Editors --- "The Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth) - Digest" [2005] AUIndigLawRpr 28; (2005) 9(2) Australian Indigenous Law Reporter 67

Legislative Developments - Australia

The Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth)



An Overview

Act No 32, 2005

Assented to 22 March 2005

An Act to amend the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), and for other purposes.

The Aboriginal and Torres Strait Islander Commission (‘ATSIC’) was established by the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (‘ATSIC Act’) in 1989, and became operational in March 1990. ATSIC’s functions were broadly defined, combining representative, policy and program delivery roles, and marked the beginning of a new era in Australian Indigenous affairs.

In November 2002, the federal government announced a review of ATSIC’s roles and functions. The review panel published its final report in November 2003, and found that ATSIC was ‘in urgent need of structural change’. However, its over-arching recommendations included that ‘the existing objects of the ATSIC Act should be retained’, and that ‘ATSIC should be the primary vehicle to represent Aboriginal and Torres Strait Islander peoples’ views to all levels of government’.[1]

On 15 April 2004, Prime Minister John Howard and the Minister for Indigenous Affairs, Amanda Vanstone, announced the government’s intention to abolish ATSIC. The Aboriginal and Torres Strait Islander Amendment Bill 2004 was introduced into Parliament in May 2004 and was referred to the Senate Select Committee on the Administration of Indigenous Affairs. The Bill lapsed when Federal Parliament was prorogued for the 2004 elections, but was reintroduced in December 2004. The Senate Select Committee tabled its report on 8 March 2005.[2] The Bill received Royal Assent on 22 March 2005.

The Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth) (‘ATSIC Amendment Act’) was intended to make way for the Federal Government’s new arrangements for Indigenous Affairs and Indigenous service and program delivery. The Act provides for the legislative abolition of ATSIC by repealing the sections of the ATSIC Act that provide for ATSIC’s functions, constitution, administration and operation, and the transfer of some types of asset and liability to the Commonwealth (Schedule 1). The Act also makes transitional arrangements relating to the Office of Evaluation and Audit (Schedule 2), abolishes ATSIC Regional Councils (Schedule 3), and makes amendments to other affected Acts (Schedule 4). The ATSIC Amendment Act also has the effect of conferring almost all of ATSIC’s powers and functions on the Minister for Indigenous Affairs.

Although ATSIC was often considered to be a flawed body, its abolition has received sharp criticism from Indigenous communities, political commentators, and more generally. Describing the government’s approach to Indigenous affairs as a ‘whitewash’, Senator Aden Ridgeway commented that ‘the passage of the ATSIC Amendment Bill marks the end of elected Indigenous representation in this country’.[3]

It is notable that the government does not plan to create a replacement elected representative body for Aboriginal and Torres Strait Islander people. Instead, the government has established a National Indigenous Council to advise the Minister for Indigenous Affairs on policy issues.

The abolition of ATSIC raises important questions about the future of Indigenous governance in Australia. Is there a role for an elected Indigenous representative body? Following the abolition of ATSIC’s regional councils on 30 June 2005, how will consultation and negotiation on service delivery operate at regional and local levels? Should there be a place in the Australian political system for Aboriginal and Torres Strait Islander people to participate in a representative, as opposed to merely advisory, capacity?

The full text of this Act is available on the SCALEplus website, at <http://scaleplus.law.gov.au/html/comact/browse/TOCN.html> .



The Report of the Senate Select Committee is also extracted in this volume, below at xx.

[1] John Hannaford, Jackie Huggins and Bob Collins, In the Hands of the Regions – A New ATSIC, Report of the Review of the Aboriginal and Torres Strait Islander Commission (November 2003), Recommendations 1–2, available online at <http://www.atsicreview.gov.au/> . See also [2003] AUIndigLawRpr 48; (2003) 8(3) Australian Indigenous Law Reporter 105.

[2] See Senate Select Committee on the Administration of Indigenous Affairs, After ATSIC – Life in the Mainstream? (2005), available online at <http://www.aph.gov.au/Senate/committee/indigenousaffairs_ctte/report/final/> see also (2005) 9(2) Australian Indigenous Law Reporter xx.

[3] Senator Aden Ridgeway, ‘Senate silences Indigenous voices in national politics’ (Press Release, 15 March 2005).