Peter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | Hansard source

I want to follow on from the comments that my colleague the member for Lingiari made when he spoke to the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Bill 2006 and the related bills previously. Mr Snowdon moved a second reading amendment. I want to particularly make note of the things that Labor thinks would greatly improve what the government has brought forward in these bills. In particular, the government should respond immediately and comprehensively to a recent report commissioned by the Office of Indigenous Policy Coordination, which found that red tape and short-term, ad hoc funding arrangements were severely debilitating the Indigenous corporate sector. This legislative reform will not address these external causes of instability to corporate governance in Indigenous communities.

Additionally, the government must ensure adequate funding for training and assistance for the Indigenous corporate sector so that it can build its governance capacities to facilitate a smooth transition to the new regime that is contemplated under the Corporations (Aboriginal and Torres Strait Islander) Bill 2005. We note that this was a unanimous recommendation of the Senate Standing Committee on Legal and Constitutional Affairs inquiry into the bills. I very much hope that the minister is mindful of that recommendation and of the fact that it was unanimous. Labor also has significant concerns in relation to the level of regulation and the extent of the registrar’s powers in the bills, particularly given that the registrar does not have full independence from ministerial and political interference. Aboriginal affairs still continues to be a highly charged area in which ministerial involvement and interference quite often take place.

Labor believes that for the next three financial years ORAC should include in its annual report a review of the operation of the new legislation and the results of a statistical survey of stakeholder satisfaction to ensure that the impact of the legislation is closely monitored, with appropriate transparency. This is clearly very important when changes of this kind come into effect. Finally, the government should ensure a review of the operation of the Corporations (Aboriginal and Torres Strait Islander) Act by a parliamentary committee within three years, having particular regard to the effective and proper use of the registrar’s powers under the act and the effectiveness and appropriateness of the act as a regime of corporate law for Aboriginal and Torres Strait Islander people.

The Corporations (Aboriginal and Torres Strait Islander) Bill 2005 replaces the Aboriginal Councils and Associations Act 1976 and seeks to modernise corporate governance arrangements and accountability standards, acknowledging the specific circumstances that Indigenous communities operate under. The legislative package before the House comprises three bills, the abovementioned Corporations (Aboriginal and Torres Strait Islander) Bill 2005; the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Bill 2005, which seeks to offer support for Indigenous corporations to adapt to the new regime; and the Corporations Amendment (Aboriginal and Torres Strait Islander Corporations) Bill 2006, which is designed to allow for a smooth interaction between the bill and other corporation law instruments, including the Corporations Act.

It is broadly recognised, including by Labor, that there is a need to update the Aboriginal Councils and Associations Act 1976, which in fact has not been amended since 1992. The current bills’ genesis can be tracked back to the late 1960s. The Council for Aboriginal Affairs, for instance, recognised the need for a simple, inexpensive and culturally appropriate corporate governance system for Indigenous communities. And in 1972 Prime Minister McMahon—so that is some time ago, it has to be said—announced that his government would ‘investigate ways of finding a simple, flexible form of incorporation of Aboriginal communities’. So it has been recognised for a very long time—and was recognised in this parliament by a Prime Minister from the Liberal Party—that there need to be simple and flexible forms of incorporation for Aboriginal communities.

In the recommendations made by Justice Woodward to the Whitlam government on land rights policy—which the member for O’Connor alluded to in an interesting fashion—he also considered the need for a specific system involving Indigenous corporations incorporating the principles of simplicity, flexibility and self-determination. I think the need for and importance of those principles is self-evident.

The first Indigenous corporations mainly dealt with landholding trusts, community stores and housing associations. That is a reflection of the fact that, in the first instance, it was a question of gaining access to, and some rights over, land that had hitherto been theirs, which was indeed the first goal, and one of the primary goals, of Aboriginal communities. Additionally, the need to get stores set up, particularly in remote communities, and to make provision for suitable housing for people, many of whom had been dispossessed and taken off their country, was clearly a priority. So the first Indigenous corporations mainly dealt with entities of that kind but later branched out into medical and legal services, outstation resource centres and community development employment projects. By 1998 the Australian Local Government Association, working with the Aboriginal and Torres Strait Islander Commission, had produced a study which found Indigenous corporations were in fact the main providers of local government services in Indigenous communities. So their role was an important one.

Labor recognises that important role that Indigenous corporations have played historically and continue to play in supporting Indigenous people living in remote communities. For this reason Labor believes that there is a need to update the bill and the legislative framework governing Indigenous corporations. The number of reviews, studies and reports into Indigenous corporations and their governance standards highlights that it is difficult to find the right mix between modern, mainstream corporate governance issues and suitable flexibility arrangements for these organisations working in remote and sometimes contained and constrained circumstances. Labor recognises this challenge.

In 1996 the Final Report—review of the Aboriginal Councils and Associations Act 1976 concluded:

... the Aboriginal Councils and Associations Act 1976 is too prescriptive to allow bodies to incorporate in a culturally appropriate way ... The approach currently taken under the Act confuses ... procedural accountability with the achievement of program objectives, and this has led to undue emphasis on the enforcement of compliance with statutory requirements.

An independent review of the Aboriginal Councils and Associations Act 1976, chaired by Pat Dodson and finalised in 2002, made a number of recommendations, including the establishment of a new act. I note that many of the recommendations from this review have been implemented by the Office of the Registrar of Aboriginal Corporations already, and this new legislation now seeks to implement some of those other recommendations.

Additionally we take note that the recommendations made by this review which are not being implemented include that the Office of the Registrar of Aboriginal Corporations seek a court order prior to the appointment of an administrator. Labor believes that such a recommendation is important because it would provide for the necessary separation of responsibilities when an action as important as the appointment of an administrator takes place. It would mean that there was fairness and transparency when such appointments were made. Finally, and I think most importantly, given that Aboriginal issues are sometimes highly charged in this country, it would also mean that the appointment of an administrator would be free from suspicions of political interference.

While the introduction of a right of appeal to the Administrative Appeals Tribunal against the appointment of an administrator is a positive move, Labor believes that it does not provide the added protection offered by the review’s recommendation. I think it is worth while emphasising this point: sometimes the scrutiny of the media is quick and direct, focusing on a particular hot button issue of one kind or another, so it is absolutely critical, particularly if the scrutiny goes to the question of whether or not there should be an appointment of an administrator, that such an appointment is accompanied by the necessary court order. This would make sure that the due process of law that usually applies in these matters applies in cases of this kind as contemplated under this legislation. It is very important that, when decisions and actions of this kind are taken, there is no question whatsoever there has been political interference or involvement.

The recent Senate inquiry report into the provisions of the Corporations (Aboriginal and Torres Strait Islander) Bill and associated bills, which was tabled earlier this week, outlined a number of the concerns many interested parties had regarding the Aboriginal Councils and Associations Act 1976. In fact there were a number of concerns that were identified and raised by those parties and institutions that have some experience of the way these acts tend to operate on the ground. I note that the Australian Institute of Aboriginal and Torres Strait Islander Studies remarked in their submission:

Many Indigenous organisations have sought incorporation under the Corporations Act 1991 to overcome the onerous and arguably discriminatory aspects of the current ACA Act, as well as technical shortcomings, for example in relation to corporate membership, non Indigenous membership and directors, and the like.

The Senate inquiry also raised questions over the transitional bill, stating:

It is clear, however, that many Indigenous corporations are poorly resourced and will require significant support in order to make this transition.

I cannot stress how important we on this side of the House feel it is that arrangements of this kind, which are intended to better improve capacity for governance within Indigenous communities, particularly remote and regional communities, are given the means to affect those transitions so that they are not simply being set up for failure.

The Senate committee noted its concerns that the existing budget allocation for the Office of the Registrar for Aboriginal Corporations for education and training may not be sufficient to meet the needs of the 2,600 existing Indigenous corporations. Labor shares these concerns. These corporations are not simply commercial entities in the way in which we understand the word ‘corporations’ doing the job, producing goods and employing people in the ordinary course of business in and around Australia; they are corporations whose activities are central to the life and the vitality of the communities that they operate within.

Labor acknowledges that the Office of the Registrar for Aboriginal Corporations has a critical role in ensuring Indigenous corporations are adequately prepared for the transition to the new regime. This means the government must properly fund the ORAC to provide effective education programs during the transition period. A report from the Corporate Governance Forum in June 2004, a joint effort between the Office of the Registrar of Aboriginal Corporations and Reconciliation Australia—which considered this issue in some depth—found:

Good Indigenous corporate governance training is about community capacity building and sustainable organisations, not just compliance.

I think that summarises very well the public policy challenge in legislation of this kind, particularly when you consider some of the challenges that Indigenous communities find themselves facing.

There are rafts of different changes that are being proposed for them in terms of native title rights and shared responsibility agreements, and some of them are going through some extremely intense periods of interaction with COAG trials. It is absolutely critical that the necessary resources for training for people who work in these corporations is made available to enable not only the corporations to comply but also, in the process, capacity building and the building of an organisation that is not so shaken and challenged and under such great demand by those requirements that it then falls over a year or two later. The report went on to say:

Providers must be given the time and funding to develop programs and materials that are customised to fit the culture and priorities of the community.

Labor concurs with this finding. Recommendation 1 of the Senate inquiry also supports this view. It reads:

The committee recommends that the government should monitor funding to assist corporations with the transition to the new regime and make provision in the 2007/08 Budget to increase this funding if necessary.

Indigenous corporations cover a vast range of services that are vital to remote Indigenous communities. That Senate inquiry recommendation for the provision of funding and to ensure that corporations are able to make the transition to the new regime strikes me as being extremely important, and I hope that the minister will take note of it.

Amongst the Indigenous corporations that play a really vital and important role in the community are the Aboriginal art centres. The Indigenous art industry provides important economic benefits to many Indigenous communities. It is often the Aboriginal art centres, many of which are listed as Indigenous corporations, that provide, undertake and fulfil a number of important roles. They provide advocacy, advice and support to Indigenous artists, and their services are crucial in that respect. Aboriginal art centres are professionally run organisations, and 100 per cent of the returns are directed into Indigenous families and communities. Additionally, they provide support for marketing and distribution of Indigenous art as well as ensuring authenticity for the buyer. Aboriginal art centres not only contribute significant economic benefits to Indigenous communities but also act as a hub for social and cultural activities.

The Indigenous art industry is estimated to be worth between $100 million and $300 million. I think it would be closer to $300 million. I should point out to the House that there is a Senate inquiry underway into the industry, examining the size and scale of the industry; the economic, social and cultural benefits of the sector; the future infrastructure needs of the industry; and the continued evidence of carpetbaggers, frauds and fakes—something which Labor has been speaking about for some time, and we welcome this long overdue inquiry.

The Association of Northern, Kimberley and Arnhem Aboriginal Artists, ANKAAA, the peak advocacy and support agency for Indigenous artists and art centres in Arnhem Land, Darwin, Katherine, the Kimberley and the Tiwi Islands, is an example of a corporation that fulfils a valuable role. The services it offers include: advocacy, provision of information for artists and importantly—and I think significantly—protection of artists’ interests. The recent reports that we have had of carpetbagging, the importation of fakes and other unethical behaviour within the industry means that the role of Aboriginal art centres such as ANKAAA has become more important than ever. The federal government provided some needed additional funding for Aboriginal art centres in the last budget, and I welcomed this move. But, unfortunately, this funding came in the face of the government’s rejection of a resale royalty scheme for visual artists which would have provided significant economic benefits for Indigenous artists and their communities.

Overall, this package of bills will go some way towards improving the existing and outdated Aboriginal Councils and Associations Act 1976. However, as members here have noted and as foreshadowed in the amendments moved by the member for Lingiari, there are a number of unresolved concerns which these bills do not address. It is critical in this House that we get the balance right between accountability and recognition of the unique role Indigenous corporations have in remote communities. It is critical that the Senate inquiry recommendations, particularly those recommendations that relate to providing for proper education, monitoring the funding for education for people working on the transition within these corporations, are accepted by this government. (Time expired)

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