What do they do?
Health and the criminal justice system remain two main areas of chronic disadvantage for Indigenous people. Mainstream health and legal services are rarely used by Indigenous people. This may be because they are not linguistically and culturally accessible and often not conveniently located for Indigenous people. To ensure Indigenous people are able to access these fundamental services, separate Aboriginal medical and legal services have been established. Indigenous staff, culturally appropriate service delivery, specialist knowledge, the ability to communicate with Indigenous people and location accessibility are features of these services.
There are 76 community-based Aboriginal Medical Services.
20 independent Aboriginal legal services operate throughout the country.
What is ATSIC? What does it do?
The Aboriginal and Torres Strait Islander Commission (ATSIC) is a Commonwealth statutory authority which was established in March 1990. ATSIC aims to allow Indigenous Australians to be directly involved in the administration of their own affairs. It is an agency run by the elected representatives of Aboriginal and Torres Strait Islander people.
The establishment of ATSIC represents a significant departure from the former practice of
having Aboriginal affairs run solely by Commonwealth public servants who some argued were
divorced from the experiences and needs of the Aboriginal people.
ATSIC's functions include
What funding is ATSIC given?
The budget for the Aboriginal and Torres Strait Islander Commission (ATSIC) for 1996-97 is $959.92 million.
ATSIC's funding has been cut by $470 million over four years and it has resulted in the abolition of community training programs and some programs for youth. Most of the ATSIC budget is spent on the CDEP scheme and on Aboriginal housing and essential infrastructure programs. Most of its expenditure therefore substitutes for expenditure on mainstream assistance programs.
It should be noted that Indigenous Australians use mainstream services and benefits such as pharmaceutical benefits and aged care at a much lower rate than other Australians.
In 1994, Commonwealth expenditure on Indigenous health was only 1.26% of total health expenditure even though the Indigenous population comprises 1.6% of the total Australian population.
Aboriginal and Torres Strait Islander Commission, ATSIC Budget 1996-97, Media Release,
16 August 1996.
Aboriginal and Torres Strait Islander Social Justice Commissioner, Second Report 1994,
AGPS, Canberra, 1994.
Gardiner-Garden J., Commonwealth Expenditure on Aboriginal and Torres Strait Islander
Affairs, Parliamentary Research Service, 6 May 1996.
"Social Justice Strategy 1993-94", Budget Related Paper No 5, AGPS, Canberra, 1993, p.31.
"ATSIC Program Performance Statements 1993-94", Budget Related Paper No 7.13C,
AGPS, Canberra, 1993, pp 65 162, 167 and 273.
Aboriginal and Torres Strait Islander Commission, National Housing and Community
Infrastructure Needs Survey, AGPS, Canberra, 1992.
Is ATSIC accountable?
ATSIC is subject to stringent accountability requirements.
ATSIC is subject to the usual processes of public accountability applicable to all public sector spending such as Senate Estimates, scrutiny by the Auditor-General and relevant Parliamentary Committees. Spending by ATSIC and some other portfolio agencies is also subject to scrutiny by the Office of Evaluation and Audit (OEA). The OEA reports to the Minister for Aboriginal and Torres Strait Islander Affairs and ATSIC on evaluations, audits and relevant accountability issues.
What did the recent audit of ATSIC show?
In October 1996, the Special Auditor appointed to review accountability within ATSIC-funded organisations found that of the 1,122 organisations reviewed, 95% were cleared for funding. The Special Auditor issued 60 "not fit and proper" determinations (5% of organisations reviewed) and, of these, most related to late lodgement of financial and management information, late lodgement of acquittal information and failure to lodge project performance reports. The problems were linked to the small size of organisations and the need for management training.
Department of the Prime Minister and Cabinet Report of the Special Auditor, AGPS, October 1996.
What did the Mabo decision say?
In what is commonly referred to as the Mabo decision, the High Court held that the common law of Australia recognises a form of native title to land. The Court rejected the doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement.Pre- existing rights to land survived colonisation and still survive today in certain circumstances. The High Court did not discover a new form of title. It recognised instead, rights in law which Aboriginal and Torres Strait Islander people have always had. The High Court said that native title rights must be proved by evidence of the laws and customs of the native title claimants.
Those laws and customs may be different in different parts of Australia. Indigenous people may have certain rights to particular areas of land and water which originate in their traditional ownership.
Such native title exists in accordance with the laws and customs of Indigenous people:
Mabo v State of Queensland (No 2) (1992) 175CLR1.
What is the Native Title Act?
The Native Title Act came into operation on 1 January 1994. The Act recognises the common law principle of native title, as established by the High Court in the Mabo decision. It gives validity to past grants of interests in land or waters made invalid because of native title. The Act also sets out the way native title claims can be determined, and it provides a framework for future dealings affecting native title. The Act establishes a Native Title Tribunal, the functions of which include the determination of claims asserting the existence of native title.
Native Title Act (Cth) 1993.
Is my backyard safe from an Aboriginal land claim?
In the Mabo decision, the High court said that native title has been extinguished on all freehold land and certainly the vast majority of leasehold land. Thus, Aboriginal people cannot successfully claim land over which a freehold or non-pastoral leasehold interest has already been granted. Further, to be successful, the native title claimants must have continuously maintained their traditional association with the land claimed. Clearly, these conditions rule out any possibility that residential land could be successfully claimed under the native title legislation.
Aboriginal Law Centre, University of New South Wales, Mabo and Native Title Kit.
Minister for Aboriginal and Torres Strait Islander Affairs, Rebutting Mabo Myths, AGPS,
Canberra, 1993.
Native Title Act (Cth) 1993.
Does the Mabo decision mean that Aboriginal people will be given land for nothing?
Indigenous people are not given any land as a result of the Mabo decision or the Native Title Act. Native title is the recognition by non-Indigenous law of Indigenous rights to land and waters which existed before white settlement. The Mabo decision did not grant any rights, it merely declared existing rights under Australian common law. All Australians have the right to own land and to inherit property according to law.
What did the High Court say in the Wik case?
The Wik case relates to a claim of native title on land which included two pastoral leases, granted by the Queensland Government. The High Court said that native title can only be extinguished by a law or an act of the Government which shows a clear and plain intention to extinguish native title. The laws creating pastoral leases in Queensland did not reveal an intention to extinguish native title.
The Court found that Queensland pastoral leases had been created to meet the needs of the emerging pastoral industry. The rights and interests of a pastoral leaseholder had to be determined by looking at the relevant statute and at the lease itself. This process showed that the leases in question did not give the leaseholders a right to exclusive possession of the land. Therefore, the granting of a pastoral lease did not necessarily extinguish native title. Native title could co-exist with the rights of the leaseholder.
However, where there was a conflict in the exercise of those rights, native title rights were subordinate to those of the pastoral leaseholder. The rights of pastoralists prevail over any rights of the native title holders.
Wik Peoples and Thayorre People v State of Queensland & Ors (1997) 141 ALR 129.
ATSIC, A plain English guide to the Wik case, January 1997.
What does the Racial Discrimination Act have to do with the Wik case?
After the Wik case, some pastoralists, miners and state governments called for legislation to extinguish all native title on pastoral leases.
If the Commonwealth passed such laws, there would be some significant consequences. The Racial Discrimination Act (RDA) would be over-ridden and it would raise the potential for large compensation payments to native title holders. This is because the Commonwealth is subject to a constitutional obligation to provide compensation on just terms for any compulsory acquisition of property.
There is no such constitutional obligation on state governments. However, if a state or territory government purported to extinguish native title, this would be inconsistent with section 10 of the RDA which prevents racial discrimination in relation to the right to own and not be arbitrarily deprived of property, and provides for equality before the law.
Where there is inconsistency between state and federal law, the state law is invalid to the extent of any inconsistency under the federal Constitution. In the past, section 10 of the RDA has rendered invalid attempts by state governments to extinguish or impair native title rights in Mabo v Queensland (No 1) and Western Australia v Commonwealth.
Mabo v Queensland (No 1) (1988) 166 CLR 186.
Western Australia v Commonwealth (1995) 128 ALR 1.
| STATE | ADDRESS | PHONE/FAX/ETC |
|---|---|---|
| New South Wales |
Human Rights and Equal Opportunity Commission (HREOC) National Office Level 8, Piccadilly Tower 133 Castlereagh Street Sydney NSW 2000
GPO Box 5218 |
Phone (02) 9284 9600 Charge free 1800 021 199 Facsimile (02) 9284 9611 TTY 1800 620 241 www.hreoc.gov.au |
| Northern Territory |
HREOC Regional Office First Floor, TGC Centre 80 Mitchell Street Darwin NT 0800
LMB 4 GPO |
Phone (089) 819 111 Facsimile (089) 411 508 |
| South Australia |
Equal Opportunity Commission Ground Floor, Wakefield House 30 Wakefield Street Adelaide SA 5000 |
Phone (08) 226 5660 Charge free 1800 188 163 TTY (08) 226 5692 Facsimile (08) 223 3285 |
| Tasmania | HREOC Regional Office AMP Society Building 27 Elizabeth St. Hobart TAS 7000 | Phone (036) 234 3599 Charge free 1800 001 222 Facsimile (036) 231 0773 |
| Victoria | Equal Opportunity Commission 380 Lonsdale St. Melbourne VIC 3000 | Phone (03) 9281 7111 Charge free 1800 134 142 Facsimile (03) 9281 7171 TTY (03) 9281 7110 |
| Western Australia | Equal Opportunity Commission Westralia Square 141 St GGeorges Terrace Perth WA 6000
PO Box 7370 | Phone (09) 264 1930 Charge free 1800 198 149 Facsimile (09) 264 1960 TTY (09) 264 1936 |
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Text marked up by Sarah Peckham 15/6/97