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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AUSTRALIAN INSTITUTE OF ABORIGINAL AND
TORRES STRAIT ISLANDER STUDIES
AMENDMENT BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education and Training,
Senator the Honourable Simon Birmingham)
Australian Institute of Aboriginal and Torres Strait
Islander Studies Amendment Bill 2015
OUTLINE
The Australian Institute of Aboriginal and Torres Strait Islander Studies Act
1989 (AIATSIS Act) was passed by Parliament on 27 November 1989.
The Australian Institute of Aboriginal and Torres Strait Islander Studies
(AIATSIS) is a publicly-funded research agency and a Commonwealth
corporate entity under the Public Governance, Performance and
Accountability Act 2013.
The AIATSIS Act sets out the functions of AIATSIS. It details the role of
members, the constitution and operations of the AIATSIS Council, the
composition of the AIATSIS executive and AIATSIS financial operations.
The Bill amends the AIATSIS Act to enable changes to the AIATSIS Council
appointment process and to refocus the functions of AIATSIS. The Bill also
amends the AIATSIS Act to reflect contemporary language that better reflects
the functions of AIATSIS and ensure that culturally appropriate terminology is
used in the Act.
The AIATSIS Council appointment process will be reformed so as to better
reflect the skills needed for effective governance and to ensure diversity, while
retaining an Indigenous majority; and limit Council members to a maximum of
two consecutive terms. Refocusing the functions of AIATSIS will ensure that
the nation is able to preserve, understand and communicate its Aboriginal and
Torres Strait Islander peoples' culture and heritage now and in the future.
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FINANCIAL IMPACT STATEMENT
The financial impact of the measures in the Bill are expected to be nil or
insignificant. The amendments in the Bill form part of a reform agenda for
governance of the Institute and may therefore create administrative
efficiencies.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
AUSTRALIAN INSTITUTE OF ABORIGINAL AND TORRES
STRAIT ISLANDER STUDIES AMENDMENT BILL 2015
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Bill is to amend the Australian Institute of Aboriginal and
Torres Strait Islander Act 1989 (AIATSIS Act) to enable changes to the
AIATSIS Council appointment process to ensure that an Indigenous majority
is maintained, while allowing for a broad skills-based Council in keeping with
contemporary governance. The Bill will also refocus the functions of AIATSIS
so that resources can be better targeted for the care of AIATSIS' collection.
These reforms have the support of AIATSIS.
The amendments will strengthen the Institute's governance and serve to
maintain and preserve the AIATSIS national collection of Australian
Indigenous cultural materials by directing resources to development,
preservation and access to the collection. The national collection serves as a
major resource of cultural and heritage items and is the largest of its kind in
the world. It is also a resource that will allow Aboriginal and Torres Strait
Islander peoples to conserve and access their culture and heritage.
The amendments will also ensure that the AIATSIS Act reflects contemporary
language that captures the full range of AIATSIS' functions and applies
culturally appropriate terminology in describing Aboriginal and Torres Strait
Islander peoples in the AIATSIS Act. There are also amendments to reflect
contemporary language and apply culturally appropriate terminology by using
references to 'Aboriginal and Torres Strait Islander culture and heritage' and
'Aboriginal and Torres Strait Islander peoples' in relevant provisions in the
Act.
The number of functions of the Institute, as set out in section 5 of the AIATSIS
Act, will be reduced from eight to five to ensure a better targeting of resources
and direction of maximum effort to the AIATSIS national collection and its use
to promote knowledge and understanding of Australian Indigenous cultures.
The changes in function will enable the Institute to concentrate on its mandate
as a national authority on the world's oldest continuing culture for future
generations, including the preservation of its irreplaceable and important
collection.
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The AIATSIS Council appointment process will be reformed to better reflect
the skill set required for contemporary and effective governance by amending
the provisions in section 12 of the AIATSIS Act to ensure diversity and the
appointment of persons with a range of skills, while retaining an Indigenous
majority; and limiting Council members to a maximum of two consecutive
terms. Changes to appointments of membership and period of membership
and to appointments to the AIATSIS Council will only affect new appointments
made after the commencement of these provisions.
There are some minor and technical changes being made by the Bill,
including amending references to the title of Principal of the Institute, to be
replaced with the title of Chief Executive Officer. These are minor and
technical changes which do not engage any human rights.
Human rights implications
This Bill engages the following rights:
right to self-determination under article 1 of the International Covenant
on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR). Also, while not
binding, the right to self-determination is reflected in article 3 of the
Declaration on the Rights of Indigenous Peoples (UNDRIP)
right to non-discrimination in article 26 of the ICCPR
right to work in article 6 of the ICESCR
right to education in article 13 of the ICESCR, and
right to enjoy and benefit from culture in article 27 of the ICCPR and
article 15(1)(a) of the ICESCR.
Right to self-determination
The Bill promotes the right to self-determination for Aboriginal and Torres
Strait Islander peoples. While there is no universally accepted agreement as
to the content of the right to self-determination, it is agreed that, at a
minimum, it entails the entitlement of peoples to have control over their
destiny and to be treated respectfully, including being free to pursue
economic, social and cultural development.
The Bill promotes the right to self-determination by reinforcing the requirement
for an Indigenous majority on the AIATSIS Council, which is the primary
decision-making body that ensures the proper and effective performance of
AIATSIS and determines its policy under section 13 of the AIATSIS Act. In
order to fulfil these functions, the cultural knowledge and understanding of
Aboriginal and Torres Strait Islander peoples is critical. The existing
requirement that at least one of the Council members be a Torres Strait
Islander is retained. The Bill stipulates that the Minister has the responsibility,
taking into account the characteristics of elected Council members and
appointed Council members at the time, to ensure that there is an Indigenous
majority on the Council.
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The Bill will ensure that Council members have the skill set and experience
necessary to govern the Institute into the future. This is achieved by requiring
that five of the nine person board should have skills and experience in cultural
material conservation, collection management, research, fundraising, finance,
business and law.
Reducing the AIATSIS functions from eight to five, will better target AIATSIS'
resources and direct maximum effort to the preservation, management,
access and growth of the collection. This will ensure AIATSIS maintains its
important leadership role in Indigenous studies, and its ability to engage with
the increasing number of academics and universities involved in Aboriginal
and Torres Strait Islander studies and for Aboriginal and Torres Strait Islander
peoples in determining their cultural development and retaining their culture
and heritage.
On this basis, these measures promote the right to self-determination for
Aboriginal and Torres Strait Islander peoples.
Right to non-discrimination
The Bill engages the right to non-discrimination which ensures that no one is
denied their rights because of factors such as race. Sometimes, it may be
necessary to treat people differently to achieve equality. This is because
differences between people may make it difficult for them to enjoy their rights
without support. Different treatment will not amount to prohibited
discrimination if the criteria for the differentiation are reasonable and objective
and if the aim is to achieve a purpose which is legitimate under the ICCPR.
Legislating for an Indigenous majority on the AIATSIS Council constitutes
differential treatment as decisions regarding the work of AIATSIS are made by
Council members who have knowledge of Indigenous culture and heritage
thereby promoting the rights of Aboriginal and Torres Strait Islander peoples
to take part in cultural life (see below). These measures are reasonable. Four
out of the nine Council members can be from other cultural backgrounds. This
measure is also objective as only Aboriginal and Torres Strait Islander
peoples can hold these designated positions on the AIATSIS Council where
their experience will be critical to the work of the Institute.
On this basis, this measure constitutes legitimate differential treatment and is
consistent with the right to non-discrimination.
Right to work
The right to work in article 6 of the ICESCR includes the right of everyone to
gain his or her living by work which he or she freely chooses or accepts. In
setting out the eligibility for appointment and terms of appointment for Council
members, the Bill engages the right to work.
The Bill specifies a diverse, contemporary skills base for appointees to the
AIATSIS Council. The Bill will also mandate for the permissible treatment of
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Indigenous control of the Council by specifying that the majority of Council
members are of Aboriginal or Torres Strait Islander background. The Bill
specifies that the terms of Council members will also be limited to two
consecutive terms, providing an equitable position in which other individuals
are considered for appointment.
Right to education
The Bill engages the right to education which the United Nations Committee
on Economic, Social and Cultural Rights has stated requires that functioning
educational institutions, including research institutions, be available in
sufficient quantity. The Bill promotes the right to education as it seeks to focus
the work of the Institute on promoting knowledge and understanding of
Aboriginal and Torres Strait Islander culture and heritage and providing
leadership in the research of Aboriginal and Torres Strait Islander culture and
heritage.
In developing and preserving the national collection, the Institute will be able
to make the collection accessible to those communities wishing to research
their culture and heritage as well as for academic purposes.
Right to enjoy and benefit from culture
The Bill engages the right to enjoy and benefit from culture for minority
groups, which the UN Human Rights Committee considers includes
Indigenous peoples, and more generally to be able to take part in cultural life.
The UN Human Rights Committee has stated that the right to enjoy culture is
directed towards 'ensuring the survival and continued development of the
cultural, religious and social identity of the minorities concerned, thus
enriching the fabric of society as a whole'.
Focusing the functions of the Institute will ensure that the most important and
urgent work is prioritised to continue to preserve the national collection.
Resources will be also be directed to improving access to the collection for
Indigenous communities and to promoting knowledge and understanding of
Aboriginal and Torres Strait Islander culture and heritage within the wider
community.
In this way the Bill promotes the right to enjoy and benefit from culture. In
addition, by strengthening the contribution of AIATSIS in research, ethics, and
use of cultural materials, it contributes to the enjoyment and benefit of culture
by Aboriginal and Torres Strait Islander peoples.
Conclusion
The Bill is compatible with human rights requirements as it promotes the
protection of human rights and, to the extent that it may limit human rights,
those limitations are reasonable, necessary and proportionate.
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AUSTRALIAN INSTITUTE OF ABORIGINAL AND TORRES
STRAIT ISLANDER STUDIES AMENDMENT BILL 2015
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides for the Act to be cited as the Australian Institute of
Aboriginal and Torres Strait Islander Studies Amendment Act 2015.
Clause 2 - Commencement
Subclause 2(1) inserts a three column table setting out commencement
information for various provisions in the Bill. Each provision of the Bill
specified in column 1 of the table commences (or is taken to have
commenced) in accordance with column 2 of the table and any other
statement in column 2 has effect according to its terms.
The Act commences on the day after it receives the Royal Assent.
Any information in column three of the table is not part of the Act.
A note explains that the commencement times in the table will not be
amended should the provisions of this Act be amended by any future Act.
Clause 3 - Schedule(s)
Clause 3 provides that any legislation that is specified in a Schedule is
amended or repealed as set out in the applicable items in the Schedule and
that any other item in a Schedule has effect according to its terms.
List of abbreviations
AIATSIS means the Australian Institute of Aboriginal and Torres Strait
Islander Studies.
AIATSIS Act means the Australian Institute of Aboriginal and Torres Strait
Islander Studies Act 1989.
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Schedule 1 Amendments
Summary
Schedule 1 to the Bill amends the AIATSIS Act in order to:
reform the appointment process for Council members of AIATSIS
refocus the functions of AIATSIS to better target resources and direct
maximum effort to the AIATSIS collection
reflect contemporary language that better reflects the functions of AIATSIS
and applies culturally appropriate terminology in describing Aboriginal and
Torres Strait Islander peoples in the AIATSIS Act
allow for the repeal of redundant sections that were established to deal
with administrative and staffing requirements as AIATSIS transitioned from
the Australian Institute of Aboriginal Studies to the current Institute.
Background
The Bill will strengthen the Institute's governance and serve to maintain and
preserve the AIATSIS national collection of Australian Indigenous cultural
materials by directing resources to development, preservation and access to
the collection. The national collection serves as a major resource of cultural
and heritage items and is the largest of its kind in the world. It is also a
resource that will allow Aboriginal and Torres Strait Islander peoples to
conserve and access their culture and heritage.
The amendments in the Bill reflect the contemporary environment of
Aboriginal and Torres Strait Islander peoples' heritage and culture and
associated collections and research and focus AIATSIS' efforts on its national
role and leadership in preserving, understanding and communicating that
heritage and culture for future generations.
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Detailed explanation
Australian Institute of Aboriginal and Torres Strait Islander Studies Act
1989
Item 1
This item repeals the definition of Aboriginal and Torres Strait Islander
studies which is consequential on the repeal or amendment of all the
provisions in the AIATSIS Act that relied on this definition.
Items 2 and 4
Part 5 of the AIATSIS Act concerns the Council of the Institute, including how
Council members are appointed (section 12) and the terms of their
appointment (section 15).
Item 2 makes a consequential amendment to the definition of appointed
Councillor in section 3 of the AIATSIS Act so that it will read as follows:
appointed Councillor means a Councillor referred to in paragraph
12(1)(c).
Item 4 makes a consequential amendment to the definition of elected
Councillor in section 3 so that it will read as follows:
elected Councillor means a Councillor referred to in paragraph
12(1)(a) or (b).
Items 3 and 5
Part 6 of the AIATSIS Act provides for matters concerning the Principal of the
Institute. As the title of the Principal is being changed to Chief Executive
Officer:
Item 5 repeals the definition of Principal in section 3.
Item 3 inserts a definition of Chief Executive Officer into section 3 as
follows:
Chief Executive Officer means the Chief Executive Officer of
the Institute referred to in section 24.
Item 6
Item 28 of the Bill repeals Part 8 of the AIATSIS Act which provides for the
Research Advisory Committee. Item 6 repeals the definition of Research
Advisory Committee in section 3.
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The Council will establish committees when and if required to support current
priorities across AIATSIS' functions.
Item 7
Section 5 of the AIATSIS Act provides for the functions of the Institute. This
item repeals the present functions and substitutes the following functions:
to develop, preserve and provide access to a national collection of
Aboriginal and Torres Strait Islander culture and heritage;
to use that national collection to strengthen and promote knowledge
and understanding of Aboriginal and Torres Strait Islander culture and
heritage;
to provide leadership in the fields of:
o Aboriginal and Torres Strait Islander research; and
o ethics and protocols for research, and other activities relating to
collections, related to Aboriginal and Torres Strait Islander
peoples; and
o use (including use for research) of that national collection and
other collections containing Aboriginal and Torres Strait Islander
culture and heritage;
to lead and promote collaborations and partnerships among the
academic, research, non-government, business and government
sectors and Aboriginal and Torres Strait Islander peoples in support of
the other functions of the Institute;
to provide advice to the Commonwealth on the situation and status of
Aboriginal and Torres Strait Islander culture and heritage.
Items 8, 9, 10 and 11
Section 7 of the AIATSIS Act provides for members of the Institute.
Item 8 of the Bill repeals and substitutes subsection 7(1) to provide that,
subject to Part 4 (members of the Institute), the members of the Institute are
those appointed as members by the Council.
As the Research Advisory Committee is being abolished, item 11 repeals
paragraphs 7(2)(c) and (d) which provide for the Committee to give advice to
the Council about appointing particular persons to be members of the
Institute.
Item 9 makes a technical amendment to paragraph 7(2)(a) to provide that the
Council shall not appoint a person to be a member of the Institute unless the
person meets the criteria in paragraphs 7(2)(a) and (b).
Item 10 makes a minor amendment to paragraph 7(2)(b) to provide that the
Council shall not appoint a person to be a member of the Institute unless the
person has demonstrated interest in Aboriginal and Torres Strait Islander
culture and heritage (instead of Aboriginal and Torres Strait Islander studies).
10
Item 12
This is an application provision, the effect of which is that:
the amendments made by this Schedule to section 7 of the AIATSIS
Act apply to the making of appointments to membership of the Institute
on or after the amendments commence (that is the day after this Bill,
once enacted, receives the Royal Assent), as a result of applications
for membership made before, on, or after that commencement date
the repeal and substitution of subsection 7(1) does not affect the
continuity of a person's membership of the Institute, where the person
was a member immediately before the repeal and substitution
commences (that is the day after this Bill, once enacted, receives the
Royal Assent).
Item 13
Section 8 of the AIATSIS Act deals with the period of a person's membership
of the Institute. Currently, subsection 8(1) deals with appointments made
under paragraphs 7(1)(a) and (c) and subsection 8(2) deals with
appointments made under paragraph 7(1)(b).
Consequent upon the repeal and substitution of subsection 7(1) (see item 8),
item 13 repeals subsections 8(1) and (2) and substitutes a new subsection
8(1). New subsection 8(1) provides that the appointment of a person as a
member of the Institute is for a period of five years.
Item 14
This item replaces 'Principal' with 'Chief Executive Officer' in sections 9
(resignation of members) and 10 (register of members) of the AIATSIS Act.
Item 15
This is a savings provision, the effect of which is that the amendments made
by this Schedule to section 10 of the AIATSIS Act will not affect the continuity
of the register of members.
Item 16
Item 16 repeals and substitutes paragraphs 12(1)(a), (b) and (c). The effect of
this is that Council membership will consist of the following:
paragraph 12(1)(a) - two Aboriginal or Torres Strait Islander persons
who are members of the Institute (as elected by the members of the
Institute in accordance with Institute rules)
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paragraph 12(1)(b) - two persons who may or may not be Aboriginal
or Torres Strait Islander persons who are members of the Institute
(as elected by the members of the Institute in accordance with
Institute rules)
paragraph 12(1)(c) - five persons appointed by the Minister with
skills or experience in at least one of the following:
o cultural material conservation
o collection management
o research
o fundraising
o finance
o business
o law.
Item 17
Item 17 inserts new subsections 12(1A) and 12(1B).
New subsection 12(1A) provides that, when making appointments, the
Minister, taking into account the characteristics of all elected and appointed
Council members at that time, must ensure:
at least five Councillors are Aboriginal or Torres Strait Islanders
persons; and
at least one Councillor is a Torres Strait Islander.
The effect of new subsection 12(1B) is that a person cannot be elected or
appointed as a Council member for more than two consecutive terms. That
person can, however, be elected again as a Council member for a further
term or terms, as long as the further term does not commence immediately
after the end of the two consecutive terms. A note explains that section 15
deals with the term of office of a Councillor.
Item 18
This item is a transitional and application provision relating to the appointment
of Councillors, the effect of which is as follows:
the amendments made to section 12 do not affect the continuity of
office of any Council members who held office before the amendments
commence (which is the day after this Bill, once enacted, receives the
Royal Assent). In other words, those persons appointed as a Councillor
before this time will continue to serve out the remainder of their terms
of appointment
new paragraphs 12(1)(a) and (b) will apply to elections for Councillors
only after the terms of office of all persons who were elected as
Councillors immediately before the amendments commence have
served out their terms of appointment
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new paragraph 12(1)(c) and new subsection 12(1A) will apply to
Councillor appointments made on or after the date these new
provisions commence
new subsection 12(1B) will apply to the election and appointment of
Councillors for terms that start on or after the date this new provision
commences - whether or not such terms of appointment may have
commenced before or after this commencement time.
Item 19
This item makes a consequential amendment to subsection 21(2A) to insert
reference to new paragraph 12(1)(b) in subsection 21(2A).
Item 20
This item amends the heading to Part 6 of the AIATSIS Act so that it reads
'Chief Executive Officer' instead of 'Principal'.
Item 21
This item amends the heading to section 24 of the AIATSIS Act so that it
reads 'Chief Executive Officer' instead of 'Principal'.
Item 22
This item omits the word 'Principal' in subsections 24(1), (2) and (3) of the
AIATSIS Act and substitutes the words 'Chief Executive Officer'.
Item 23
This is a transitional provision, the effect of which is deem that the person who
was the Principal of the Institute immediately before the commencement of
the amendments to section 24 of the AIATSIS Act, is taken to be the person
appointed by the Council as the Chief Executive Officer under section 25 for
the remainder of the period of that person's appointment as Principal.
Item 24
This item amends subsection 25(1) to omit reference to "The Principal" and
substitute with reference to "The Chief Executive Officer". It also removes
reference to the redundant subsection (1) in section 25.
Items 25, 26, 27, 28 and 31
These items omit the word 'Principal' and substitute the words 'Chief
Executive Officer' in sections 26, 26A, 27 and 28, paragraphs 29(2)(a) and
(b), subsection 30(1) and section 44.
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Item 28
In order for the Council to have the sole responsibility for appointing members
of the Institute and to advise on research matters, this item repeals Part 8 of
the AIATSIS Act - Research Advisory Committee.
The Council will establish committees when and if required to support current
priorities across its functions.
Item 29
This item amends subsection 43(1) to change the reference to "Aboriginal
persons and Torres Strait Islanders" to "Aboriginal and Torres Strait Islander
peoples".
Item 30
This item amends the heading to section 44 of the AIATSIS Act so that it
reads 'Delegation to Chief Executive Officer or staff' instead of 'Delegation to
Principal or staff'.
Item 32
This item provides that any section 44 delegation of powers to the Principal in
force immediately before the commencement of the amendments made by
this Schedule continues in force as a delegation to the Chief Executive
Officer. This does not, however, prevent any such delegation being amended
or revoked on or after that commencement time.
Item 33
This item repeals the definition of authorised officer in section 50, which is
only relevant for the purposes of sections 59 and 65. As sections 59 and 65
are being repealed the definition is redundant and no longer required.
Item 34
This item repeals the following redundant or spent provisions which are no
longer required:
section 52 (Interim Council)
section 53 (first Principal of the Institute)
section 56 (pending legal proceedings prior to the commencement of
the AIATSIS Act)
section 57 (Research Advisory Committee)
section 59 (certificates with respect to assets, liabilities and
instruments)
section 60 (State or Territory officer may act on certificate)
section 61 (transfer of appropriated money)
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section 62 (contracts of employment entered into by old Institute not
preserved)
section 63 (transfer of staff employed by old Institute to the Australian
Public Service).
Sections 52 to 63 are no longer required as they were established to deal with
administrative and staffing requirements as the Institute transitioned from the
Australian Institute of Aboriginal Studies to the current Australian Institute for
Aboriginal and Torres Strait Islander Studies.
Items 35 and 36
These items amend the heading of section 64 and subsection 64(2) to replace
reference to the Superannuation Benefit (Interim Arrangement) Act 1988 with
the Superannuation (Productivity Benefit) Act 1988. This reflects the current
name of this Act.
Item 37
This item repeals the redundant section 65 (exemption from taxation).
Section 65 was established to deal with administrative requirements as the
Institute transitioned from the Australian Institute of Aboriginal Studies to the
current Australian Institute for Aboriginal and Torres Strait Islander Studies
and is no longer required.
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