in
formulating a new National Indigenous Representative Body include:

1. Principles that should underpin the creation of a new National
Indigenous Representative Body
:

Indigenous peoples’ vision of what they want from a Representative Body
and the principles to guide its operation will have a significant impact on the
design of a National Indigenous Representative Body.

There are some useful sources to look to for identifying foundational
principles, such as the Themes and Ambitions from the Indigenous Stream of the
2020 Summit, the Principles and Vision for a National Indigenous Representative
Body outlined in the Hannaford Review of ATSIC, and the objects of the Aboriginal and Torres Strait Islander Act 2005 (Cth). Some foundational
principles to consider for a new National Indigenous Representative Body:

  • Having legitimacy and credibility with both government and
    Indigenous peoples.
  • ‘Two way’ accountability –to government and
    to Indigenous peoples and communities.
  • Being transparent and accountable in its operations, in the
    mechanisms for determining membership or election; in policy making processes;
    and financial processes.
  • Truly representative of a diverse Indigenous polity (ensuring
    participation of different groups of Indigenous people including stolen
    generations, traditional owners, Torres Strait Islanders, youth and women for
    example).
  • A consistent and ‘connectedstructure, so
    that there is a clear relationship between the national body and Indigenous peak
    bodies, service delivery organisations and other representative mechanisms that
    may exist at the State, Territory or regional level.
  • Independent and robust in its advocacy and analysis - policy advice
    and advocacy are not restricted to the confines of the government policies of
    the day, but extends to sustainable funding options for the organisation.

A National Indigenous Representative Body should do more than
simply provide a ‘consultation mechanism’ for government. It should
also outline a clear vision for a positive future for all Indigenous
Australians, and inspire action and partnerships for change. To achieve this,
for example, the National Indigenous Representative Body might be expected to:

  • Play a leading role in forging a new partnership between governments and
    Indigenous people;
  • Ensure Indigenous peoples contribute and lead policy development on
    Indigenous issues;
  • Ensure that an Indigenous perspective is provided on issues across
    government (such as in relation to issues which have a broader impact or focus
    than just Indigenous peoples – for instance, debates about climate change,
    social inclusion or homelessness);
  • Advocate for the recognition and protection of Indigenous peoples
    rights;
  • Seek to ensure that adequate and appropriate accountability mechanisms exist
    for the performance of governments on Indigenous issues; and
  • Ensure that commitments, such as Closing the Gap, are supported by
    comprehensive, long-term action plans that are targeted to need, evidence-based
    and capable of addressing the existing inequities experienced by Indigenous
    peoples.

Question for Discussion 1. - Guiding principles for the
establishment of a National Indigenous Representative Body

What principles should guide the formation of a new National Indigenous
Representative Body?

What aspects of the following documents provide useful guidance in answering
this question:

  • The Principles and Vision for a National Indigenous Representative Body
    outlined in the Hannaford Review of ATSIC;
  • The Themes and Ambitions from the Indigenous Stream of the 2020 Summit;
    and
  • The objects in the Aboriginal and Torres Strait Islander Act 2005
    (
    Cth)

2. The role and functions of a National Indigenous
Representative Body
:

Some of the possible functions of a new national Indigenous body include
– delivery of government programs, advocacy, policy formulation and
critique, contributing to legal reform, review and evaluation of government
programs, clearing house role, International role, research, facilitation and
mediation.

Experiences of past bodies have highlighted the advantages and disadvantages
of a National Indigenous Representative Body undertaking such functions and in
particular the tensions arising from undertaking multiple combinations of these
roles and functions.

a) Government Program Delivery
As the new Australian Government has
made clear that it does not support a new National Indigenous Representative
Body having responsibilities for delivering government services this leaves open
questions as to what role a National Indigenous Representative Body should have
in government service delivery in terms of setting priorities for service
delivery (e.g. determining priorities for the federal budget), contributing to
planning processes, or monitoring government service delivery.

b) Advocacy
The extent to which the Representative Body’s
advocacy can be robust, credible and effective will depend on whether it is
located within or outside of government. Effective advocacy will also depend
upon a robust representative structure indicating legitimacy, sound research,
professional presentation, adequate resourcing and a trustworthy relationship
with government, the public service and the media.

c) Policy formulation and critique
No previous National Indigenous
Representative Body has managed to take the predominant role in setting policy
goals, implementation strategy and evaluation. Rather, they have been seen as
one element in a consultative process which may or may not have influence when
senior officials design the details of government programs. A human rights based
approach and respect for the principle of free, prior and informed consent
requires a more open and collaborative approach to policy development by
government departments.

d) Contributing to Law Reform
Past national Indigenous
representative bodies have played a role in supporting law reform, but have not
had a strong role initiating legal reforms. A national body could actively
pursue law reform and be involved in coordinating and otherwise supporting test
cases in cooperation with Aboriginal legal organisations and movements.

e) Review and Evaluation
Scrutiny of both State/ Territory and
national governments is an important role a National Indigenous Representative
Body could undertake. It could work with existing monitoring and evaluation
processes (e.g. Office of Evaluation and Audit – Indigenous Programs in
the Department of Finance). A national body with a robust regional structure
could also be well-placed to receive ‘field reports’ on government
performance where at present government only reports to itself. This form of
scrutiny from the member base is important to the functions of policy formation
and advocacy, but it is also desirable that a national body be tied into formal
evaluation and monitoring processes. To do so it would need some investigative
authority.

f) Clearing House
A potential role for a national body could be to
undertake a coordination role or act as a ‘clearing house’ to share
information between Indigenous representative organisations and service delivery
organisations. As an example, the Social Justice Commissioner has proposed that
a national body could convene an annual congress on service delivery to
Indigenous communities.

g) International Role
A further issue for consideration is what
role a National Indigenous Representative Body might have at the international
level. The participation of Indigenous Australians at the international level
has been important in contributing to the development of human rights standards
and learning from best practice to inform policy development in Australia. A new
National Indigenous Representative Body could have an overall coordinating role
for international engagement to ensure strategic and well-targeted
participation, supplemented by capacity building programs such as the Commission’s
which coordinates international engagement at the Permanent Forum and could also
provide mentoring support to the new National Indigenous Representative Body on
its international engagements.

h) Research
Good research is essential to good policy and advocacy.
The national body could have its own research coordination arm, it could
commission community based research in the regions and expert reports or it
could coordinate with existing research centres (i.e. Cooperative Research
Centre for Aboriginal Health (CRCAH), Centre for Aboriginal Economic Policy
Research (CAEPR) at ANU, the Desert Knowledge Centre in Alice Springs, United
Nations University’s Centre on Traditional Knowledge, Australian Institute
of Aboriginal and Torres Strait Islander Studies (AIATSIS)). A national research
coordination role for the national body could assist to channel communication
between researchers and policy developers and implementers and supporting skills
transfer to, and between, Indigenous researchers.

i) Facilitation and Mediation
There is a large unmet need for
mediation between Indigenous peoples and non-Indigenous interests where one
impacts upon the other. This can be in relation to Indigenous people negotiating
with commercial interests, government interests or with other Indigenous and
non-Indigenous people over competing human rights interests. A national body
could support mediation training and possibly accredit professionals and
organisations in this area. As an independent body, it would also be in a good
position to provide negotiation, mediation and facilitation on a fee-for-service
basis both to government, to private industry and to Indigenous communities in a
culturally appropriate and sensitive manner.

Question for Discussion 2. - The National Indigenous Representative Body
and government service delivery

How could the National Indigenous Representative Body influence program
delivery without itself delivering services to Indigenous people and
communities?

For example, should the National Indigenous Representative Body have a role
in the following:

  • setting priorities for service delivery;
  • contributing to planning processes to ensure such services are appropriately
    directed and funded to levels capable of addressing the outstanding needs of
    Indigenous peoples; and
  • monitoring government service delivery?

Question for Discussion 3. - Role and functions of a National
Indigenous Representative Body

What should be the roles and functions of a new National Indigenous
Representative Body?

Some options for discussion may include the following roles/ functions:

  • Advocacy;
  • Policy formulation and advice;
  • Contributing to law reform;
  • Review and evaluation of government programs and service delivery;
  • Clearing-house/ coordination role;
  • International role;
  • Research;
  • Facilitation and mediation; and/ or
  • Other roles/ functions?

3. Structure of a National Indigenous Representative Body (including the
mechanisms for representing Indigenous people at the regional, State/ Territory
and national level):

Two key issues to consider about the structure of the new National
Indigenous Representative Body are:

  • how the ‘narrow’ national leadership will remain connected with
    the broader base of Indigenous people and communities at the local and regional
    level through to the State/ Territory and national level; and
  • what should the national structure itself look like.

Mechanisms for representing Indigenous people at the regional,
State/ Territory and national level

Some options for the National Indigenous Representative Body to engage at the
regional and State/ Territory level include:

  • formal mechanisms whereby a National Indigenous Representative Body has
    components that exist at different levels such as:
  1. State/ Territory-based mechanisms – these could potentially draw their
    representatives from regional representative mechanisms; or be constituted
    through other means, such as direct election and/ or representation of
    organisations – these might, for example, be constituted outside the
    framework of the National Indigenous Representative Body such as with the new
    ACT Governments’ Aboriginal and Torres Strait Islander Elected Body; or
    though State-wide policy forums conducted on a regular, cyclical basis to feed
    into the National Indigenous Representative Body; or a combination of these
    mechanisms.
  2. regional level mechanisms – the regional boundaries for these
    mechanisms could be based on the previous ATSIC Regional Council boundaries, the
    ICC networks or on factors determined by Indigenous people (e.g. Indigenous
    geographic regions);
  • a mixture of processes to engage different sectors of the Indigenous
    community (such as forums at different levels or membership processes for
    individuals and organisations); or
  • relatively informal processes whereby Indigenous peoples can have their say
    at a national congress or through other processes that draw people together on
    an expert or issue specific basis.

The national structure of the National Indigenous Representative
Body

Different means by which the national structure for the new National
Indigenous Representative Body could be constituted include:

  • The national structure could be made of delegates nominated to
    the national structure by the regional and State/ Territory levels of the body,
    or this could be based on a direct election model at the national
    level;
  • It could be a membership based organisation, whereby communities,
    organisations or individuals can join the organisation – representation in
    this model would then flow from the participation of individuals or
    representatives of organisations or communities, in the ordinary governance
    processes of the organisation;
  • Or it could involve Indigenous peak bodies, other regional or State/
    Territory based Indigenous bodies and/ or Indigenous service delivery
    organisations in its activities – for example, directly in its decision
    making or in an advisory role;
  • Or it could allocate positions to a national board or executive of
    representatives for particular sectors of the Indigenous community – for
    example, stolen generations members, traditional owners, youth, and Torres
    Strait Islanders (on the mainland and in Torres Strait). Such positions could
    also be allocated to specific working groups or advisory panels to the National
    Body;
  • Or it could be through a process of merit selection presided over by a panel
    of eminent Indigenous peers; or
  • A combination of these methods.

Consideration also needs to be given to:

  • How the National Indigenous Representative Body can maintain a gender
    balance and ensure equal participation and representation for Indigenous women
    and youth; and
  • Whether there ought to be processes to enable the broad-based
    participation of Indigenous peoples in the national decision making process
    – such as through the convening of an annual policy Congress open to all
    Indigenous peoples (and possibly also Indigenous organisations and/ or
    non-Indigenous organisations).

In considering the structure it is important to balance the need
for a broad base seeking wise input to sustain its legitimacy and credibility,
with the Executive’s need to remain focused, effective and capable of
swift action.

Question for Discussion 4. - Ensuring that a National Indigenous
Representative Body is representative of Indigenous peoples

Should the National Indigenous Representative Body just involve a national
level structure; or should it also include State and Territory and/ or regional
structures?

Could a national body (without State, Territory or regional structures)
effectively represent Indigenous peoples through the conduct of participatory
processes and engagement (such as issue specific forums and advisory groups,
regional or State/ Territory level planning processes, or the convening of a
National Congress)?

Question for Discussion 5. - Relationship between the National Indigenous
Representative Body and Indigenous peoples at the regional level

What mechanisms should exist for the National Indigenous Representative Body
to engage with Indigenous peoples at the regional level? Should the National
Indigenous Representative Body:

  1. Formally include regional representative mechanisms as part of its
    structure? If so, how should those regions and their boundaries be
    determined?
  2. Convene regional forums and planning processes on a regular or cyclical
    basis? If so, should the representative body seek to conduct these itself, or in
    partnership with governments at the local, State/ Territory and federal
    levels?
  3. A combination of the above? or
  4. None of the above – it should engage through some alternative
    process?

Question for Discussion 6. - Relationship between the National
Indigenous Representative Body and Indigenous peoples at the State or Territory
level

What mechanisms should exist for the National Indigenous Representative Body
to engage with Indigenous peoples at the State/ Territory level? How might this
influence the significant responsibilities and under-performance of State and
Territory governments on Indigenous affairs?

If such mechanisms are established, should they:

  1. draw their membership from regional representative mechanisms;
  2. be based on other mechanisms to be determined on a State/ Territory by
    State/ Territory basis (including existing State/ Territory -based
    representative bodies and advisory boards);
  3. be based on the conduct of State/ Territory -wide policy forums conducted
  4. on a regular, cyclical basis; or
  5. a combination of the above; or
  6. None of the above?

Should a National Indigenous Representative Body seek to exert
influence at the State and Territory level through a formal or informal role at
the Council of Australian Governments, and/ or by participating in or advising
on the negotiation of inter-governmental agreements?

Question for Discussion 7. - National structure of a National Indigenous
Representative Body

Should the national structure of the National Indigenous Representative
Body:

  • be based on a delegate model, where regional and State/
    Territory levels of the body nominate their representatives to the national
    structure;
  • be based on a direct election model whereby Indigenous peoples
    themselves directly elect representatives to the national structure;
  • involve Indigenous peak bodies and possibly other organisations nominating
    representatives to the national structure, or alternatively, provide for the
    participation of these bodies in a purely advisory capacity;
  • allocate dedicated positions on the national structure for designated
    segments of the Indigenous community – such as stolen generations members,
    traditional owners, youth or Torres Strait Islanders;
  • be required to have an equal representation of Indigenous women and men on
    the national structure;
  • provide for the participation of non-Indigenous organisations in an advisory
    capacity;
  • be determined by a panel of eminent Indigenous peers;
  • a combination of the above; or
  • address other factors not mentioned here?

Question for Discussion 8. - Establishment of the National
Indigenous Representative Body

Should the National Indigenous Representative Body be established by
government, for example as a statutory authority, or be established independent
of government?

4. Relationship of National Indigenous Representative Body with federal
government and Parliament:

A National Indigenous Representative Body will need to work closely with all
levels of government if it is to be effective in representing the interests of
Indigenous peoples. This will depend largely on whether the new National
Indigenous Representative Body should be established as a Commonwealth
government entity (such as a statutory authority) or should be established
through some other means, such as being a non-government organisation either
with or without government funding assistance.

A statutory body can meet
the requirements of both independence and privileged access to government. A
statutory commission can work to improve the quality of governance of an area of
public concern by operating at arms length from executive government. At the
same time, being established by government charter, it should also have a
privileged ability to steer these same areas of public policy. If it were
established as a statutory body, the National Indigenous Representative Body
would have a direct reporting relationship with Parliament through its annual
report.

Regardless of whether the organisation itself is to be a governmental
statutory authority or established independently, a tighter relationship with
government than has previously existed must be found. This is particularly
important for two of the national body’s proposed functions: policy advice
to government and review of government performance.

There are a range of options for how a new National Indigenous Representative
Body might operate so as to have a closer relationship to government. For
example:

  • It could have ex-officio membership of the Ministerial Taskforce on
    Indigenous Affairs as well as the Secretaries Group on Indigenous Affairs, and
    therefore have a ‘seat at the table’ where the major decisions on
    Indigenous affairs are made at the federal government
    level.[2] Alternatively, it could
    operate as an advisor to these bodies.
  • It could be invited to participate in discussions of the Council of
    Australian Government (COAG), as well as the various committees of COAG such as
    the Ministerial Council on Aboriginal and Torres Strait Islander Affairs
    (MCATSIA).
  • It could have a role in the committee systems of the Parliament. There are
    two possibilities here: a formal role participating in Budget Estimates hearings
    (that occur usually twice per year and where Department are held to account for
    their expenditure and activities); and a formal role on parliamentary committees
    of review (such as having a role in a regular parliamentary committee on
    Indigenous affairs).
  • Alternatively, an exclusively Indigenous committee, with democratically
    chosen representatives, and all the powers of Parliamentarians, could be
    established[3] This could evolve,
    effectively, into an Indigenous chamber of Parliament.

Question for Discussion 9. - Relationship of the National
Indigenous Representative Body with government and Parliament

What formal mechanisms should be built into the structure of a National
Indigenous Representative Body to ensure that it has a direct relationship with
the federal government and the federal Parliament?

What role should the National Indigenous Representative Body have in the
federal government’s whole of government arrangements?

What formal mechanisms should be built into the structure of a National
Indigenous Representative Body to ensure that it can inform and work with State/
Territory governments?

5. Resourcing the National Indigenous Representative Body

A critical issue will be deciding how the National Indigenous Representative
Body is to be funded for its regular activities so that it has the capacity to
undertake the roles and functions that are ultimately decided for the body.

If the national body is to be a statutory arm of government it must be funded
by government to perform its functions. Government funds may be useful, but they
may come at a cost of the independence of the organisation. They may be tied to
certain functions not seen as a priority by the membership, they can put an
organisation in the position of being a proxy for government, they often come
with conditions attached such as limiting the organisation’s ability for
public comment on certain programs, and if withdrawn they can pull the rug out
from under the organisation.

If the body is a non-government organisation, funding can still be sourced
from the government through grants but it may also be able to access independent
funds through a foundation fund or through donations, membership fees; and/ or
selling products and services. Experiences of other foundation funds show it is
important to be realistic about the funds investment strategy, balancing risk
against the need for a robust return.

Another option for government funding may be for the funding level to be
independently set by the Commonwealth Grants Commission, in the same way that
Special Purpose Grants and General Purpose Payments are allocated to the States
and Territories.

A further option is through the establishment of an “Indigenous future
fund” that could be funded through a direct grant from government(s) or
through the allocation of a percentage of mining tax receipts annually for a
fixed period as was the case in NSW.

Question for Discussion 10. - Resourcing the National Indigenous
Representative Body

How should the National Indigenous Representative Body be funded so as to
ensure it has a secure, ongoing source of funding? For example, should the body:

  • receive government funding;
  • be granted charitable status so that it can raise donations;
  • have an establishment fund to provide a capital base for the
    organisation;
  • charge membership fees to organisations and individuals;
  • charge for the delivery of services and products;
  • be established as a future fund financed through a percentage of mining tax
    receipts;
  • a mix of the above; and/ or
  • other options.

Conclusion: Scoping a National Indigenous
Representative Structure

In crafting a new national Indigenous voice there is a solid foundation of
experience to build on from FCAATSI to ATSIC. The Discussion Paper, which is
summarised here, provides some background on these experiences while putting up
possible forms that a future national Indigenous representative structure might
take.

The Discussion Paper does not promote any particular model over another, and
after discussion much work will remain to be done on the detail of formal
structural matters. However, the paper does pose important questions that should
be considered in relation to the guiding principles, role and function,
structure, relationship with governments and Parliament and resourcing of the
body.


[1] This research was in accordance with the following commitment that I made in the Social Justice Report 2006: ‘The Social Justice Commissioner will
work with Indigenous organisations and communities to identify sustainable
options for establishing a national Indigenous representative body. The
Commissioner will conduct research and consultations with non-government
organisations domestically and internationally to establish existing models for
representative structures that might be able to be adapted to the cultural
situation of Indigenous Australians, as well as methods for expediting the
establishment of such a body given the urgent and compelling need for such a
representative body.’ Quoted in Aboriginal and Torres Strait Islander
Social Justice Commissioner 2006, Social Justice Report 2006, Australian Human
Rights Commission, Sydney.
[2] This could draw on the
experiences of the Council for Aboriginal Development (CAD) established as a
subsidiary body of the NAC in 1977(as discussed in section 1 of this paper) as
well as the lessons from the current Ministerial Taskforce and Secretaries
Group.
[3] Chesterman, J 2008,
‘Forming Indigenous Policy Without Representation Will Fail’, The
Age,
4th March.