Aboriginal representation in government


16
Aboriginal representation in government


Chris Kourakis QC and Stephen McDonald




Introduction


In Mabo,1 the High Court adopted with approval the fundamental constitutional proposition stated by Gibbs J in Seas and Submerged Lands2 that the courts cannot challenge or interfere with acts of State such as the ‘acquisition of Territory by a sovereign state’.


The denial of Aboriginal sovereignty and rights of self-determination that this proposition entails was spelt out by three members of the High Court in Yorta Yorta:3



Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.


It was only by an exercise of the Commonwealth’s sovereign legislative power two centuries after European settlement that Aboriginal people were allowed a small measure of influence over the administration of their affairs. The Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (the ATSIC Act) established the Aboriginal and Torres Strait Islander Commission (ATSIC)4 and regional councils that were elected by, and accountable to, Aboriginal people. The Preamble to the ATSIC Act read in part:




…it is also appropriate to establish structures to represent Aboriginal persons and Torres Strait Islanders to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of programs and to provide them with an effective voice within the Australian government.


ATSIC advised the government on Aboriginal affairs and formulated and implemented government programmes for the delivery of Indigenous services. However, just 15 years later, on 1 July 2004, ATSIC was abolished, even though the statutory opinion expressed in the Preamble to the ATSIC Act remains as sound now as it has always been.


In this chapter, we examine the legislative framework under which ATSIC operated. We consider several alternative models that would allow Aboriginal people some control over governmental regulation of their social and economic circumstances. Some aspects of the constitutional rights of Indigenous people in Canada and New Zealand are discussed. We conclude that the New Zealand constitutional arrangements, under which the representatives of Mori-constituted electorates hold seats in Parliament, are not practically or politically feasible in Australia. Given the very different Australian constitutional and socio-economic context, the adoption of a Canadian territorial-based self-government model is problematic.


Ultimately, we propose a model that places the administration of Aboriginal affairs in institutions that are both accountable to Aboriginal people and to the Australian public as a whole through Parliament. Our proposal generally follows the ATSIC model, but integrates it with the legislative and executive arms of government in a way that results in both stricter accountability and a more effective voice for Aboriginal people. It does so by allowing the presiding officer of an Indigenous representative council to participate, but not to vote, in Parliament. The presiding officer would be required to account for the performance of the council and could be removed by Parliament with or without cause. He or she would have the right to speak in the lower house of Parliament on legislation that affects Aboriginal people and the right to question Ministers on the administration of those parts of their portfolios that concern Aboriginal people. The model could be implemented with some variation at State, Territory and Commonwealth levels.




The establishment and dissolution of ATSIC


Members of ATSIC were appointed by the Minister for Aboriginal and Torres Strait Islander Affairs (the Minister)5 from those persons elected by regional councils formed within prescribed zones.6 ATSIC acted as an


advisory board for the Minister and was responsible for the formulation, implementation and monitoring of programmes for Aboriginal persons, at the national, State/Territory and regional levels.7


ATSIC was subject to the general directions of the Minister.8 The Minister was empowered, subject to any contrary parliamentary resolution, to suspend a Commissioner for misbehaviour.9 The office of a Commissioner could also be terminated if a valid petition calling for the termination of the Commissioner’s appointment was received.10 The Commission was funded by appropriations made by Parliament.11


The ATSIC Act also created 35 regional councils.12 They formulated regional plans for improving the economic, social and cultural status of their Aboriginal residents. ATSIC could also delegate its functions to the regional councils. Detailed provision was made for elections. ATSIC could suspend and remove regional councillors for cause.13


The abolition of the representative bodies established by the ATSIC Act was the culmination of several years of controversy. In November 2002, the federal government announced a review of the role and functions of ATSIC. The review coincided with a period of deep tension between the government and the ATSIC Board over corporate governance structures and an alleged lack of accountability. On 17 April 2003, the government announced the establishment of the Aboriginal and Torres Strait Islander Service (ATSIS) agency to manage ATSIC programmes.14


The persons commissioned to review ATSIC reported in November 2003. They recommended that ‘ATSIC should be the primary vehicle to represent Aboriginal and Torres Strait Islander peoples’ views to all levels of government’. On the other hand, they recognised that ATSIC was in urgent need of structural change and improved governance.15



The ATSIC Review recommended the retention of ATSIC’s 35 regional councils, but the replacement of the ATSIC Board with two new structures. The first was to be a new national body elected by regional councils, which would act as the governing body that determined ATSIC policy through a national plan. That body would meet at least twice every four years. The second would be a national Executive to which the national body would delegate the role of leading and advocating on behalf of ATSIC on a day-today basis.


In his response to the government review of ATSIC, the Social Justice Commissioner suggested that ATSIC’s role could be enhanced by empowering it to set objectives and guiding principles for service delivery that would be tabled in Parliament and have the status of a legislative instrument. He recommended that all government departments should be required to include in annual reports to Parliament information as to how they implemented ATSIC objectives and that ATSIC should report to Parliament on departmental compliance with its objectives.


The government rejected the recommendation it had received. Instead, the ATSIC Commissioners were removed on 30 June 2004. The government put in place new arrangements for the administration of Aboriginal affairs. Indigenous-specific programmes with budgets totalling $1 billion and involving 1,300 staff were transferred to mainstream government departments and agencies. A Ministerial Task Force and Secretary’s Group on Indigenous Affairs were established. Indigenous Australians selected by the government were appointed to a National Indigenous Council that was to advise the Ministerial Task Force. Regional Indigenous coordination centres were established and agreements negotiated with Indigenous people at regional and community levels.16


On 22 March 2005, the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth) was assented to. It abolished the Aboriginal and Torres Strait Islander Commission and Regional Councils with effect from 1 July 2005.17


The Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Tom Calma, in his Social Justice Report for 2004, accepted that the new arrangements compelled ‘engagement on Indigenous issues at the most senior levels of the government and public service’. On the other hand, Mr Calma was concerned that the engagement of Indigenous people at the local level was not linked to a process that would allow them to influence policy at a national level. He suggested that that linkage might be provided by the convening of a National Congress of Indigenous Representatives, an annual conference on service delivery to Indigenous communities and the establishment of a national Indigenous, non-government peak body.


In mid 2006, a breakdown of basic policing and law enforcement received prominent attention nationally. It prompted a commitment from State, Territory and Commonwealth governments to provide urgently greater financial resources to remote Aboriginal communities. The ensuing public debate emphasised the importance of autonomy, responsibility, transparency and accountability in the public administration of Aboriginal affairs.




International standards


By a resolution made on 3 March 1995, the United Nations Commission on Human Rights established an open-ended intersessional working group for the purpose of elaborating a draft of a proposed United Nations declaration on the rights of Indigenous peoples. The working group considered a draft declaration in sessions held between December 2005 and February 2006.18 Its recommendations were adopted in the first session held in June 2006 of the Human Rights Council, the newly created United Nations agency that had succeeded the Human Rights Commission. The Council recommended that the General Assembly of the United Nations adopt a Declaration on the Rights of Indigenous People containing, inter alia, the following articles:19



Article 3


Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.


Article 4


Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.


Article 5


Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.


The proposed Declaration further declares that Indigenous peoples have a right to control their educational systems20 and the development of health, housing and other economic and social programmes.21 Article 20 declares that Indigenous peoples have the right to maintain and develop their own Indigenous decision-making institutions.


The General Assembly adjourned its consideration of the proposal in December 1996.22




The New Zealand System of Mori electorates


The New Zealand Parliament was established in 1852 as a bicameral legislature with an elected lower house (the House of Representatives) and an appointed upper house (the Legislative Council). The Council was abolished in 1951.


The passage of the Mori Representation Act in 1867 saw the introduction of four Mori seats in the New Zealand House of Representatives. At that time, Members of the House were elected only by men who owned property.23 Because most Mori property was owned collectively, all Mori men who were at least 21 years old were permitted to vote in the Mori seats. Those Mori who owned property individually were allowed to vote in both a Mori electorate and a general electorate, a state of affairs that continued until 1893. At the time, it was widely thought that Mori would soon come to own property individually and the Mori seats were introduced as an interim measure. They were established permanently in 1876.24


Full-blood Mori were not allowed to vote in the ‘European’ electorates until 1975, at which time the name was changed from ‘European’ to ‘General’.25 Those of mixed Mori and other descent were allowed to choose whether they voted in Mori or general electorates.


Historically, the separate representation of Mori has delivered them disadvantages as well as advantages. Were it not for the system of Mori seats, it is likely that there would have been few, if any, Mori elected to Parliament for much of New Zealand’s history.26 On the other hand, advances in electoral laws applicable to the general electorates were often not implemented in the Mori seats.27 Furthermore, the number of Mori seats was set at four between 1867 and 1993, even though the number of MPs representing general electorates over that period had increased from 72 to 99. The effect was that Mori were proportionately under-represented in Parliament.


To be eligible to vote in Mori electorates, a person must be of New Zealand Mori28 descent and must be registered on a separate Mori electoral roll. Persons of New Zealand Mori descent must choose, in the ‘Mori electoral option’, whether they will be registered on the general roll or on the Mori roll.29 Since 1993, with the introduction of mixed member proportional representation (MMP), the number of Mori seats changes according to the number of Mori enrolled on the Mori roll.


Since the 2001 census, there have been seven Mori seats, compared with 62 general geographical electorates. The remainder of the 121 members of the New Zealand Parliament are allocated to party representatives, based on the proportion of votes won by their party.30


In the 2001 census, 526,281 people identified themselves as of Mori ethnicity, out of a total New Zealand population of 3,586,731.31 Mori therefore make up approximately 14.67 per cent of the New Zealand population. In the 2001 Mori electoral option (which determined the number of Mori electorates for the 2002 and 2005 elections), about 55 per cent of persons of Mori descent chose to be registered on the Mori electoral roll.32