DIMIA Annual Report 2004-05

Outcome 5

Outcome Five seeks effective delivery of policy advocacy support and program services to Aboriginal and Torres Strait Islander peoples.

This outcome was transferred from Aboriginal and Torres Strait Islander Services (ATSIS) and reflected the former responsibilities of that agency. Most outputs associated with this outcome were either no longer relevant in 2004-05 or transferred to other agencies. Certain outputs continued but were collapsed to form the flexible funding pool supporting the implementation of Shared Responsibility Agreements (SRAs), and are not reported separately below. The diagram below indicates the status of Outcome 5 outputs in 2004-05.

Figure 92: Outcome 5-Output schedule

The supporting departmental sub-outputs, administered by the OIPC and the Office of the Registrar of Aboriginal Corporations were:

• 5.1.9 Repatriation
• 5.2.3 Professional Services to Native Title Claimants
• 5.2.4 Advancement of Rights to Land and Sea
• 5.2.6 Aboriginal Women and Torres Strait Islander Women
• 5.2.7 Public Information
• 5.5.4 Incorporation, Regulation and Building Capacity of Indigenous Corporations.

A further measure affecting this outcome, Indigenous Australians-Better Service Delivery, relates to the Australian Government's new arrangements in Indigenous affairs from 1 July 2004. The department's role in relation to the new arrangements is mainly reported under Outcome 3 and under the Administered Items below relating to Shared Responsibility Agreements.

back to top

5.1.9 REPATRIATION

Figure 93: Performance information-Repatriation

Objective

To provide advice to government on matters relating to international repatriation and to document, provenance and repatriate Indigenous human remains held by museums, galleries, universities and other collecting institutions overseas.

Description

Typical activities that may be funded by the Repatriation Program include:

• research to establish the provenance of remains
• the preparation of relevant documentation
• consultations with traditional custodians on their wishes in relation to repatriation
• the return of remains to communities of origin
• resources/infrastructure requirements in the community to manage the return- for example, a temporary keeping place and/or sites for burial/reburial
• ceremonies around return to country for maximum community involvement.

OIPC inherited from ATSIC-ATSIS the role of progressing the key intentions contained in the Prime Ministerial Joint Statement on Aboriginal Remains, released by the Prime Ministers of Australia and the UK in July 2000. This statement commits both governments to facilitating the return of Indigenous human remains from public collecting institutions in the UK.

Analysis of performance

The Repatriation Program secured the remains of 24 individuals: 20 from the Museum of Ethnography in Stockholm, Sweden, and four from the Royal Albert Memorial Museum and Art Gallery in Exeter, UK. OIPC worked closely with the Department of Foreign Affairs and Trade to secure these returns.

In the case of the Swedish repatriation a delegation of traditional custodians from four regions, Kimberley, WA; Urandangie, QLD; Wallaga Lake, NSW; and Camperdown, VIC; accompanied the remains on their return journey. A documentary was produced entitled Closing the circle: The return of Indigenous human remains from Sweden. It has since been shown at seminars with museums and in the department's Reconciliation Week activities and is expected to be used widely for community education in the Kimberley.

OIPC officials visited the UK in January and April 2005 and established formal relationships with 21 UK museums as a basis for negotiating the return of a minimum of 588 human remains.

The National Museum of Australia (NMA) was funded for the care and management of remains returned to Australia. This included the temporary care of remains needing to be provenanced, the return of remains to communities, and the care of remains on behalf of communities or of those remains that cannot be provenanced. At 30 June 2005, 554 remains were managed by the NMA under this contract.

Through inter-departmental committees involving the Department of the Prime Minister and Cabinet, Department of Foreign Affairs and Trade, Department of Communications, Information Technology and the Arts, and Department of the Environment and Heritage, OIPC led and coordinated:

• the Australian Government's formal response to the report of the UK Working Group on Human Remains, which dealt with the powers of museums to return human remains in their collections
• ministerial comments on the UK Draft Code of Practice for the Care of Human Remains in Museums
• the scoping and preparation of a whole-of-government policy and strategy for managing the return of Indigenous human remains from overseas. This will be completed in 2005-06.

The Repatriation Program made a significant contribution to the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Conference 2004 on issues in Indigenous studies by delivering a well-attended session on repatriation where policies and practices were debated.

back to top

5.2.3 PROFESSIONAL SERVICES TO NATIVE TITLE CLAIMANTS

Figure 94: Performance information-Professional services to native title claimants

Objective

To provide acceptance and recognition of the collective rights of Aboriginal and Torres Strait Islander people as original custodians of Australia.

Description

The Professional Services to Native Title Claimants Program (the program) funds Native Title Representative Bodies (NTRBs) to provide professional services to Aboriginal and Torres Strait Islander people to pursue the recognition and protection of native title under the Native Title Act 1993 (the Act). NTRB functions and powers are detailed under the Act, and involve support to native title holders to make various applications under the Act. These include claimant, objection, future act and compensation applications. NTRBs also play a role in negotiating Indigenous Land Use Agreements (ILUAs).

Funding was provided to 15 NTRBs recognised under the Act by the Minister, and to two non-recognised bodies providing services in accordance with the Act in the representative areas of New South Wales and Victoria. A map providing information on NTRBs and their representative areas is at page 297.

In 2004-05, OIPC also administered the final year of additional funding announced in the 2001 Budget to ensure the speedier resolution of native title claims.

Figure 95: NTRBs and representative areas

Analysis of performance

NTRB funding

OIPC provided $45 861 974 to 17 bodies representing the native title interests of Indigenous people throughout the country. Funding was provided through a Program Funding Agreement developed specifically to address the provisions of the Act and the department's funding process.

Figure 96: NTRB funding, 2004-05

Figure 97: Additional Australian Government funding for Capacity Building Program (CBP) and Strategic Priority Claims Resolution Program (SPCRP)

Native title outcomes

At 30 June 2005, there were 1650 active native title claims, consisting of 1386 claimant, 232 non-claimant and 32 compensation applications. In 2004-05 native title determinations included:

• De Rose Hill, SA-Litigated determination, 9 June 2005
• Djabugay People, QLD-Consent determination, 17 December 2004
• Erubam Le (Darnley Islanders), QLD (Torres Strait)-Consent determination, 24 May 2005
• Gebara Islanders, QLD (Torres Strait)-Consent determination, 13 December 2004
• Karajarri People, WA-Consent determination, 8 September 2004
• Kulkalgal People, QLD (Torres Strait)-Consent determination, 7 December 2004
• Ngaanyatjarra Lands, WA-Consent determination, 29 June 2005
• Ngarluma/Yindjibarndi, WA-Litigated determination, 2 May 2005
• People of Boigu Island, QLD (Torres Strait)-Consent determination, 24 May 2005
• Ugar (Stephens Island), QLD (Torres Strait)-Consent determination, 24 May 2005
• Wanjina-Wunggurr Willinggin, WA-Litigated determination, 27 August 2004
• Wik and Wik Way, QLD-Consent determination, 24 March 2005
• Yam Islanders/Tudulaig People, QLD (Torres Strait)-Consent determination, 24 May 2005.

Queensland South Representative Body Aboriginal Corporation

On 23 June 2005, the Minister announced the withdrawal of recognition of the Queensland South Representative Body Aboriginal Corporation (QSRB) as an NTRB for the Queensland South Area as it was unable to demonstrate the capacity to continue to perform its required functions under the Act. On 28 June 2005, a new body, Queensland South Native Title Services Ltd, was funded to provide native title services to claimants in the South Queensland region following the Minister's decision.

Agreements

A significant increase in the number of Indigenous Land Use Agreements was registered with the National Native Title Tribunal (NNTT) in the reporting period. Statistics show the number of ILUAs has risen from 137 at 30 June 2004 to 184 at 30 June 2005.

Strategic Priority Claims Resolution Program

Funds for the SPCR Program were provided over four financial years from 2000-01 concluding in 2004-05 to support determinations by the Federal Court of nationally significant native title applications.

In 2004-05 funding of $1.5 million was provided to assist the following applicants:

• the Aboriginal Legal Rights Movement, to assist in reaching agreement with the South Australian Government and pastoralist for a determination of native title in relation to the De Rose Hill claim
• the Central Land Council, for Federal Court proceedings for the Yulura compensation claim
• the Northern Land Council, for settlement of extinguishment issues associated with native title claim applications over township areas in the Northern Territory
• the Yamatji Marlpa Barna Baba Maaja Land and Sea Council, for litigation in relation to the Ngaluma Yindjibarndi case
• the South West Aboriginal Land and Sea Council, to advance settlement of the One Nations Noongar native title claim which has the capacity to resolve native title issues across the south-west of Western Australia
• the Goldfields Land and Sea Council, to progress a number of key native title claim applications.

Capacity Building Program

The available funding for the capacity building component in 2004-05 was $2.2 million. These funds were spent on:

• corporate governance training courses delivered to a number of NTRBs
• a research project to assess the professional needs of NTRB legal officers
• a project to develop access pathways for accredited training courses for NTRB staff
• a technical workshop for Chief Financial Officers from all native title service providers
• a project on salary levels and ranges in NTRBs examining the issues of organisational diversity and the associated challenges of diverse operating environments, organisational size, geographic conditions, work loads, and the availability and access to suitable staff.

Collaborative relationships and research

Financial support for the Indigenous Facilitation and Mediation Project (IFaMP) continued. The program also continued to fund the University of Melbourne for development of the Agreements, Treaties and Negotiated Settlements (ATNS) database.

Native Title Research Unit-AIATSIS

The Native Title Research Unit (NTRU) in the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) received $850 000 in 2004-05. The NTRU aims to provide responsive research, information and other services to native title stakeholders. The NTRU delivered a range of outputs in 2004-05 including native title newsletters, current issues papers, discussion papers, workshops, seminars and forums. The NTRU significantly redeveloped its website (accessed through www.aiatsis.gov.au) which provides a resource for native title practitioners and interested parties.

Program management

OIPC has focused on the continued implementation of the recommendations of the review of the NTRB system commissioned by the Minister in 2002. In particular, we implemented recommendations pertaining to NTRBs':

• funding procedures
• operational planning and improved data collection
• reporting requirements

to enable improved program evaluation and analysis of outcomes and comparative data across the NTRB system in 2005-06.

In April 2005, OIPC conducted an NTRB Chief Executive Officer forum focusing on a number of program improvement issues. The technical workshop for Chief Financial Officers focused on program requirements, in particular, the Program Funding Agreement, with a view to improving on the agreement over 2005-06.

In 2004-05 OIPC conducted performance audits in the Kimberley Land Council, the South West Aboriginal Land and Sea Council, the Northern Land Council, the Carpentaria Land Council, and the Aboriginal Legal Rights Movement. An inspection of Cape York Land Council was undertaken under subsection 203DF(1) of the Native Title Act 1993.

back to top

5.2.4 ADVANCEMENT OF RIGHTS TO LAND AND SEA

Figure 98: Performance information-Advancement of rights to land and sea

Objectives

To:

• provide advice to government on matters relating to Commonwealth land rights legislation (CLR) and the grant of land to Indigenous people under CLR
• to support the Aboriginal Land Commissioner (ALC) in resolving outstanding land claims in the Northern Territory as quickly as possible
• to review and implement better planning, funding and accountability practices within Aboriginal bodies administering CLR in all jurisdictions.

Description

OIPC assists the Minister in the administration of three Commonwealth Acts:

• Aboriginal Land Rights (Northern Territory) Act 1976 (ALR Act)
• Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (JBT Act)
• Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (LCF Act).

This includes issues arising in the context of claims to, and management of, Aboriginal land under CLR.

Analysis of performance

ALR Act

The Land Rights Program (the program) significantly assisted the ALC in hearing and reporting on outstanding land claims. No claims were settled in the reporting period, but significant steps were taken towards settlement of at least six claims in 2005-06.

In particular, the program helped key stakeholders, including the Northern Territory Government and land councils, make significant progress in the settlement of four outstanding land claims:

• Borroloola No.2 and Alcoota via the land claims process
• Loves Creek and Yirrwalalay via the agreement-making process.

The program funded timely and effective surveys that facilitated this progress. The ALC's Report (No.68) into the Upper Roper River Land Claims was tabled in the House of Representatives on 2 June 2005 and the Senate on 14 June 2005.

Timely appointment of members and chairpersons was made to 36 Aboriginal Land Trusts, established under section 4 of the ALR Act to hold title to Aboriginal land granted under the ALR Act.

OIPC provided extensive briefing to the Minister advising on the administration of the mining provisions under Part IV of the ALR Act and leases and other agreements made under Part II of the Act.

JBT Act

The program assisted the inter-departmental committee (IDC) on the Jervis Bay Territory Land Claim. The claim lodged by the Wreck Bay Aboriginal Community Council (WBACC) under section 9 of the JBT Act is for the remaining 8 per cent of land in the territory. Recommendations on this claim are likely to be submitted to the Minister in 2005-06. Implementation of the key recommendations and performance indicators, specified in the report from the 2003 review of WBACC, has commenced. A number of the recommendations and key performance indicators were incorporated into the funding agreement to be provided to WBACC for 2005-06.

LCF Act

Based on the 2000 and 2002 Kauffman/Andrews reports concerning the Winda Mara Aboriginal Corporation at Lake Condah and the Framlingham Aboriginal Trust at Framlingham Forest, the program developed key performance indicators to specify 'deliverables' by both organisations for 2005-06 program funding.

Anangu Pitjantjatjara and Maralinga Tjarutja funding

The program provided funding to Anangu Pitjantjatjara and Maralinga Tjarutja under an agreement between South Australia and the Commonwealth to help them manage lands granted to them under South Australian legislation. Program funding of Anangu Pitjantjatjara was reviewed by the Office of Evaluation and Audit and a report submitted to the Minister on 31 August 2004, with significant input from the program. Some of the report's recommendations were included in key performance indicators developed for Anangu Pitjantjatjara's 2005-06 funding. Key performance indicators were also developed for Maralinga Tjarutja funding in 2005-06.

back to top

5.2.6 ABORIGINAL WOMEN AND TORRES STRAIT ISLANDER WOMEN

Figure 99: Performance information-Aboriginal Women and Torres Strait Islander Women

Objective

To:

• support women to undertake leadership and management roles
• address priority issues for women, including violence, young girls' health, women in jail and their children, improved capacity to nurture, and the education of children and youth
• strengthen women's networks
• improve links between women's organisations and other agencies
• ensure Indigenous women are better informed about and have better access to relevant services
• maintain Indigenous women's cultural traditions and ensure they are used for the betterment of Aboriginal and Torres Strait Islander people.

Description

The Indigenous Women's Program (IWP) seeks to recognise, develop and promote Aboriginal and Torres Strait Islander women's perspectives in all policy and program development in relevant forums. Projects funded through Indigenous Coordination Centres (ICCs) are developed by Indigenous organisations to align with the IWP objectives after consideration of the needs and aspirations of local Indigenous women.

Analysis of performance

In 2004-05, 109 grants were provided under the IWP. Some grants funded a single event or activity, while others funded a range of activities benefiting large numbers of local women. The activities varied across Australia. Some examples of projects funded in 2004-05 were:

• in regional Victoria, women's camps to strengthen women's cultural traditions and focus on relevant life issues, strengthen relationships, and transfer skills and knowledge through role models
• in Tennant Creek, NT, a women's centre to conduct community surveys on social needs and a range of workshops to respond to the identified needs including cultural training, language development, nutrition and life skills
• in Brisbane, QLD, a women's resource centre to promote improved coordination between the community and service agencies dealing with social issues, to increase the numbers of Indigenous women accessing mainstream services, and to support young women in the development of life skills and cultural knowledge.

back to top

5.2.7 PUBLIC INFORMATION

Figure 100: Performance information-Public information

Objective

To:

• promote to the wider community an understanding of, and respect for, Aboriginal and Torres Strait Islander cultures
• encourage in the wider community the development of positive attitudes towards Indigenous Australians
• inform the wider community about contemporary issues that affect Aboriginal and Torres Strait Islander individuals and communities.

Description

The Public Information Program has two elements:

• public awareness, which funds selected activities capable of reaching a significant audience of non-Indigenous people
• National Aborigines and Islanders Day Observance Committee (NAIDOC), which funds the annual Indigenous community celebrations during NAIDOC Week (first full week in July).

Analysis of performance

160 Public Information Program grants were made, totalling $2.6 million. The majority of program funds were provided to community organisations for a wide variety of local events and activities across Australia to celebrate NAIDOC Week 2005. NAIDOC Week ran from 3 to 10 July in 2005 but, as in past years, most work preparing for it was undertaken during the year under review.

In addition, OIPC funded National NAIDOC celebrations, including the annual poster competition, and NAIDOC Awards and Ball, held this year in Adelaide, SA. OIPC staff provided organisational support for the Indigenous committee, based in Adelaide, which oversaw this year's event. The Indigenous committee chose the theme for NAIDOC 2005 ('Our Future Begins with Solidarity'), and judged the various awards. The NAIDOC Awards and Ball was attended by 1000 people, and was acclaimed by many participants as the best ever.

Significant events supported by the Public Awareness element included:

• the Garma Festival, an annual celebration of the Yolngu culture of north-east Arnhem Land, NT, which promotes sharing of culture and knowledge between Indigenous Australians and the wider community
• the Croc Festival, held in several locations around Australia to promote healthy lifestyle choices among young people
• recording of a funeral ceremony for the film Story about feeling, about 'Kakadu Man' Bill Neidjie
• performance by the Bangarra Dance Theatre at the 150th anniversary celebrations of the Botanic Gardens and State Herbarium in Adelaide, SA.

back to top

5.5.4 INCORPORATION, REGULATION AND BUILDING CAPACITY OF INDIGENOUS CORPORATIONS

Figure 101: Performance information-ORAC

Objective

To support the delivery of incorporation, regulation and related services for Indigenous people in accordance with the Aboriginal Councils and Associations Act 1976 (ACA Act). Delivery is consistent with the special needs, requirements and risks of Indigenous corporations and within the context of current and emerging Australian and international practice on sound corporate governance.

Description

The ACA Act establishes the Registrar of Aboriginal Corporations, an independent statutory office holder appointed by the Minister for Immigration and Multicultural and Indigenous Affairs. Ms Laura Beacroft, a solicitor, appointed to the position from 1 August 2002 for three years, has been reappointed for a further two years to 31 August 2007.

Through the Office of the Registrar of Aboriginal Corporations (ORAC), the Registrar administers the ACA Act. Currently the ACA Act provides some scope for flexible incorporation in line with cultural practices. It also provides for active monitoring and regulation of Indigenous corporations, which pose special risks and have special requirements in some cases.

ORAC provides a wide range of integrated services to corporations associated with the ACA Act including: pre-incorporation, incorporation, monitoring and examination, regulation, dispute assistance, members' complaints services, inquiries, searches of the Public Register and training (see Figure 102, ORAC's key roles).

Following a review of the ACA Act in 2002, the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 was introduced into the Australian Parliament on 23 June 2005.

If agreed to by the Parliament, the Bill will commence on 1 July 2006, replacing the ACA Act. Some parts of the Bill are likely to start after that date to make it easier for corporations to switch over to it.

Consistent with the key recommendation of the review, the Bill-like the ACA Act- is a special incorporation law designed to meet the needs of Indigenous people (see Attachment 13).

Incorporation under the ACA Act is largely voluntary. However, some corporations- for example, the prescribed bodies corporate established through the Native Title Act 1993 - are required to incorporate under the ACA Act. While many corporations governed by Indigenous people are incorporated under the ACA Act, a significant number are not and are under state/territory and other Commonwealth legislation.

ORAC performs its functions and provides its services nationally to all levels of government, other agencies and people with an interest in Indigenous corporations. ORAC works closely with other regulating bodies to maximise coordination and alignment. The ACA Act establishes a third arm to the Commonwealth's role in overseeing corporations, the other two being the Australian Securities and Investments Commission under the Corporations Act 2001 and the Australian Competition and Consumer Commission under the Trade Practices Act 1974.

Figure 102: ORAC's key roles

Powers of the Registrar

The ACA Act vests the Registrar with powers to intervene in a corporation's affairs, similar to those exercised by the Australian Securities and Investments Commission.

Some of the Registrar's powers require ministerial approval before they can be exercised. As a Statutory Officer, the Registrar is not under direction for decisions made under the ACA Act. The Registrar aims to exercise powers and functions in accordance with the ACA Act, in a manner that responds to the requirements and the risks of Indigenous corporations and which builds independence and capacity of Indigenous individuals, groups and corporations.

See Attachment 1 for a summary of the Registrar's regulatory powers.

Relationships with agencies

Relationship to Office of Indigenous Policy Coordination (OIPC)

The Registrar and staff of ORAC are employees of the Department of Immigration and Multicultural and Indigenous Affairs. Funding for ORAC ($6.87 million for 2004-05) is within the OIPC appropriation and is not quarantined.

The Registrar is a member of the OIPC Corporate Leadership Group for the purposes of participating in decisions on administrative matters. Various arrangements were in place, including an in-principle agreement, to enable ORAC and OIPC to manage possible conflicts of interest. A formal agreement will be put in place to support the Registrar and ORAC's placement within the department, consistent with the Uhrig report. This report, conducted by John Uhrig and released by the government in August 2004, recommended a broad template of governance principles and arrangements that the government could extend to statutory authorities and office holders. It sets out measures for ensuring the boundaries of responsibilities are better understood and clarifies the relationship between Australian Government authorities, ministers and portfolio departments.

Relationship with other agencies

ORAC's primary clients are individuals, groups and corporations linked to the ACA Act and also users of the Public Register maintained by ORAC on Indigenous corporations incorporated under the ACA Act. ORAC builds close working relations with agencies that have an interest in the funds and/or assets held by corporations. ORAC also works with state and territory government agencies to improve outcomes for Indigenous people across Australia (see Figure 103).

In recent years ORAC has developed a relationship with the Australian Securities and Investments Commission (ASIC) and the state/territory incorporation and regulation agencies to foster better coordination nationally of incorporation and regulation services and responses. ORAC and ASIC agreed in principle to a Memorandum of Understanding (MOU) during the year, which will be finalised once the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 has commenced.

ORAC's focus is on identifying and targeting systemic issues for Indigenous corporations and building closer relationships with the following agencies for this purpose: the Australian Taxation Office, agencies linked to the Council of Australian Government (COAG) whole-of-government trial sites, individuals and agencies involved in corporate governance training, and state/territory government agencies, particularly in Queensland, Northern Territory and Western Australia.

Figure 103: ORAC's key relationships

Performance of Indigenous corporations

Profile of corporations incorporated with ORAC

At the end of 2004-05, 2585 corporations were registered under the ACA Act. This is a targeted reduction of nearly 5 per cent in line with a new emphasis on 'responsible and necessary incorporation'. After rapid growth in Indigenous corporations under the ACA Act in the early 1990s, the number of incorporations annually remained steady for some years and has now started to decline with the new emphasis (see Figure 104). It is estimated that at least as many Indigenous corporations are incorporated under other legislation.

Figure 104: Registered and new corporations, by year, 1987-88 to 2004-05

Note: The number of registered corporations is the total number of corporations registered at the commencement of the period plus the number of new corporations registered less the total number deregistered in the period

Corporations vary in size, from unfunded groups through to organisations with millions of dollars of income and assets (see Attachment 12 for 25 Indigenous corporations with highest known income). Corporate functions are diverse, from providing services such as health care and power supply to simply holding land, and many corporations are multifunctional.

Most groups incorporated under the ACA Act are located in remote areas (56 per cent), as Figures 105 and 106 show, and are publicly funded. However, some generate substantial private income-for example, corporations linked to mining compensation or to the Indigenous arts industry. Many hold significant community assets that were funded publicly and are now held privately by the corporations.

Over the past year corporation numbers fell in all states and territories or remained stable, with the highest falls recorded in NSW and Queensland of 62 and 40 respectively. This was due to the deregistration program undertaken by ORAC (see page 326 and Attachment 11). Breakdowns of locations of ACA Act corporations by Indigenous Coordination Centres (ICCs) and by ATSIC regions are shown in Figures 107 and 108; and by ATSIC regions only in Figure 105. (ATSIC regions ceased to exist from 1 July 2005, and ICC regions have taken their place.)

Figure 105: Location of corporations by ATSIC region, state/territory, with location of 25 highest income registered corporations

25 corporations with highest total income 2002-03 as at 30 June 2005

A	Bawinanga Aboriginal Corporation	N	Wila Gutharra Community Aboriginal Corporation
B	Kaarta-Moorda Aboriginal Corporation	0	Booroongen Djugun Aboriginal Corporation
C	Bungala Aboriginal Corporation	P	Cairns Regional Community Development & Employment Aboriginal & Torres Strait Islander Corporation
D	Katherine West Health Board Aboriginal Corporation	Q	Bega Garnbirringu Health Services Aboriginal Corporation
E	Kimberley Land Council Aboriginal Corporation	R	Nooda Ngulegoo Aboriginal Corporation
F	Southern Aboriginal Corporation	S	Anangu Pitjantjatjara Services Aboriginal Corporation
G	Julalikari Counci Aboriginal Corporation	T	Anyinginyi Health Aboriginal Corporation
H	Ngaanyatjarra Services Aboriginal Corporation	U	Broome Regional Aboriginal Medical Service (Aboriginal Corporation)
I	Sunrise Health Service Aboriginal Corporation	V	Wheatbelt Aboriginal Corporation
J	Durri Aboriginal Corporation Medical Service	X	Bama-Ngappi-Ngappi Aboriginal Corporation
K	Maari Ma Health Aboriginal Corporation	Y	Biripi Aboriginal Corporation Medical Centre
L	Tjuwanpa Outstation Resource Centre (Aboriginal Corporation)	Z	Cape York Land Council Aboriginal Corporation
M	South-West Aboriginal Medical Service Aboriginal Corporation

Figure 106: Location of registered corporations, by remoteness and state/territory, 2004-05

Figure 107: Location of registered corporations by ICC regions at 30 June 2005

Figure 108: Location of registered corporations by ATSIC regions at 30 June 2005

Figure 108 continued

Income of corporations

Figure 109 and Figure 110 show the wealth of Indigenous corporations (where known). Those corporations with significant incomes usually also have significant assets. Analysis by ORAC indicates that most corporations under the ACA Act are small to medium in their income, assets and number of employees. However, a growing number are large in that they have substantial income (see Attachment 12). Also, a significant number have little income and substantial assets. These findings have implications for many aspects of ORAC's work, especially legislative reform and risk management.

Figure 109: Number of registered corporations, by income and assets, at 30 June 2005

Note 1: Due to the reporting timeframes for corporations under the ACA Act, this figure shows data to 30 June 2005.
Note 2: Information on income and assests is not known for all corporations; this figure shows income and assets where known.

Figure 110: Number of corporations by income and assets at 30 June 2005

Funding of corporations

The major known funding bodies of corporations under the ACA Act in 2004-05 were the Department of Employment and Workplace Relations, the Department of Family and Community Services and the Office of Aboriginal and Torres Strait Islander Health (OATSIH) at the Department of Health and Ageing.

Figure 111: Funding by major Australian Government agencies of registered corporations at 30 June 2005

Other sources of public funds include a wide range of Australian Government agencies and state/territory agencies, especially in Western Australia, Northern Territory and Queensland.

Eubena Nampitjih with Elizabeth Nyumi (background), two renowned artists at the Warlayirti Arts Centre in Balgo, WA. The Warlayirti Arts Centre is a successful Indigenous corporation, incorporated with ORAC.

ORAC performance in 2004-05

Accountability

External scrutiny

There were five requests made under the FOI Act in 2004-05, four of which have been resolved and one was still pending at 30 June 2005.

There was one internal application for review and one application for review to the Administrative Appeals Tribunal, both of which were outstanding at 30 June 2005 but had been resolved as of August 2005.

Corporate plan and service charter

ORAC revised its corporate plan and service charter. They are in place until the end of 2007. They establish ORAC's performance priority as providing quality services in line with its statutory functions under the ACA Act and the new Corporations (Aboriginal and Torres Strait Islander) Bill 2005.

The service charter explains the services ORAC provides and the standards ORAC's clients can expect. It includes a tear-off feedback form.

The corporate plan sets out ORAC's vision, purpose, roles and priorities for the coming two years, which expand on its obligations set out in its Portfolio Budget Statements.

Annual report and Yearbook for ORAC

Although the ACA Act does not require it, ORAC publishes a Yearbook, in addition to contributing to the department's annual report. These publications are available at www.orac.gov.au.

Accessibility and responsiveness

Hotline

ORAC provides a personal service to clients. Much initial communication with ORAC is through the toll-free telephone service. In 2004-05 ORAC received 12 693 calls on its toll-free line, finalising 682 inquiries about corporate governance (nearly eight per cent more than last year) and 119 complaints and dispute alerts (nine per cent fewer than last year). Many of these require sustained assistance over a long period of time (see Attachment 2).

Website

ORAC encourages use of the Internet. There was a 106 per cent increase in the number of visits to the ORAC website (www.orac.gov.au) in 2004-05. Visitor sessions per month grew from 6268 in July 2004 to 12 895 in July 2005. Electronic communication is increasing as the number of corporations with email and Internet access continues to grow. The Public Register of Indigenous Corporations registered under the ACA Act is now partly accessible on the website, with document images becoming available in stages during 2005-06. This is encouraging higher usage of the site.

Case coordination

Where necessary, ORAC will work on site with clients. During 2004-05 ORAC built on its communication with remote communities through language initiatives, case coordination and case management where appropriate, and expanded field work. It has embarked on an ambitious place planning exercise in the Kimberley to coordinate all ORAC services and initiatives provided to corporations in that area internally and with external services and contractors. The place plan involves ORAC contributing more to solving some difficult systemic issues, for example, issues relevant to municipal services in remote localities.

Balgo in the Kimberley, WA, from the air where ORAC is delivering a range of services supported by coordinated planning.

Complaints

A complaints system ensures that ORAC responds to issues raised about its staff and consultants. During the year ORAC received three complaints and dealt with them as follows:

• One matter was outside the jurisdiction of ORAC. The complainant was advised of this and referred elsewhere.
• ORAC responded to one matter where the complainant raised further issues after receiving an initial response. ORAC responded to these additional issues and the complainant took no further action.
• One matter was referred to the Investigations and Compliance unit within OIPC for resolution. At 30 June 2005, this complaint was not resolved.

Incorporation support

An essential part of ORAC's incorporation work is providing information and assistance to groups before they incorporate, and once they have incorporated. Incorporating is not always the best or most appropriate solution for groups wanting to deliver services or run businesses in Indigenous communities.

ORAC also helps corporations in dispute resolution, although it does not act as a mediator.

New incorporations again fell for the second year in a row-by over 10 per cent from 134 in 2003-04 to 120 in 2004-05. This reflects ORAC's and others' determination to encourage responsible and successful incorporation (see Attachment 2). Applications also fell for the second year in a row by 25 per cent-from 160 in 2003-04 to 120 in 2004-05. Inquiries involving requests for information, support and referrals that were resolved during the year grew by eight per cent (682 in 2004-05 from 634 in 2003-04) continuing the trend of recent years. The number of successfully resolved members' complaints and disputes fell by nine per cent. While the number of requests for assistance with complaints and disputes fell (by 16 per cent), because of their increasing complexity and the serious consequences they can have for corporations if unresolved, ORAC is devoting more resources to assist with these matters.

Changes to constitutions completed during the year rose by 15 per cent from 114 to 131. Significant resources are devoted to these matters, since issues and the compliance environments within which corporations operate are increasingly complex. Also ORAC is devoting more resources to a proactive program encouraging the development and review of constitutions as part of its new focus on preventing problems through better designed corporations, and a new model constitution is near completion.

Monitoring, examination and regulation

Under the ACA Act all corporations are required to submit certain documents to ORAC which are placed on the Public Register, including a list of members and financial reports, unless the corporation is exempted by the Registrar.

Approximately 40 per cent of corporations have provided the three key reports (statement of compliance, audited financial statement and list of members) under the ACA Act for 2003-04. Compliance is set out in Figure 112 and Attachment 3.

The rate of compliance (where corporations are either partially or fully compliant with reporting under the ACA Act) for those funded by the big funding agencies is well above the average rate of 40 per cent-in the range of 74 per cent and upwards. This is due to the improved capacity of funded corporations to meet reporting requirements and also the extra scrutiny given to funded corporations by ORAC.

There has been a significant increase in the number of corporations obtaining exemptions from some reporting requirements, in recognition of their lack of capacity to report-that is, if they are not funded they are not normally required to provide an audited financial statement and ORAC will usually grant an exemption. ORAC implemented a system to assist those corporations to obtain an exemption.

Although most corporations (59 per cent) remain non-compliant with reporting requirements under the ACA Act, there has been an improvement in 2004-05 of seven per cent for partial compliance (that is, providing three key reports-statement of compliance, audited financial statement and list of members-required under the ACA Act).

Figure 112: Compliance of corporations, by number of corporations, 1998-99 and 2003-04

Note: 'Fully or partially' compliant means that either 5 or 3 key annual return documents respectively have been provided by the corporation for the relevant 2 consecutive year period. The above figure shows all returns received by ORAC as at 30 June 2005. Corporations are not required to provide annual returns for 2004-05 until 31 December 2005.

No. of corporations are the number of corporations that were incorporated as at 31 March 2002, being the first financial year of the compliance period.

This improvement is a result of ORAC analysing non-compliance and implementing a plan for appropriate follow-up. Many of the non-compliant corporations are not funded at all, hold land only and have no capacity to apply for an exemption. The new Corporations (Aboriginal and Torres Strait Islander) Bill 2005 will enable more streamlined exemptions for some reporting-that is, exemptions for audited financial statements where warranted.

Arrangements with funding bodies have been enabling ORAC to establish which corporations are technically non-compliant but have in fact submitted reports required under the ACA Act to funding bodies and are operating well. Avoiding duplicate reporting by corporations is an aim of the new legislation. Corporations that should be compliant under the ACA Act were targeted for regulation such as formal follow-up and examination. Non-compliant corporations that are no longer operating were targeted for deregistration.

In 2004-05 ORAC initiated 61 examinations of corporations-an increase of 13 per cent on the previous year, and well over the target of 50. Corporations for examination were selected in response to evidenced problems or as part of a program of rolling examinations responding to risk analysis involving criteria such as size, purpose, time since last examination, compliance status and history of member or other complaints. At 30 June 2005:

• six (or 10 per cent) of the 61 examinations initiated this year are operating well and require no further action
• 22 (or 31 per cent) remain under consideration for further action
• 22 (or 36 per cent) of the examinations initiated this year, plus a further 15 carried over from the previous year, required rectification of less serious matters, involving the issue of a section 60A notice under the ACA Act
• 13 (or 21 per cent) of the 61 examinations initiated this year, plus a further five carried over from the previous year, raised serious matters and have been required to advise why an administrator should not be appointed, involving the issue of a section 71 notice under the ACA Act. Of these 18, seven administrators were subsequently appointed this year, three section 60A notices were subsequently issued, one monitoring agreement was undertaken, four MOUs were entered into and three are pending
• one corporation required a liquidator to be appointed
• nine administrations continue from previous years.

The trends for examinations initiated, administrations appointed and deregistrations completed are shown in below.

Figure 113: Number of examinations initiated, administrations appointed and deregistrations completed 2002-03 to 2004-05

Attachment 4 contains a list of corporations where examinations were initiated during 2004-05 and shows the follow-up action taken by the Registrar at the time of writing, not necessarily during 2004-05. Attachments 5 and 6 show the corporations issued with a section 60A notice or section 71 notice respectively during 2004-05. Some of the actions in these attachments are follow-up to examinations conducted during 2003-04.

Strong emphasis remained on requiring corporations to put things right rather than appointing an administrator, which is a last resort. Seven corporations were placed under new administration in 2004-05 (see Attachment 7), the same as the previous year and significantly less than the highest annual number of 17 in 1998-99.

At 30 June 2005 a further nine administrations were still in progress following appointments of administrators in previous years (see Attachment 8). At 30 June 2005 there were 16 administrations in progress. Administrations are usually positively received once arrangements are settled because they offer an alternative to liquidation and achieve turnaround for a struggling corporation.

ORAC started 2004-05 with 44 liquidations in progress, reduced this number to 34 at 30 June 2005 and is continuing to aim to reduce the time that liquidations take (see Attachments 9 and 10).

Deregistrations continued to be initiated, and 269 were completed during the year (see Attachment 11).

Information and training

The ORAC training team consolidated its regional program of training in Queensland during 2004-05 and began adapting the three-day workshop and Certificate IV in Business (Governance) for use in remote areas, where 56 per cent of ORAC's corporations are located.

ORAC's target of 220 training days (represented by 70 non-accredited and 150 accredited training days) has been exceeded. This included 46.5 one-day and half-day information sessions, eight three-day introductory corporate governance workshops making a total of 70.5 days, and eight accredited Certificate IV in Business (Governance) courses delivered over four five-day blocks (160 days). Of the 80 students who have completed the course since it was made available two years ago, 74 have completed all assessments to the standard required to be awarded the Certificate IV, giving a retention rate of nearly 93 per cent.

Training is based on ORAC's commitment to develop the capacity of corporations (that is, helping them to build on their strengths) and is undertaken using a tailored training method and materials. The training, which complements rather than duplicates mainstream programs, is offered to targeted localities and groups around Australia. The Certificate IV in Business (Governance) is increasingly being run through some TAFE and private registered training organisations. In 2004-05, 57 people graduated with a Certificate in Business (Governance), and 144 attended ORAC's three-day workshops.

ORAC also focuses on developing the capacity of its staff to deliver information and training more effectively. This year, ORAC introduced a participative tool, talking paper, into its way of working with corporations. Through a simple process using coloured paper and adhesive coloured dots, a facilitator elicits ideas, encourages dialogue, clarifies, organises and prioritises the ideas to get agreement in groups. Feedback from participants involved in information sessions, including those on constitutional design and the three-day corporate governance workshops, is that talking paper is very effective.

In the past year ORAC has produced a range of plain English publications and audiovisual materials aimed at making information more accessible to corporations in remote areas. Publications include visual tools and materials targeted toward Indigenous language speakers.

ORAC has also developed materials explaining the new Corporations (Aboriginal and Torres Strait Islander) Bill, including:

• a national Indigenous radio campaign
• information booklet
• fact sheets
• website animation.

Legislative reform

During the year ORAC continued its development of the Corporations (Aboriginal and Torres Strait Islander) Bill 2005. It was introduced into the Australian Parliament on 23 June 2005.

Why a new Bill?

Currently about 2600 Aboriginal and Torres Strait Islander corporations are registered under the ACA Act. Many play a central role in delivering essential services to remote Indigenous communities, for which substantial amounts of public funds are provided and/or hold land for remote Indigenous groups. Most native title corporations are registered under the ACA Act, similarly many remote Indigenous arts centres.

Since 1976 there have been substantial changes in the legal environment for corporate regulation. The ACA Act is 30 years old and is out of line with modern corporate governance and accountability standards reflected in the Companies and Corporations Act 2001. Also it needed modernising to respond to contemporary risks and requirements of Indigenous corporations.

Therefore, in 2000 it was decided to review the ACA Act and its administration. The Bill has been developed in the light of this review. Because all provisions of the Corporations Act had to be examined in the light of Indigenous corporations and the Native Title Act, and because of the extensive consultation period during the course of the review, it has taken until now to fully finalise the new legislation.

Date of effect

The Bill will probably have a commencement date of 1 July 2006, to coincide with the start of 2006-07. A 'machinery' Bill is currently being drafted to support this first Bill, and it is proposed that it will be introduced into parliament soon.

Implementation

The Registrar's office is already delivering a range of capacity building programs for Indigenous corporations. These existing programs, coupled with a variety of other strategies, will be employed during implementation to support Indigenous corporations, and stakeholders, shift to the new Act and requirements. An important goal of implementation is to enable Indigenous corporations to take up opportunities the Bill offers such as improving 'cultural match' in corporate design.

An up-to-date summary of the Bill can be found at www.orac.gov.au and in Attachment 13.

Improving corporate governance

All ORAC's work strives for improved corporate governance in Indigenous corporations. ORAC's goal is to enable effective decisions in Australian law, while maximising Indigenous cultural legitimacy for that decision making.

In Australian law, corporate governance arrangements are those through which an organisation directs and controls itself and the people associated with it. Corporate governance is primarily the responsibility of the Board as a group.

Managing risk

On 14 October 2004 ORAC, together with the Office of Evaluation and Audit (OEA) and OIPC, hosted the inaugural forum on risk issues for programs funding Indigenous corporations. The forum was attended by key funding agencies to identify key risks and to work out how to improve the treatment of those risks.

The forum sponsors nominated five priority risks and the forum identified a further four. They were:

• failure to achieve government outcomes for Indigenous Australians
• capacity of communities and governments
• failure to implement risk management strategies
• not working as one/contract management failure
• failure of dialogue between communities and government
• new program and restructure program 'sprints'
• loss of corporate reputation (macros and micro)
• slack on tax
• misuse of funds.

Working groups analysed seven of these risks and found that:

• the contribution that individual risk treatments can make in mitigating high priority risks should not be underestimated
• dependencies between priority risks are important and need to be understood and incorporated in risk work
• there are complexities in implementing whole-of-government approaches for Indigenous policy and programs, and related risk work, which need attention.

As a result, ORAC is working on a range of strategies, including a joint initiative with the Australian Taxation Office to help Indigenous corporations meet their GST obligations-a common cause of corporate failure.

Following the enthusiasm of the participants and the productive discussions at the forum, sponsors are likely to hold a follow-up forum to review progress. A published copy of the risk forum report is available from ORAC.

People and systems

Although not under direction for statutory decisions, the Registrar is subject to performance management and review in administrative matters. The Registrar had a performance agreement as part of an Australian Workplace Agreement with the Associate Secretary of OIPC. The Registrar was supported by 40 staff at 30 June 2005 in ORAC (see Figure 114).

ORAC's focus is on building staff skills and aligning systems and processes with reforms to the ACA Act and the immigration and multicultural and Indigenous affairs portfolio.

ORAC's Electronic Register of Indigenous Corporations (ERIC)-a workflow and information management system-has continued to help staff in a number of areas, such as highlighting corporations that may require assistance or review. ERIC also continues to provide clients with faster and more streamlined services. During 2004-05 significant progress was made in making public information available online. This work should be completed in 2005-06.

A project to improve ORAC's services, processes, systems and procedures is on target for completion in 2005-06. A number of its recommendations are being implemented, including working towards online processing of applications and registrations.

Staff training

ORAC continues to encourage staff to improve their skills. Examples of learning opportunities taken up included:

• three staff members pursued tertiary/professional qualifications
• training was provided in project management, procurement and contract management, financial processing, leadership development, systems analysis, Freedom of Information and mediation. Whole-of-office sessions on reforms to the ACA Act were conducted
• staff participated in ORAC's corporate governance training for clients.

Figure 114: Staff profile

ORAC has a relatively diverse workforce by Australian Public Service (APS) standards (as reflected in the Australian Public Service Commission's State of the service report 2003-04):

• 15 per cent Indigenous employment (the APS standard is 2 per cent)
• 57.5 per cent women (54 per cent)
• 5 per cent people with disabilities (4 per cent)
• 15 per cent people from non-English speaking backgrounds (3 per cent).

Outlook

The Corporations (Aboriginal and Torres Strait Islander) Bill 2005 when enacted provides a unique opportunity for the Indigenous corporate sector to have a more modern and tailored option. It allows for less 'red tape' for smaller community corporations, especially unfunded land holdings. It provides for more effective accountability for corporations and their boards and senior managers, in line with mainstream corporations law. Most importantly, the Bill allows 'space' for culture and local practices to be recognised in corporations' rules and processes, which is a well-evidenced success factor. ORAC has a key role in enabling the opportunity of the Bill to be harnessed by the Indigenous corporate sector, and looks forward to this work.

 

<< Return to Table of Contents