Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I rise to speak on each of these bills, which the Labor Party has decided to support. I want to go to the explanatory memorandum in the first instance, to give the background of and purpose for each of these bills. The explanatory memorandum to the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Bill 2006 points out that this supports the implementation of the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 and that the CATSI Bill will replace the Aboriginal Councils and Associations Act 1976. The explanatory memorandum states:

The Bill comprises three parts: consequential amendments, transitional provisions and amendments to the Native Title Act 1993.

I will not go into the consequential amendments at this stage because I think they are pretty basic and they can be found in the explanatory memorandum.

The Corporations Amendment (Aboriginal and Torres Strait Islander Corporations) Bill 2006 amends the Corporations Act 2001 as a consequence of the Corporations (Aboriginal and Torres Strait Islander) Bill 2005. The amendments remove duplication arising from provisions in the CATSI Bill which mirror provisions in the Corporations Act. The amendments also remove areas of doubt and potential regulatory gaps that could be created by implementing the CATSI Bill alongside the Corporations Act. The main bill, the substantive bill, the Corporations (Aboriginal and Torres Strait Islander) Bill 2005, replaces the Aboriginal Councils and Associations Act 1976 to improve governance and capacity in the Indigenous corporate sector. While this bill aligns with modern corporate governance standards and Corporations Law, it maintains a special statute of incorporation for Aboriginal and Torres Strait Islander peoples that takes account of the special risks and requirements of the Indigenous corporate sector.

The background that is pointed to in the explanatory memorandum, which is worth pointing out, is as follows:

1.3. The ACA Act was envisaged as an incorporation statute to provide a simple and flexible means for incorporating associations of Indigenous people and was reserved for the use of Indigenous people.

1.4. In February 2001 the Registrar commissioned the most recent review of the ACA Act. The final report of the review was presented in December 2002.

1.5. The major finding of the review was that the special incorporation needs of Indigenous people should be met through a statute of incorporation tailored to the specific incorporation needs of Indigenous people. The review recommended a thorough reform of the ACA Act by enactment of a new Act. The review recommended that the new act provide Indigenous people with key facilities of a modern incorporation statute such as the Corporations Act. The review also recommended that the new Act provide special forms of regulatory assistance to support contemporary standards of good corporate governance.

1.6. The review also concluded that the ACA Act was out-of-date and suffered from a large number of technical shortcomings to the point that the ACA Act itself had become a source of disadvantage for Indigenous people.

1.7. The Bill implements the key recommendation by retaining a special incorporation statute to meet the needs of Indigenous people. The Bill introduces a strong but flexible legislative framework that maximises alignment with the Corporations Act where practicable, but provides sufficient flexibility for corporations to accommodate specific cultural practices and tailoring to reflect the particular needs and circumstances of individual groups. In acknowledgement of the fact that most corporations are located in remote or very remote areas, and may provide essential services or hold land, the Bill also offers safeguards through the Registrar’s unique regulatory powers.

A number of the review’s proposals were not implemented, and they are outlined on page 10 of the explanatory memorandum as follows:

3.26. The review recommended providing a transitional mechanism for appropriate corporations to move to the Corporations Act and enter mainstream corporate practice. This will be implemented in a further bill to be brought forward, the Corporations (Aboriginal and Torres Strait Islander) Miscellaneous and Transitionals Bill.

3.27. The review recommended that membership of corporations be restricted to Indigenous people. This has partly been implemented by providing that a majority of members (and directors) must be Indigenous. This improves flexibility for corporations to permit non-Indigenous membership which is often important to ensure that services can be provided to non-Indigenous people or adopted children. As some corporations are the only providers of essential services in some communities it also ensures that non-Indigenous members of such communities are not disadvantaged.

3.28. The review recommended that corporate members should not be permitted. The Bill does permit corporate membership which improves the flexibility of corporate design to allow for resource agencies and peak bodies.

3.29. The review also recommended that particular regulatory powers under the current ACA Act should not be retained. For example, the review suggested that instead of the Registrar being able to appoint an administrator, the Registrar should apply to court for appointment of a receiver under the court’s equitable jurisdiction. This recommendation has not been implemented but the appointment of an administrator by the Registrar (called a ‘special administrator’) has been improved to address a number of the reasons why the review considered that Registrar-appointed administrators were problematic. A key improvement is that a decision to appoint a special administrator is a reviewable decision.

I thought it was important to put on the record that background, a bit of history, and the arguments for those proposals that have not been implemented. But I have to say this: I find these measures very complex, very detailed. I am worried that down the track they are going to present some problems to Indigenous people. I hope we are not going from the frying pan into the fire.

I think everyone agrees that the Aboriginal Councils and Associations Act 1976 needs to be updated. We have had a number of reviews, and the Senate Legal and Constitutional Affairs Legislation Committee also looked at the legislation and came up with a report dated October 2006 which was very worth while. It was interesting to look at some of the evidence before the Senate committee—for instance, that of Mick Dodson. I commend that report to the parliament. As shown in the transcript of the inquiry, Professor Dodson said what I think is the important thing:

... if government requires these onerous reporting exercises then it needs to ensure that people have the capacity to meet those requirements. In the last two years the Office of the Registrar of Aboriginal Corporations has put 600 Aboriginal corporation directors through a three-day training course in Queensland. They have got 100 through a certificate IV program in Queensland. They have done 10 in a three-day workshop at Maningrida. They have done 20 in the APY lands in Central Australia and a further 20 in the Tjurabalan COAG area. That is a bit over 700.

There are 2,800 Indigenous organisations incorporated under the existing legislation. If their boards have on average 10 members, we have 28,000 directors. You do the maths.

Mick also said, in his inimitable style:

It is going to take at this rate about 4,000 years to acquaint them with the requirements under this act and other requirements, including understanding the money. If this is to work and these accountability requirements are to produce real accountability, people need to be given the capacity to properly report under the legislative and regulatory requirements.

He said further on in the transcript:

I would prefer that the extensive reviews that have been conducted, whose major recommendations included simplicity of incorporation and cultural appropriateness, were better taken up. They have not been.

I raised Mick Dodson’s concerns because I have a lot of respect for Mick and I think he made a valid point.

I read somewhere in the material that I have gone through that it was asserted that this legislation could be constituted as a special measure under the Racial Discrimination Act for Aboriginal people. I find that interesting, because I have a view about special measures, and I am aware of the racial discrimination convention. But, in my view, you have to do a little bit more than to produce this particular legislation to come under a special measure. Even with some concessions for Indigenous people because of their cultural backgrounds or whatever, I do not know that that necessarily constitutes a special measure. I do not want to debate it, but I think the principle is right.

We have to recognise that we are dealing with Indigenous people here, and I applaud the concept of special measures for their advancement and that they are specifically recognised under the Racial Discrimination Act and under the International Convention on the Elimination of All Forms of Racial Discrimination. We should not apologise for that. We should be introducing special measures to assist Aboriginal people to reach equality with the rest of the community, and that requires differential treatment. True equality requires differential treatment. If we are all sitting at the table and we all have different skills and we want to get ourselves to a certain level of equality, it might require intervention of a different kind for the different individuals around the table—for example, to bring their level of mathematics up to a certain level.

So I think what Mick Dodson said is right: we should not apologise for having simple, streamlined provisions in this area for Aboriginal people. We can argue for doing that and for doing it in a proper way. It is one thing to say you have a special measure; it is another thing to actually have a special measure. We have to be able to demonstrate that we are taking into account cultural sensitivities. The provision and facilitation of training—which, as Mick has highlighted, has happened already in Queensland—is something that, you could argue, like a social justice package, could constitute a special measure. That is the area that the government has to concentrate on, because this is red tape.

I have an economics degree and a legal degree and, even with my background, frankly I would hate to be a director running one of these organisations and having to comply with the requirements. I would require intensive massaging. That is where I think you could argue the special measure could come from in relation to backing up the act with money and with assistance to Aboriginal communities and not apologise for it. Too often part of the problem that I have seen with some of the act, including when I was Aboriginal affairs spokesman from 1996 to 2000, is that the registrar, in a number of instances, might have acted with haste.

As I said earlier, I read somewhere that one of the suggestions that might make it a special measure is the ability of the registrar to come in quickly to protect the assets and not have to go through a whole range of things. But I notice that at the moment that is subject to review, as it should be. It is important, in terms of the reviews that have been done, that I commend the government for bringing in amendments and for taking into account aspects of the reviews. I have put on record those parts of the reviews’ recommendations that were not picked up. I do not think government has to pick up everything that a review says if there is a reasonable basis for it acting in a particular way.

Repealing the old act and bringing in the new act has been too long coming, and it will require a continuing monitoring of the situation of Aboriginal people. There are going to be some problems. What I am worried about are the processes. I appreciate the review mechanism that is there. There needs to be an ability to challenge. I notice that the Central Land Council, for instance, in their submission were not all that keen on the legislation. It has been amended since the Central Land Council looked at it. The Central Land Council, in their summary at page 2 of their submission—and I cannot say that I have crosschecked all of this with some of the amendments that have come through; I make that concession—said:

2.

The ‘special incorporation needs of Indigenous people’ are not being met by the main provisions of the Bill.

3.

The draftsperson has created a ‘default setting’ of intense regulation.

4.

The needs of the majority of Aboriginal corporations, at least in Central Australia, are not met by the main provisions of the Bill but rather by the provisions providing for exemption from obligations created by the Bill.

5.

The proscriptive nature of the Bill may go so far as to deter Aboriginal groups from using the statute thereby defeating completely the purpose of having an Indigenous incorporation statute.

6.

There are hundreds of Aboriginal corporations operating in Central Australia. struggling to comply with the requirements of the current Aboriginal Councils and Associations Act.

…            …            …

7.

The Central Land Council believes that the complex issues associated with prescribed bodies corporate should be the subject of a separate and specific review.

8.

The Central Land Council supports the view that the complex nature of prescribed bodies corporate justifies a separate Division in the Bill rather than as proposed, a situation where they are in no way distinguished from other bodies incorporated under the legislation.

I also note that there is some suggestion that because of time frames in some areas there has not been the consultation with Aboriginal people that one would have hoped for. Whether that is right or wrong, I would suggest that, in a continuing monitoring situation, consultation is of the essence. At the end of the day, what we are about is Aboriginal people. My approach in representing Aboriginal people was to listen to them and to represent them. It was not to take the missionary approach and go in and tell them what is good for them. When groups like the Central Land Council raise concerns, we should listen. The Central Land Council is one of the best Aboriginal organisations in the country. They are the most professional that I have had to deal with—although I did not necessarily agree with everything that they said. It seems to me that there is a diversity issue. I would put the Central Land Council in a different category to some other organisations.

That is the other important thing that this legislation will hopefully allow to be picked up. You need some flexibility and discretion in relation to how you deal with some of these organisations. You have to have standards that are appropriate and, on balance, most people agree that this is an improvement. That is the way that it should be. What I have been concerned about in recent history with regard to this government is that it is not really about improvements; it is about changing things just because of philosophical disagreements on a number of issues. I will be speaking shortly on the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 [2006]. There are amendments to that, but they do not go to substantive issues.

This is important legislation. I do not think Aboriginal people can say that they do not want this legislation. They have to have the legislation, but it has to work for them. The fact that there have been a number of amendments made since the initial bill saw the light of day—and the minister released a number of amendments recently that have been the subject of discussion—is a good thing, because it is about improving the lot of Aboriginal people, not about taking a missionary approach to them. I am happy to support these bills.

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