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Comments on the
ATSIC Review Panel Public Discussion Paper

Australians for Native Title and Reconciliation (ANTaR)

Introduction

ANTaR welcomes the opportunity to respond to the Review Panel's public discussion paper and congratulates the Review Panel on their work in producing a clear summary of the issues.

ANTaR is a national, mainly non-Indigenous organisation that works in close partnership with Indigenous leaders and communities to achieve justice for Indigenous Australians including respect for their rights and cultures, and a genuine process of reconciliation that fully addresses matters of unfinished business.

As a mainly non-Indigenous organisation, ANTaR sees its role as supporting appropriate processes and principles which should guide and be supported by the Review Panel and the Government, rather than to support or recommend specific changes.

Such a role underpins the central argument of this submission that it is primarily a matter for Indigenous people themselves to determine the reform of ATSIC. The Minister should be facilitating such a process. This is not happening and it is disturbing that there appears little comment or concern about such a significant and important issue.

In this regard, it would have been helpful if the discussion paper had provided background on the processes of consultation between the Minister and ATSIC over reform of the organisation as well as ATSIC's own initiatives in seeking reform.

ATSIC is an important institution for Indigenous people, representing, in effect, the limits to which Australian governments have been prepared to go in accepting and delivering autonomy and self-management for Indigenous Australians. Reform of ATSIC, in determining the conditions of such acceptance for a considerable period into the future, is undoubtedly one of the most crucial policy decisions in Indigenous affairs of recent times.

It is also the case that ATSIC has never provided a vehicle for genuine self-management or self-determination for Indigenous people. Indigenous people were delivered a flawed institution from the start, victim to the entrenched opposition to ATSIC's creation in 1990 which resulted in a compromised structure for the organisation. A Westminster-style organisational structure was imposed on ATSIC, and arguably was in many cases inappropriate. ATISC has struggled for legitimacy ever since, operating under a corrosive "climate of criticism" comprising mostly uninformed criticism of the organisation, its role and its elected representatives. It also suffered a $470 million funding cut when the Howard Government came into power in 1996. This cut was in addition to the already grossly-inadequate funding levels for key areas of Indigenous spending for both mainstream and Indigenous-specific programs.

The discussion paper does acknowledge the unfair criticism that ATSIC receives regarding areas for which it has no responsibility (such as health), however, it fails to address the broader implications of critical under-funding by governments, particularly in areas of Indigenous disadvantage, and the particular impacts of such under-funding on ATSIC.

It seems that Indigenous people are increasingly being blamed for ATSIC's real and perceived failures while governments have largely escaped responsibility and accountability. Disturbingly, such failures, whether warranted or not, are now being used by some to justify the winding-back of ATSIC's role in delivering self-management and self-determination to Indigenous people.

To that end and while the organisation's ultimate fate remains subject to the current review process, the most far-reaching and retrograde changes (the setting up of ATSIS) have already been made unilaterally by the Minister, without Indigenous consent, and under the smokescreen of media and public preoccupation with the circumstances of ATSIC's elected Indigenous leaders.

This is an absurd and deeply-concerning pre-empting of the review process.

The decision to set up ATSIS should be reversed and the process through which it was achieved condemned. The Minister should be directed to work with ATSIC to find mutually-acceptable solutions to the issues which prompted the change.

Finally, while the discussion paper provides a good general summary of issues, it's anecdotal nature and lack of background history and detail in respect of many issues, including previous initiatives to review and reform ATSIC, are significant deficiencies.

The remainder of this submission provides recommendations and comments under three headings: Process Issues, ATSIC's Roles, and the External Environment.

A Summary of Recommendations is provided at the end of this document.

Process issues

Recommendation 1:  Change or reform of ATSIC must be determined through negotiation with Indigenous stakeholders and on the basis of their informed consent. The Review Panel's final report should provide a strong endorsement of this principle.

ANTaR believes that proper process is the most significant issue in reforming ATSIC. Importantly, Indigenous participation and involvement should be in accordance with the principles of self-determination and self-management. Key principles are the negotiation of outcomes (informed consent) and the genuine empowerment of Indigenous communities.

Proper process in this instance requires acknowledgment of the authority of the currently elected ATSIC representatives, particularly its Board, together with a commitment to proceed with changes only with the informed consent of Indigenous stakeholders.

However, there are also other important reasons for proceeding on this basis. In particular, if concerns about ATSIC from within the Indigenous community are a significant reason for the need for change, as suggested in the discussion paper, then resulting changes need to be seen as the product of negotiation with, and the consent of, Indigenous stakeholders. Changes made without such consent will lack 'ownership' by the Indigenous community, leaving the reformed body with the significant handicap of a suspicious and unsupportive Indigenous constituency.

Proper process also requires that the current review should provide a starting point for decision-making on actual changes, and that it should not seek to limit options for change.

The Review Panel should provide strong endorsement of these principles in its final report.

The Government's agenda

Minister Ruddock's approach has been antithetical to the principles of proper process outlined above. His actions appear to have been motivated by seeking political advantage as part of an agenda to effectively side-line and further marginalise ATSIC. The point at which the Minister abandoned negotiations with the ATSIC Board over reform of the organisation and made unilateral changes in creating ATSIS, signalled a massive step backwards in Indigenous affairs policy away from self-management and self-determination.

The government has used the negative public reaction to the situations of the Chair and Deputy Chair as a smokescreen to effectively gut ATSIC. There is also evidence, in the form of backgrounding of journalists by the Minister, that the Minister played a part in encouraging such negative opinion.

In turn, the controversy surrounding the ATSIC leadership has fuelled support for the specious argument that the currently-elected ATSIC representatives should be side-lined in determining ATSIC's future. On what basis and under whose authority should they be sidelined and alternative representatives chosen?

The government's uncompromising rejection of 'rights' or 'symbolic' issues has also played an important role in driving a wedge between Indigenous stakeholders and within broader public opinion, by suggesting that those who support a rights approach are ignoring the more urgent 'practical' needs of their people. While this has been articulated as a 'practical' versus 'symbolic' divide, with the latter criticised as offering nothing of substance, even a cursory examination of the supposed practical/symbolic divide shows that it is a virtually meaningless distinction. [1]

However, the government's coercive and divisive 'take-it-or-leave-it' approach has been successful to the extent that we have increasingly witnessed Indigenous leaders publicly criticising each other and declaring what they need to do to fix relations with the government while the government's calculated spoiling role has largely escaped scrutiny and accountability.

This is cynical, grubby politics at its worst and it remains to be seen whether anything of lasting value comes of the review process if the government's response to the Review Panel's recommendations is approached in the same or a similar way.

Self-determination

Why is the government behaving in this way? The short answer is to defeat Indigenous aspirations for self-determination - for increased autonomy and empowerment in taking responsibility for their own affairs and in determining their own futures. It needs to be remembered that the government is opposed to self-determination and its broad agenda in Indigenous affairs is blatantly assimilationist.

Even more significantly, its agenda comes not from the Indigenous community or from any serious process of engagement with it, but rather derives from the hard prejudices of conservative non-Indigenous ideology, frequently heard from right-wing commentators and think tanks. Tragically, their principal motive appears to be to defeat any perceived agenda of the left rather than a genuine interest in the well-being of Indigenous Australians.

Such positions mistake self-determination with an assumed 'agenda' or outcome, typically a separate Indigenous state or perhaps a 'do-gooder' conspiracy to keep Indigenous people trapped in a romanticised 21st century hunter-gatherer existence.

However, self-determination is none of these things and is better described as a process, not an end. Dr Bill Jonas writes that self-determination

is a process of negotiation, accommodation and participation. Importantly, it is also about Indigenous peoples accepting responsibility and governments removing the controlling hand in order to ensure that such acceptance is meaningful and has consequences.

On these terms the Government and conservative commentators are way off the mark.

Such an understanding also urges re-consideration of the view that "the achievement of the goal of Indigenous self-determination and empowerment must be focused through ATSIC" (DP 4.66). More accurately, the principles of self-determination need to underpin all institutions, processes and arrangements pertaining to Indigenous affairs, including the current review of ATSIC.

Recommendation 2:  With regard to the models proposed in the Discussion Paper, it is important that Indigenous stakeholders determine what is appropriate for their needs. Changes to ATSIC's structure must be negotiated with Indigenous stakeholders.

While it is understandable that a range of models or options were proposed in the Discussion Paper, it is the views of Indigenous stakeholders, including the elected arm of ATSIC, which are paramount in determining future options for change.

Consequently, ANTaR will not nominate a preference for any of the models.

It is worth noting, however, that ATSIC has evolved incrementally over the years and that the ATSIC Board itself has actively pursued change and reform through previously-conducted reviews and consultations. The Discussion Paper does not give details of this history. It remains an option for reform of ATSIC to continue to occur incrementally, through priorities identified by ATSIC in consultation with Indigenous stakeholders and the Minister.

ATSIC's roles

Recommendation 3.  A reformed ATSIC should remain as the peak national elected body in Indigenous affairs with primary roles in:

• representation and advocacy, including internationally;
• providing the principal source of Indigenous policy advice to government;
• funding and service provision for Indigenous-specific services; and
• providing advice on mainstream policy and service delivery by government departments and agencies at a national as well as state and territory level, and in monitoring the performance of those agencies to agreed standards and benchmarks.

There is strong recognition and support from Indigenous stakeholders for the importance of ATSIC as an Indigenous-controlled, representative body that advocates on behalf of Indigenous Australians, provides policy advice to government and is involved in the delivery of Indigenous-specific services.

It is acknowledged that there are differing views amongst Indigenous stakeholders as to the details and extent of these respective roles for ATSIC, however, resolution of such differences should properly be a matter for Indigenous stakeholders to determine.

In consideration of this, ANTaR does not seek to advocate particular changes, but rather, to comment on appropriate processes for achieving change.

Indigenous representation

The issue of Indigenous representation is acknowledged as extremely important. ANTaR's view is that changes to the model for representation within ATSIC should be a matter for ATSIC's currently elected representatives and their broader constituencies to determine.

Policy advice

If ATSIC is to have a meaningful role in supporting Indigenous self-management and self-determination, then it must retain its role as the principal source of policy advice to government.

In this regard it is of concern that in recent years ATSIC's influence in providing policy advice has been seriously undermined, not least by the federal government itself. This has included the establishment of a separate Office of Aboriginal and Torres Strait Islander Affairs (OATSIA) within the Minister's Department, which is increasingly relied upon by the Minister for advice. There has also been a significant decline in ATSIC's input and access to the Cabinet policy development process. (D.P 5.3).

In these respects, Minister Ruddock needs to demonstrate he is serious about strengthening ATSIC's role and influence in providing policy advice. So far his actions suggest otherwise. And the Minister's careful wording that "ATSIC will remain the Government's chief Indigenous source of policy advice" (emphasis added) merely leaves the way open for ATSIC's advice to continue to be ignored or side-lined in favour of the Minister's hand-picked non-Indigenous advice.

It is also important that ATSIC, as the peak Indigenous body and with its structure of Regional Councils, be directly involved in providing advice to departments and government agencies at all levels, on the provision of mainstream services to Indigenous people.

Commonwealth, state and territory government agencies need to work with ATSIC to deliver better and more coordinated services, which will be informed by and undertake activities consistent with ATSIC Regional plans. This will also require the development of national benchmarks and standards to address Indigenous disadvantage and against which to measure outcomes (see DP 6.58).

Control of Indigenous-specific service delivery

The Commonwealth Grants Commission (CGC) report on Indigenous Funding 2001, and the Productivity Commission Review of Government Service Provision have shown that Indigenous people are poorly served by mainstream services. The CGC report highlighted the problems in mainstream service-delivery caused by Australia's complex federal system and recommended the need for "the full and effective participation of Indigenous people in decisions affecting funding distribution and service delivery".

There is an ongoing need for Indigenous-specific service delivery programs that address the particular cultural and community needs of Indigenous people and which supplement mainstream services which have a poor record in terms of Indigenous access, particularly in remote areas. ATSIC may wish to see the delivery of these services by government agencies or to out-source the service delivery to other organisations.

However, in keeping with the principles of Indigenous control of programs affecting Indigenous peoples, such programs should be the overall responsibility of ATSIC rather than mainstream government departments.

Monitoring powers

The significant problems caused by the current fragmentation and duplication of Indigenous services and service delivery provides a strong rationale for ATSIC to be provided with enhanced powers and resources for monitoring policy and service delivery by government departments and agencies at a national as well as state and territory level. This might involve some statutory monitoring function akin to those of the Auditor-General or inquisitorial function like the Senate Estimates process.

'Separation of powers'

Recommendation 4.  A separation of powers function with regard to funding decisions should be implemented under a single ATSIC structure.

The creation of ATSIS as a separate agency to control funding decisions, occurred without proper evaluation of the effects of the change, or whether a 'separation of powers' could not have been better or as effectively achieved under the existing ATSIC structure. The Minister seems to suggest that negotiations with ATSIC over the issue were positive and progressing (although apparently not quickly enough for the Minister) begging the question as to why a unilateral, pre-emptive change was necessary?

The change effectively undermines Indigenous self-determination and further marginalises ATSIC as a representative voice by removing responsibility for funding decisions from the elected ATSIC Board and Regional Councils and placing it under Minister Ruddock's Department of Indigenous Affairs.

Already there are indications that, despite Mr Ruddock's assurances, the interim ATSIS agency is acting inappropriately in attempting to influence the activities of Indigenous bodies it is funding (for instance, to prevent advocacy on rights issues).

This is alarming, and raises the perception that the Minister's actions in establishing ATSIS were not made with the interests of ATSIC foremost in his mind. A mechanism is urgently needed to ensure that ATSIS acts strictly in conformity with ATSIC's policies and priorities.

The discussion paper seems to accept that the ATSIS decision will be long lasting (DP 3.6). However, ANTaR believes that given the concerns raised above, the ATSIS model should not be given any preference or acceptance as a fait accompli. Surely this is a fundamental issue, and acceptance of the Minister's model without detailed evaluation of it and a proper exploration of alternatives would be highly inappropriate.

Why was ATSIC's proposal for a 'separation of powers' mechanism rejected? We don't know the details proposed. And why was not more time given to finding a solution with the support of Indigenous stakeholders? The Review Panel should recommend that the Minister resumes negotiations with ATSIC on this issue to achieve such an outcome.

Regional role

Recommendation 5. There appears to be strong Indigenous support, including from ATSIC itself, for an enhanced role for regional bodies, including a regional planning role. Such an expanded regional role does not need to be predicated on diminishing ATSIC's roles or presence at the national level.

Again, this is an issue which needs to be determined by Indigenous people themselves and in fact has been considered by ATSIC at a national and regional level. ATSIC's submission to the Review supports the need for an enhanced role for regional bodies. The government should continue negotiations with Indigenous stakeholders regarding this issue.

A key determinate of the effectiveness and legitimacy of regional bodies is their form of election. The review panel should accept that one size does not fit all when it comes to regional council electoral structures and instead opt for a model that accommodates regional differences.

The Discussion Paper appears to imply, perhaps unintentionally, that an expanded regional role for ATSIC may be inconsistent or mutually exclusive with a continued emphasis and corresponding capacity at a national level. However, there does not seem to be any evidence for such an implication. On the contrary, evidence of ATSIC's marginalisation, particularly at the national level, suggests that its powers and roles need to be enhanced at all levels.

Removal powers

Recommendation 6.  The ATSIC Board, and not the minister, should have the power to remove a Chairman, Deputy Chairman or other elected representative.

The recent circumstances of the Minister in suspending the current ATSIC Chair provides an illustration of why the Minister should not have the power to remove a Chairman, Deputy Chairman or other elected representative.

Rather, this power should reside with the ATSIC Board, ie, the body with the responsibility of representing their Indigenous constituents and for electing the Chair and Deputy Chair. It is clearly in the Board's interest that such a power exists and is responsibly exercised.

External environment

Recommendation 7:  The Review Panel final report needs to acknowledge the ongoing implications of the 'climate of criticism' and widespread misconceptions about ATSIC, and recommend effective measures to address these.

ANTaR believes that the external environment in which ATSIC must operate is a critical factor to its likely future success. The Discussion Paper acknowledges the debilitating impact of negative perceptions about ATSIC (DP 4.59; 6.20). Both the Review Panel and the Minister acknowledge that change is being considered at least partly because of negative perceptions about ATSIC rather than empirical evidence of systemic problems with its structure or operations. We also know that governments have exploited such misconception as a smokescreen for their own policy and service delivery failures or, as in the present case, to limit scrutiny of government intervention.

What guarantee is there that such unwarranted and in some cases fabricated criticism will not continue to fatally undermine any new structure established?

One example of the corrosive effects of the external environment on the perception of ATSIC relates to the response to the Review Panel's public discussion paper. The discussion paper posed the hypothetical reaction if similar arrangements to ATSIC over funding decisions pertained to the mainstream political process, suggesting (in a perhaps unwise throw-away line) that "there would be, at least, perceptions of a corruption-ridden shambles within months". The Australian's headlines on the 19th June blared: "ATSIC 'a corrupt shambles'", with the article beginning: "ATSIC'S leadership is 'disreputable'' and incompetent, and the commission would be regarded as a 'corruption-riddled shambles' if it were a white organisation, a scathing independent review has found."

Such reporting is a disgrace, but the fact that it appeared on the front page of The Australian is evidence of the dimensions of the problem presented by factors external to ATSIC.

The Review Panel should acknowledge and address these issues in its final report, including the need for effective measures and resources to counter misconceptions and lies. It is not adequate to presume that such issues are entirely ATSIC's responsibility when we all know how critical and yet daunting is the task of countering the unfair criticism that has always handicapped ATSIC.

Summary of Recommendations

The following are the principal recommendations made in this submission:

1. Change or reform of ATSIC must be determined through negotiation with Indigenous stakeholders and on the basis of their informed consent. The Review Panel's final report should provide a strong endorsement of this principle.

2. With regard to the models proposed in the Discussion Paper, it is important that Indigenous stakeholders determine what is appropriate for their needs. Changes to ATSIC's structure must be negotiated with Indigenous stakeholders.

3. ATSIC should remain as the peak national elected body in Indigenous affairs with primary roles in: · representation and advocacy, including internationally; · providing the principal source of Indigenous policy advice to government; · funding and service provision for Indigenous-specific services; and · providing advice on mainstream policy and service delivery by government departments and agencies at a national as well as state and territory level, and in monitoring the performance of those agencies to agreed standards and benchmarks.

4. A separation of powers function with regard to funding decisions should be implemented under a single ATSIC structure.

5. There appears to be strong Indigenous support, including from ATSIC itself, for an enhanced role for regional bodies, including a regional planning role. Such an expanded regional role does not need to be predicated on diminishing ATSIC's roles or presence at the national level.

6. The ATSIC Board, and not the minister, should have the power to remove a Chairman, Deputy Chairman or other elected representative.

7. The Review Panel final report needs to acknowledge the ongoing implications of the 'climate of criticism' and widespread misconceptions about ATSIC, and recommend effective measures to address these.

August 2003