1988-89 Cabinet Paper 6369

[1]
CABINET-IN-CONFIDENCE
Copy No. -
C A B I N E T
43
M I N U T E
Canberra, 3 April 1989
No.
Submission No. 6369
12426
Aboriginal and Torres Strait

Islander Commission (ATSIC) : The
Way Ahead
Further to Cabinet Minute 12415 of 3 April 1989

the Cabinet agreed that :(a)
the approach set out in paragraphs 3 to 12 and

at Attachment B to the Submission be endorsed as
the response to the majority recommendations of
the Senate Select Committee on the
Administration of Aboriginal Affairs, and that
the ATSIC legislation be amended accordingly;
(b)
the proposed amendments set out in paragraph 14

and at Attachment D to the Submission to deal
with issues arising from the reports of the
Auditor-General, the Department of Finance and
the Public Service Commissioner be approved;
(c)
the machinery and minor changes at Attachment E

to the Submission be approved;
(d)
Attachments B and C to the Submission form the

basis of a formal response to the Senate Select
Committee's recommendations;
... /2
This document is the property of the Australian Government and is not to be copied or reproduced
CABINET -IN -CON Fl DEN CE
[2]
CABINET-IN -CONFIDENCE
2.
No. 12426 (Contd)
(e)
a Statement be issued along the lines of that at

Attachment A to the Submission including the
implementation strategy in paragraph 23 to the
Submission;
(f)
and
amendments be made to the Aboriginal Development
Commission Act 1980 as at Attachment F to the

Submission.
The Cabinet further agreed that the ATSIC
2.
legislation be amended to:(a)
require the Minister to issue financial

directions to the Commission (equivalent to the
Finance Directions which apply to Departments of
State);
(b)
include a provision which explicitly defines

non-compliance with Ministerial Directions as
constituting misbehaviour for the purposes of
clause 31;
(c)
allow the Minister under clause 95 to make

election rules which provide for temporary
appointment of a new Commissioner to replace a
Commissioner who has been dismissed for
misbehaviour;
(d)
provide that a person whose appointment as

Commissioner has been terminated for
misbehaviour be not eligible to stand for
election at the next election;
This document is the property of the Australian Government and is not to be copied or re r
CABIN ET-1 N-CON Fl DE CE
u'c d
[3]
CABIN ET-1 N-CON Fl DENCE

3.
No. 12426 (Contd)
(e)
include a provision requiring the Chief

Executive Officer of ATSIC to report to the
Minister; and
(f)
include provisions similar to points 9 and 10 in

Attachment F to the Submission requiring
recovery of grants and governing disposal of
assets.
3.
The Cabinet noted that :(a)
the Minister for Aboriginal Affairs will settle

with the Prime Minister, the Attorney-General
and the Minister for Administrative Services
aspects of the electoral processes to be
developed with the Australian Electoral
Commission;
(b)
against the background of the issues raised in

the various investigations into the
administration of Aboriginal Affairs, there is
a vital need for adequate resourcing of ATSIC if
it is to succeed;
(c)
the Minister for Aboriginal Affairs will give

wide distribution to the Statement referred to
in paragraph l(e) above and to that of the Prime
Minister; and
(d)
the Minister for Aboriginal Affairs will bring

forward any further proposals for amendment that
may arise from outstanding reports.
~,Gwv\
This document is the property of the Australian Government an
ecret rv to Cabin t
IS
not to e -eop1ed or repro uced
[4]
CABINET -IN-CONFIDENCE
Copy N o.
C A B I N E T
43
MI N U T E
Canberra, 3 April 1989
No. 12415
Submission No. 6369
Aboriginal and Torres Strait Islander

Commission (ATSIC): The Way Ahead
The Cabinet commenced consideration of the

Submission and agreed to resume discussion either later in
the day or on Tuesday 4 April 1989 following further advice
from the Minister for Aboriginal Affairs on:(a)
ministerial powers under the Aboriginal and

Torres Strait Islander Commission (ATSIC) Bill
to dismiss ATSIC Commissioners, in particular
where there is a failure to comply with a
ministerial direction;
(b)
whether there should be a requirement for the

Chief Executive Officer of ATSIC to report to
the Minister on a regular basis;
(c)
the possible inclusion in the ATSIC legislation

of provisions similar to the proposed amendments
to sections 26 and 28 of the Aboriginal
Development Commission Act 1980 requiring the
... /2
This docu ment is t he property of t he A ustralian Government and is not to be copied or reproduced
[5]
No. 12415 (contd)
repayment of loans or grants if the terms and
conditions of the loans or grants are not met
and governing the disposal of assets;
(d)
providing for the staff of the proposed Office

of Evaluation and Audit within ATSIC to be
appointed by the Head of the Office and not the
Commissioners;
(e)
and
whether to provide for the ATSIC Corporate Plan

to be approved and to be reviewed annually by
the Minister.
fl.~
Secretary to Cabinet
CABIN ET-1 N-CON Fl DENCE
[6]
Submission No. 6 3 6 9
FOR CABINET
ABORIGINAL AND TORRES STRAIT ISLANDER
THE WAY AHEAD
Title
1,~, 4 3
Copy No
CO~~ISSION
(ATSIC)
Minister
MINISTER FOR ABORIGINAL AFFAIRS
Purpose/Issues
The Senate Select Committee on the Administration of

Aboriginal Affairs has now reported. The majority advocate
that the ATSIC Bill be proceeded with, subject to a number
of amendments and other actions. The results of other
inquiries are also now available. These are the subject
of a separate Submission from the Prime Minister.
is Submission proposes amendments to legislation, and

er matters, to enable ATSIC to proceed.
'/
,_
Sensitivity /Criticism
Legislation
involved
ency:
Critical/significant
dates
sultation:
Ministers/Depts
consulted
Is there
agreement?
Timing/handling of
announcement
Cost
ATSIC Bill has already passed the House of

esentatives and awaits debate in the Senate.
position parties in the Senate will argue for withdrawal

f the Bill. Some State/Territory Governments are opposed
ATSIC in part or whole. Majority Aboriginal and Torres
trait Islander (Aboriginal) support for the ATSIC concept.
es. Attorney-General's advise that amendments to the
riginal Development Commission Act 1980 and the
stralian Institute of Aboriginal Studies Act 1964 will be
quired. Amendments to the Aboriginal and Torres Strait
slander Commission Bill 1988 are also required.
rgent agreement essential so that legislative amendments
an be drafted and debate resumed.
rime Minister and Cabinet, Attorney-General's, Employment,
ucation and Training, Finance, Treasury, Australian
lectoral Commission, Administrative Services, Public
ervice Commissioner.
o - see Attachment H.
n Parliament as soon as possible - see ATTACHMENT A.
Fin Yr (
1988
Fin Yr (
Fin Yr (
89
1989
90
1990
be considered in the Budget context
CABINET-IN-CON Fl DEN CE
91
[7]
CABINET-I -CONFIDENCE
In his companion Submission the Prime
~1inistcr
concludes that
\';e
can look to ATSIC as the way ahead, provided we are sure we ha\'e
our proposals right.
I fully support
this conclusion, and
propose amendments to the :\TSIC legislation to meet the problems

identified in inquiries, and other needed action.
Senate Select Committee Report
2.
The majority recommends (nos. 19 and 40)
proceed.
that the Bill
Media focus has been on critical aspects, notably the
Opposition minority report or hard fact.
long on assertion, short on evidence
I have discussed the majority's 40 recommendations
with the Caucus Committee and Labor members of the Select

Committee, and believe that all but a handful can be accepted in
full or in substance.
3.
Detailed comment is in ATTACHMENT B.
Recommendation 1 is that a separate Office of Aboriginal
Affairs be set up within the Department of Employment, Education

and Training.
Such an administrative arrangement is for the
Prime Minister to consider, and I have discussed it with him.

4.
Recommendation 2 would place the Aboriginal Development
Commission's <ADC's) enterprise,
land acquisition and investment
functions with the Aboriginal Economic Development Corporation

(AEDC), while leaving its housing functions with ATSIC.
This
recommendation reflects a concern that the range of responsibilities of ATSIC Commissioners may be too great;
however,
ATSIC's work can be structured in a way to overcome potential

problems.
The recommendation would mix AEDC's commercial
functions with others which have non-commercial aspects such as

subsidised interest rates and grants, and land acquisition for
social purposes.
It would effectively negate our aims of
rationalising the portfolio structure and of significant

financial savings.
It would result in a reduced capacity for
oversight of these functions,
in direct contradiction of the
Auditor-General's recent findings.

5.
Accordingly I cannot support it.
I can live with recommendation 3 to maintain the Australian
Institute of
Other reforms to
legislation.
[8]
CABINET-IN- CONFIDENCE
G.
H.ecommendation 11 would provide a sliding scale of number s u f
Regional Councillors,
from 10 in Reg i ons with an Aboriginal
po pulation of under 1000 to 20 where populations exceed 10,000

( the Bill now provides for 20 Councillors in each Region
i rrespective of populationl.
This would give greater weighting
t o the more populous H.egions in voting for Commissioners, who

will be elected by all Regional Councillors in a Zone.
I accept
t his, except for the special case of the Torres Strait.

7.
I believe we need also to address the problem,
identified by
the Select Committee, of substantial population imbalances as

between Zones.
split in two.
To this end I propose that the 5 biggest Zones be

This would raise the number of elected
Commissioners from 12 to 17;
within manageable bounds, and
adding substantially to ATSIC ' s acceptability in critical areas

such as Queensland and the Northern Territory.
Any increases in
costs will be more than offset by the significant reduction around one-third- in numbers of Regional Councillors.
8.
Recommendation 12 proposes,
inter alia, voluntary enrolment
but compulsory voting for those enrolled.
The present intent is
that there be no roll and that, as with the National Aboriginal

Conference elections, voters fill out a voter card on the day
retrospective roll).
(a
I understand the Committee's aims but have
real reservations about the establishment and prior publication

of a roll based on race.
internationally,
wrong hands.
Apart from its unfortunate connotations
it could lend itself to serious misuse in the
We will instead explore with the Electoral
Commission a system utilising voter cards supplemented by

existing Federal electoral rolls,
together with a confidential
system for challenges to the eligibility of voters.

would be settled between the Prime Minister,
General,
9.
Details
the Attorney-
the Minister for Administrative Services, and myself.
Under recommendation 14, Regions would be able, with
Ministerial approval,
Councillors.
to choose their own method of selecting
This would allow traditional forms of
representation where prefered.
While I understand that -and
propose special arrangements for the Torres Strait Region to meet
CABINET-IN-CO FIDENCE
[9]
CABINET- IN- CONFIDENCE
i ts culturQl and
gcogr ~1phic
circumstance!:>-- i
:1m
trouhleu
th<lt
,l
ge neral provision could leud to undue dispQritics, and pl n ce th e

\I i
n i s t e r i n an i n v i d i o us p o s i t i on .
ATS I C s h o u 1 d be r e q u i r c d
t 0
r eport within 2 years on this propos a l .

10.
In recommendation 20 the majority proposes that the Preamble
be removed from the Bill and moved separately as a resolution of

both Houses.
This would be for presentational reasons,
to allay
the concerns - which the report acknowledges are unsubstantiated

-of those who see wider implications in the Preamble.
This
proposal is quite unacceptable, as it would be seen as a

considerable weakening of our resolve.
Ministers will note that
I support the proposal to include the substance of the "purpose"

section of the ADC Act (recommendation 21).
11.
Recommendations 25 and 26 propose changes to the provisions
dealing with ineligibility for candidacy for office.

understand the Select Committee's aims,
While I
there are unusual aspects
to their proposals which could be seen as singling out Aboriginal

people.
The better course would be to adopt the provision -
ineligibility if under sentence for an offence carrying a maximum

penalty of 5 years imprisonment or more - applying to candidacy
in the recent legislation for the ACT Legislative Assembly.
12.
A number of other recommendations will provide for tighter
administration and accountability- for example,
recommendations
6 (no approval of substantial expenditures without a full written

assessment of proposals), 31 and 32 (limitations on acting
appointments), 33 (pecuniary interests) and 36 (employment of
consultants).
13.
I propose acceptance of these recommendations.
Comment on minority report recommendations is in ATTACHMENT C.
The Auditor-General's Report and Other Investigations

14.
The Auditor-General has made few direct comments about the
ATSIC Bill (which already provides for greater Ministerial

oversight than the ADC Act), but clearly some tightening up is
needed.
The Department of Finance report on ADC financial
[10]
ad m i n i
~ t
_-\TS IC.
la)
r a t i o n h :1 s
~t
s o b c e ;-, e x am 1 n c: d f o r i t s i mp l i c a
Recommended proposals,
set out
t 1ons
in XlT.\CfNE\1.' U ,
<1
include
establishment of an Office of Evaluation and Audit within

ATSIC to undertake evaluations and internal audits on
programs, projects and procedures, and to report at least
q uarterly to
(b)
the Commission and the Minister;
the Commission to keep the Minister informed about specific

projects encountering difficulties;
(c)
preparation of a Corporate Plan, with the Minister

consulted;
(c)
and
provisions to clarify the distinction between grant / loan

programs for commercial and non-commercial activities - a
problem with the ADC.
15.
I have also identified a number of other desirable
amendments,
E.
largely of a machinery nature;
details in ATTACHMENT
Account has been taken of staff association comments.
Conment
16.
The proposals for amendment will substantially improve the
Bill concerning electoral fairness and accountability.
I believe
we now have things right, and can proceed with ATSIC.

17.
To a considerable extent, however,
legislative prescription.
remedies lie outside
ATSIC will clearly have to put a lot
of effort into the various elements of program budgeting, policy

and program guidelines, evaluation and internal audit.
Training
for Aboriginal organisations and for portfolio staff is another

area where much more will have to be done.
If ATSIC starts its
life under-resourced, we doom it to failure.

Consultative Processes and Timing Considerations
18.
The Select Committee, and some State and Territory
[11]
c;overnments. have expressed sume conc('rns <thdut

processes.
the consul tat i:e
Given my very extensive consultations \\'ith
Aboriginr~l
people around the country last year, which resulted in strong inp r i n c i p l e s u p p o r t f o r t h e ATS I C co n c c p t
nnd
he f a c t t ha t
Aboriginal communities have had many months to examine and

comment on the Bill (including to the Select Committee>,
such comment.
I reject
I have made it clear to State and Territory
Governments for months now that I am willing to hold discussions

about ATSIC;
discuss.
19.
however,
it has suited some to complain rather than
I am nonetheless still trying to organise discussions.
The changes to the Bill are reasonably extensive but do not
change its substance.
I see little to gain, but much risk,
in
delaying action for yet another formal process of consultations

which,
20.
in all
likelihood, would impact little on our proposals.
While some reports on my portfolio are not yet to hand,
probability is that they will suggest few,

amendments to the legislation.
the
if any, further
My preference therefore is to
press ahead to amend and pass the legislation in the current

Autumn Sittings.
Otherwise there is a strong chance that ATSIC-
an important element of the July 1987 administrative reforms will not be up and running in the life of this Parliament.
21.
A key factor is the time required before Regional Council
elections.
The Electoral Commission, who would conduct such
elections, advises that three months should be allowed from the

completion of electoral rules and further administrative
requirements following passage of the legislation to the
completion of the voting process.
Another two months should then
be allowed for election of Commissioners and other processes.

22.
Aboriginal people are increasingly concerned by the delays
and uncertainties.
badly affected.
So,
too, are portfolio staff.
Morale is
The prospect of a further delay of six months or
more before the legislation is through, and of yet more delay

because of potential clashes of priorities between Regional
Council elections and a Federal Election, could only exacerbate
[12]
2 ~i.
I th o rcfort.: propose th e following strat eg y -
( al
introduc e amendments
in May,
passage before Sittings end;
(b)
ATSIC to commence on a transitional basis on 1 October 1989

with five appointed Commissioners only;
(c)
an extended period to allow Aboriginal people to get to

know more about the legislation and how it will work, and
for the administrative structure to shake down;
(d)
Regional Council elections to be held, and ATSIC to be

fully operational, within a further 12 months;
(e)
consistent with the Select Committee majority

recommendations, a review after two years to identify and
address any teething problems that may need rectifying.
24.
If this timetable cannot be achieved,
I would need to
address urgently the problems DAA and ADC already face.
This
would involve restructuring and resourcing to meet present

challenges,
including the impending changeover to ATSIC,
in the
light of the findings of the Auditor-General and others.

25.
The Auditor-General's report on the ADC confirms that it has
operated as a law unto itself.
This cannot be tolerated.
Options are that I issue directions under section 11(1) of the

ADC Act, or that we move immediately to tighten up that Act.
The
directions course is limited by the existing provisions of the

Act and may raise a prospect of another legal challenge.
stronger course is to amend the Act,
The
in particular to require the
ADC to provide information and advice on request and to obtain my

approval of its budget proposals.
ATTACHMENT F;
Recommended amendments are in
possible directions are in ATTACHMENT G.
Reconmendations
26.
I recommend that Cabinet -
[13]
end o r s e the 3 p pro a c h s e
ou t
i n pa
ATfACID.lE:\1' B of this Submission.
Ll
for
gr a ph;:, :J
o 1 :2 and
r t.: spunding to
the
majority recommendo.tio:1s of the Senate Select Committee on

the Administration of Aboriginal Affairs, :Jnd 3pprove th e
amendment of the ATSIC legislation accordingly;
(b)
approve the proposed amendments set out in paragraph 14 and

ATI'ACHMENT D to deal with issues arising from the reports
of the Auditor-General,
the Department of Finance and the
Public Service Commissioner;
0
(c)
approve the machinery and minor changes in ATTACHMENT E;
(d)
agree that ATI'ACH1ffiNTS B and C form the basis of a formal

response to the Senate Select Committee's recommendations;
(e)
note that I will settle with the Prime Minister, AttorneyGeneral and Minister for Administrative Services aspects of
the electoral processes, which will be developed with the
Australian Electoral Commission;
(f)
recognise, against the background of the issues raised in

the various investigations,
the vital need for adequate
resourcing of ATSIC if it is to succeed;

(g)
agree to a Statement along the lines of ATI'ACHMENT A,

including the implementation strategy in paragraph 23;
(h)
note that I will give wide distribution to this Statement

and to that of the Prime Minister;
(i)
agree to amendments to the Aboriginal Development

Commission Act 1980 (ATTACHMENT F);
(j)
and
note that I will bring forward any further proposals for

amendment that may arise from outstanding reports.
Gerrv Hand
Q Q
[14]
A'ITN:IIMENT A
i\'l'S JC : TilE WAY AJIEAD
DRAI<-vr STATY.:MENT TO
Tlll~
PARLIAME!\.PJ' BY 'I11E MINISTER
FOR ABORIGINAL AFFAJP..S , TilE JlON . GERRY
In his statement,
1-~TI
the Prime Minister has outlined the Government's
consideration of the various reports into aspects of the

administration of my portfolio.
These reports are now public.
Overall they confirm that, while
there are problems - as I have always freely acknowledged - we are

on the right track.
Our proposals for ATSIC will require some
tightening up in certain areas.
But they will
lead to a more
responsive, accountable and effective administration of Aboriginal

Affairs.
The basics of ATSIC will not be affected by the changes we
propose.
I remind the House of the main features, as contained in
the Bill passed by the House last year a system of Regional Councils, elected by Aboriginals and
Torres Strait Islanders resident in that region, which will
determine priorities, develop regional plans, and generally
represent the interests of the Region;
a Commission of 15, of whom 12 will be elected by Regional
Councillors grouped into Zones for this purpose;
the Commission replaces the Department of Aboriginal Affairs
(DAA) and the Aboriginal Development Commission (ADC);
day-to-day management would be vested in a Chief Executive
Officer;
[15]
'I
ATI'ACI L~t8N' l' A
other portfolio bodies -Aboriginal Hostels Limited
<.~lL)
and
the Australian Institute of Aboriginal Studies (AlAS) -would

retain their independent existence, but would have 3 ATSIC
Commissioners on their governing bodies;
staff would come under the Public Service Act;
the Minister's powers would balance the requirements of
Aboriginal and Torres Strait Islander self-management with
those of accountability to the Parliament;
a new body,
the Aboriginal Economic Development Corporation
(AEDC) would be formed to provide finance and services, on an

independent commercial basis, for enterprises involving, and of
benefit to, Aboriginal and Torres Strait Islander people.
Thus ATSIC will combine,
in the one organisation,
the means for
Aboriginals and Torres Strait Islanders to have a real say in the

management of their own affairs with an administrative structure
that eliminates existing overlaps,
is more responsive to Aboriginal
and Torres Strait Islander wishes, and attains appropriate standards

of accountability for public funds.
I shall now outline the changes we propose to the legislation to
ensure that ATSIC can perform to the expectations we are placing on
it.
I will then explain how our revised proposals will be
implemented.
Senate Select Committee
The Senate Select Committee on the Administration of Aboriginal
Affairs reported on 28 February on the ATSIC Bill.
who represents me in another place,
Senator Tate,
is tabling today the
Government's responses to the recommendations of the Select

Committee.
the printed
For
copy of that response is attached to

1
.IDENCE
[16]
We hnve accepted,
in whole or in substance,
recommendations of the majority teport.

include,
the great bulk of the
Those recommendations
I point out, support for the Bill proceeding in the Senate.
I shall confine my comments here to the more substantial proposals

for change to the Bill, commencing with those relating to the
Regional Councils and the election of Commissioners.
The Select Committee expressed some concerns about the disparities
in Aboriginal and Torres Strait Islander populations as between
regions in a Zone, and as between Zones.
These differences exist because we have sought, as a result of the
extensive consultations with them,
to accommodate the wishes of
Aboriginal and Torres Strait Islander people as to where boundaries

should be drawn,
of interest.
thus taking into account kinship ties and community
This has undoubtedly been the right approach.
Comparisons with legislatures and the principle of one vote one

value miss the point;
ATSIC is not a Parliament.
Nonetheless the Government recognises that a system where one Region

in a Zone with a small population has the same voting strength,
in
elections for a Commissioner, as a much larger Region, has some

inequitable features.
Accordingly we accept the Select Committee's
majority's recommendation 11 to provide a sliding scale of Regional

Councillors, starting with 10 for regions with populations of under
1000, with an additional Councillor for each additional 1000 or part
thereof up to a maximum of 20- the number presently in the Bill.
To meet its special situation,
the Torres Strait Region will
continue to have 20 Councillors.

We have also addressed the issue,
identified by the Select Committee
but on which they made no formal recommendation, of substantial

population imbalances as between Zones.
To this end we propose that
the five most populous Zones be split in two,

number of
elC:
~I
.:r
thus raising the
[17]
1\TTJ\Cl L\fENT J\
In New South
will
~ales,
the Sydney Region will comprise a new Zone, as
the Perth Region in Western Australia.
The Northern Territory
Zone, which comprises much of the XorLhern Territory, will be split

into two separate Zones.
In Queensland, which has the largest
Aboriginal and Torres Strait Islander population,

be created.
two new Zones will
One is for the Brisbane Region, and the other to
accommodate the wishes of people living in the so-called DOGIT

communities -
those who hold a form of title to their land under
deeds of grant in trust - to be encompassed within the same Zone.
new schematic map is being drawn up to show the proposed changes.

I believe these proposals will make for a better balanced system of
Regional Councils and,
through the revised Zone structure, a more
equitable system for the election of Commissioners.

Recommendation 12 proposes,
inter alia, voluntary enrolment for
Regional Council elections, but compulsory voting for those who do

enrol.
The Government's intention has been that no special roll be
established and that, as with the elections for the former National
Aboriginal Conference, voters fill out a "voter card" on the day.
There would be mechanisms for testing the eligibility of voters to
take part in the election.
The Government appreciates that the Select Committee has been
concerned to find a system which would combine the opportunity for
persons of Aboriginal and Torres Strait Islander descent to choose
whether they wished to vote in Regional Council elections with a
means for checking the eligibility of voters.
The Government has given careful thought to voting systems.
In its
view the over-riding consideration is that a public roll based on

race, whatever its purpose, should not be established in this
country.
We will explore possible alternative systems with the Australian
Electoral Commission.
The details will be contained in the
[18]
CABINET-I -CONFIDENCE
,
'.
e lectoral
rules which lam to prescribe in accordance with clause 95
o f the Bill;
that clause provides that the Parliament may disallow
s uch rules.
A number of the Committee's recommendations are for tightening up
existing provisions of the Bill, dealing with such matters as
eligibility for elected or appointed office, pecuniary interests,
full written assessments of proposals before substantial
expenditures are approved, acting appointments, and employment of
consultants.
The Government accepts these recommendations, with
some modifications where this will improve consistency of treatment

with other organisations established by statute.
Although it modifies the Government's original
intention to bring
all bodies in my portfolio under one umbrella, we will also accept

recommendation 3, which proposes that the Australian Institute of
Aboriginal Studies should continue to be established under its own
legislation.
Other aspects of the proposed reforms to the
Institute's structure will proceed.

The Select Committee looked closely at the Preamble to the Bill.
The majority, while recognising that concerns about possible wider
ramifications of the Preamble were not well based, has suggested
that it could help to allay such concerns if the Preamble were
removed from the Bill and moved separately, without amendment, as a
Resolution of both Houses.
The Government stands by its conviction that the Preamble is of such
significance that it should proceed.
away from acknowledging,
Australians should not back
in a symbolically substantial way,
the
facts of history and our resolve to address the present effects of

past injustice.
We will not be diverted in our purpose by those who
have chosen, for reasons best known to themselves,
to represent the
Preamble as having a degree of legal force that it does not possess.
[19]
I.
ATTACIIMENT A
The Select Committee's recommendation 2 is important, and has

received close attention.
It proposes that enterprise and related
functions of the ADC be transfered, not to ATSIC as the Bill

proposes, but to the Aboriginal Economic Development Corporation the AEDC.
ADC's housing functions, however, would transfer as
planned to ATSIC.
The AEDC is intended to operate in quite a different way to the ADC
or to ATSIC.
It will not administer programs but will facilitate
and participate in significant commercial enterprises involving, and

of benefit to, Aboriginal and Torres Strait Islander people.
It wou
be inappropriate, and would dilute the commercial nature of the AEDC

to have it take on programs, especially programs which include quasi
commercial aspects such as grants and concessional loans.
A reduction in ATSIC's functions would reduce the benefits that will
flow from its ability,
processes,
addition,
through the Regional Council planning
to look at the whole range of community needs.
In
there would inevitably be at least a partial replication
of the existing wasteful duplication of administrative structures,

including field services,
in the portfolio.
I note here that the recent report of the Auditor-General has

brought to attention the problem that the ADC has often faced in
separating the commercial and social bases for its funding, and the
need for a greater capacity for Ministerial oversight of its
enterprise activities.
I shall return later to that subject, but
observe here that a shifting of these ADC functions to the AEDC

would not help in meeting the need identified by the AuditorGenera 1.
With regard to the first recommendation of the Senate Select
Committee that a separate Office of Aboriginal Affairs be retained
within the Employment, Education and Training portfolio, I should
point out t
l.
[20]
CABI ET-IN-CONFIDENCE
I
available to the Minister to that provided by ATSIC.

always envisaged, under the ATSIC proposal,
Indeed,
it was
that there could be
circumstances where the 11inister for Aboriginal Affairs (and also

the portfolio Minister) might occasionally require separate
departmental advice on issues concerning ATSIC, and that this advice
would come from the portfolio Department.
It will be clear from what I have said that the Government rejects
the minority report of Opposition Senators in seeking to have the
Bill withdrawn.
They have not established a case.
Their report is
long on assertion and colourful phrase, but woefully short on

accuracy and fact.
For reasons best known to themselves they wish
to perpetuate a system, which they were responsible for creating,

which is patently not working as it should.
It is not a system for
meeting the legitimate expectations of Aboriginal and Torres Strait

Islander people for a real say in their own affairs.
Auditor-General's Report
The Prime Minister has already spoken of the Government's response
to the findings of the Auditor-General
ADC and on the Department.
in his special report on the
I affirm our resolve to address the
problem areas identified in that Report with vigour and

determination.
We have examined the Audi t or-General's findings to see where they
may bear upon the ATSIC legislation, and in particular on the
provisions relating to accountability.
At the same time we have
taken into account the report of the Department of Finance into the
ADC's financial administration.
Both these reports lend support to the view that our proposals for
ATSIC, subject to some strengthening in the areas relating to
accountability, will result in a more effective administration of
CABINET- IN - CONFIDENCE
[21]
.,
A'l'TACTL\IENT
- - - - - - - -A
-
Aboriginal Affairs.
i s a l ready the co. s e th a t the NfS I C B i l 1
contains stronger provis i ons than the ADC Act- for example,
through
the authority of the Minister to approve the Estimates, which he

lacks under the ADC Act.
Changes to the Bill must be considered in the context of the basic
principle of ATSIC that Aboriginal and Torres Strait Islander people
should have greater control over matters affecting them.
The
question is one of balancing this principle with the principle of

Ministerial accountability for the correct and efficient use of
public funds.
We propose that the ATSIC Bill be amended to
establish within ATSIC an Office of Evaluation and Audit,
to
undertake evaluations and internal audits on programs, projects

and procedures.
It would report at least quarterly to the
Commission and the Minister, and annually to the Parliament

through the ATSIC Annual Reports.
The Head of the Office would
have Division Head, and be appointed by the Minister;

require ATSIC to keep the Minister informed about specific
projects that are encountering difficulties;
require ATSIC to prepare a corporate plan, and to consult the
Minister about it;
and
clarify the distinction between commercial and non-commercial

activities - a problem which has bedevilled the ADC .
It might be noted that one of the recurring criticisms of the
Auditor-General was that projects were funded without there being
community plans against which to assess priorities.
addresses this need.
The ATSIC Bill
Co-ordination of community and regional
planning is one of the functions of Regional Councils.
[22]
i\'ITAc:I TMENT A
Other Changes
The opportunity will also be taken to make a number of other
changes, essentially machinery and minor in nature,
legislation - for example,
to the
in relation to dates of operation.
As with the amendments flowing from our consideration of the

Auditor-General and Department of Finance reports, our detailed
proposals are attached to the printed copies of this statement.
Implementation and Timing
ATSIC has already been delayed well beyond the original proposed
starting date.
That has created considerable problems for
Aboriginal and Torres Strait Islander people, who naturally wish to

know that promised and needed reforms will not be put off again.
The delays have also left portfolio staff uncertain about their
futures.
I am very conscious of the additional difficulties this
has caused for them, as it has for portfolio management.
I take
this opportunity to express my gratitude for the way in which

portfolio staff have continued to undertake their demanding and
important tasks with commitment and efficiency,
in often trying
circumstances.
I believe we now have our proposals for ATSIC right.
are still some reports to be completed,
However,
there
including a further report
by the Auditor-General and some investigations by Mr Andrew

Menzies.
It is unlikely that these reports will show a need for
further legislative change, but should it prove to be otherwise I

shall, of course, bring forward proposals for such change.
The
timetable that I propose for implementing ATSIC takes this into

account.
[23]
ATTACJ IMENT A
The amendments I have out! ined urc important but do not affect the
substance of ATSIC .
We believe they will be widely welcomed and
acceptable as desirable improvements.

We therefore propose to press ahead with the legislation.
Once the legislation is passed,
there are a number of processes to
be completed before the new Commission can become fully

operational.
elections,
These include the holding of Regional Council
the processes for which will take some months, and the
election by Regional Councillors of the Commissioners.

The Government is very conscious of the need to minimise uncertainty
and avoid further drift.
At the same time it recognises that
Aboriginal and Torres Strait Islander people need time to understand

the changes that are being made and, more broadly,
more about ATSIC and how it will work.
to get to know
They need to have this
information before being asked to make the important decisions of

electing their Regional Councillors and then those Regional
Councillors electing Commisioners.
Our preferred course is that the Commission be est.ablished on an
interim basis from 1 October 1989.
This will be done under a
transitional arrangement which will allow for the appointment of

five Commissioners,
including the Chairman, by the Minister.
This
arrangement will have a 12 months sunset clause.

We would then allow an extensive period for Aboriginal and Torres
Strait Islander people to become familiar with the way ATSIC will
work, and for the administrative structure to shake down.
A major
educative and training effort will be made during this time.

Regional Councillor elections will then be held, and ATSIC would
become fully operational, within this 12 month period.
[24]
Nrvf'J\CIIMENT A
T his phasing-in approach wil 1 help ensure that ATSIC comes int o
o peration smoothly and effectively.
Already the ATSIC concept has been open for consultation and comment
for over 15 months.
We have made a series of refinements and
improvements as a result of those processes.

Legislation is the framework, and we are getting that framework
right.
We must also ensure that ATSIC is properly resourced to
undertake its important tasks .

In its management and administration, ATSIC must have its priorities
right from the start.
It will have to put a lot of effort into such
areas as corporate planning, program budgeting, policy and program

guidelines, and evaluation and internal audit.
Another vital need to come out of the inquiries is for a much
improved training effort,
to enhance the skills of those working
within Aboriginal and Torres Strait Islander organisations and of

portfolio staff, and to ensure that ATSIC is properly understood by
Aboriginal and Torres Strait Islander people.
Some State and Territory Governments have expressed concerns about
ATSIC, and I have sought on a number of occasions to provide
opportunities to discuss the issues.
I am continuing to do so,
notwithstanding the fact t hat no State or Territory should have

anything to fear from ATSIC.
It appears to suit some, however,
to
complain rather than put their views to the test.

Inmediate Needs
ATSIC will not be operational for some months, but there is clearly
a need,
identified in the reports of the Department of Finance and
the Auditor-General,
present
to act now to remedy deficiencies in the
strCABiNET- IN- CONFIDENCE
[25]
~ll.
ATTACHMENT A
We shall ensure that the AOC, during its remaining life, operates on
a similar basis to ATSIC and in a mnnner tlwt properly reflects
Government priorities.
defects in the ADC Act.
The problem lies, at least in part, with

By a combination of amendments to the Act,
cognately with the ATSIC legislation, and of directions to the ADC

under section 11(1) of that Act, we will
require Ministerial approval of estimates and endorsement of
its corporate plan;
issue broad policy guidelines, especially relating to financial
administration; and
empower the Minister to request information and advice.
I shall announce further details at the appropriate time.
As far as my Department is concerned,
the resolution of problems
lies in administrative, not legislative, action.
That action is
being put in hand, and will be pursued with vigour.

Conclusion
The ATSIC proposals have been under the most intensive scrutiny for
many months now.
They have come through that scrutiny.
We have
recognised the need for some further changes, and will soon be ready
to proceed.
For the first time, Aboriginal and Torres Strait Islander
Australians will have a real say in matters affecting them.
putting an end at last to paternalism,
We are
to the idea that others must
decide what is best.

We cannot amend history, but we can act to correct its adverse
effects for today's and tomorrow's Australians.
is all about.
proud.
That is what ATSIC
It is an achievement of which all Australians will be
[26]
cABINET-IN- CONFIDENCE
_:I .
A'TTACIIMEN'l'
~~
SENATE SELECT OOMMITTEE ON TilE ADMIN I STRATI ON

OF ABORIGINAL AFFAII~S
MAJORITY RECDMMENDATIONS RELATING
TO ATSIC
RECX>MMENDATION 1
A separate office of Aboriginal Affairs be retained within the
Employment, Education and Training portfolio. The precise
structure of the office is a matter to be determined by the
Government of the day.
The office would be responsible for
advising the Minister on all matters relevant to the portfolio
including the administration of legislation and the exercise of
delegations for which he or she was responsible.
(para 2.22)
OOMMENT
The ATSIC Bill does not restrict the advice available to the
Minister to that provided by ATSIC.
Indeed, it was always
en v i sage d , under the ATS I C propos a l , t h a t there co u l d be
circumstances where the Minister for Aboriginal Afffairs (and
also the portfolio Minister) might occasionally require separate
departmental advice on issues concerning ATSIC, and that this
advice would come from the policy co-ordination area of the
Department of Employment, Education and Training.
RESPONSE
The Minister will have access, as required,
advice.
to departmental
RECX>MMENDATION 2
A greater proportion of the current activities of the ADC should
be the responsibility of the proposed AEDC than is envisaged in
the Bill.
(para 2.35)
The effect of this recommendation would be to make a major change

to the character of the AEDC by putting all the ADC's present
enterprise, land acquisition and investment functions with it.
These functions include non-commercial elements such as
subsidised interest rates and grants, and land acquisition for
primarily social, rather than economic, purposes. The AEDC,
however, has an essentially commercial orientation;
this could
be seriously impaired if non-commercial elements, on a
significant scale, were to be added.
[27]
.. ,.,
ATTACHMENT B
I t i s a l so en v i sage d t h a t the AEDC w o u l d have a s rna l l , h i g h l y
qualified staff operating from a centralised location, and making
use of ATSIC field services for certain functions such as initial
contact . A broader r o l e r a i s e s the pros p e c t t h a t AEDC wo u l d
operate through a more decentralised structure;
to the extent
that this were to happen, the efficiencies and economies to be
obtained from amalgamation of existing DAA and ADC operations,
and the benefits to Aboriginal and Torres Strait Islander people
flowing from the amalgamation, would be foregone.
Subsequent to the Report of the Senate Select Committee being
presented to the Parliament, the Auditor-General has reported,
inter alia, on a number of aspects of the ADC's enterprise
program. The Auditor-General's findings have emphasised the noncommercial nature of many projects funded by the ADC under this
program, and point strongly to the need for substantially firmer
accountability requirements.
The reverse result, however, would be achieved by transferring
the program to the AEDC, which is intended, as a purely
commercial operation, to have a greater measure of autonomy than
the ADC has enjoyed.
RESPONSE
Not agreed.
In view, however, of the range of responsibilities
that ATSIC Commissioners will have, the Commission will be
empowered to set up a number of Boards to examine and make
recommendations on specific subject areas.
It is considered that
this should help to improve the management of Commission business
and to ease the pressures on the full Commission.
RFAX>MMENDATION 3
The AlAS should retain its own legislation and continue to deal
with other Aboriginal Affairs portfolio agencies as it has in the
past. The proposed reforms to the Institute contained in the
ATSIC Bill should be implemented by amendment of the Australian
Institute of Aboriginal Studies Act 1964.
(para 2.46)
The main effect of this recommendation is that the reforms to

AlAS which are currently included in the ATSIC Bill will now be
enacted separately. There would still be 3 ATSIC Commissioners
on the Council of the Institute.
RESPONSE
Agreed.
[28]
ATTACHMENT B
----------~
HECDMMF..NDAT I ON 4
The ATSIC Bill be amended to require the Commission to report to
the Minister and to Parliament within eighteen months of ATSIC's
establishment on :
(a)
the potential conflicts of purpose and responsibility

identified at paragraphs 2.18 and 2.52 - 2.55;
and
(b)
suggested legislative amendment to resolve these

conflicts.
(para 2.60)
This recommendation would enable any difficulties that

Commissioners may experience in reconciling their representative
and executive responsibilities to be brought to notice and
addressed.
RESPONSE
Agreed, but on basis of review after 2 years.
RECDMMENDATION 5
The ATSIC Bill be amended to require the responsible Minister to
consult the Board of ATSIC prior to the appointment of a Chief
Executive Officer. The Committee has also recommended at
paragraph 3.47 that the Chief Executive Officer be appointed for
a specified minimum period.
(para. 2.63)
This recommendation would help the development of a sound working

relationship between Commissioners and the Chief Executive
Officer.
Its immediate implementation, however, would raise a
practical difficulty in relation to the first Chief Executive
Officer who will have a vital role in the successful
establishment of ATSIC.
RESPONSE
Agreed, except for the initial appointment for a period of 2
years, as recruitment action will need to be completed by the
time ATSIC commences.
RECDMMENDATION 6
They [the Commissioners] should not be able to approve
substantial expenditures, (grants, loans or guarantees) without a
full written assessment of proposals including reports on
viability,
20 of the Bill
which requi
delines for its
[29]
- ..
'
ATTACI
- - rMEN'T---B
o perations should include such n requirement . Similarly clause

14 4 of th e Bill which governs meetings of th e .-\EDC Board should
be amended appropriately.
<para 2.70)
OOMMENT
This accords with sound management practice, and there 1s no

objection to making it a formal requirement.
RESPONSE
Agreed.
RECX>MMENDATION 7
A review of zonal and regional boundaries and representation be
conducted prior to every second ATSIC election to ensure that an
appropriate balance between fair representation and protection of
traditional Aboriginal communities is maintained.
Such reviews
should be conducted by a panel appointed by the Minister
including representatives of ATSIC and the Australian Electoral
Commission.
(para. 2.75)
This is consistent with the Government's intention that

boundaries be kept under regular review, to ensure that they meet
the preferences of Aboriginal and Torres Strait Islander people.
RESPONSE
Agreed.
RECX>MMENDATION 8
The Regional Councils, as one of their first tasks review the
Regional and Zonal Boundaries taking into account the principles
of fair representation and protection of traditional kinship and
association.
(para 2.76)
COMMENT
There is no objection to this proposal.
RESPONSE
Agreed.
[30]

-'
A1YfACIIMENT B
---- ----
RECOMMF..NDATI ON 9
A review of a regional boundary should be conducted if called for

by at least 25% of voters in a Region and a review of a zonal
boundary on request of 25% of the voters in a Zone.
(para 2.76)
This recommendation is seen as consistent with the general

principle that Aboriginal and Torres Strait Islander people
should be able to determine how the Regional Council structure
can best meet their needs.
RESPONSE
Agreed,
subject to recommendation 12.
R.E(X)MMENDAT ION 10
The Department of Aboriginal Affairs initiate immediately a

program of consultation on the regional boundaries with
communities, organisations or individuals who have expressed
concern to this Committee, to the Department or to the ATSIC Task
Force and that the process of revision be a continuing
responsibility as outlined in paragraph 2.64.
(para 2.111)
Consistent with the intent of this recommendation, the ATSIC Task

Force has recently sent out more detailed boundary maps to DAA
and ADC Regional Offices, seeking comments on whether these would
reflect Aboriginal and Torres Strait Islander preferences.
Particular attention will be given to identified areas of
concern, including those brought to the notice of the Select
Committee.
RESPONSE
Agreed.
R.EOJMMENDATION 11
Regions with populations of less than 1000 elect ten Councillors,

those between 1000 and 2000 elect eleven Councillors with one
additional Councillor for each thousand of population until those
with more than 10,000 voters have Councils of twenty Councillors.
(para 2.119)
This recommendation reflects a concern that, in elections within

Zones for Commissioners, there be an appropriate balance in
voting
strenCABiNEf.= f
~eca s f
It does not
[31]

_.,. .
ATTACHMENT B
address, however, the question of disparities in populRtion sizes
as between Zones, which in many respects may be regarded as more
significant.
By itself, it could also bring into sharper focus
the concern of Aboriginal and Torres Strait Islander people in
rural and traditional areas that their interests may be
overshadowed by large urban populations in their Zones.
RESPONSE
Agreed.
In addition, the Government recognises that the
splitting of larger Zones, with a concomitant increase in the
number of Commissioners, would help to resolve problems of
population disparities.
It will therefore propose to the
Parliament that 5 additional Zones be created.
In 3 of the Zones with large populations -New South Wales
(East), Queensland (South) and Western Australia <South) - the
relevant metropolitan Regions each have populations over 10,000
and are therefore large enough to form their own Zones.
Splitting the Queensland (North) and Northern Australian Zones
will reduce these to population sizes nearer to the general Zone
average. These changes will also eliminate the more significant
disparities as between populations of Regions within particular
Zones.
R.E(X)MMENDATI ON 12
This population should be, in each instance, the population on an
electoral roll. While placing one's name on the electoral roll
should be voluntary, voting should be compulsory thereafter for
those whose names are on the roll. The recall provisions should
be exercisable only by those on the electoral roll.
(para 2.130)
The proposal for a separate roll raises some significant issues,

including the anomaly of voluntary enrolment but compulsory
voting, and the resources required to establish and maintain the
roll.
More fundamental, however, are the persuasive arguments
that can be mounted against the establishment of a public roll
based on race. Nonetheless, the Government accepts that there
are advantages in using some form of roll, provided this can be
done in a way which is compatible with individual rights and the
public interest.
RESPONSE
The possibility is being explored within the Australian Electoral
Commission of a confidential system which would allow for the use
of existing Federal electoral rolls combined with an acceptable
mechanism for checking the bona fides of voters.
[32]

.
ATTACHMENT B
-----------RFADMMENDATION 13
The Ministerial Review Panel <see para . 2.64) review the
questions of rolls and compulsory voting after the first two
successive elections and make recommendations for any change.
The Committee further recommends that Regional Councils carry out
a review and make recommendations on the same matters at the same
time.
(para. 2.133)
Subject to the need to take into account the response to

recommendation 12, no difficulty is foreseen with this
recommendation.
RESPONSE
Agree.
RECOMMENDATION 14
The ATSIC Bill be amended to permit Regions to choose their
preferred method of selecting Councillors, subject to Ministerial
confirmation.
Where no agreed and acceptable proposal is
received from a region the electoral process proposed by the Bill
should be applied.
Nothing in this recommendation should permit
regional councils to increase their representation for the
purpose of electing zonal Commissioners.
(para. 2.145)
This recommendation would allow for recognition of cultural

differences.
The Government understands this -and has made
special arrangements for the Torres Strait region to accommodate
its unique cultural and geographic circumstances.
However, it
could also put the Minister in an impossible position in deciding
whether a proposed variation reflected the wishes of voters in a
Region and was consistent with the general purposes of the ATSIC
legislation.
RESPONSE
Further consideration is desirable.
It is therefore proposed
that the Commission be required to report to the Minister and the
Parliament on this matter, in the same context as the other
matters for report covered by recommendation 4.
CABINET- IN-CONFIDENCE
[33]
_ . .,
ATIACHMENT
n
-----RECDMMENDAT I ON 15
A requirement for regional managers to be available as requested

at regional council meetings be included in the legislation.
If
regional councils meet less frequently than four times per year
then the regional manager should provide a quarterly report on
his or her work to the Chairman of the Regional Council.
(para 2.154)
There is no difficulty with the intent of this proposal.
RESPONSE
Agree. The Bill will be amended to require the Chief Executive
Officer to designate an officer or officers required to attend
Regional Council meetings at the request of Councils.
RECDMMENDATION 16
The ATSIC Task Force, as part of its responsibility for the

implementation of ATSIC prepare a detailed statement of the role
and operation of Regional Councils for wide distribution. This
should include the status, authority and funding of existing
community groups and councils once ATSIC is in place.
(para. 2.155)
This is being taken in hand in the context of the overall staff

and community training and education program now being developed
by the ATSIC Task Force.
RESPONSE
Agree.
RECDMMENDATION 17
Clause 52(8) be amended to remove the requirement that the

Minister must transfer any increase in the Torres Strait Regional
allocation from the other regional allocations.
(para. 2.163)
This recommendation, if adopted, would require that any

additional funds that may be allocated to the Torres Strait
Region be found from sources other than the allocations for other
Regional Councils.
RESPONSE
Agree.
CABINET-IN-CONFIDE CE
[34]

:~ ~~
A'I'TACHMENT B
RECX>MMENDAT ION 18
The Bill be amended to provide for
provisions.
(para 2.171)
review by ATSIC of various
This would allow ATSIC to monitor and report on the operation and
effectiveness of relevant aspects of the legislation.
RESPONSE
Agree.
RECOMMENDATION 19
The passage of the Bill
(para. 3.16)
through the Senate should proceed.
Self-explanatory.
RESPONSE
Agree.
RECOMMENDATION 20
The preamble in its present form be put to the Parliament as a
separate and simultaneous resolution with the ATSIC Bill.
(para. 3.16)
While this recommendation would help meet the concerns of those

who maintain there could be wider legal implications of the
Preamble (though the majority report notes there appears to be
little substance to such concerns), the alternative of a
resolution would be widely considered as more transitory and less
substantial in form.
RESPONSE
Not agree.
[35]
ATTACTIMENT B
RFDOMMFJNDATION 21
Clause 3 of the ATSIC Bill be am e nded to include specific
reference to self-management fot Aboriginal and Torres Strait
Islander people as an object of the Bill and that the wording of
section 3 of the .~Act be included in clause 3 of the ATSIC
Bill.
(para. 3.18)
CX)MMENT
This would replicate, within the body of the Act, the recognition
in the ADC Act of the past dispossession and dispersal of the
Aboriginal and Torres Strait Islander peoples.
It is not
possible to replicate the exact words of section 3, due to the
references to the ADC Capital Fund. However, the substance of
section 3 will be taken up.
RESPONSE
Agree, subject to comments.
RECDMMENDATION 22
The Minister consult the AlAS on this question and examine either
the transfer of the responsibility contained in clause 7(h) to
the AlAS or the amendment of clause 7(h) to require that the
Commission be empowered to exercise that power only after
consultation with the AlAS.
(para. 3.29)
This recommendation is intended to ensure that clause 7(h) does

not operate in a way that might adversely affect the role and
interests of the Institute.
RESPONSE
Agree.
RECDMMENDATION 23
ATSIC's power to collect and publish statistics be limited to
details of its own activities.
(para. 3.32)
It has always been envisaged that ATSIC, like the Department of

Aboriginal Affairs, would make full use of ABS services. There
are some needs, however, which are not met by ABS collections for example, aspects of the compilation of Aboriginal and Torres
Strait Islander community profiles which form the basis of
program planning and which will be important to the planning
activities of Regional Councils.
[36]
A'l'TACI IMJ.:NT ll
It is understood that the concern expressed to the Select

Committee may have arisen from an apprehension that the Bill, as
worded, would enable the collection of information on
individuals. This has never been intended.
RESPONSE
The Bill will be amended to include a pprop riate s a f eg u a r d s
against intrusive and unnecessary s tatis tical collec t i ons .
RECOMMENDATION 24
Any guidel ines governing the making of loans or the giving of

guarantee s be published in the Commission's Annual Report and
circulated to all Regional Councils.
(para. 3 . 34)
Self-explanatory. A requirement to repeat such guidelines in

each annual report, however, may not be the most effective and
economic method of promulgation .
RESPONSE
Agree, subject to the comments noted.
RECOMMENDATION 25
Clauses 23 and 86 be amended to extend the period of

ineligibility to one full term of a Regional Council after
completion of the term of imprisonment.
(para. 3.40)
This proposal would differ from the approaches taken on the issue
of ineligibility in other Commonwealth legislation.
It is
considered that a preferable approach would be to adopt the
scheme provided in the recent legislation for ACT selfgovernment.
RESPONSE
It will be proposed to the Parliament that the Bill be amended to
provide that a person will be ineligible if convicted and under
sentence for an offence punishable by imprisonment for five years
or longer.
[37]
ATTAaiMENT B
RECDMMENDAT ION 2 6
C lauses 23(2) and SG{c) be strengthened by including specific

o ffences and removing the 1 imit of 'one year or longer' on
s entences.
In addition the inclusion of undischarged bankruptcy
a s a ground for ineligibility is supported.
( para . 3.41)
The comments above to recommendation 25 apply here also.
RESPONSE
As for recommendation 25.
RECDMMENDATION 2 7
Clause 31, 'Termination of Appointment', should be amended to

make it mandatory that a Commissioner cease to hold office where
he or she is convicted of an offence mentioned in clause 23 or
becomes bankrupt during his or her term of service . Clause 104
already provides for the dismissal of a Regional Councillor in
such circumstances.
(para. 3.42)
Clause 104 does not provide for the dismissal of a Regional

Councillor on the basis of bankruptcy. However it is accepted
that appointments should be terminated if a person is convicted
and under sentence for an offence punishable by imprisonment for
5 years or longer.
This approach would put Commissioners on the same basis as
Regional Councillors.
RESPONSE
Agree, subject to comments above.
RECDMMENDATION 2 8
The Committee supports the proposals that the Deputy Chairperson

be an elected Commissioner;
that the position be rotated
annually;
that an elected Commissioner as Deputy Chairperson
would be in the spirit of community participation;
and that the
position of Deputy Chairperson should be rotated among
Commissioners.
It recommends that clause 24 be amended
accordingly.
(para. 3.45)
Self-explanatory.
[38]
ATTACHMENT B
RESPONSE
Agree.
RECOMMENDATION 29
Clause 25 be amended to establish a minimum period of appointment
for Commissioners of two years or until the next zone election,
whichever falls earlier.
The Committee also recommends that
clauses 38 and 136 be amended to require that the instruments
appointing the Chief Executive Officer and the Director of the
AEDC state the minimum period of appointment being a period of
not less than two years in the case of the Chief Executive
Officer and one year in the case of the Directors of the AEDC.
(para. 3.47)
This recommendation is intended to ensure a measure of stability

for ATSIC and the AEDC.
RESPONSE
Agree.
RECOMMENDATION 30
Clause 28 be amended
(i)
to provide for the election of a replacement Commissioner

where the office of Commissioner becomes vacant and where
the next election for Commissioners will not be held for
more than six months;
and
(ii)
to ensure that Ministerial appointments of acting

Commissioners whether in the place of appointed or elected
Commissioners be restricted to a period of six months and
not be renewable.
(para. 3.50)
Self-explanatory.
RESPONSE
Agree.
CABINET- IN-CONFIDENCE
[39]

; j
A TI'ACfiMENT
RECDMMF'2IDAT I ON 31
A limit of six months be placed on the t e rm of leave to be

allowed under clause 27.
lp a ra. 3 . 51)
CDMMENT
Self-explanatory.
RESPONSE
Agree.
RECDMMENDATION 3 2
The Committee does not consider it appropriate that the most

senior executive position in ATSIC should be filled on an acting
basis for extended periods and therefore recommends that the
Minister be required to fill the position on a permanent basis
where the position will be vacant for more than six months.
(para. 3.53)
Self-explanatory.
RESPONSE
Agree.
RECDMMENDATION 33
Where a member has a pecuniary interest in a matter before the

Commission he or she shall not be present at, or participate in,
any meeting of the Commission to consider that matter.
(para. 3.60)
Self-explanatory.
RESPONSE
Agree.
RECDMMENDATION 3 4
The 'sufficient' number of signatures for a valid recall petition

under clause 32 be reduced to 66% of enrolled voters within a
zone.
(par
CABIN ET- IN- CONFIDENCE
[40]
COMMF....NT
S elf-explanatory.
RESPONSE
Agree, subject to recommendation 12.
RECX>MMENDATION 3 5
Where the Minister makes terms and conditions under clause 34 or

the other similar provisions cited below that they be published
in the Commonweath Gazette .
(para. 3.61)
Self-explanatory.
RESPONSE
Agree.
RECX>MMENDATION 3 6
ATSIC draw up and publish criteria governing the employment of

consultants.
Further, where terms and conditions of employment
aside from commercial or other confidential matters are
determined under section 47 they should be publicly available.
(para. 3.66)
COMMENT
Self-explanatory.
RESPONSE
Agree.
RECX>MMENDATION 3 7
Aboriginal or Torres Strait Islander Corporations, incorporated

under the laws of a State or Territory be deemed to be
incorporated bodies for the purposes of ATSIC.
(para. 3.72)
ATSIC is already required by the legislation to recognise

Aboriginal corporations (whether incorporated under Commonwealth
or State/Territory laws) if all members are Aboriginals or Torres
Strait Islanders or the Commission is satisfied that the
corporation is controlled by them.
[41]
..
ATTACIIMEt-..'T B
RESPONSE
Consistent with existing provis i ons of the Bil 1.
RECOMMENDATION 38
The Committee is concerned that the categories of incorporated
bodies referred to in Recommendation 37 may exclude body
corporates which are not controlled by Aboriginals or Islanders
but have as their principal object the provision of services
to Aboriginals or Torres Strait Islanders, for example
organisations operated by the various churches.
The relevant
clauses of the Bill should be amended to enable the Commission to
make grants to any body corporate which meets the criterion
established above.
(para. 3.73)
Some bodies which are not comprised of, or controlled by,

Aboriginal and Torres Strait Islanders receive assistance with
the provision of services to them.
RESPONSE
Agree, subject to Ministerial approval to ensure that the basic
intention of the ATSIC legislation to encourage Aboriginal and
Torres Strait Islander self-management will not be impaired.
RE<X>MMENDATION 3 9
The Bill be amended to remove the requirements that the AEDC be

liable to pay dividends and taxation on profits or income
generated by the Capital Fund.
(para. 3.78)
The requirement to make such payments is seen as inter-related

with the commercial orientation of the AEDC. Given that this
orientation is to be maintained (see recommendation 2), it is
considered that the proposed change cannot be justified at this
time.
RESPONSE
Not agree.
RE<X>MMENDATION 40
The Bill with amendments should proceed and that in the spirit of
self-determination ATSIC should be charged with the responsibiity
for modifying its own structure.
(para. 4.77)
[42]
i\'ITACIIMI<~NT
CX)MMF..NT
The intent of this recommendation is seen as recognising r,hat

ATSIC, within the confines of the powers conferred on it by the
Parliament, should have a capacity to evolve to meet the
challenge of changing needs.
As appropriate, the Minister would
be involved in this process, and ATSIC' s annual reports would
include descriptions of actions taken or proposed.
RESPONSE
Agree.
[43]
i\'l'Ti\Cl!ME~'T
SENATE SELECT CX)MMt'lvr'EE ON 'I_'IlE i\OMINISTRATIO!'f_

01<~ ABORIGINAL i\FFATH..S
--------
MINORITY REPORT RFXX)MMF...NDAT IONS

RELATING TO ATSIC
S enators Baume and Boswell
RE(X)MMENDATION 1
We recommend that the Bill now before the Parliament be withdrawn
and the whole concept it represents be reconsidered.
CX>MMENT
The Government is proceeding to make the vast majority of the
amendments suggested by the majority report.
not accept that the ATSIC concept
The Government does
is somehow flawed,
and ought to
be reconsidered.
RESPONSE
Not agreed.
RE(X)MMENDATION 2
We therefore recommend that
the ATSIC Bill not be further
proceeded with because of the demonstrated inadequacy of the

consultation process.
The Government has accepted the majority report recommendation to

proceed with the Bill, and does not accept that
undertaken were inadequate.
the consultations
[44]
i\T'Ti\Cli~1ENT
i. :
RESPONSE
Not agreed.
RECDMMENDATION 3
We recommend that the ATSIC Bill not be further proceeded with,

and that adequate consultation, as was promised,
those whose lives will be affected by the
new proposal
take place with
legislation before any
is developed.
The Government has accepted the majority report
recommendation to
proceed with the Bill, and does not accept that
the consultations
undertaken were inadequate.
RESPONSE
Not agreed.
RE<X>MMENDATION
We recommend further
that the Senate not proceed with further
consideration of any ATSIC Bill until adequate consultation has

occurred.
As
this recommendation is directed to the Senate,
appropriate for
the Government to respond.
it
is not
[45]
40.
ATrAaiMENT C
RESPONSE
No conunen t .
RECDMMENDATION 5
We recommend that Aboriginal Hostels Limited remain independent
of any unified portfolio structure.
This recommendation is consistent with the ATSIC proposals accordingly it is accepted.

RESPONSE
Agreed.
RECDMMENDATION 6
We recommend that the further process of consultation, which we
have already recommended, should be so arranged to separate
funding discussions and decisions from the consultations so that
there is no capacity for more allegations of this kind to be
made.
This recommendation is consistent with the approach adopted by

the Minister from the very beginning of his consultations, viz.,
not to discuss non-ATSIC matters until ATSIC matters were
completely dealt with in each meeting.
Senate Select Committee,
As explained to the
it is not feasible to deny remote
communities an opportunity to raise matters of concern to them
[46]
CABINET- IN- CO FIDENCE

ATI'AOIMENT C
during any visit by the Minister to their community.
The
Government has not, however, accepted the further consultations

recommended by the Minority Report.
RESPONSE
Not agreed.
R.ECnMMENDATION 7
We recommend that the Minister for Aboriginal Affairs acknowledge
by letter to each dismissed Commissioner that the leaked story
about financial misappropriation by the ADC under the dismissed
Commissioners was untrue and damaging.
The Government has never asserted that the Acting Commissioners

of the ADC whose appointments were terminated were responsible
for misappropriation.
RESPONSE
Not agreed.
RECDMMENDATION 8
We recommend that the Government study, and provide to the Senate
a written critique of the alternative proposal developed and
presented by the ADC under its former commissioners, and that it
do so before it attempts to determine the Bill currently before
the Senate.
[47]
CABINET- IN- cq~FIDENCE

A'ITACHMENT C
This matter was a specific term of reference of the Senate Select

Committee.
Given that neither the majority nor the minority
reports undertook a critical examination of this matter,
the
Government does not believe it is appropriate to provide its own

assessments of the ADC proposal to the Senate.
RESPONSE
Not agreed.
RECUMMENDATION 9
We recommend further that the ADC proposal for the restructuring
of the portfolio, presented to the Minister during the latter
months of 1987, be the basis for a new proposal to take the place
of the ATSIC Bill.
Senators Baume and Boswell, referring to the ADC Alternative,

note that "the signatories to this minority report are not
equipped to analyse and comment on the elements of the ADC's
recommendations."
(p. 45).
The Government has accepted the
recommendation of the majority report to proceed with the ATSIC

proposal.
RESPONSE
Not agreed.
[48]

A'ITACHMENT C
REa)MMEN])ATION 10
We recommend that the Government give serious consideration to

creating separate Aboriginal and Torres Strait representative
bodies as one means of correcting the extreme malapportionments
in the ATSIC Bill.
This recommendation would not, of itself, eliminate the unequal

voting strengths of particular regions in the Bill.
The Government
has accepted recommendations of the majority report, and increased

the number of zones,
to significantly improve this situation.
RESPONSE
Not agreed.
REa)MMEN])ATION 11
Even at this stage, we consider all the circumstances ought to be

investigated and, at the very least, a public denial and apology
should be issued by the ADC Board and the Minister.
Also legal
aid should be made available to the sacked Commissioners to

enable them to take action in the courts,
clear their names.
if they so desire,
[p.40]
This matter refers to the SMH article of 25 May 1988.

response to recommendation 7.
RESPONSE
Not agreed.
See
to
[49]
CABINET- IN- CO 4 .FIDENCE
A'ITACHMENT C
Senator Coulter
RECDMMENDATION
I therefore recommend that the proposed definition of Aboriginal
Person in Clause 4 of the Bill be amended to read :
Aboriginal Person means a descendant of an Aboriginal person
of Australia or,
if descent cannot be established, means a
person who identifies himself or herself as an Aboriginal

person and is accepted by the community as an Aboriginal
person.
Senator Coulter has argued that the definition of Aboriginal

person in the ATSIC Bill is a tautology.
This ignores the fact
that the formulation utilised has been used extensively in the

past,
is incorporated in a number of recent enactments, and has
been judicially considered.
By removing any reference to race,
which is the Constitutional head of power for the ATSIC Bill,

Senator Coulter's recommendation may risk a
judicial finding that
the Bill was unconstitutional.

RESPONSE
Not agreed.
[50]

45.
ATI'AOIMENT D
AMENDMENTS 'IO ATSIC BILL ARISING FROM OONSIDERATION
OF AUDITOR-GENERAL'S AND FINANCE DEPARTMENT REPORI'S
1.
Office of Evaluation and Audit

The addition of provisions to establish an Office of
Evaluation and Audit to undertake regular evaluation of
ATSIC projects, programs, and procedures.
The Office would
be required to report formally to the Minister and the

Commission at least quarterly.
The Commission would be
required to include a report from the office in its Annual

Report.
In order to ensure an appropriate level of independence for
the Office,
the Director should be appointed by the
Minister after consultation with the Commission.

of appointment should be up to 5 years.
The term
It is envisaged
that the Director will have Divisional Head status.

2.
Review of Business Enterprise Provisions

The Government will move to amend the ATSIC legislation to
ensure that a clear-cut distinction is maintained between
commercially viable business enterprise grant/loan
programs, and non-commercial grant/loan programs.
In the
case of commercial enterprise programs, stricter criteria

will be applied to ensure that the Commission is satisfied
that the Aboriginal and Torres Strait Islander persons
involved are capable of engaging in the enterprise.
Accordingly,
it is proposed to amend clause 16 to narrow
its application to commercially viable business enterprise,

by adding a requirement that the Commission satisfy itself
that the enterprise is likely to become, or continue to be,
commercially successful.
(This requirement was previously
utilised in the Aboriginal Loan Commission Act 1975.)
[51]
CABINET- IN-CO .FIDENCE

ATI'ACHMENT D
Amend clause 18 (if necessary) to ensure that the criteria

in clause 16 operate.
In the case of non-commercial enterprise grant/loan
programs (which,
inter alia, are a crucial component of the
AEDP initiated by the Government),
the Commission will be
required to identify the non-commercial program objectives

prior to allocating funds (within the terms of the
Commission's functions).
3.
Corporate Plan
The Government will move to amend the ATSIC legislation to
require ATSIC to prepare a Corporate Plan and to provide
appropriate processes for Ministerial consultation.
4.
Aboriginal Economic Development Corporation

Amend clause 122 to change the name to the Aboriginal and
Torres Strait Islander Commercial Development
Corporation.
The proposed name change emphasises the
commercial focus of the Corporation, and for consistency,

adds the words "Torres Strait Islanders" .
[52]

ATTAaiMENT E
MAaiiNERY AMENDMENTS 'fO ATSIC BILL

S~ESTED BY THE MINISTER
1.
Amend clause 121 to provide for the Federal Court to act as

court of disputed returns for ATSIC elections.
2.
Amend clause 35 to provide for a minimum quorum of 4 where

Commissioners are absent because of pecuniary interests.
3.
Include a provision to provide for a statutory right of

recovery where conditions of grant are not complied with.
4.
Amend clause 218 dealing with regulations to make explicit the

power to make regulations setting out the guidelines adopted
by ATSIC in relation to the administration of non-reviewable
grants.
5.
Amend clause 206 to provide that the Institute is not required

to disclose information of a sacred or private nature.
6.
Amend clause 2(2) to provide .for commencement on a date or

dates to be proclaimed.
7.
Amend clause 5 to provide that the Act binds the Crown in

right of the Australian Capital Territory.
8.
Incorporate a provision to ensure that minor irregularities in

appointment procedures do not invalidate a Commissioner's
appointment (see s.13(5) of ADC Act).
9.
Amend clause 74(3) to provide that any declaration is

published in the Gazette.
10.
Amend clause 87(4) to provide that the second round of

regional council elections takes place in the third calendar
year after the first elections.
CABI ET- IN-CONFIDENCE
[53]
CABINET- IN- CO li fiDENCE

A'ITACHMENT E
11.
Consistent with the Government's response to Recommendation 11

of the Select Committee, amend Schedule One to create 5 new
zones by splitting the proposed WA (South) Zone,
Queensland <South) Zone,
the
the Northern Australia Zone,
the NSW
<East) Zone, and by creating a new Queensland Zone based

largely on Queensland Reserve communities represented by the
ACC.
It will also be necessary to delete two proposed regions
(Cundeelee in WA, Cook in SA) and create two new regions in

Queensland based on Woorabinda/Cherbourg and Palm
Island/Yarrabah.
12.
Consistent with the Government's recognition of the special

cultural and geographic circumstances of the Torres Strait
Islanders,
it is proposed to provide special arrangements for
the constitution of the Torres Strait Regional Council.
The
Council will comprise the elected Chairman of each of the 17

Island communities represented on the Island Co-ordinating
Council, plus an elected member from Thursday, Port Kennedy,
and Horn Island/Prince of Wales Island.
The Torres Strait
Regional Council will thus total 20 members, and as a Zone,

elect their own Commissioner.
13.
Amend clause 210 to restrict the class of persons that may be

authorised by the Treasurer to approve banks for the purpose
of the Bill to officers of the Australian Public Service.
14.
Amend clause 213 to provide that the range of decisions of the

Comm ission, of the Council of the Institute, or under election
rules which may be reviewed by the Administrative Appeals
Tribunal may only be expanded by regulations.
15.
Include a provision to amend section 21B of the Aboriginal and

Torres Strait Islander Heritage Protection Act 1984 so as to
enable the Minister administering that Act to delegate any of
his or her powers under Part IIA of the Act to the Chief
Executive Officer of, or a member of the staff of,
Commission.
the
[54]
CABINET- IN- CO .FIDENCE

ATI'ACHMENT E
16.
Include a provision to amend section 15(3) of the Aboriginal

Land Grant (Jervis Bay Territory) Act 1986 so that the
Registrar of the Wreck Bay Aboriginal Community Council may
delegate his or her powers to an officer of either the
Department or the Commission.
Where the Registrar delegates
his or her powers to an officer of the Commission,
the officer
must first be approved by the Chief Executive Officer.

17.
Include a provision to amend section 5 of the Aboriginal Land

(Lake Condah and Framlingham Forest) Act 1987 so that the
Minister administering that Act may delegate his or her powers
or functions under the Act either to an officer of the
Department administered by the Minister administering the
Bill, or to a member of the staff of the Commission.
18.
Amend clause 251 to provide that information or documents

concerning the affairs of persons acquired by a member or
employee of a Land Council, or by persons authorised by a Land
Council for the purposes of sections 23A or 23C of the
Aboriginal Land Rights <Northern Territory) Act 1976, may be
communicated by a person authorised by the Land Council for
the purpose to the Chief Executive Officer, or to a member of
the staff of the Commission approved by the Chief Executive
Officer.
The amendment would subject officers of the
Commission and the Chief Executive Officer to the same duty of

secrecy in respect of any document or information so
communicated to them, as is imposed on officers of the
Australian Public Service by section 23E(4) of the Act in
respect of such personal information.
[55]
FIDENCE
CABINET- IN- C
ATI'AOIMENT F
PROPOSED AMENDMENTS TO THE
ABORIGINAL DEVEWPMENT a:>MMISSION AGr 1980
1.
Amend section 36 to provide for Estimates of expenditure, and

any variations to estimates of expenditure above $250,000 or
1% (whichever is larger),
to be approved by the Minister.
[equivalent to clause 50 of the ATSIC Bill]

2.
Insert a provision allowing the Minister to request

information and advice.
[equivalent to clause 7(g) of the ATSIC Bill]
3.
Insert a provision to require the Commission to identify the

head of power for all major payments out of the General Fund
in relevant paperwork.
Amend section 24 to narrow its
application to commercially viable business enterprises,

through the insertion of a provision requiring the Commission
to form an opinion on whether the enterprise is likely to
become, or continue to be successful, and to delete the
'capability' criterion.
It is also proposed to add a
requirement that the Commission assess employment and training

implications of commercial enterprise grants/loans - but on
the basis that these criteria are subsidiary to the essential
commercial viability criterion.
Amend section 26 to enable non-commercial enterprises to be
funded on the basis of prior identification of the noncommercial objectives of the project (e.g. employment,
training, etc.)
[56]
CABI ET-IN-C~FIDENCE
A'ITAOlMENT F
4.
Amend section 30 to ensure that the criteria applicable to

section 24 enterprise grants also apply to section 30
guarantees.
[This is a specific Auditor-General recommendation cf.
para 2.3.621
5.
Amend section 33 to provide that ADC staff be engaged under

the Public Service Act.
6.
Insert provisions allowing the Minister to request the

Auditor-General to audit subsidiaries of the Commission .
[equivalent to clauses 63 and 214 of the ATSIC Bill]
7.
Delete various transitional and non-operational clauses in the

ADC Act (e.g.
8.
references to the NAC).
Appointment of the General Manager by the Minister, after

consultation with the Commission.
9.
Amend section 26 to provide for repayment of a loan or grant

if the terms and conditions of the loan/grant are not met
(analagous to section 24(4)).
10.
Amend section 28 to ensure that assets acquired by the ADC for

the purposes of section 24 cannot be sold, granted,
leased or
otherwise disposed of at less than market value unless the

receiving organisation meets the conditions of the section.
11.
Amend section 25 to enable interest subsidies for loans made

by commercial lending institutions to Aboriginals and Torres
Strait Islanders.
[57]

A'ITAaiMENT G
PROPOSED SECI'ION 11 DIRECI'IONS TO

THE ABORIGINAL DEVEWPMENT <X>MMISSION
1.
ADC to provide Minister and Department with advice and

briefing on the current status of major ADC projects on a
quarterly basis, against performance indicators specified by
the Minister, as well as a general brief on program
activities and program performance.
2.
ADC to provide Minister and Department with copies of

minutes and resolutions of each meeting of the Commission
immediately upon preparation, as well as copies of the
papers prepared for the Commissioners.
3.
The ADC will not apply moneys otherwise than in accordance

with the estimates proposed under s.36, except with the
approval of the Minister.
4.
The Commission shall seek the Minister's endorsement of its

corporate plan.
5.
The Commission to provide a quarterly report to the Minister

detailing current (significant) delegations, and listing the
exercise of those delegations.
6.
The ADC to provide the Minister with a detailed briefing of

significant lapses or breaches of terms and conditions under
which funding is provided by either the ADC or the ADC
funded organisations immediately the matter comes to the
attention of senior ADC staff.
[58]
CABINET- IN- CO a.FIDENCE

ATI'ACEMENT G
7.
The ADC provide the Minister and Department with monthly

financial statements accompanied by explanatory notes on
significant variations from budget.
8.
It is also proposed to initiate the preparation of financial

administration guidelines by major program (encompassing the
sorts of matters listed at para 7.3 of the Department of
Finance Report) for
Commission.
inclusion in a later direction to the
The preparation of these guidelines will take
some time, and will be undertaken in co-operation with

officers of the Department of Finance.
[59]
CABINET- N- CONFIDENCE
54
ATrACHMENT H
CO-ORDINATION (X)MMENTS
Prime Minister and Cabinet
The Department of the Prime Minister and Cabinet supports the
Minister's proposals.
The Department notes that, having regard to parliamentary
programming constraints,
the need for redrafting of the Bill and
the uncertainty about when further reports from the AuditorGeneral and Mr Menzies will be available,
there may be
difficulties in achieving passage of the ATSIC legislation in the

Autumn sittings.
It recognises, however,
the value in pressing
for early passage.

Attorney-General's Department
The proposal to provide for the Federal Government to act as a
Court of Disputed Returns for ATSIC elections will require the
allocation of additional resources for that Court.
The exact
costs involved will be clear only after the details of the

electoral system have been settled between Ministers in the
manner suggested in the Submission.
Australian Electoral Commission
The Commission has no problems with the Submission.
Employment, Education and Training
The Department of Employment, Education and Training (DEET)
supports the recommendations of the Submission and stresses the
need to proceed with the establishment of ATSIC without undue
further delays.
The delays thus far have and are seriously
[60]

55
ATI'ACHMENT H
impeding the effective implementation of the Aboriginal
Employment Development Policy (AEDP).
The Department agrees that a balance between Ministerial
authority and Parliamentary scrutiny and Aboriginal selfdetermination is required to ensure that the needs and
aspirations of Aboriginal people for economic independence are
best addressed, and notes that the proposed amendments to ATSIC
legislation will
improve this balance.
The Department supports the proposed response to the proposal of

the Senate Select Committee to establish an Office of Aboriginal
Affairs within DEET.
The Department would expect to continue to
provide the Minister for Aboriginal Affairs with advice on a wide

range of issues relating to Aboriginal employment, education,
training and economic development.
However,
the Select
Committee's proposal for an office within DEET to advise on all

Aboriginal affairs issues would appear to be well beyond the
charter of the Department.
Public Service Commissioner
The Public Service Commissioner has no difficulties with the
proposed amendments to the legislation.
He notes, however,
that
in developing amendments to the ATSIC Bill to provide for the

establishment of an Office of Evaluation and Audit, further
clarification will be necessary of the employment and delegation
arrangements to apply to the Head and staff of that Office.
"The Commissioner has also noted that the period of 'five years
or longer' mentioned in relation to the intended amendment of
clause 104 may well attract criticism, as being too high a
threshold before termination of appointment occurs as a result of
an offence punishable by imprisonment.
[61]
CABINET-IN-CO FIDENCE
ATI'AaiMENT H
Treasury
Treasury believes that under the proposed arrangement for ATSIC
it should be made clear that the Minister's responsibility is to
set broad policy and budgetary parameters for the activities of
ATSIC, with the Commission responsible (subject to Ministerial
direction) for allocating priorities and administering
programs.
This Ministerial role would be facilitated by
implementation of recommendation 1 of the Senate Select Committee

that a separate Office of Aboriginal Affairs be set up within the
Department of Employment, Education and Training .
Treasury considers that the AEDC should have a primarily
commercial orientation, and thus agrees with the Minister's
proposed rejection of Recommendations 2 and 39 of the Senate
Select Committee.
It does not support the Minister's proposed rejection of
recommedation 20 of the Senate Select Committee about the
proposed preamble of the ATSIC Bill.
It considers that removing
the preamble from the Bill, and making it a separate and

simultaneous resolution of the Parliament with the ATSIC Bill,
would achieve the same purpose of Parliamentary acknowlegement of
Aboriginals'
status as original inhabitants without the danger of
creating wider legal implications.

Treasury agress with the proposed amendments to the ATSIC Bill
following from the Auditor-General's report on the administration
of the Aboriginal Development Commission and the Department of
Aboriginal Affairs.
It considers that these will assist in the
management and monitoring of its operation.
[62]
57
ATrACHMENT H
Finance
Finance notes that, except for a reference to a possible separate
office in the Department of Employment, Education and Training,
the Submission is silent on the matter of potential conflict in
the roles of Commissioners as elected representatives on the one
hand and as a source of policy advice to the Minister on the
other.
There are also some issues of accountability which require
resolution, viz:
the extent to which the Minister proposes to issue general
directions to the Commission similar to those now deemed
essential for the ADC (for example,
the issuing of financial
guidelines);
the type of action available to the Minister if the
Commission were to fail to follow any such guidelines or
general directions; and
the type of action available to, or required of the Minister,
if he is informed of projects encountering difficulties
(Paragraph 14 (b)).
Finance considers that a number of important points of detail
need more consideration before the proposal to proceed with an
interim Commission is publicly announced.
Some of these, which
Finance has identified in the limited time available, are:

the need for transitional arrangements associated with the
establishment of an interim Commission.
proceed in this way,
If Cabinet wishes to
there should be further detailed
consideration of the management arrangements and legislative
[63]
CABINET-IN- CO FIDENCE
ATI'AalMENT H
changes (for example,
to enable a budget to be developed);
the effect of including 'self management' as an objective of

ATSIC <Recommendation 21 of the Senate Select Committee).
Unless this were clearly secondary to the objective of
Aboriginal economic and social development,
there would be
potential for the Commission to avoid a wide range of

effectiveness and accountability requirements;
the proposal that, unlike the ADC legislation,
there be no
requirement that Aboriginals be assessed as capable of

engaging in proposed enterprises in order to receive
grant/loan funding is imprudent.
The proposed criteria are
the same as for the Aboriginal Loans Commission, which had a

poor performance record in this area.
the procedures for elections.
It would seem desirable to be
able to announce procedures to ensure maximum participation

of eligible Aboriginal people to avoid problems of nonrepresentative Councillors and Commissioners; and
the question of eligibility to hold office, especially
regarding undischarged bankrupts and persons convicted of
offences such as fraud or misappropriation.
The ACT
precedent might not be the best guide as it appears to be the

only State of Territory which allows undischarged bankrupts
to hold office;
the Commonwealth constitution prohibits such
persons from standing for Federal Parliament.

Finance notes that, even after ensuring for adequate resources
for the Commission,
it has been expected to date that substantial
running cost savings will arise from the rationalization of field

services and corporate service areas of the Department and the
ADC.
Finance also queries whether the Office of Evaluation and
[64]
59
ATTACHMENT H
Audit need have full Divisional status.
It considers that these
resource issues should be discussed separately between the

Ministers for Aboriginal Affairs and Finance and canvassed in a
joint Cabinet memorandum (as was envisaged by CD 10986 of 26
April 1988) and that public comment on these matters should not
prompt the expectation that running cost savings cannot be
realised.

1988-89 Cabinet Paper 6369

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1988-89 Cabinet Paper 6369

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[1]

Canberra, 3 April 1989

Aboriginal and Torres Strait

Further to Cabinet Minute 12415 of 3 April 1989

the approach set out in paragraphs 3 to 12 and

the proposed amendments set out in paragraph 14

the machinery and minor changes at Attachment E

Attachments B and C to the Submission form the

CABINET -IN -CON Fl DEN CE

a Statement be issued along the lines of that at

amendments be made to the Aboriginal Development

Commission Act 1980 as at Attachment F to the

legislation be amended to:(a)

require the Minister to issue financial

include a provision which explicitly defines

allow the Minister under clause 95 to make

provide that a person whose appointment as

CABIN ET-1 N-CON Fl DE CE

CABIN ET-1 N-CON Fl DENCE

include a provision requiring the Chief

include provisions similar to points 9 and 10 in

The Cabinet noted that :(a)

the Minister for Aboriginal Affairs will settle

against the background of the issues raised in

the Minister for Aboriginal Affairs will give

the Minister for Aboriginal Affairs will bring

not to e -eop1ed or repro uced

Canberra, 3 April 1989

Aboriginal and Torres Strait Islander

The Cabinet commenced consideration of the

ministerial powers under the Aboriginal and

whether there should be a requirement for the

the possible inclusion in the ATSIC legislation

providing for the staff of the proposed Office

whether to provide for the ATSIC Corporate Plan

CABIN ET-1 N-CON Fl DENCE

MINISTER FOR ABORIGINAL AFFAIRS

The Senate Select Committee on the Administration of

is Submission proposes amendments to legislation, and

ATSIC Bill has already passed the House of

position parties in the Senate will argue for withdrawal

n Parliament as soon as possible - see ATTACHMENT A.

be considered in the Budget context

In his companion Submission the Prime

this conclusion, and

propose amendments to the :\TSIC legislation to meet the problems

The majority recommends (nos. 19 and 40)

that the Bill

Media focus has been on critical aspects, notably the

Opposition minority report or hard fact.

long on assertion, short on evidence

I have discussed the majority's 40 recommendations

with the Caucus Committee and Labor members of the Select

Detailed comment is in ATTACHMENT B.

Recommendation 1 is that a separate Office of Aboriginal

Affairs be set up within the Department of Employment, Education

Such an administrative arrangement is for the

Prime Minister to consider, and I have discussed it with him.

Recommendation 2 would place the Aboriginal Development

Commission's <ADC's) enterprise,

land acquisition and investment

functions with the Aboriginal Economic Development Corporation

ATSIC's work can be structured in a way to overcome potential