Representative Bodies
Clarifying the Functions, Responsibilities and Accountability of Representative
Bodies
7.1 There is merit in seeking to strengthen the role of representative
bodies, to clarify their roles and enhance (within reasonable limits)
their accountability. However, concerns arise in relation to aspects of
the proposed amendments.
Decisions by Commonwealth Minister
7.2 The Commonwealth Minister's discretion to make decisions affecting
representative bodies should be carefully defined. The proposed s.203AH(3)
[1] would appear to give the Commonwealth Minister
the power to consider a wide range of matters when making a decision to
recognise or derecognise representative bodies, extend or reduce their
areas or vary common boundaries. Accordingly, s.203AH(3) is not supported.
There are adequate criteria in the proposed ss.203AC to 203AG and subsections
(1) and (2) of s.203AH for the Commonwealth Minister to consider. [2]
Minority Recommendation 15
| That the proposed s.203AH(3) in Item 114K not be adopted.
|
Facilitation and Assistance Functions
7.3 The facilitation and assistance functions of representative bodies
are defined in the proposed s.203BB to include matters relating to native
title applications, future acts and 'any other matter relating to native
title or to the operation of this Act, including agreements about the
use of land and waters'. [3] Although the Supplementary Explanatory Memorandum
suggests this is broad enough to enable representative bodies to provide
assistance relating to Indigenous Land Use Agreements [4],
it would be preferable if this were made explicit given the likely importance
of the Indigenous Land Use Agreement provisions. [5]
Similarly, s.203BF should make it clear that the dispute resolution functions
of representative bodies comprehend disputes among Indigenous people relating
to Indigenous Land Use Agreements. [6]
Minority Recommendation 16
| That the proposed s.203BB in Item 114 ZD refer to assistance
for Indigenous Land Use Agreements. That the proposed s.203BF in Item
114 ZD refer to dispute resolution functions concerning Indigenous
Land Use Agreements. |
The Seventh Condition of Registration
7.4 The seventh condition of registration [7] provides in effect that a claim would only
be registered if either:
- the relevant representative body certifies that the claimant
has authority to bring the claim on behalf of any other holders of
common or group rights to the native title, and that all reasonable
efforts have been made to ensure the claim identifies (at least by
description, it would appear) the alleged native title holders [8]; or
- these matters are apparent to the Registrar. [9]
We oppose this amendment; it would make it unduly difficult for native
title claimants to respond to and negotiate over development proposals
under the right to negotiate procedure. It would be unreasonable in many
cases to expect the representative body or Registrar to certify as to
the above matters within the three month response period in relation to
s.29 notices.
Multi-Layered Accountability
7.5 Representative bodies play an important role in the native title
process and are responsible for the management of significant funds. As
such, they should be as accountable as non-Indigenous government funded
bodies. The amendments propose that representative bodies remain subject
to the requirements of existing Commonwealth, State or Territory legislation
governing accountability. [10] Extensive
requirements already exist, for example, in relation to representative
bodies incorporated under the Aboriginal Councils and Associations Act
1976 [11]; it is likely that many if not the majority
of representative bodies will be established under this Act. [12]
7.6 Nevertheless, the Exposure Draft proposes the following by way of
additional accountability measures:
- proper accounting records must be maintained by representative
bodies;
- payments are to be properly made;
- annual reports and strategic plans are to be prepared;
- special auditors and investigators might be appointed at any
time by the Commonwealth Minister to investigate a representative
body's performance;
- a Financial Administrator may be appointed be appointed by
the Commonwealth Minister if:
- a representative body refuses or fails to comply with
any of the matters listed above; [13]
- a representative body refuses or fails to perform satisfactorily
any of its statutory functions;
- an auditor or investigator appointed by the Commonwealth
Minister draws attention to an irregularity in the representative
body's financial affairs.
- such a Financial Administrator would have powers not unlike
a receiver appointed to a company, effectively sidelining directors
and executive officers;
- the Commonwealth Minister may direct ATSIC to fund native
title claimants who have been denied funding by representative bodies;
and
- there would be special provisions relating to directors and
executive officers of representative bodies, concerning disclosure
of personal interests, insider trading and the like. [14]
7.7 There is a clear need for representative bodies to be accountable
to their constituency and to Parliament. However, some of the measures
proposed may be unnecessary and inefficient given the existing web of
accountability arrangements and may need to be modified to ensure they
do not operate in a Draconian fashion. [15]
There may also be a question of whether representative bodies would be
subjected to the same obligations as non-indigenous bodies would be under
the Commonwealth Authorities and Companies Bill 1995 if it were to become
law. These are issues which the Committee has had little time to consider;
they should be given further attention if the amendments be referred by
the Senate to this Committee for further consideration.
Funding of Native Title Claims by the Attorney-General
7.8 The proposal to remove the Attorney-General's power (under s.183(2))
to fund native title claims is supported. This amendment is consistent
with the recommendations of the 1995 ATSIC Review of Native Title Representative
Bodies and reflects the views of the Social Justice Commissioner. [16]
However, while broad support can be given to strengthening the role of
representative bodies in relation to the funding and management of native
title claims, Father Brennan's view on the funding of native title claims
also has merit. In Darwin on 28 August 1996 he told the Committee:
I have sympathy with what a lot of key Aboriginal organisations
have said: that they ought to be one-stop shops. I have sympathy with
industry who say, 'We would like to be able to come to a one-stop shop'.
But I think it has to be a one-stop shop with a difference. It has to
be a one-stop shop with a side door . . . [17]
That 'side door' should be ATSIC rather than the Attorney-General. Accordingly,
we agree in principle with the Government's proposal that ATSIC provide
alternative funding to representative bodies in exceptional circumstances.
7.9 However, the Government's proposed amendments would entail ATSIC
providing alternative funding only on appeal and at the direction of the
Commonwealth Minister. [18] It would
be preferable for the proposed procedure to be restructured so that ATSIC
has full control of the decisionmaking process with input from the aggrieved
claimants and the relevant representative body.
[Table of Contents]
Footnotes
[1] Exposure Draft, p.40: s.203AH sets out general
matters of fairness to which the Commonwealth Minister must have regard
when making a decision under the proposed Division 2 of Part 11 of the
Act (which would include ss.203AC to 203AG) regarding a representative
body.
[2] Evidence, pp.3271 and 3272.
[3] Section 203BB(1)(b)(i), (ii) and (iii);
p.19 of the Exposure Draft.
[4] Explanatory Memorandum to Exposure Draft,
p.73.
[5] Evidence, p.3272.
[6] Exposure Draft, p.52.
[7] Proposed ss.202(5) (p.34) and 190A(10C)
(p.32) in the Exposure Draft.
[8] Proposed s.203BE(2); p.51 of the Exposure
Draft.
[9] Proposed s.190A(10C)(b); p.32 of the Exposure
Draft.
[10] Proposed s.203GD (p.70 of the Exposure
Draft).
[11] Section 5 of the Aboriginal Councils
and Associations Act 1976 establishes a Registrar of Aboriginal Corporations.
Parts IV and V of contain extensive accountability provisions, including
the power of the Registrar to: appoint an a person to examine documents
(s.60); serve notices requiring compliance with the Act (s.60A); apply
for injunctions requiring compliance with the Act (s.61); recommend the
appointment of an administrator to an Aboriginal corporation (s.71); and
apply for such a corporation to be wound up (s.62A). There are also provisions
relating to accounts and balance sheets (eg s.59); directors' duties (eg
ss.49C to 49E ).
[12] However, the proposed s.201B (p.34 of
the Exposure Draft) does leave open the possibility of other kinds of
bodies corporate being established as representative bodies.
[13] Except for the requirement to submit strategic
plans.
[14] See Exposure Draft pp.57 to 70.
[15] Evidence, p.3274.
[16] Ibid, p.66.
[17] Evidence, p.2025.
[18] Item 114ZE of the Exposure Draft; proposed
s.203G(6).
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