Submission to the Review of ATSIC

Submission to the Review of ATSIC

by the Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission

20 August 2003

Also available:

• Summary of submission to ATSIC Review - Social Justice Commissioner calls on government to strengthen ATSIC

1) Introduction

2) Comments on the discussion paper

3) Overview of the Social Justice Commissioner's proposal for ATSIC

4) Issues concerning ATSIC at the regional level

1) Introduction

This submission is made by the Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of the Human Rights and Equal Opportunity Commission. [1] It responds to the public discussion paper titled 'Review of the Aboriginal and Torres Strait Islander Commission - June 2003'.

The submission specifically discusses the following issues:

• Strengthening ATSIC's national advocacy, monitoring and evaluation roles;
• Strengthening the interaction of ATSIC with state and territory governments; and
• Supporting the evolution of the ATSIC regional council structure.

Overall, the submission argues that in order for ATSIC to represent Indigenous peoples effectively its current powers must be enhanced at the each of the national, state/territory, and regional levels. 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 all levels. Particular attention should be devoted to:

• strengthening the overall role of ATSIC at the national level in monitoring service delivery by all government agencies and setting the national policy agenda;
• enhancing the capacity of ATSIC regional councils to undertake an expanded role in regional planning and service delivery by providing additional powers to enter into agreements on a regional or statewide basis; and
• providing flexibility to adjust the structure of the regional council to best meet local needs (for example, through providing the capacity to develop alternative governance arrangements such as a regional authority or other suitable structures).

The Social Justice Commissioner also supports the maintenance of a ‘separation of powers' between the elected and administrative arms of ATSIC, but does not support the creation or maintenance of a separate agency such as Aboriginal and Torres Strait Islander Services or the mainstreaming of service delivery.

Section 2 of the submission provides some broad contextual comments about the Review's discussion paper. Section 3 gives an overview of the Commissioner's proposals for reform of ATSIC. Section 4 examines in greater detail the potential for enhancing the ATSIC structure at the regional level, with particular regard to the devolution and regional authority models proposed in the Review's discussion paper.

2) Comments on the discussion paper

At the outset, the Social Justice Commissioner wishes to commend the Review Team for their concise overview of issues relating to ATSIC. In particular, the Commissioner agrees with the Review Team's view that ‘ATSIC should be the peak State/Territory and National body, which advocates for the development of Indigenous communities' and that the ‘National Body should provide the policy interface for the Commonwealth Government setting and advocating a national strategic direction' (key principles for ‘a new ATSIC', pp6-7 of the Discussion Paper). The Social Justice Commissioner also commends the Review Team's focus on strengthening ATSIC at the regional level and on the central role it places on ATSIC's Regional planning processes for setting the priorities for all service delivery for Indigenous peoples.

The Commissioner, however, has a number of concerns about matters raised in the Discussion Paper. Many of these concerns stem from the anecdotal nature of the Discussion Paper and its failure to refer to significant research and data relating directly to the issues under consideration. These concerns fall into three broad categories.

First, the discussion paper does not refer to reviews and consultations previously conducted on the exact issues raised in the discussion paper. These reviews should provide greater guidance to the proposals identified by the Review Team and would also ensure that the Review does not ‘reinvent the wheel'.

For example, the Discussion Paper's main proposals share much in common with the proposals in the Section 26 Review of ATSIC in 1997/1998 and ATSIC's consultations and Report on greater regional autonomy from 1999/2000. Of particular importance is the finding of both of these reviews that there was wide support for enhancing the role of ATSIC regional councils, but that there was not support for sweeping changes to the ATSIC regional structures. Instead, there was a preference among Indigenous peoples for reform to ATSIC's regional structure to be incremental and to be built on enhancing the existing regional council structures rather than imposing more extensive regional authority style structures.

Both reviews made significant recommendations as to how this might best be achieved, including through reform of the ATSIC Act 1989. These reviews, as well as ATSIC's options paper from 2000 titled ‘Resourcing Indigenous development and self-determination - a scoping paper', provide valuable guidance to the issues under consideration in the review. The implications of the findings of the these reviews, the proposals in the options paper, and the findings of successive Social Justice Reports on related issues are discussed more fully in the body of this submission.

Second, the discussion paper does not refer to existing reviews and data that address issues raised anecdotally with the Review Team which were subsequently reflected in the discussion paper. Had the review referred to this research a number of comments that are noted in the discussion paper might not have been included on the basis that they could not be relied on as correct.

For example, paragraph 6.18 of the discussion paper states:

Some argued that legal services, for example, should be outsourced to provide both civil and criminal services, with the successful civil cases cross funding the criminal matters, ensuring the employment of Indigenous Australians as a pre-requisite within contracts.

The recent evaluation of ATSIC's legal and preventative services program by the ATSIC Office of Evaluation and Audit identifies a number of significant problems with this comment. The main finding of the recent audit was that Aboriginal and Torres Strait Islander Legal Services (ATSILS) ‘are providing legal services at a cost that is significantly lower than that paid by mainstream Legal Aid Commissions (LACs) for legal work undertaken on a referral basis by private practitioners, and that this is achieved at a level of client satisfaction no different from that reported by LAC clients.' [2] The Review also notes that there is significant room for improvement in the way that mainstream legal services (ie, LACs) deliver supplementary services to Indigenous clients, and also that ATSILS are substantially under-funded to achieve their purposes.

The comment in the discussion paper also does not adequately reflect the role of ATSILS in providing preventative and diversionary services to reduce the rate of adverse contact of Indigenous peoples with the criminal justice system and assistance in family violence matters, in addition to providing culturally appropriate, equitable and accessible legal aid. It also fails to recognise the vital role of Aboriginal Field Officers in legal services. These are core issues that are obscured by the simplified comment in the discussion paper.

Third, the discussion paper does not appropriately contextualise ATSIC's role within the broader framework of government policy making and delivery of services relating to Indigenous peoples. The discussion paper acknowledges that ATSIC has wrongly been used as a scapegoat for failures in areas over which it has no program responsibility (for example, health). Yet in some sections the discussion replicates this criticism, implying, perhaps unintentionally, that ATSIC has failed as the livelihoods of Indigenous peoples have not been substantially improved over the past decade.

Paragraph 6.55-6.57 of the discussion paper reflects this problem. Paragraph 6.55 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. [3] ATSIC is also criticised for its failure to ensure that all service delivery to Indigenous people derives from a needs-based formula and is sufficiently outcomes-focused (although the review does rightfully acknowledge that ATSIC's Community Housing and Infrastructure Program is one of the few programs at any level of government that is needs-based and well-targeted).

Ultimately, missing from this analysis of the broader framework of government policy making and service delivery is recognition of the significant under-funding in key areas of Indigenous marginalisation. This is a key factor in preventing needs-based funding from being implemented (as the Commonwealth Grants Commission's inquiry into Indigenous funding clearly demonstrated). The discussion paper also lacks sufficient recognition of the significant attention that ATSIC pays to this issue (see for example the policy document ‘Directions for change' released ahead of the 2001 budget cycle). This is not to say that ATSIC cannot improve the way that it advocates about this issue – it is the Commissioner's view that at present ATSIC under-utilises its existing powers and has the capacity to exert greater influence on the national policy agenda – but it is to say that the discussion paper over-stretches the test for whether ATSIC is accountable or not.

3) Overview of Social Justice Commissioner's proposal for ATSIC reform

This section of the submission provides an overview of the Commissioner's proposal for the reform of ATSIC. Specific issues relating to the regional level are then addressed more fully in the remainder of the submission.

The Commissioner believes that 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?

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. 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. 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.

a) ATSIC at the national level

The Commissioner is particularly concerned that there must be sufficient attention 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.

At a broad structural level, the Social Justice Commissioner supports the retention of the so-called ‘separation of powers' within ATSIC in which elected representatives continue to set policy priorities and to decide the broad program allocation of funding but do not have any involvement in making individual funding decisions. The Commissioner does not, however, support the continuation of a separate service delivery agency (such as Aboriginal and Torres Strait Islander Services (ATSIS)) to achieve this and queries the efficiency of this measure. A unified ATSIC structure that has functions of advocating for Indigenous peoples, setting policy objectives and priorities, and delivering services and programmes is feasible, achievable and the preferred option. Similarly, the Commissioner considers that it would be a retrograde step to ‘mainstream' service delivery currently delivered by ATSIC/ATSIS to other government departments – for example, by moving responsibility for the Community Development Employment Projects (CDEP) or Community Housing and Infrastructure Program (CHIP) to either the Department of Family and Community Services or the Department of Employment and Workplace Relations.

There are several reasons why the Commissioner does not support such mainstreaming. First, ATSIC has developed considerable expertise through running programs such as the CDEP and CHIP. Many innovations in program design have resulted from ATSIC's leadership role in delivering these programs; the CDEP program, for example, has become a model for the mainstream ‘work-for-the-dole' scheme. If these were transferred to mainstream agencies, there is some potential for the corporate knowledge that ATSIC has developed in these areas to be lost. There is also greater opportunity for a ‘silo mentality' to emerge whereby individual departments are focused solely on areas of service delivery within their ambit, with the result that communication and coordination between service providers is not maintained and the delivery of Indigenous programs becomes more disparate.

The current ATSIC structure, on the other hand, provides a focal point for policy and program development and easy access to direct input from the state and regional levels. The Social Justice Report 2001 provided a case study of the first community participation agreement which was developed at Mutitjulu in 2000-01. This case study demonstrates these problems – it was the lack of coordination of different mainstream government services and the lack of sufficient interagency commitment that proved to be one of the main obstacles to the success of this major capacity-building initiative. [4]

Secondly, as the Commonwealth Grants Commission report on Indigenous funding noted, ATSIC programs (most notably CHIP and CDEP) are among the best targeted and outcomes focused of all programs delivered at any level of government. There is accordingly not a performance issue that must be addressed which would justify moving these programs to other departments.

Third, mainstream government departments do not have a good record in delivering services to Indigenous people. ATSIC was established as a supplementary funder because of gaps in service delivery to Indigenous peoples by mainstream Commonwealth and state / territory agencies. It would be counterproductive to pursue alternative arrangements that replicate the original circumstances that led to ATSIC's establishment. Additionally, while access to mainstream programs is a crucial issue that must be addressed, it does not negate the necessity for continued Indigenous-specific services. Indigenous-specific service providers constitute an important adjunct to mainstream services as they are in a position to develop culturally appropriate programs, to foster specialist expertise and corporate knowledge, and to target needs specific to Indigenous families and communities. ATSIC remains the most appropriate structure for running these specific programs because of its structure's capacity to facilitate comprehensive networks from regional through to national levels that can provide Indigenous advice in policy development and program delivery.

Fourth, removal of any role in service delivery will distance ATSIC from decision-making processes as well as remove any leverage ATSIC has in negotiating with all levels of government. This is likely to impact particularly at the state and territory level. It is unlikely that enhancing ATSIC's national monitoring and evaluation functions could redress this issue and provide ATSIC with the level of influence that it would possess through maintaining program responsibilities.

In the Commissioner's view, ATSIC's powers at the national level should be enhanced 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.

These 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); [5]
• 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. [6] ATSIC's national role should be enhanced by ensuring that it has a permanent role in the COAG and MCATSIA processes.

Finally, on the issue of monitoring and evaluation at the national level, the Commissioner notes that any enhanced scrutiny role for ATSIC must be consistent with other, existing, forms of monitoring at the federal and inter-governmental level. It should not result in duplication of activities and reports. It is my view that the enhanced monitoring role for ATSIC proposed above would not create any duplication of existing monitoring processes.

It is the Commissioner's view that at present there is no duplication of monitoring activity through the Steering Committee for Commonwealth / State Service Provision's annual report on key indicators of Indigenous well-being; the Productivity Commission's ‘blue book' on service delivery at a whole of government level; the Australian National Audit Office's audits of Indigenous programs at the federal level (including those of ATSIC/ATSIS); the ATSIC Office of Evaluation and Audit's reviews of Indigenous policy (such as recent reviews of performance monitoring frameworks across all areas, [7] and the review of legal and preventative services); and the Aboriginal and Torres Strait Islander Social Justice Commissioner's annual reports to Parliament on social justice and native title issues. Each of these processes is complementary. An enhanced national structure and role for ATSIC, including the ability to issue directions, could provide greater accountability of governments in building on the findings of these significant monitoring processes. ATSIC are ideally placed to ensure that its activities and these existing processes are coordinated within a clear national policy direction.

b) ATSIC at the state / territory level

In recent years there have been significant developments at the state and territory level in the relationship between governments and ATSIC. A number of partnership agreements have been entered into to guide the relationship . [8] For example:

• In June 2002 the Victorian government entered into an agreement with ATSIC that has resulted in elected ATSIC officials, ATSIC public servants and representatives of Victorian government departments and agencies forming an Aboriginal Advisory Council to the Premier; and
• In October 2001, the Western Australian government and ATSIC signed the Statement of Commitment to a new and just relationship between the government of Western Australia and Aboriginal Western Australians which has resulted in the creation of an Indigenous Affairs Advisory Committee comprised of the Director-Generals of state departments and the ATSIC State Council.

A key issue for ATSIC is how their State Advisory Committees (SACs) are empowered so that they have the authority to undertake any activity that is agreed with the relevant state or territory through such agreements and partnerships.

This partnership approach has some similarities with the proposals in the ATSIC Review discussion paper relating to ATSIC State Advisory Committees. The discussion paper, however, goes further by proposing that SACs be provided legislative access to State/Territory government departments and that these structures could become the sole Indigenous advisory structure at the State/Territory level.

The Social Justice Commissioner considers that these proposals, while commendable for their ambition, are ambiguous. It is not clear, for example, who would legislate the access of ATSIC State Advisory Committees to state and territory governments (i.e., the Commonwealth in the ATSIC Act or each state and territory government?). If it is the Commonwealth, then this process may face significant constitutional barriers; if the states and territories it is equally unclear how a federal agency would be directed by legislation at the state / territory level.

The Social Justice Commissioner supports the enhancement of the structure of ATSIC for interface with state and territory governments. In particular, the Commissioner supports enhanced State Advisory Committees (SACs) as the focal point for interaction at the state-wide level. There are two key issues that must be addressed to achieve this goal.

First, the Commissioner's preference is for ATSIC's governing legislation to 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 and extend to authorising 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.

One of the consequences of this is that there will need to be great caution exercised to ensure that an enhanced ATSIC SAC structure does not create additional ambiguities regarding state and territory service delivery responsibilities or cost-shifting to the federal level.

In its report on regional autonomy, ATSIC noted the following main issues relating to the accountability of state and territory governments to their Indigenous constituents:

• Different spheres of government have failed to meet their responsibilities to Indigenous communities, particularly in the delivery of citizenship entitlements;
• State and territory agencies are not under any legal obligation to take responsibility for service provision to Indigenous constituents or to address longstanding inequities; and
• States and territories refer their obligations for Indigenous issues back to the Commonwealth, usually through ATSIC. [9]

There has been a longstanding need for clear agreement among the states and the federal government about their respective responsibilities to Indigenous peoples, how they will act to meet these responsibilities and the resources to be committed by all parties. This situation persists despite the existence of framework agreements between the Commonwealth and the states in different areas of service delivery. For example, health agreements have been negotiated in accordance with the Council of Australian Governments (COAG) 1992 National commitment to improved outcomes in the delivery of programs and services for Aboriginal peoples and Torres Strait Islanders (The COAG National Commitment). These framework agreements have been largely ineffective, as they have been seen as gentlemen's agreements that apply in principle only and for which there is no recourse if breached. [10]

ATSIC's Regional Autonomy report suggested that state and territory accountability could be improved through the adoption of a more active leadership role by the Commonwealth, including forms of leverage to ensure compliance such as performance conditions on grants to states and territories. In summary, a need was identified for all Australian governments, led by the federal government, to:

• have clearly targeted, long-term plans which identify redressing Indigenous disadvantage as a national priority and which measure progress within an equality framework;
• be transparent about the outcomes sought, with adequate performance indicators and benchmarks; and
• ensure ongoing and independent monitoring and evaluation of outcomes.

The Commissioner proposes that 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.

c) ATSIC at the regional level

The ATSIC Review discussion paper 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, the Social Justice Commissioner supports the transition to the devolution model in respect to the enhancement of ATSIC's powers at the regional level 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.

Alternatively, the provision of an ‘opt-out' mechanism could facilitate a range of options for increasing regional autonomy by providing existing regional councils the capacity to enhance their existing powers or to develop further governance arrangements where appropriate.

4) Issues concerning ATSIC at the regional level

The remainder of this submission identifies a number of issues relating to the devolution and regional authority models as proposed in the review Team's discussion paper.

The need for the continuing evolution of ATSIC as the peak Indigenous advisory body to facilitate greater autonomy and self-determination for Indigenous people was noted in the Section 26 Review of the Operation of the Aboriginal and Torres Strait Islander Commission Act 1989 (Section 26 Review) undertaken in 1997/98. [11] The Section 26 Review suggested that:

• The Regional Councils be encouraged to make greater use of their existing powers and reforms be made to the ATSIC Act to add gradually to the powers of Regional Councils [12] (Recommendations 17 and 18), including the explicit authority to Regional Councils to enter into agreements (Recommendation 19). [13]
• [there be…] more detailed work on proposals for regional authorities and that provision be made in the Act ‘for the establishment of regional authorities after the Commission has considered and reported on the outcomes of the studies (Recommendation 20). [14]

In 2000 ATSIC's consultations on regional autonomy indicated a preference towards maintaining the existing Regional Council structure, and augmenting the powers and functions of Regional Councils, rather than a strong movement towards regional authorities and other bodies. The report of the consultations (herein the Regional Autonomy Report) identified the following issues for regional councils:

• Development of more flexible funding and accountability arrangements to enable Councils to channel funds to areas of greater need at local and regional levels;
• Capacity for agreement-making to include receipt of funds by Regional Councils from external providers;
• Enhanced regular monitoring role of Regional Councils on the range of arrangements for the provision of services to the Indigenous people of the region, and ways in which effectiveness and co-ordination of services might be improved;
• Need for investigation and re-assessment of the historical basis for ATSIC's distribution of funds to the regions;
• Need for increased monitoring and reporting requirements for State/Territory and Local Governments on funding and delivery of programs to address Indigenous need;
• Alternative employment arrangements, such as the use of private contractors for Regional Councils;
• Improved mechanisms for representation of smaller or under-represented community groups;
• Further investigation of the use of partnerships or protocol agreements to liaise with other regional structures; and
• Provision for further modelling and adequate information (possibly a communication strategy) for Regional Councils on appropriate structures and approaches to regional autonomy and any proposed policy directions that may emerge as a result. [15]

The recommendations of the regional autonomy report supported the Section 26 Review's emphasis on prioritising the capacity of Regional Councils to enter into agreements. It suggested that agreement-making should also form the basis for further governance arrangements, such as regional authorities, that would support greater autonomy for Indigenous peoples. It should be noted that the Social Justice Package proposals made by CAR, HREOC and ATSIC in 1995 also recommended that the Commonwealth accept ‘the concept of regional agreements as a framework for establishing a range of formal relations and settling of outstanding social justice issues on a regional basis'. [16]

It is important that any re-modelling of ATSIC's responsibilities at the regional level address the lack of powers that Indigenous people possess in terms of self-governance. ATSIC have previously noted that:

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 substantial jurisdictional responsibilities, few are prepared even to consider negotiations with Indigenous peoples. [17]

Fundamentally, government modes of service delivery to Indigenous people to date have operated to constrain Indigenous social and economic development. As ATSIC have previously noted:

the debate in Australia has been confined to improving the prevailing ‘directed community services model'. This model aims to provide services to Indigenous people as a category of disadvantaged Australians. Most funding is at the discretion, as well as the direction, of Commonwealth, State and Territory government agencies… [18]

This model discourages economic development in Indigenous communities:

Current funding arrangements provide little encouragement to Indigenous economic development since the resourcing of Indigenous organisations does not increase with increases in economic activity in their local area. Without such a linkage, the idea of development is reduced to one of ‘community development' devoid of any economic dimension. Service delivery itself brings few economic benefits and little stimulus to Indigenous economic advancement . [19]

Comparative studies of the relative situations of Indigenous people in settler countries indicate that greater levels of self-government are associated with improved socio-economic conditions. [20] The Aboriginal and Torres Strait Islander Social Justice Commissioner's Social Justice Reports for 2000-2002 have also emphasised the need to address governance and capacity-building issues in order to improve outcomes for Indigenous people. The Social Justice Report 2000 noted that to date there has been insufficient attention given by governments to processes which ensure greater Indigenous participation and control over service design and delivery as part of an overall strategy to redress Indigenous disadvantage and economic marginalisation. It observed that:

The development of governance structures and regional autonomy provides the potential for a successful meeting place to integrate the various strands of reconciliation. In particular, it is able to tie together the aims of promoting recognition of Indigenous rights, with the related aims of overcoming disadvantage and achieving economic independence . [21]

4) (a) The devolution model

The comments in this section relate to those aspects of the devolution model (as set out at paragraph 7.19 of the discussion paper) which have not already been discussed in this submission.

• Commonwealth and State/Territory Indigenous Affairs Agreements would be developed, with ATSIC as the lead Commonwealth agency to negotiate funding outcomes;
• States/Territories would allocate funds geographically, based on need, and delivery would be administered through regional purchaser/provider arrangements

The need for more flexible funding arrangements at the regional level has longbeen recognised (for example, in the Report on greater regional autonomy and the CGC Report). In particular, the need for an outcomes approach, where targets and accountability requirements are set locally, and the capacity for Regional Councils to enter into agreements with other service providers, have been emphasised. [22] These observations have been made in the context of the often rigid and generic program guidelines for ATSIC and other Indigenous organisations at the national or state level. The constraints imposed by the current ties on ATSIC's funding have made it difficult to channel funds to local needs: ‘There was general consensus that rigid program and accountability guidelines, particularly those determined at a national level, prevent Indigenous organisations from delivering effective outputs to their communities.' [23]

The Report on greater regional autonomy noted that the ability for Regional Councils to receive funds from other providers, whether from public or private sector sources, or to enter agreements as purchasers or providers of services under the ATSIC Act would provide an opportunity to target funds more effectively and to increase economic independence. The Report on greater regional autonomy prioritised the capacity for Regional Councils to enter into agreements with other service providers in the context of enhancing the powers of Councils under the ATSIC Act. [24] In particular, the Report recommends that there should be ‘prioritisation of agreement-making to inform partnerships with Government and other agencies as a means of progressing autonomy from the “bottom up” in preference to further governance structures at this point in time'. [25]

However, any Commonwealth and State/Territory Indigenous Affairs Agreements or regional purchaser/provider arrangements need to be framed within a long-term commitment to addressing Indigenous disadvantage. To date, the availability of funding on only a short-term basis has limited the ability of Regional Councils to tackle issues that are deeply entrenched and systemic in nature. Isolated pilot projects are unlikely to make significant inroads in these areas. In 1991 the Royal Commission into Aboriginal Deaths in Custody found that the disempowerment of Indigenous people through governmental control was the main barrier to the equal enjoyment of rights by Indigenous people. The Royal Commission made recommendations for longer term, more flexible forms of funding arrangements which would ensure increased Indigenous participation. In particular, it recommended that Commonwealth, State and Territory governments introduce triennial block grant funding for Indigenous organisation, and that ‘wherever possible this funding be allocated through a single source with one set of audit and financial requirements but with the maximum devolution of power to the communities and organisations to determine the priorities for the allocation of such funds.' [26]

Similarly, the Canadian Royal Commission into Aboriginal Peoples recommended a 20-year commitment to overcoming Indigenous disadvantage and strengthening Indigenous governance mechanisms. It argued that the social costs of simply ‘maintaining the status quo', without taking further steps to address current disadvantage, would see government expenditures steadily increase over time with little prospect that it would ever begin to decline. The Commission argued that a 20-year commitment of programmes of renewal could lead to significant reductions in the level of annual special programs expenditure required, and would represent ‘a good investment'.

It is important that any future structural changes to Indigenous service delivery take on board the CGC Report's recommendation that funding arrangements be outcomes-based. A focus on outcomes takes into account what has been achieved in terms of the inputs invested in meeting needs: that is, the resources given to service providers to provide services or facilities, and the outputs these service providers achieve with their given levels of input, [27] whereas ‘need' merely indicates the difference in relative status between particular groups or individuals – specifically, ‘the difference between an existing situation and an acceptable one'. [28] The CGC Report notes that:

A question arises as to whether a needs based allocation of resources should be aimed at assisting the region where, on average, people are more disadvantaged; or the region with most disadvantage, even if the individuals in that region are relatively better off. [29]

The lack of comprehensive, comparable and up-to-date data necessary in order to construct suitable regional indexes of relative needs remains an outstanding issue. The poor coordination of the mix of Commonwealth and state mainstream and Indigenous-specific programs creates further problems for the development of an equitable formula based on relative need.

An outcomes-based approach to the distribution of funds is in keeping with the principle of substantive equality as it has the capacity to take into account different variables such as the impact of geographic, economic, and demographic variables on mainstream programs across the regions, and the varying levels of Commonwealth, State and Territory involvement in service provision. It is also able to take into account the investments made over periods of time, so that assets less easily calculable, such as investments in organisational capacity and people over a long period, are not jeopardised. The CGC's recognition of the necessity of value judgements in determining outcomes, and the role of Indigenous people at the level of decision-making, also provides an opportunity to increase their participation.

• service delivery at the State/Territory level would involve ATSIC Regional Councils and community bodies;
• the ATSIC State Advisory Committee (Commissioners and Regional Council Chairs) would have legislated access to the State/Territory governments and their departments, as the sole Indigenous advisory structure at the State/Territory level.

The advantages of a state-based approach to directing Indigenous funding and service delivery, particularly the capacity for enhanced and more targeted planning processes at the regional level, has been identified in numerous reports. It has been suggested that this approach 'could provide a balance between the States' responsibilities and the Indigenous peoples' aspirations to control their own affairs… [s]uch regional level collaborative decision-making arrangements might be established by building on the present ATSIC structure'. [30] The Commonwealth Grants Commission has suggested that such regional arrangements:

could emerge as a means of linking State level decision making with local community control over service delivery matters. In some circumstances regional decision making might even develop as an alternative to State level processes. [31]

The CGC considered regional arrangements in which Commonwealth Indigenous specific funds would be 'allocated to State level Indigenous-controlled bodies that would include representatives of Commonwealth and state governments and, where relevant, local government'. [32] In addition, State funds could be 'combined with the Commonwealth funds and distributed through this mechanism'. [33] Collaborative decision-making would occur at the state level between government and Indigenous people, as well as the oversighting of additional needs to be met at the regional level.

The recent response by government to the CGC Report has highlighted the need to re-consider the optimum mix of Commonwealth and State/Territory programs with the intention of improving access for Indigenous people to mainstream services funded by specific purpose payments (SPPs), a move which has the potential to increase accountability in this area. [34] In its Report the Commonwealth Grants Commission acknowledged that with the commencement of the new tax system in July 2000, there was an opportunity for increased flexibility in the states' budget priorities. However Indigenous-specific programs are in competition with mainstream providers for funding:

The challenge for the States with respect to Indigenous people is to provide effective services, within their mainstream provision, to a relatively small sub-population (in all States except the Northern Territory) that has distinctive characteristics and which requires special approaches to service delivery. [35]

In addition, there is a longstanding lack of clarity in regard to responsibility for Indigenous services among the spheres of government increases the potential for cost-shifting, failure to provide adequate services and an over-reliance on Indigenous-specific services.

While SPPs provide an opportunity to target service needs for Indigenous people, there have been concerns raised about the capacity to monitor the funds directed to Indigenous people through these arrangements. The Commonwealth's limited scope to direct the regional allocation of resources and to monitor outcomes for Indigenous people or to direct this capacity to the ATSIC SACs would remain an outstanding issue in a model which devolved responsibility for Indigenous service delivery to the states and territories. Likewise, the authority with which ATSIC as the lead Commonwealth agency could negotiate funding outcomes in this scenario presents a significant issue.

• ATSIC Commissioners and Regional Councillors would be elected under the current arrangements;

The level of representation of local interests has been a continuing issue for the ATSIC structure. This is particularly relevant at the Regional Council level. The Section 26 Review noted that 'for many smaller communities, [there is] a lack of representation on, and a feeling that their needs tend to be overlooked by, their Regional Councils'.15 This relates to perceptions that Regional Councils can be dominated by the interests of certain groups. There is a further issue concerning potential conflict of interests between traditional owners or native title holders and resident Indigenous peoples whose ties are from elsewhere. However, the Report on greater regional autonomy found ‘wide support for the retention of a representative and democratically-elected body at the national level to address Government and to coordinate Indigenous advocacy [and]… to provide “balance” between different Indigenous groups and interests across the country.' [36]

The potential to facilitate alternative arrangements which may provide greater representation of different and moreover traditional interests within a devolutionary model needs further consideration. The ATSIC Review discussion paper notes that there is no ‘one-size-fits-all' definition of Indigenous communities and that an effective regional structure should adequately reflect local diversity (7.2-7.3). Alternatives could include the enhancement of regional structures through supplementary structures such as Murdi Paaki Regional Council's use of ‘community working parties' and Noel Pearson's idea of a ‘regional interface' to feed input from local groups to Regional Councils and beyond.

The Section 26 Review noted a potential overlap between the Regional Council structure and 'the development and growth in recent years of other regional structures such as non-statutory Land Councils in Queensland and Western Australia, and Native Title Representative Bodies recognised under the Native Title Act 1993.' To this end, Recommendation 17 c) of the Section 26 Review proposed that Regional Councils be given 'explicit authority to co-ordinate with the relevant Native Title Representative Body or Representative Bodies (whose functions are complementary to those of Councils) on native title issues in the region.' The Report on greater regional autonomy suggests that:

Without legislating for this kind of authority for Regional Councils, overlaps between the functions or interests of Regional Councils and land-based structures could be resolved at the regional level through protocol agreements or partnerships, or through mutual representation and coordination at a regional level (for example, on a regional body or a coordinating interface/committee of some kind).

Alternatives to local governance arrangements such as these could be facilitated by the opt-out model proposed in the ATSIC Review discussion paper, as could the development of regional governance structures such as regional authorities which might even provide an alternative to state level processes in appropriate areas.

• ATSIC Regional Councils would work with local Indigenous communities to develop a needs-based Regional Plan. The Regional Council would work with representatives of Local, State/Territory and Commonwealth agencies in the development of policies and programs to meet the needs identified within the Regional Plans and the delivery of local services;

There is a recognised need for greater input from the regional and local level to State/Territory and Commonwealth levels in order to identify service delivery needs and to set more effective outcomes for Indigenous people. However, the relative status of Regional Councils as a stakeholder within any planning processes needs some consideration.

The Report on greater regional autonomy emphasised that any government efforts to negotiate governance arrangements with Indigenous peoples should include the provision of appropriate support and resources, including technical support to build capacity, long-term funding arrangements and legislative backing. The CGC Report found that despite the existence of partnership arrangements between Indigenous people and the Commonwealth and States/Territories, there was a perception that local needs were unheard and that these arrangements had little impact on their communities as they were essentially ‘top-down' processes. The CGC Report states:

There are also concerns about the unequal status of members of some existing partnership arrangements, and perceptions that they are not driven by the mainstream and are not always backed by funding. [37]

• the ATSIC elected arm (i.e. the National Board and Regional Councils) would have a stronger focus on policy at the Commonwealth and State/Territory level and Regional Councils would have the primary responsibility for focusing on service delivery;
• Commissioners would draw on the needs identified in Regional Plans in performing their role as part of the ATSIC State Advisory Committee and the National Board;

A stronger focus on policy for ATSIC State Advisory Committees at the Commonwealth and state/territory levels has already been pursued in part as a consequence of the ATSIC Administrative Restructure in July 2000, in which the Regional Offices took on greater policy, advocacy and research functions to increase available support for the SACs. Issues remain concerning the status of the ATSIC elected arm and the relative support for them to implement enhanced policy and planning functions.

The ATSIC Review discussion paper mentions that there has been some confusion as to the respective roles of Commissioners and Regional Chairpersons (4.12). The Regional Council Model (7.17) and the Regional Authority Model (7.16) both suggest that the current roles of Regional Chairperson and Commissioners might be collapsed into each other. But given the greater participation and workload envisaged for the ATSIC elected arm in negotiating service delivery arrangements at state/territory level, it would seem appropriate to maintain both roles, delineate their functions more clearly at national and state/territory levels, and to provide adequate administrative support for these positions. While Commissioners might relay the regional and state level concerns of their constituency to the National Board, the role of regional chairpersons in advocacy and policy development could be consolidated further at the state/territory level.

Further to this, consideration could be given to the status of ATSIC SAC representatives at the state government level, such as the provision of seats in state and territory parliaments. The Report on greater regional autonomy comments as follows:

The Section 26 Review noted that there were 'inadequate support arrangements for Regional Council Chairpersons, who occupy full-time positions', especially in light of 'the great pressures on other Councillors'. A few Councillors suggested that in preference to establishing an alternative system of regional governance (such as a series of regional authorities with their own elected representatives), the status of Regional Chairpersons should be improved by having designated seats for them in State and Commonwealth governments, (for example, by giving Regional Chairpersons seats in State Governments). [38]

There might also be a case for further salaried positions for the elected arm at a ward level, perhaps in a structure equivalent to local government, given that Councillors are to have primary responsibility for service delivery.

4) (b) Regional authority model

The regional authority model presents the opportunity to increase Indigenous peoples' control over decision-making at the regional level. A regional authority would have greater powers than a regional council in the current ATSIC model, such as the authority to negotiate and reach agreements with Government and other funders and service providers, and the ability to undertake functions normally performed by other services providers . [39] Potentially these enhanced functions would overcome some of the difficulties regional councils experience with current budget restrictions through providing an opportunity for more flexible forms of funding such as block and pooled funding, and longer term funding cycles. Currently, the Torres Strait Regional Authority is the only regional authority in operation in Australia although the prospect of establishing regional authorities has been considered by Indigenous people in other areas such as the Murdi Paaki region in NSW, the Kimberley region in WA and Miwatj Council in Yirrkala, NT.

Two central issues for a regional authority model are the appropriateness of the application of a regional authority model across the regions and the need for flexibility in determining the dimensions of any new governance arrangements. The Report on greater regional autonomy noted the following issues were issues raised by the regional authority model:

• The appropriateness of regional authorities to particular areas;
• The workability and cost-effectiveness of setting up regional authorities, especially for smaller regions;
• The potential for inequities to be replicated or increased through adopting a regional authority model;
• The flexibility and potential of regional authority structures to accommodate different interests;
• The management of accountability for regional authorities and potential for equitable funding;
• The need for any structural reform to ATSIC involving bodies such as authorities to come from the ‘bottom up'; and
• The need for a considerable period of time to consider and implement models for regional authorities. [40]

Consultations for ATSIC's Report on greater regional autonomy found that widespread support for the transformation of regional councils into regional authorities was lacking. Instead, the proposal to build on the ATSIC structure through the development of regional authorities was received with ‘cautious or qualified support', and that greater support was recorded from 'discrete and remote communities ... [rather] than from those in settled urban and rural centres where communities have often been dispersed'. [41] It was also 'generally conceded that authorities were more appropriate to those in remote and northern regions, and that ... it was easier to form a regional authority over remote areas where Indigenous peoples formed a majority.' [42]

An additional consideration here was the better access experienced by those living in settled areas to mainstream services, in comparison to those in remote areas who are often reliant on a patchwork or services. For those in remote and northern areas, regional authorities suggest a means of 'finding the appropriate type of social and infrastructure program to suit people whose distinct culture alienates them from the demands of some institutions in which they are governed.' [43]

However, the workability of a single, one-size-fits-all model was disputed, and the need for flexibility in determining the dimensions of any new structures was emphasised:

Other Councils interested in the prospect of establishing authorities, however, emphasised the need for flexibility. A suggestion was made that there was no need to identify specific structures for authorities, only to set general parameters. People could then choose what options were appropriate to their area. In particular, it was suggested that methods for election to regional authority structures be kept flexible, with a variety of models possible. [44]

Concerns were expressed that the conversion of Regional Councils into a series of independent regional authorities might amount to a somewhat arbitrary and top-down application of autonomy that would not take the needs and circumstances of specific regions into account. The processes for defining new models should be bottom-up, consultative and sourced with adequate time-frames rather than determined through the imposition of top-down, legislative or bureaucratic conditions. The TSRA experience indicates that the establishment of authorities, or other regional structures and approaches for progressing autonomy, is a lengthy process requiring the committed cooperation of government agencies and departments at all levels as well as national and regional Indigenous organisations. [45] ATSIC's Report on greater regional autonomy suggested that the issues concerning regional authorities:

be given further consideration when more time and resources have been devoted to the development of regional autonomy structures and approaches, and that this be secondary to consideration of the development of regional agreements. In particular, further work needs to be undertaken to develop criteria that a regional authority would be required to meet. Recommendations could then be made to the Minister to obtain the necessary legislative approval for the establishment of a regional authority in any given case that met the criteria. [46]

The desire for flexibility was linked to the need for regional authorities to be representative of the different interests within a particular area. The Report also emphasised that in order for the development of regional authority structures to be successful, there must be Indigenous ownership of any forms of regional governance. Alternatively, the regional authority model has some appeal in its capacity to provide a vehicle for Indigenous aspirations such as those expressed by the Aboriginal Nations of Central Australia in the Kalkaringi statement, that is, ‘the rights of self-determination and self-government, including recognition of the role of Indigenous governance structures and the direct Commonwealth funding of Indigenous communities and organisations, and recognition of customary law'. [47]

The use of an ‘opt out' mechanism, as proposed in the ATSIC Review discussion paper (7.24), in conjunction with the devolution model might provide a satisfactory option through which Regional Councils could petition the Minister for alternative arrangements such as a regional authority structure which may be more appropriate to their area. The ‘opt out' mechanism should be flexible enough to consider alternative schemes of representation and governance structures in addition to regional authorities.

However, concerns were raised in the Report on greater regional autonomy about the potential for inequities to emerge between communities if those still covered by Regional Councils were unable to exercise discretion over the bulk of funds they received funds from ATSIC or unable to receive funds from other providers. Some parity could be achieved by enabling Councils and authorities to have similar and greater powers than Councils currently possess in relation to funding. In addition, some Councils suggested that communities with less potential for economic growth or in contexts marked by continued disadvantage and entrenched racism might be ‘left behind' with the application of a regional authority model that is more entrepreneurial in its approach.

A further issue raised by the ATSIC Review discussion paper's regional authority model is the level of representation at a national level and the degree of administrative support. While the model suggests increased powers for regional authorities at the level of funding allocation, it is not accompanied by an increase in powers at the representational level, such as representation at state and local government levels at least (as discussed above in regard to the devolution model).

There is also a suggestion that existing Indigenous organisations would provide local advice, and ‘where necessary constitute local Advisory Committees for advice' (7.15). However, the level of administrative support and policy development that would be available to the elected arm at the regional, state and national levels is not defined. This is a significant issue, given that the model envisages a formal coordination role for regional authorities in regard to service delivery by Commonwealth and state/territory agencies and a regional planning process in collaboration with state/territory agencies.

Overall, the regional authority model offers advantages such as increased powers to direct funding to target areas of greatest need and the capacity to address issues of service coordination at national, state/territory and regional levels. However, the model's indeterminacy about the roles, status and administrative support for the elected arm at national at national, state/territory and regional levels needs further consideration. In addition, the issues raised in ATSIC's Report on greater regional autonomy indicate that a regional authority model, particularly in a ‘top-down', bureaucratic form, is limited in its value for application to all regions. The use of an ‘opt out' mechanism, in conjunction with the devolution model, may provide a satisfactory arrangement for regions to develop alternative governance structures where appropriate.

1. The submission is made in accordance with the Commissioner's functions in s46C(1)(b) and (c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

2. ATSIC Office of Evaluation and Audit, Evaluation of the Legal and Preventative Services Program, ATSIC Canberra 2002, Executive Summary, p1.

3. Paragraph 6.56 explains the effectiveness test as whether 'at the community level, Indigenous Australians are actually getting the outcomes that the investment by agencies at all levels of government is designed to achieve'.

4. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2001, HREOC Sydney 2001, Chapter see also Smith, D, 'Community Participation Agreements: A model for welfare reform from community-based research', CAEPR discussion paper No.223/2001, CAEPR Canberra 2001, p38.

5. 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, Depart 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).

6. 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, https://humanrights.gov.au/our-work/commission-general/broken-link

7. Office of Evaluation and Audit, Outcome data measurement. Unfinished business - Evaluation of data for outcome measurement for selected Indigenous service delivery programs, ATSIC Canberra 2002.

8. For an overview of agreements see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, HREOC Sydney 2002, Appendix 1.

9. Aboriginal and Torres Strait Islander Commission, Report on greater regional autonomy, ATSIC National Policy Office, Canberra 2000, pp 11-12.

10. House of Representatives Standing Committee on Family and Community Affairs, Health is life: Report on the inquiry into Indigenous health, Commonwealth of Australia Canberra May 2000, para 2.56.

11. ATSIC, Review of the Operation of the Aboriginal and Torres Strait Islander Commission Act 1989: Report to the Minister for Aboriginal and Torres Strait Islander Affairs, ATSIC Canberra February 1998.

12. Recommendations 17 and see ibid, p.26.

13. Recommendation see ibid, p.28.

14. Recommendation see ibid, p.34.

15. ATSIC, Report on greater regional autonomy, op.cit, p38.

16. ATSIC, Recognition, rights and reform: Report to Government on native title social justice measures, Canberra ATSIC 1995, p57.

17. ATSIC, Resourcing Indigenous development and self-determination: a scoping paper, ATSIC Canberra 2000, p22.

18. ibid, piv.

19. ibid.

20. Moran, 'Housing and health in Indigenous communities in the USA, Canada and Australia: The significance of economic empowerment' (2000) 7 Aboriginal and Torres Strait Islander Health Bulletin 1.

21. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2000, HREOC Sydney 2000, p107.

22. For further discussion see ATSIC, Report on greater regional autonomy, op cit, p13.

23. Ibid, p11.

24. Following recommendation 17a of the Section 26 Review. See ibid, p37.

25. Ibid, p36.

26. See ATSIC, Report on greater regional autonomy, op cit, p20.

27. Commonwealth Grants Commission (CGC), Report on Indigenous funding 2001, Canberra CGC 2001, p10.

28. Ibid.

29. Ibid, p29.

30. Ibid, p61.

31. Ibid.

32. Ibid, p60.

33. Ibid.

34. Federal government, Government response to the Commonwealth Grants Commission Report on Indigenous funding, Commonwealth of Australia Canberra June 2002, http://www.minister.immi.gov.au/atsia/media/reports02/cgc_gov_response.pdf, p10.

35. Commonwealth Grants Commission, op.cit, pp55-6.

36. ATSIC, Report on greater regional autonomy, op.cit, p10.

37. Commonwealth Grants Commission, op.cit, p74.

38. ATSIC, Report on greater regional autonomy, op.cit, p9.

39. Ibid, p14.

40. ATSIC, Report on greater regional autonomy, op.cit, p17.

41. Ibid, p16

42. Ibid.

43. Fletcher, C., 'Aboriginal Regional Australia: the hidden dimension of community governance', Regional Australia Summit paper, Parliament House Canberra 27-29 October 1999, p1.

44. ATSIC, Report on greater regional autonomy, op.cit, p18.

45. See ibid, pp22-7.

46. Ibid, p39.

47. Ibid, p17.

Last updated 22 August 2003.