Limited review of the
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981
Final Report
The Hon Ian Hunter MLC Minister for Aboriginal Affairs and Reconciliation Parliament House ADELAIDE SA 5000
Dear Minister
On behalf of the Review Panel appointed to assist in a limited review of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981, I am pleased to present the following Final Report and recommendations. This Final Report follows the Interim Report of 21 November 2013. It takes into account further consultations as recommended in the Interim Report and the discussions and outcome of the Special General Meeting convened by the Executive Board of Anangu Pitjantjatjara Yankunytjatjara to discuss and decide on the recommendations made by the Panel in the Interim Report. As with the Interim Report, this Final Report has been prepared in accordance with the Terms of Reference provided and following consultation and discussion across the APY Lands as described. The recommendations in this Final Report are largely the same as those set out in the Interim Report, with small but important modifications to four of the recommendations to better accord with what Anangu have told the Panel subsequent to the Interim Report. The Panel underscores that the recommendations in this Final Report have not been either confirmed or rejected by all Anangu for reasons which are indicated in this Report. Further processes are recommended to enable Anangu to reach a consensus about the recommendations.
Yours sincerely
Hon. Dr. Robyn Layton AO QC Panel Chair April 2014
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Table of Contents
Acknowledgements ...... 7 Executive Summary ...... 9 Summary of Panel Recommendations ...... 13 Background to the Final Report ...... 18 Legislative, electoral and voting Issues on the APY Lands ...... 21 General observations about amending the Act, passing regulations, bylaws or amending the APY Constitution ...... 23 The consultation process ...... 25 Overview ...... 25 Consultations ...... 26 First visit to APY Lands: 8-12 October 2013 ...... 26 Second visit to APY Lands: 17 October 2013 ...... 27 Third visit to APY Lands: 4-7 November 2013 ...... 28 Fourth visit to APY Lands: 13-15 November 2013 ...... 30 Written submissions ...... 31 Fifth visit to APY Lands: 4 December 2013 ...... 32 Sixth visit to APY Lands: 12-18 January 2014 ...... 33 Seventh visit to APY Lands: 20-21 February 2014 including the Special General Meeting ...... 37 Eighth visit to APY Lands: 12 March 2014 ...... 42 Conclusion and Recommendations ...... 43 What Anangu Say is Wanted ...... 44 How Anangu want changes ...... 45 The Panel recommendations ...... 46 Gender balance on the APYE ...... 46 A new election system for the APYE ...... 47 Strong men and women on the APYE ...... 49 Eligibility and standards for candidates for election to the APYE ...... 51 Maintaining the standards for the APYE ...... 55 Encouraging and supporting involvement of young men and women in the APYE ...... 56 Other topics and recommendations not yet discussed at all consultations ...... 57 Appointment of Chair and Deputy Chair of the APYE to support gender equality ...... 57 Voting rights of Chair of the APYE ...... 58 Term of office for APYE members ...... 58 Proxies ...... 58 Voting processes and absentee votes ...... 59
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Amending the Act or other legislative measures ...... 60 Further consultation with Anangu ...... 60 Appendices ...... 61 Appendix A ...... 63 Terms of Reference ...... 63 Appendix B ...... 67 Sections of Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 relevant to the review...... 67 Appendix C ...... 71 About the Panel ...... 71 Appendix D ...... 72 APY Executive: support for review ...... 72 Appendix E ...... 73 Selected recommendations from the 2008 Review of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act, 1981 ...... 73 Appendix F ...... 74 Publicity ...... 74 Powerpoint information used in some consultation meetings ...... 74 Review Poster: Community Consultation ~ 8 October to 12 October 2013 ...... 75 Review Poster: Community Consultation ~ 4 November to 7 November 2013 ...... 75 Review Poster: Community Consultation ~ 14 November to 17 November 2013 ...... 76 Review Poster: Community Consultation ~ 13 January to 14 January 2014 ...... 76 Review Poster: Community Consultation ~ 6 February and 7 February 2014 ...... 77 Review Poster: Community Consultation ~ 20 February and 21 February 2014 ...... 77 Appendix G ...... 78 Consultation meetings from October to November 2013 ...... 78 Appendix H ...... 79 APY Code of Conduct ...... 79 Appendix I ...... 82 APY Constitution ...... 82 Appendix J ...... 85 Schedule of all consultations ...... 85 Appendix ...... 86 Table of electorates – early consultations ...... 86 Appendix L ...... 87 Summary of Panel findings and translation ...... 87 Appendix M ...... 90 Table of electorates – later consultations ...... 90 Appendix N ...... 91 Letter to the Law and Culture Advisory Committee ...... 91 Appendix O ...... 92 Process for Special General Meeting (SGM) ...... 92 Appendix P ...... 96
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Notice of meeting for SGM ...... 96 Sample letter to community councils advising of meeting ...... 97 Sample letter to community councils advising postponement of meeting ...... 98 Appendix Q ...... 99 Questions for SGM and translation: English Version ...... 99 Questions for SGM and translation: Pitjantjatjara Version ...... 104 Appendix R ...... 109 Charts and tables for SGM ...... 109 Appendix S ...... 113 Summary of recommendations for the APYE meeting ...... 113
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Abbreviations
2008 Review … Review of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 - October 2008
Act … Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981
AGM … Annual General Meeting APY … Anangu Pitjantjatjara Yankunytjatjara; also the corporation of which all Anangu Pitjantjatjara Yankunytjatjara are members APY Lands/ Anangu Pitjantjatjara Yankunytjatjara Lands the Lands …
APYE … Executive Board of Anangu Pitjantjatjara Yankunytjatjara APYE Chair Chair of the Executive Board of Anangu Pitjantjatjara Yankunytjatjara
APYE Deputy Chair … Deputy Chair of the Executive Board of Anangu Pitjantjatjara Yankunytjatjara
Final Report … this final report of the Panel appointed to assist in the limited review of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981
Interim Report … the interim report and recommendations of the Panel dated 21 November 2013
Minister … Minister for Aboriginal Affairs and Reconciliation
NPY … Ngaanyatjarra Pitjantjatjara Yankunytjatjara Panel … Panel appointed by the Minister to assist in the Review
Panel Chair … Chair of the Panel appointed by the Minister to assist in the Review Panel member … A member of the Panel
Review … Limited Review of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (this review)
SAPOL … South Australia Police SGM … Special General Meeting; also the Special General Meeting of Anangu held at Umuwa on 21 February 2014
ToR … Terms of Reference for the Review
Umuwa meetings … meetings convened by the APYE at Umuwa on 20 and 21 February 2014 which includes the SGM
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Acknowledgements
A review of this nature requiring multiple consultations with Anangu in communities across the APY Lands is very demanding. The topic of governance, voting processes and electorates is a complex subject to talk about in any language, but made more complicated when the first language spoken by Anangu often does not have words to describe some of the ideas and concepts which need to be discussed and then to make sure that the Panel understands what Anangu want to achieve out of the Review. Add to that the demands of travelling and working in communities in very remote locations, some distance from each other over the period of four months. The Panel’s work has been very reliant on a wide range of support. It includes interpreting at consultation meetings; translating documents; publishing various forms of documents for meetings including diagrams and charts as requested by the Panel. In addition organising travel, transport, accommodation and food; arranging publicity; setting up for consultation meetings, providing food and drink for participants; as well as taking notes of meetings. Sometimes arrangements for all of this have had to be changed at very short notice to accommodate changed circumstances on the APY Lands. In addition, the Panel has been assisted by people who have been working on the APY Lands for some years who introduced us to Anangu when we have gone into the different communities, including those on the various community councils or working in various organisations. We were also greatly assisted by Anangu community council members who often physically drove around either reminding or collecting Anangu to attend the community consultation meetings. The Panel is very appreciative of the time and effort given by so many people who have performed these tasks at the request of the Panel, often in addition to their usual work. Finally we thank those involved in assisting with the research, drafting and editing of this report. The Review could not have been achieved without their help. In alphabetical order assistance has been given by: • Alexandra Reid • Leanne Liddle • Alice Springs Air Charter • Lena Taylor (Interpreter) • APY Executive and APY office staff • Mark Jackman • APY community council chairs and • Mark Weaver committee members • Nerida Saunders • Bob Smith • PY Media • Craig Macauley • Richard Hughes • David Barber • Rosemary Lester (Interpreter) • Desmond Woodforde (Interpreter) • Shona Reid • Housing SA • Skillhire • Janet Worth (research/drafting/editing) • South Australia Police • Jonathon Nicholls, Paper Tracker • Yanyi Baker (Translator/Interpreter) If we have inadvertently overlooked anyone, we sincerely apologise.
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Executive Summary
In September 2013 the Minister for Aboriginal Affairs and Reconciliation (the Minister) announced a limited review (the Review) of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (the Act). This review was prompted by a request from members of the Executive Board of Anangu Pitjantjatjara Yankunytjatjara (APYE) and by the need to provide more contemporary governance structures and accountability measures relating to the election and appointment of members to and to strengthen the Board’s expert advisory capacity and knowledge base. A Panel (the Panel) was appointed by the Minister to assist in the Review and to undertake consultation across the Anangu Pitjantjatjara Yankunytjatjara Lands (the APY Lands/ the Lands) on the issues of: • changing the voting structure for election to the APYE • enabling skills based directors to be co-opted to the APYE • introducing a ‘fit and proper person’ test for all potential members of the APYE • achieving a gender balance on the APYE • establishing a Commercial Development Advisory Committee. The Panel was required to provide a report to the Minister by 21 November 2013. In order to satisfy, as far as possible, the requirement of ‘consultations across the APY Lands’ and to ascertain what Anangu wanted, the Panel planned to visit each of the bigger communities at least twice. Meetings were scheduled and publicised to take place during four visits to the APY Lands over the period 8 October to 15 November 2013. The Panel was unable to complete the planned consultations within the time stipulated, mainly because of cultural and sorry business on the APY Lands and therefore had to provide an Interim Report (the Interim Report) to the Minister on 21 November 2013. The Interim Report, which is attached, includes recommendations, one of which was that further consultations were required. The Minister agreed and the Panel undertook further consultations over four visits to the APY Lands from 4 December 2013, the last being on 12 March 2014 when the Panel provided the APYE with a summary of its recommendations as set out in this Final Report (the Final Report). Over the four-month period the Panel undertook eight visits to the APY Lands and attended 24 meetings. There were an additional eleven meetings scheduled which could not take place mainly because of sorry business and other cultural business. Consultation meetings took place in Iwantja, Mimili, Kaltjiti, Pukatja, Amata, Pipalyatjara, Kanypi and Kenmore Park. Meetings in the bigger communities often included people from the smaller communities or homelands. Included in these meetings were consultations with the Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY) Women’s Council and members of Ananguku (Ku) Arts and the Law and Culture Advisory Committee of the APYE.
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On 15 January 2014, the APYE passed a resolution that Anangu need to discuss the recommendations of the Interim Report at a Special General Meeting (SGM) planned for two days. The SGM was initially set for 6 and 7 February 2014 but because of sorry and cultural business, it had to be deferred to 20 and 21 February. A meeting of Anangu commenced on the first day, but the SGM did not take place until the second day, being 21 February 2014. Over the two days of meetings (the Umuwa meetings), Anangu made a number of comments and discussed the Review and aspects of some of the recommendations. At the SGM, Anangu did not give answers to the questions asked by the Panel about the recommendations. Instead, the SGM passed two resolutions about the Review: First, that the Panel only could complete its report without further discussion with Anangu at that time; second, that Anangu want independent legal advice. The Panel has taken note of the content of the discussion and has reflected this by making modifications to the recommendations in this Final Report. Over the four months, the Panel met with the APYE four times: initially to inform members about the topics to be discussed; later to report upon and discuss with APYE members what the Panel had heard from Anangu; further to discuss the recommendations and the process of holding and conducting the SGM of all Anangu in February 2014; and finally to report on the recommendations in this Final Report. Not all Panel members were able to attend all meetings. There were various combinations depending on availability. The Panel Chair was present at all meetings. Despite this, the Final Report and the decisions and recommendations of the Panel involved discussion and the agreement of the whole Panel. During the four-month consultation process: • Anangu indicated firm support for changing the current way that the APYE is elected and operates so as to improve representation of all Anangu on the APY Lands. • Anangu clearly stated that they want the APYE to do things differently and would like to see changes to help achieve a better future for all Anangu. • Anangu and Anangu women in particular, clearly stated that they wanted gender balance on the APYE. At the same time Anangu women emphasised their respect for men who have sat on the APYE over the years and for the historical importance of this work since the Act was passed in 1981.1 Women expressed a strong desire to work together with men on the APYE for the future of all Anangu. On the topics discussed with the Panel in this Review, what Anangu say is wanted include:
1 NPY Women's Council and Ku Arts written submissions.
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• equal numbers of men and women on the APYE2 • a new election system that not only has a gender balance but also allows: • smaller communities to be represented on the APYE3 • all Anangu to have a right to vote in the election for APYE members, even if living away from the APY Lands. • strong men and women who can speak up and act for all Anangu, not just families, kinship groups and their own community • standards for candidates for election to the APYE, in addition to being Anangu and over the age of 18 years. Candidates should: • be physically and mentally fit to do the work of the APYE • have no convictions for serious offences, which need to be confirmed by a police clearance. This would not include less serious offences, for example, driving and minor alcohol related offences
In early consultations, Anangu, particularly Anangu women, said they wanted a requirement that a candidate have no convictions for serious offences at any time prior to standing for election. Later consultations suggest a modification may be required to allow a consensus of Anangu to be reached on this sensitive topic as discussed in this Final Report. The Panel therefore recommends a time limit that candidates have no convictions for serious offences for 15 years prior to standing for election to the APYE’4. Further, this requirement would not apply to Anangu members of the Law and Culture Advisory Committee of the APYE
• live on the APY Lands but also live in the community the candidate seeks to represent • report to the APYE about what their community wants the APYE to do and also report back to the community about decisions made by the APYE after each meeting • APYE members to maintain these standards upon which they were elected • support for pre-election information in communities about the work of the APYE and election processes. Post-election induction training for APYE members about APYE business as well as discussing how men and women may work together respectfully on the APYE • ways to encourage and support younger men and women to stand for and become members of the APYE • some support for the idea of a separate economic advisory committee to provide advice to the APYE on matters related to business development opportunities, employment, economic development and industry skills and expertise
2 A contrary minority view was expressed by important male elders who are members of the Law and Culture Advisory Committee and are also members on APYE. 3 A contrary minority view was that smaller/ homelands communities should not have representation in their own right but have their interests taken into account by members elected from larger linked communities. 4 Subsequent meetings with APYE, the Law and Culture Advisory Committee and discussion at Special General Meeting, suggest this modification may be preferred. This compromise may meet with consensus of Anangu.
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• only limited support was provided for the addition of two skilled based directors to be co-opted by the APYE to provide advice to the APYE • more time for discussion was required by Anangu about Panel recommendations • concern about amending the Act to have changes made • wanting independent legal advice for Anangu about the Review and recommendations. The last three points became prominent during consultations and meetings after the Interim Report, in particular meetings with the APYE, the Law and Culture Committee and the Umuwa meetings, which included the SGM held on 21 February 2014. The Panel’s overall impression is that Anangu have a high interest in wanting changes to APYE membership and the appointment process. The Panel is confident that the work already done by the Panel has set a sound base for more discussion by Anangu, but that Anangu want to control that further process. In particular Anangu would want ways to address APY governance other than by changes to the Act, for example, by changes to the APY Constitution or by regulation or bylaw. The Panel reflects this in its recommendations.
P a g e | 12 Summary of Panel Recommendations
At the Special General Meeting, Anangu did not confirm or reject the recommendations of the Panel. Therefore the recommendations set out below remain unconfirmed by Anangu.
Gender Balance That the APYE consist of equal numbers of men and women to be elected or appointed in accordance with the Act.
General Voting Principles Each voter in communities in Central APY and West APY wards to cast four votes: two for men and two for women. The election of APYE members in Central APY and West APY wards to be decided using the following stepped approach. 1. Elect the person with the highest votes from any community whether the person is a man or a woman 2. Elect the person with the highest votes who is the opposite gender from 1 and who is from a community other than 1 3. Elect the person with the highest votes from a smaller/homelands community whether that person is a man or woman, unless that person is from a community already represented in 1 or 2. In that situation elect the person with the highest votes from a community other than 1 or 2 4. Elect the person with the highest votes who is the opposite gender to 3, regardless of which community the person comes from.
Note: There may need to be a qualification in step 4 to accommodate an unusual or skewed pattern of voting. Qualification: in the event that the strict application of step 4 results in Community A which already has an elected member through steps 1 to 3, obtaining another member for Community A and there is a Community B which has a reasonable residential population but has gained insufficient votes for a candidate to be elected, preference is to be given to elect the candidate of the appropriate gender with the highest vote from Community B. This qualification requires further discussion, in particular as to whether and if so how that discretion could be exercised.
In the case of the communities in the East APY ward, each voter in each of the two communities of Iwantja (and associated homelands/ smaller communities) and Mimili (and associated homelands/ smaller communities) to cast two votes: one for a man and one for a woman. Four members to be elected in this order: Iwantja 1. Elect the person with the highest votes from Iwantja whether that person is a man or a woman
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2. Elect the person with the highest votes from a smaller/homelands community who is the opposite gender from 1. Mimili 1. Elect the person with the highest votes from Mimili whether that person is a man or a woman 2. Elect the person with the highest votes from a smaller/homelands community who is the opposite gender from 1.
Pre-election processes That there be pre-election processes before voting to include: • development of a process to provide information in communities about the work of the APYE; the election process; and eligibility requirements for candidates who wish to be elected as members of the APYE • development of a process which enables candidates for election to be given the opportunity in a community meeting(s) to say publicly why they would be a good member of the APYE • development of a tailor-made training program and workshop for Anangu who may be interested in becoming members of the APYE, with this training to focus upon the management skills required for such a position.
Post–election training That there be post-election formal induction training for elected members of the APYE to include information not only on the work of the APYE but also a workshop which could discuss issues concerning how men and women on the APYE can work respectfully together and how to take account of cultural gender matters if they arise.
Eligibility requirements and nomination form The nomination form should be signed by the candidate that includes a statement that he or she: 1. Is Anangu and over the age of 18 years 2. Lives on the APY Lands in the community for which they seek election 3. Does not have convictions for serious offences in the 15 years prior to standing for election 4. Is physically and mentally fit to do the work of the APYE 5. Does not have drug or alcohol problems 6. Promises that he/she will inform the APYE about the views of community on issues and report back to the community about decisions made by the APYE 7. Authorises the obtaining of a police check document (the police check document is to later be attached to the nomination to support eligibility in 3).
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Eligibility requirements – ‘lives’ on the APY Lands That the requirement that a candidate for election must live on the APY Lands in the community in which they seek election means that they must live in that community for the month before seeking election. Thereafter, the member must live in that community for nine months or more in every year that they are a member of the APYE.
Eligibility requirements – no convictions for ‘serious offences’ The requirement that a candidate for election cannot stand as a candidate for the APYE if they have been convicted of a serious offence within 15 years of standing for election, means a conviction during that time for any of the following: • an offence resulting in the death or serious harm to a person • murder • manslaughter • criminal neglect causing harm or death • causing death or serious harm to a person when using a motor vehicle • assault causing a person serious harm • sexual crimes • rape • sexual offences against children • child pornography • serious trespass or robbery offences • very serious criminal trespass (with a weapon or with another person) • serious robbery (with a weapon or with another person) • serious drug, grog or petrol offences • manufacture, sale, supplying and trafficking of commercial amounts of drugs of dependence • sale supply and giving of drugs of dependence to children • offences under the Act for sale and supply of petrol and grog • Serious dishonesty offences • making up or using false documents • Any offence for which the maximum term of imprisonment is 15 years or greater.
Eligibility and nomination Panel That the Government appoint an independent Panel, after consultation between the APYE and the Government, that Panel to have responsibility for checking the eligibility requirements of the nominated candidates and to determine challenges to a nomination. This should include the process of obtaining current electoral rolls which can be used by the Electoral Commission when elections are conducted.
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Removal of APYE members That the standards of members be strengthened and enforced to include a process for removing members who are not fit to do the work of the APYE and also a provision that a member who is convicted of a serious offence is to be automatically removed. There should also be a complaint mechanism if a member is not fulfilling their responsibilities to attend meetings and report back to community.
Encouraging youth and young men and women That Government working together with community councils discuss ways to encourage youth and also young men and young women to attend meetings of the APYE on a formal and regular basis. This could include scheduling meetings of the APYE to meet in communities other than Umuwa.
Gender of Chair and Deputy Chair That consideration be given to alternating a man and woman to occupy the position of Chair and Deputy Chair of the APYE every election.
Voting by Chair That consideration be given to prescribing the voting rights of the APYE Chair to resolve circumstances where there is a tie in voting.
Term of office of APYE members That there be a limit of no more than three terms for any APYE member.
Proxies That the process of appointing proxies be clarified and include the potential for such nominees to be identified and appointed as a result of the APYE election process. Investigate the potential for proxies to replace a member who has been removed from office or if there is a casual vacancy of that member, then a proxy be of the same gender and from the same community as the member.
Absentee voting That absentee voting for persons on dialysis in places such as Adelaide, Alice Springs and Port Augusta be enabled through a process to be discussed with the Electoral Commission.
Amending the Act or other legislative measures That after Anangu reach agreement about recommendations, consideration be given as to how that can be best achieved. It could be done by amendments to the Act, regulations, bylaws or amendments to the APY Constitution, or a combination of these. Any legislative changes to be kept to the minimum necessary to give effect to agreement by Anangu.
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Further consultations 1. That the recommendations and the Executive Summary in this Final Report be translated into Pitjantjatjara and be presented by the Panel to the APYE together with a full copy of the Final Report in English. 2. That the Government acknowledge the resolution passed by Anangu at the SGM to have an independent lawyer to advise Anangu about the recommendations in this Final Report. 3. After any independent legal advice is obtained by Anangu, then the Government consider further consultation or discussion by the Panel with Anangu about issues resulting from the combination of such independent legal advice and these recommendations. Further consultation or discussion is to be undertaken with the aim of Anangu reaching consensus. 4. That prior to any proposed changes to the Act or other legislative measures, the Government consult with Anangu on the draft of such legislative measures.
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Background to the Final Report
In September 2013, in response to a request from members of the APYE, the Minister announced his intention to conduct a narrow review of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and associated administrative arrangements. For the Terms of Reference (ToR) see Appendix A. The APYE affirmed its support for the limited review in its letter to the Chairperson of the APY Community Council dated 30 September 2013 and in the minutes of its meeting of 26 June, 2013 (both Appendix D). The ToR stated that the Review was limited to the consideration of contemporary governance and accountability measures relating to the election and appointment of members to the APYE and to strengthen its expert advisory capacity and knowledge base. This was said to be in order to give confidence to all Anangu that the nominees for election to the Board have the necessary skills, experience, ability and commitment to carry out the role. The ToR identified that the Review may include, but is not limited to, five specific topics, namely: • changing the voting structure for election to the APYE from community groups constituting wards to proportional representation • enabling skills based Directors (Aboriginal and non-Aboriginal) to be co-opted to the APYE • introducing a ‘fit and proper person’ test for all candidates or nominees for election or appointment to the APYE • introducing a requirement, as far as reasonably practicable, to achieve a gender balance on the APYE. • establishing a Commercial Development Advisory Committee with the members appointed by the Minister with the focus being on economic development on the APY Lands. The ToR required consultation on the above proposals with Aboriginal people across the APY Lands. The Panel was appointed to conduct the community consultation sessions and to provide expert advice and guidance with respect to the review. The names of the Panel members and a brief summary of their biographies are set out below, with greater detail at Appendix C.
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The Hon Robyn Layton AO QC - Chairperson Presently an Adjunct Professor at the University of South Australia School of Law. A lawyer and former Judge of the Supreme Court of South Australia until September 2010. Her strong connection with Aboriginal issues began in the late 1960’s and still continues as Co- Chair of Reconciliation SA and through other organisations.
The Hon John Hill Formerly a Member of Parliament as the Member for Kaurna from 1997 to 2014, including the period of this Review. He became a member of the Rann Cabinet in 2002 and held various positions including Ministerial positions In each of these roles he visited the APY Lands, having first visited the lands in the mid-1980s while working as an advisor to then Minister for Education and Aboriginal Affairs, Hon Greg Crafter.
April Lawrie-Smith Presently the Director of the Aboriginal Health Branch in the South Australian Department of Health. Prior to that April was the Aboriginal Justice Director in the Attorney General’s Department. She is a Mirning and Kokatha Aboriginal woman who comes from the far west coast of South Australia. Over the last 23 years April has contributed to the formation of policy at the state and national level, service innovation and community development with regard to Aboriginal health, child protection, family support and foster care, justice and social services.
Harry Miller Presently the Chief Executive Officer of the Port Lincoln Aboriginal Health Service in South Australia. Harry has previously worked across Government in many agencies including as Regional Chairperson of the Wangka Wilurarra Regional Council. He has also worked on the review of the Aboriginal Lands Trust Act and been a member of the South Australian Aboriginal Consultative Committee. His areas of work and interest have been in Aboriginal affairs in education, social services, vocational education and training and community capacity development.
The Panel conducted consultations in communities and with organisations across the APY Lands as required by the ToR. The Panel provided the Interim Report with recommendations to the Minister on 21 November 2013. The initial timeframe did not allow the Panel to ensure that the views expressed by Anangu had been fully assessed and considered. The Panel therefore recommended further consultations, which were agreed to by the Minister.
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The Panel undertook further consultations from December 2013 with the last meeting, with the APYE, taking place on 12 March. 2014. On 15 January 2014, the APYE passed a resolution that Anangu discuss the recommendations of the Interim Report at a Special General Meeting (SGM) planned for two days. The SGM did not take place until the second day, being 21 February 2014. At the SGM, Anangu did not give answers to the questions asked by the Panel about the recommendations. Instead, the SGM passed two resolutions about the Review: First, that the Panel could complete its report without further discussion with Anangu at that time; Second, that Anangu want independent legal advice. Subsequent to the SGM, the Panel modified some of the recommendations to take account of the consultations, discussions and comments made at all the meetings after the Interim Report. This Final Report summarises all of the consultations, the processes, and what Anangu told the Panel over the four-month Review and makes final recommendations indicating the reasons of the Panel. The recommendations set out below remain unconfirmed by Anangu. In its final recommendations, the Panel includes suggestions as to what processes could be undertaken by Government to complete what was sought to be achieved in the Review, including recommendations for further time and discussion by and with Anangu.
P a g e | 20 Legislative, electoral and voting Issues on the APY Lands
The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (initially the Pitjantjatjara Land Rights Act 1981) was passed in March 1981 introducing new concepts of land holding and land control for the benefit for the Pitjantjatjara Yankunytjatjara people. The APYE is constituted by s.9 of the Act which has the responsibility for carrying out the functions and day-to-day business of Anangu Pitjantjatjara Yankunytjatjara (APY), the corporation, of which all Anangu Pitjantjatjara Yankunytjatjara are members. The APYE is also required at all times, to endeavor to advance the interests of APY. Various other parts of the Act relate to the functions, operations and election of the APYE and these are described in Appendix B. Amendments to the Act were made in 2004 and more substantial amendments were made in 2005. The Act provides for a 10-member Executive Board, comprised of one person from each of the community groups, or electorates, of: • Pipalyatjara/ Kalka • Watarru • Kanypi/ Nyapari/ Angatja • Amata/ Tjurma • Kaltjiti (Fregon)/ Irintata/ Watinuma • Anilalya/Turkey Bore • Pukatja (Ernabella)/ Yunyarinyi • Mimili • Iwantja (Indulkana) • Amuruna/ Railway Bore/ Witjintitja/ Wallatinna. The features of this history most pertinent to this Review are the changes to the electorates over the period 1981 to the present time, reflecting an increase in populations, as well as movement of Anangu living on homelands to instead live in larger communities. It is noteworthy that by 2002 there were 17-19 members on the APYE (from 15-17) plus two women nominated by NPY Women's Council. In 2002, in a compromise reached between the APYE, with the assistance of the Electoral Commissioner and the Government, this was reduced to the current ten members from ten electorates. The table at pp.11-12 in the Interim Report outlines some relevant history of the APY Lands’ electorates and voting statistics. Substantial amendments were made to the Act in 2005, following a report of a Select Committee of the Legislative Council in 2004. The 2005 amendments were intended to: • Increase the confidence Anangu have in their peak governing body by increasing the transparency and accountability of its decision making;
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• Make the APYE a more effective and responsive body with a greater capacity to implement the wishes of Anangu; • Improve the delivery of Government services on the APY Lands by refocusing APYE activities on land management. The Act itself provided for a review of the operation of the 2005 amendments. This review was delivered in October 2008 after a call for written submissions and one visit to the APY Lands. Much of the 2008 Review is outside the scope of the present review, but relevant recommendations are set out in Appendix E. One issue which became prominent at the Umuwa meetings in February 2014, was an assertion by one speaker that amendments made to the Act in 2005 were different from what Anangu had wanted and took away the right of Anangu to a ‘veto’ to control their land. The nature of this ‘veto’ was not identified. Some brief research by the Panel suggests that it may relate to Division 2, ss.6 and 7 of the Act which concern the powers and functions of APY, and in particular the combined effect of the two sections with the addition of s.6(8)5. The combination of the two sections raises some tension about the power and role of the APYE and the rights of traditional owners. Inclusion of s.6(8) could potentially override the interests of traditional owners as well as override a decision by the APYE. The 2004 Select Committee did not suggest the inclusion of s.6(8). It appeared in the 2005 legislation. In the course of the 2008 review of the 2005 legislation, the same speaker, together with other traditional owners, voiced concerns that the rights of traditional owners were not being properly respected and they were not being kept properly informed about developments on the APY Lands and that this was diminishing the power and influence of traditional owners. It is not necessary for the purposes of the present Review to precisely identify the particular issue which was of concern as a result of the 2005 amendments to the Act, but instead to note a broader distrust about consequences of changes to legislation which may not accord with Anangu views.
5 Section 7 is a requirement for APY to consult with traditional owners having a particular interest in a portion of the lands or otherwise affected by a proposal. Section 6(1) also refers to APY being required to ascertain wishes and opinions of traditional owners and to protect Anangu interests but at the same time have power to grant a lease or licence of lands. Section 6(6) provides that the interest of a lessee or licensee under a lease or licence granted by APY must not be transferred or otherwise dealt with without the consent of APYE. Section 6(8) provides that the APYE ‘must not unreasonably withhold consent under subsection (6)(b)’.
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General observations about amending the Act, passing regulations, bylaws or amending the APY Constitution
What follows is a brief and simplified version of the process by which agreed changes can be effected as well as a brief summary of the relative advantages, disadvantages or limitations of each process. Amendment to the Act An amendment to an Act is usually introduced into Parliament by a Government minister, frequently after consultation with persons or groups affected by the amendment. To become law, an amendment requires the approval of a majority of members in both the House of Assembly and the Legislative Council. There is no guarantee that the amendment will be passed as it was drafted, as members of Parliament may vote to alter it. Regulation Sub-sections 43(1) and (2) of the Act allow regulations to be made. A regulation cannot be made without the recommendation of APY (s.43(2)). This places the initial control of recommending a new regulation or change to a regulation in the hands of APY. A regulation can be disallowed by Parliament. A regulation cannot be inconsistent with the Act. The present topics on which regulations can be made may be limited by the wording in s.43(1). Bylaw Section 43(3) of the Act allows bylaws to be made. A bylaw can be recommended by APY but it can also be made without a recommendation by APY. Notice must be given to the Minister if APY wish to make a bylaw. A bylaw is ‘subject to disallowance by Parliament’. There is no guarantee that the bylaw will be passed as it was drafted as members of Parliament may vote to alter it. A bylaw cannot be inconsistent with the Act and the wording of s.43(3) may limit the topics on which bylaws can be made. Amendment to the APY Constitution Section 6(2)(i) of the Act gives APY the power to make a constitution. Such a constitution must not be inconsistent or go beyond the scope of the Act. Its content is limited to proceedings of APY and the administration of its affairs (s.6(1)). Present topics in the constitution concern the conduct of meetings, procedures to resolve disputes and other matters related to conduct or administration of APY business. Sections 14(3) and (4), of the Act provide that the constitution can be amended by a resolution of APY and it also requires approval by the Minister. An amendment does not require the approval of Parliament. The topics which can be set out in a constitution are more limited than the topics which can be addressed by an amendment to the Act, a regulation or bylaw.
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The Panel also notes that it is possible for the Act to be amended to increase the scope of regulations or bylaws or a constitution. Further, some matters could be set out in the Code of Conduct of the APYE. The solution may be a combination. Each way of effecting a change is a matter of technical legality and this requires specific legal advice. The best approach can only be decided after Anangu agree on the final recommendations.
For these reasons the Panel does not make any specific recommendation as to how the recommendations in this Final Report as discussed below can be legally achieved.
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The consultation process
Overview
Under the Terms of Reference the Panel was required to consult with the APY community and in particular it was to conduct face-to-face community consultations on the specified topics concerning the APYE which the Panel simplified as: • gender • the manner of election • what makes a good member (for example establishing standards and supported by a police check) • what skills are needed on the APYE and • the opportunity to establish an economic development advisory committee to provide advice to the APYE. These five topics are referred to as either ‘the five topics’, or ‘the five questions’. Prior to the consultations, the Panel met and discussed ways in which to achieve the greatest participation of Anangu and how to approach the consultation meetings in a culturally sensitive manner. The Panel noted the difficulty of translating ‘fit and proper person’ and decided to adopt the concept of ‘what makes a good member’. The Panel also noted that if gender balance on the APYE were supported in the consultation process, then this would have ramifications as to the election process, the number of electorates and the electoral boundaries. It was decided that the issue of gender balance would therefore need to be discussed first in order to set the scene for other focus points for the Review. The Panel was also informed by the Minister that there should be no more than 10-12 members of the APYE and that this could include up to two skilled persons. Promotion of meetings on the APY Lands was heavily dependent upon the notices which were prepared by the Panel and sent to each of the community councils to be circulated, including placing them on notice boards in the store and at PY Ku sites as well as encouraging Anangu to attend on the day. Community councils did assist with this, but in the end it was up to Anangu as to whether they attended. As Anangu also travel around the APY Lands as well as on and off the APY Lands it was not possible to talk with all Anangu and to discuss every topic at each consultation meeting. In addition to these notices, there were two radio interviews with Panel members which were broadcast on the APY Lands and described what the Review was about and gave information about the timing of visits to the APY Lands. The Panel also used qualified interpreters in all community consultations, save on two occasions, one in Iwantja and one in Mimili, where the pre-arranged interpreters did
P a g e | 25 not attend. On those two occasions, a community person competently interpreted the discussion. Overall there were eight visits to the APY Lands. Not all members of the Panel were able to join all visits and meetings: sometimes there were different combinations, but the Panel Chair attended all. There were 24 individual consultations or meetings over the whole of the four-month consultation period from 8 October 2013 until 12 March 2014. The consultation dates and places are set out in Appendix J. This appendix also lists eleven places for which consultation arrangements were made, and in some instances Panel members attended, but consultations could not be undertaken due to cultural business or sorry business. Four visits were made in October and November 2013 and they included meetings at Iwantja, Mimili, Kaltjiti, Pukatja, Amata, Pipalyatjara, Kanypi and Kenmore Park. People from the smaller communities or homelands associated with the bigger communities sometimes attended these meetings. Additional consultations were undertaken as circumstances presented themselves, namely at, the Annual General Meeting (AGM) of the NPY Women’s Council held at Cave Hill, and also with members of Ku Arts who were attending their AGM in Umuwa. These earlier consultations are summarised below, but more detailed accounts are set out in the Interim Report at pp.13-19. After these visits and consultations the Interim Report was delivered to the Minister on 21 November 2013. As recommended in the Interim Report, further visits and community consultations were undertaken. Between December 2013 and March 2014 there were four more visits and these are described below. Every effort was made to by the Panel to consult in the major communities on multiple occasions, and to obtain the views of as many people as possible, but there were limitations on this process as indicated above.
Consultations
First visit to APY Lands: 8-12 October 2013
APY Executive The first meeting on 9 October 2013 was to inform the APYE of the Review process and the Panel’s plans for consultation in the communities. This was not a formal consultation but rather an opportunity to keep the APYE informed on the topics and the process the Panel would adopt. Views were expressed by various members of the APYE on some of the topics. Iwantja, Mimili, Kaltjiti, Umuwa, Amata, Kanypi, Pipalyatjara These meetings introduced the topics of the review, and described the consultation process and plans for future visits. Meetings were held at Iwantja, Mimili, Kaltjiti,
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Umuwa, Amata, Kanypi, and Pipalyatjara. The meetings attracted up to 30 people in each place, which were considered a reasonable turnout in an APY context. Three Panel members attended. At each meeting the Panel outlined the five the key questions. It was emphasised the consultation was to seek the views of Anangu about those questions – the Panel was not there to give the answers but to assist Anangu with some ideas to help discussion. The role of the Panel was then to report to the Minister and to make recommendations for changes, based on the views that Anangu expressed. Even at this first stage of the consultation process there were clear common trends in the communities’ response: • strong support for changing the way the APYE was elected; • dissatisfaction with representation on the APYE, a common complaint being that communities were not kept informed about what happened at the APYE meetings; • overwhelming support for equal numbers of men and women; • concern as to how equal gender representation could be achieved; • persons who live on homelands/smaller communities were not adequately heard; • strong interest in changing the number of electorates from ten to six electorates linking the six bigger residential communities with homelands/smaller communities where there were close connections with kinship and family; • later another alternative emerged: three wards to be described geographically as East APY, Central APY and West APY, each to have four representatives; two men and two women – a total of 12 members on the APYE, six men and six women; • a need to have strong men and women on the APYE; • support for police checks and for candidates to have no convictions for serious offences; • some suspicion about adding two skilled members to the APYE and about the appointment of an economic advisory committee to advise the APYE; • all communities indicated a desire to discuss these topics in further detail.
Second visit to APY Lands: 17 October 2013
NPY Women’s Council In between the first and second community visits, the Chairperson undertook a consultation at the AGM of NPY Women’s Council held at Cave Hill on 17 October 2013. Some 75 women were in attendance. There was positive support for changing the way the APYE was elected; very enthusiastic support for equal gender representation; the need for strong men and women on the APYE to work together
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for all Anangu; support for clean police checks and no serious convictions; significant interest in the idea of three wards with 12 members on the APYE – six men and six women – which would require further discussion; interest in either a co- chairing of the APYE by a man and woman or alternating the Chair and Deputy Chair so that they was alternatively a man and woman; the need for training and for young people to be encouraged to stand for election.
Third visit to APY Lands: 4-7 November 2013
Amata, Pipalyatjara, Kanypi, Iwantja, Pukatja, Ku Arts, Kenmore Park Meetings were scheduled and took place at Amata, Pipalyatjara, Kanypi, Iwantja, Mimili, Kaltjiti, and Pukatja. Visits to Mimili and Kaltjiti were scheduled but could not take place. (see Appendix J). Unscheduled meetings took place with members of Ananguku (Ku) Arts and at Kenmore Park. Three Panel members attended. The opportunity arose to meet with members of Ku Arts, almost all women. Although this organisation had not expected this meeting, the women were clear in their support for equal numbers of men and women and the need for strong women. They did not want to decide on electorate issues at that time, preferring to make a written submission, which was subsequently done. An unscheduled meeting at Kenmore Park also took place as a result of the cancellation of visits to other communities. At the meeting at Kenmore Park, the Panel talked about the five questions and gave information about what Anangu had already told the Panel. The Panel heard preliminary views of support for gender balance on the APYE and the importance of having regard to the history of the Act. There was also a discussion about electorates and wards. There was strong support for candidates having no convictions for serious offences. The meeting finished on the basis that further discussion was required on the topics. Overall, the Panel noted further thought and discussion about the Review issues had taken place in communities between the first and these third visits. In general at this third visit, there was reinforcement by Anangu of the need for change; for gender balance and discussion on how to achieve this; changing the way the APYE was elected; and the need for strong men and women. There was almost overwhelming support expressed for a clean police record6 and for candidates to have no convictions for serious offences, such as convictions for drug or grog running and supplying, but not less serious offences such as driving and alcohol problems. There was also support for candidates to be physically and mentally fit, to be strong and speak out at meetings and importantly to report to the APYE about what the community wants and report back to the community about decisions made by the APYE soon after the meetings, and the importance of having good and strong Anangu on the APYE who would act for all Anangu and not just their own family,
6 One of the representatives on the APYE voiced a contrary opinion during a community consultation.
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kinship or community. A number of Anangu highlighted the need to encourage younger men and women to be candidates for the APYE and to have processes to develop their skills. Younger Anangu were seen as the future strength for all Anangu. On the topic of an election system which would combine gender balance and have smaller communities represented on the APYE, a basic table (Appendix K) was developed by the Panel to reflect the discussions which had occurred at the first visit and was used as a basis for discussion at the third visit. The discussion during the third visit indicated that the following principles were important in deciding on an electoral system: • equal numbers of men and women on the APYE • having smaller communities/homelands represented on the APYE • that candidates for election to the APYE should not only live on the APY Lands but should live in the community where the candidate is seeking representation • consultations in the majority of communities visited, indicated preference for the three-ward system for the communities in Central APY and West APY.7 This included a requirement that at least one of the four representatives in each of the three wards should be from a smaller community/ homelands. This was an important feature as to why a preference was given for the three ward approach rather than the six electorates approach • by contrast, in the consultation at Iwantja there was a division of opinion: one view indicating a preference for six wards, a second view indicating a preference for the three wards. The meeting indicated that there would be further community discussion on those two proposals. The other major community which could form part of the East APY, namely Mimili, had not expressed a view at that time. 8 There was also: • discussion as to whether candidates could be elected by voting either at one big meeting in Umuwa or for voting to take place in each community. • support for a pre-election process that would give candidates the opportunity to say why they would make a good member of the APYE and enable communities to judge an ability to ‘speak up’ • support for a process for absentee votes
7 It is important to note that Kaltjiti was not visited on the second occasion and that during the first visit, a preference had been expressed for six electorates, but an option for three wards had not yet been developed at that point. 8 At the first visit to Mimili, the description of electoral ideas was limited to the ideas of retaining the current ten electorates with ten members, or alternatively six electorates with 12 members; Anangu expressed no view on that topic. The Panel was unable to conduct a consultation at Mimili during the third visit due to cultural business.
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Fourth visit to APY Lands: 13-15 November 2013 Meetings were scheduled for Kenmore Park, Iwantja, Mimili and Pukatja, with the potential to visit Amata, Kanypi, Pipalyatjara and Kaltjiti. Meetings took place only at Kenmore Park and Iwantja (see Appendix J). These two meetings allowed detailed discussion on the major issues. The Panel Chair attended. Kenmore Park At Kenmore Park there was firm endorsement of gender balance and the meeting supported: • the need for strong representation by men and women to speak out and act on behalf of all Anangu a preference for the three electorates, particularly when at least one of the four representatives would be from a smaller community9 • the need for candidates to live in the communities which they sought to represent; • that younger men and women to be encouraged to stand for election • the need for a proper induction processes for elected members of the APYE • young people being encouraged to attend meetings of the APYE in Umuwa so as to better understand decision-making and the work of this body. Iwantja At Iwantja, there was a good discussion about the following topics.
• Wards Attendees were unanimous in expressing a preference for six electorates rather than three10 - there should not be joining of Iwantja and Mimili in an East APY and that it was best for Iwantja to remain with two representatives, one man and one woman, one from Iwantja and the other a representative from the smaller communities. When they were informed that other communities on APY Lands had expressed a preference for the three ward system, the view was that this may be fine for them but it did not suit the situation in their eastern region.
• Encouragement for youth and young men and women In particular young men and women should be encouraged to understand the work done by the APYE and to attend meetings from time to time.
9 Kenmore Park saw itself as being able to achieve a person from its community to be a representative on the APYE through such a process. 10 The person who had expressed a different view and preferred the three wards was not present at this meeting.
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• Induction training There should be induction training and this should include a requirement that the APYE minutes be circulated and that the member should attend at a community council meeting to report orally. This should be done in a timely way.
• Process to be followed when members did not report If a representative either did not attend meetings or did not report back to the community about decisions made at the APYE, the member should be given a chance to improve, but if still unsatisfactory, the person should be replaced through a formal complaint process.
• Appointment of proxies Proxies could be used in situations where the elected representative was either unable to attend a meeting, or if it was necessary to replace an unsatisfactory representative or a person who had become unfit to do the job. The proxy would replace the elected representative for the remaining term.
Written submissions Written submissions were due at this stage of the consultation process and six were received: two from individuals, two from Anangu organisations and two from major Government agencies. The submissions, bar one, were supportive of the review and its aims of achieving a new electoral system, gender balance, a ‘fit and proper person test’ strengthening its expertise and providing for assistance with economic development. Not all submissions addressed all points. One Anangu organisation was concerned that the timeframe for the Review did not allow for the length of discussion requested and that they would prefer to discuss the ToR with the APYE before making a formal statement. They nevertheless felt strongly that there should be gender balance, and also indicated in principle support to the ideas of three wards, members being required to live on the APY Lands and having non- voting advisers on the APYE. One Government organisation strongly supported a ‘fit and proper person’ test, but suggested that it be judged by a committee, not the Electoral Commissioner. A second Government agency indicated that gender balance was critical and advocated for the APYE to have the opportunity for co-opting skill-based directors to gain advice on a variety of important subject matters and processes. Further, that economic participation, training and employment are “key enablers to promote Aboriginal independence on the APY Lands”; and that a Commercial Development Advisory Committee which had a clearly defined role and could draw on or include some skilled staff from Government departments would be beneficial to achieve such an outcome.
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One individual who did not support the Review instead requested a Royal Commission and also argued for changes to be made in the APY Constitution (Appendix I) rather than amending the Act. Another individual who provided a thoughtful submission about governance in Aboriginal organisations more generally summarised his approach by stating that ‘if there’s anything we’ve learned from remote service delivery models, governance etc is that “externally imagined” and centred structures never work. A productive and hopeful APYE must be imagined from the inside out.’
Fifth visit to APY Lands: 4 December 2013
APY Executive On 4 December 2013 the Panel Chair sought to present the recommendations and findings of the Interim Report to members of the APYE. The APYE Chair and three other members were present in the room, one APYE member was present by telephone, and it was not until later in the meeting that a further member joined the meeting by telephone and a quorum was achieved. The Deputy Chair interpreted the proceedings. Three Panel members were present. The Panel Chair provided a written summary of the Panel findings (Appendix L) as well as an updated table of electorates (Appendix M)11 and was invited by the APYE Chair to do a presentation of the Panel’s recommendations. Before the commencement of this presentation, one of the APYE members stated that no decisions could be made about the recommendations of the Panel until there was a general meeting of all Anangu. After some discussion about such a general meeting, the APYE Chair requested the Panel Chair to continue with the presentation, which was done. During and also after the presentation, various APYE members made the following points. • one member, who had previously expressed the same view, said that there should be no women on the APYE. He stated that the suggestion came from Government and it was a white man’s way of doing things and not Anangu way. [The Panel Chair replied that the Panel asked Anangu what they wanted and that Anangu, both men and women, told the Panel that they wanted equal numbers of men and women on the APYE.] • concern about obtaining a quorum if there were equal numbers of men and women on the APYE and women had to leave a meeting because of men’s cultural business.[A Panel member responded by giving an example of what happened in his Aboriginal organisation: women would leave the meeting to allow the men to discuss the issue. After discussion had been completed, the
11 The table was further finessed during the third and fourth visits as a result of discussions with communities.
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women would return, which could restore a quorum, and then there would be a vote on the issue by the whole committee.] • the requirement that an APYE member has no convictions for serious offences would mean that many Anangu may not be eligible for election. This could be a problem. Anangu often had convictions and some could be many years ago. [The Panel Chair acknowledged this concern but said that during the consultations, Anangu, particularly Anangu women, had clearly said to the Panel that they wanted this condition.] • pointing out that there was already an APYE Code of Conduct about member behavior. • an APYE member said that the proposed voting system would not work; that each community was different and Anangu needed to come together to talk about this so it would not be Government telling Anangu. In summary, the members of the APYE were firmly of the view that Anangu needed to come together to talk about all issues. In particular, further discussion was needed about convictions for serious offences and the effect on a quorum of women being absent during men’s business. The APYE informed the Panel that they wanted to have a Special General Meeting about the recommendations in the Interim Report.
Sixth visit to APY Lands: 12-18 January 2014 Further visits to communities were scheduled from 12-18 January 2014 so that second visits to Mimili, Kaltjiti and Pukatja could take place. Due to cultural business, only Mimili could be visited. Scheduled meetings also took place with the Law and Culture Advisory Committee and the APYE. Three Panel members attended. Mimili On 13 January 2014, the arranged interpreter did not attend but one Anangu from Mimili assisted with the interpreting. The Panel Chair outlined the five issues on which the views of Anangu were sought, described the consultation process up to that point, and what Anangu had told the Panel so far. In particular what the community from Iwantja wanted for the electorates. The following points were made by Anangu. • support for equal numbers of men and women on the APYE • Anangu wanted a new start and a change to the way members of the APYE are elected • discussion about representation from the homelands, and identifying which were communities and which were homelands • agreement to do the same as Iwantja, namely to have two members on the APYE in their area, one from the bigger community of Mimili and the other from smaller communities/homelands, with each voter to have two votes one for a woman and one for a man
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• the APYE needs to be strong to look after land, but community councils also need to be strong • concern about how to deal with men’s business with women on the APYE • some support for additional skilled directors on the APYE to provide advice, not make decisions • strong support for APYE members living in the community • strong support, particularly from Anangu women, for candidates for election to APYE to have no convictions for serious offences and be healthy in mind and body • support for a complaint process to deal with members who did not maintain these standards • support for a proxy process to replace members who did not or could not attend meetings. Law and Culture Advisory Committee On 14 January 2014, the Panel met with members of the Law and Culture Advisory Committee of APYE. Seven of the Committee members were present, including the Chair and Deputy Chair of that Committee. The Committee Chair is also a member of APYE. Other Anangu also attended the meeting. As with other consultation meetings, the Panel Chair began by explaining the five questions for consultation and describing what the Panel had done. It was emphasised that the Panel was not the Government; rather, the Government had asked the Panel to conduct the Review and report on what Anangu wanted. The Panel Chair asked the Committee how she should proceed and suggested she could report on what Anangu had told the Panel as set out in the recommendations in the Interim Report and then ask if the members of the Advisory Committee agreed or had different views. The Panel Chair was asked to proceed as she suggested. The Panel Chair handed out the Summary of Recommendations from the Interim Report which was in English and Pitjantjatjara (Appendix L) and also a copy of Table of Electorates (Appendix M) which had been previously drawn on a whiteboard. A copy of the Interim Report was later shown to the meeting. The Panel Chair began to report that Anangu had said that they wanted equal numbers of men and women on APYE and asking if members of the Committee agreed. One member responded that is was no good giving answers now and the issues should go to ‘a big meeting’; that there would be disagreement if ‘everyone’ were not involved. Some other members of the Committee expressed agreement with this. Thereafter the meeting started to become quite difficult and at times emotive. Different Anangu were making different points between each other and to the Panel Chair in the form of questions or assertions. These were made by a few Committee members, but not all. • Why do you want equal numbers of men and women on the APYE?
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• I am from one of the communities and did not know of this consultation about men and women on the APYE. • Having equal numbers of men and women on APYE is ‘white man’s way.’ • Anangu women can talk with white man in the city but not on APY Land. • The Government should only give money and support but not to tell Anangu what to do. • Where did the questions come from about equal numbers of men and women on the APYE? • It was the Minister who started this idea of equal numbers of men and women on APYE. • In Anangu lore women cannot come to a meeting where there is business. • It is too hard to have men and women on APYE. • One younger Anangu who was not a member of the Committee strongly expressed that: • it was important to have both men and women on APYE and why it was important • explained how men and women can work together around a table in the organisation such as the one he was employed by. During the course of this discussion, the Panel Chair and another Panel member explained to the meeting that it was not the Minister and it was not the Panel who had said there should be equal numbers of men and women on APYE. This was what Anangu said to the Panel when the Panel asked about women on APYE, noting that at present there was only one woman on APYE. The Panel Chair re-emphasised that the Panel was not being told by the Government what to say and that the Panel Chair was an independent lawyer. The Panel Chair did not go through the remainder of the recommendations as there was no further time and it was clear that the Committee members did not wish to give answers to the questions but instead wanted to leave these for discussion and decision at a general meeting. The meeting finished on a calmer note. The Committee Chair stressed the importance of law and culture of Anangu and that the Committee did not have enough money to provide education for young Anangu about important cultural matters. As the Committee Chair said, Anangu have to be strong about this and we must get money from the Government for this important work. The Committee Chair advised that Committee members would think about the issues and talk at a big meeting. Following this meeting a letter was sent from the Panel Chair to the members of the Law and Culture Advisory Committee (Appendix N). The letter responded to the Committee’s concerns about where the Panel’s questions to the communities came from and that the recommendations were the result of Government views and questions directed by Government and did not represent community views. It
P a g e | 35 reinforced that the Panel was independent of Government and that the process was designed and carried out to ensure that the Panel asked questions and consulted about the issues. APY Executive On 15 January 2014 the Panel met with the APYE for the third time. This meeting discussed the Interim Report and recommendations and to consider the proposal for a Special General Meeting. The meeting commenced with a resolution being passed by APYE to hold a Special General Meeting about the recommendations made by the Review Panel in its interim report. Dates were set for the meeting. The APYE Chair then asked the Panel Chair to do a presentation. The Panel Chair handed out the Summary of Recommendations (in English and Pitjantjatjara) from the Interim Report, (Appendix L) and also a copy of the Table of Electorates (Appendix M) which had been previously drawn on a whiteboard. A report was given of the process and the communities visited. The Panel Chair went through each of the recommendations, including explaining the electorate system. It was clear that the APYE members did not want to make decisions as members of APYE, but instead wanted decisions to be made at the SGM. However the following comments were made by some members during the course of the presentation: • There should not be equal men and women on the APYE. We may as well have all women on the APYE. There are special things for men only. (This was from the same person who had always expressed a similar view). • There should not be separate representation for homelands. The Government doesn’t provide money to the homelands. There was a response from other members that APY belongs to Anangu and that the Government has not funded homelands and it has not funded the Law and Culture Advisory Committee. This should be left for discussion at the SGM. • The eligibility requirements for candidates of the APYE about convictions for serious offences was insulting to Anangu people and that asking questions about that was offending Anangu. • The appointment of a proxy has got to be legally good. You cannot have a proxy who is a drinker. • We want Anangu culture to live. Are our young people going to be speaking Anangu or English? We need to speak both ways. I don’t want to be a white man. Anangu have to stay strong for culture. (This view was expressed by the same person at other meetings as well). Planning for the SGM was then discussed and it was noted that: • all Anangu should attend • APY administration would arrange travel and fuel for Anangu
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• people attending should register • Anangu over 18 years should register to vote • the Panel Chair is to present recommendations • questions about the recommendations to be discussed at the SGM to be prepared by the Panel and circulated to the APYE and community councils in advance • APYE Chair to chair the meeting and manage behaviour.
Seventh visit to APY Lands: 20-21 February 2014 including the Special General Meeting The Panel considers it important to set out some detail on the preparation of the Umuwa meetings and the events of the meetings to give context to some of the challenges as well as a better understanding of the result and resolutions which were subsequently passed at the SGM. The SGM was originally planned for 6 and 7 February 2014. The Panel also planned to make community visits to Kaltjiti and Pukatja. These meetings were deferred because of sorry business. They were then rescheduled for 19-21 February 2014, but these meetings did not take place as the community councils decided that discussions should occur instead at the SGM. Preparation There were some difficulties in the preparation for the SGM. A questionnaire was prepared by the Panel for discussion at the SGM. It was in the form of questions about the recommendations which had been simplified to enable their translation into Pitjantjatjara. (Appendix L). It proved hard to find a translator. A number of qualified translators declined, two of the reasons given being that the document was very technical and it was politically sensitive. A translator was found. English and Pitjantjatjara versions of the questionnaire are Appendix Q. Questions 4b and 4c could not be translated due to lack of time. Other visual aids were also prepared for the meeting (Appendix R) and were presented in laminated A3 size sheets. It was also difficult to find suitably qualified persons who were prepared and able to interpret the discussion at the SGM. Two qualified interpreters, a male and female were sought, and eventually located. On the first day of the Umuwa meetings, another interpreter who indicated that she had been requested by Anangu at the meeting to interpret, undertook the interpreting for the two days.
The meeting on 20 February 2014 The Panel Chair and one other Panel member attended the meeting. Just prior to the 10 am time appointed for the SGM, the APYE Chair advised the Panel Chair that he was not able to chair the meeting. The Panel Chair then referred to Paragraph 6 of the APY Constitution, which requires that an SGM be chaired by the APYE Chair, or in his ‘absence’ the Deputy Chair and in the ‘absence’ of both, the Anangu at the meeting had to elect a chair. The Panel Chair explained that ‘absence’ meant that the Chair would have to leave and could not take part in the discussion. After that, the
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Panel Chair also spoke with the APYE Deputy Chair. She again referred to paragraph 6 of the APY Constitution. The APYE Deputy Chair also indicated he did not want to chair the meeting. After further discussion, both the APYE Chair and Deputy then left the meeting area. This discussion took up the morning before lunch. After lunch, with still no person to chair a SGM, some 250 Anangu were waiting for the meeting to commence. The Panel Chair was approached by an Anangu woman who said that she had been requested to interpret and the Panel Chair was asked to open the meeting. The Panel Chair did so. The Panel Chair explained that a SGM could not go ahead in the absence of the APYE Chair or Deputy Chair, unless Anangu appointed another person to chair the SGM. She explained that without a chair for the meeting, there could be no valid SGM or valid resolutions; that the only topics for discussion at the SGM were the recommendations of the Panel in the Interim Report (‘half way’ findings); and that other matters or topics could not be added as part of the SGM. The Panel Chair, in response to a question, clarified that a chairperson selected by Anangu at the meeting was to be a chair for the meeting and was not to replace the current APYE Chair. Thereafter a number of Anangu spoke about a range of different issues. Comments and questions which concerned the Review included: • how the Review had commenced; who had started it and who funded it • that the Government was trying to take control of Anangu and wanting to change the Act to limit Anangu rights • that the Panel was doing what the Government wanted • that there was not enough time to make decisions • there were not enough consultations • Anangu wanted an independent lawyer to advise Anangu about changes to legislation and the Review recommendations • one Anangu speaker expressed strong concern about changes being made by amending the Act. The speaker pointed to amendments made to the Act in 2005 which were different from what Anangu wanted and were seen to take away a right of Anangu to ‘veto’ decisions made about the APY Lands • similar concerns was expressed by other Anangu speakers about making changes by amending the Act • the same member of the Law and Culture Advisory Committee, also an APYE member, again indicated his objection to women being members of the APYE Executive. The Anangu women present at the meeting objected strongly to these comments. An Anangu woman from the NPY Women’s Council later spoke strongly about support for equal men and women on the APYE and said that Anangu women at their AGM saw the Panel Chair as a strong woman who could support them in achieving that. Further matters which occurred in the course of the meeting were:
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• the APYE Deputy Chair returned (and left) a few times to address the meeting and to say that the only topic for discussion was the Panel recommendations and not other matters • a non-Aboriginal man came forward and said that he was a conciliator appointed under the Act and that he had been asked to come to the meeting by an Anangu man (whom he named). He gave some biographical detail including his connection with Aboriginal issues generally and stressed his own independence as a lawyer. He indicated that he was available to be a facilitator or conciliator for the dispute which was occurring in the meeting. After he had finished speaking, the meeting participants did not take up his offer of assistance and he left • one Anangu man requested the Panel Chair to move away from the table. As this was only Anangu who made this request and it was not taken up by any other Anangu, the Panel Chair remained where she was. At the end of the day no chair had been appointed by Anangu present, although a number of Anangu members were trying to achieve this. At about 5.00pm the meeting was adjourned by the interpreter to the following day at 10 am. The Special General Meeting on 21 February 2014 Shortly after arriving at Umuwa for the meeting, the Panel Chair was handed a document by an Anangu man, which document included a number of demands on a variety of topics unrelated to the Review, but also included adverse statements about Panel Chair and the Review. The front sheet purported to be signed by himself and the non-Aboriginal man who addressed the meeting on the previous day. When the Panel Chair said that the allegation made about her in the document that she had ‘bullied’ Anangu was clearly not correct, the Anangu man said that it was ‘tactics’. Also, a different Anangu man who had the day before requested the Panel Chair to leave the table, said to the Panel Chair that her actions in not moving were ‘bullying’. After further conversation with the Panel Chair about his concerns, he returned to the meeting area. Overall the second day was far more orderly. The Deputy Chair of the APYE attended and opened the SGM. He requested the Panel Chair to go through the questions which the Panel wished to have answered and said that the meeting would then open up for discussion by Anangu. After clarifying that this would be a presentation of all questions together, the Panel Chair commenced. The Panel Chair began by noting the comments expressed by Anangu the previous day about: • Anangu wanting more time to discuss and to make decisions about the Panel recommendations • there were not enough consultations with Anangu and • that Anangu wanted an independent lawyer to advise them about any changes to legislation and the Review recommendations.
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Using an interpreter the Panel Chair went through the questions in Appendix Q which were handed out to Anangu together with the visual documents, Appendix R. Anangu showed considerable interest in what was being said. At the end of the presentation the Panel Chair thanked the meeting for respectfully listening to what she had said. There was applause by some Anangu, notably by women. Lunch followed. After lunch the APYE Deputy Chair opened the meeting up for discussion. This discussion included: • comments from two Anangu who said that they had not been consulted; • a problem with the effect of eligibility rules about convictions for serious; offences which could adversely affect Anangu who had been convicted of offences when they were young ; • distrust about changing the Act and the need to look at recommendations very carefully and the need for independent legal advice; • concern that it was not the APYE which asked for the Review and an allegation that the Panel did not use interpreters at the consultations. [The Panel Chair read out the letter which had been written by the APYE Chair which indicated that members of the APYE had requested the Review - see Appendix D] ; and • another Anangu said that he thought that the previous day conversations had taken a long time and that instead Anangu should have just got on and listened to the presentation from the Panel Chair. The speaker also stated that good people should be put onto the APYE and that it was no good pointing fingers and getting angry and that the meeting should do things according to the Act and the APY Constitution. Resolutions were then formulated. As these were being put forward, the Panel Chair assisted by writing the resolutions on the whiteboard so that Anangu could know what the resolutions were. The following resolutions were moved and seconded and then passed by consensus: Resolution 1: The APY Review Panel can finish its report without further discussion with Anangu at this time. Resolution 2: Anangu want an independent lawyer to advise Anangu about APY governance. An Anangu who had been strongly involved with the wording of the resolutions then asked the Panel Chair, ‘what does Resolution 1 mean, in your view?’ The Panel Chair responded that what it meant to her was that the Panel in its Report would say that it was unable to get the answers from Anangu at the SGM about the recommendations which were set out in the questions. The same speaker also asked the Panel Chair about Resolution 2 and whether an independent lawyer was able to look at the Review Report and recommendations when giving advice. The Panel Chair indicated that an independent lawyer could do
P a g e | 40 that and that what the independent lawyer could do would depend on what instructions the lawyer was given. The APYE Deputy Chair then told the Panel Chair that there would be further discussion on other topics. The Panel members left the meeting and then subsequently learnt that a third resolution was passed in the following terms. This was not on the topic of the Review recommendations and reflected some of the other issues. Resolution 3: This meeting calls for a Special General Meeting in one month’s time to discuss important community issues. Panel observations on the Umuwa meetings The first day was very difficult as there was no person who was chairing or in any way controlling the meeting. It gave an opportunity for Anangu to raise a number of other issues of concern to some Anangu, apart from the Review, which is in part reflected by Resolution 3. The comments made by Anangu about the Review indicated a suspicion by some Anangu about the motives behind a review of the Act and a more general concern that any amendments made to the Act would take away what Anangu already had and not do what Anangu wanted. The mood of the meeting was influenced by other issues of concern to Anangu as indicated by the address given by the non-Aboriginal man. The second day had a different mood and was greatly assisted by the APYE Deputy Chair who kept control of the discussion. The description of the Panel Chair being handed a document by one Anangu man prior to the meeting starting and being accused by another Anangu man of ‘bullying’ has been set out in this Final Report in order to show that there were some Anangu who were trying to use the situation of there being a general meeting of Anangu on the APY Lands in order to further different agendas. This was adversely impacting upon Anangu being able to focus on the Review and the questions asked by the Panel for their discussion. There was still expressed suspicion by some Anangu on the second day as to the motives for the Review, but the reading out of the letter (Appendix D) demonstrated to Anangu at the meeting that the APYE had requested a review and that the Review by the Panel appointed by the Government was required to be done in partnership with the APYE. The strongest views of Anangu were the need for more time for discussion and concern about how change would be made and the need for independent legal advice. Some comments indicated that some recommendations which potentially could be agreed upon, should not be effected by legislation but some other process. The Panel’s overall impression is that the work already done by the Panel has set a sound base for more discussion by Anangu, but that Anangu want to control that further process. In particular Anangu would want ways to address APY’s governance other than by changes to the Act, for example, by changes to the APY
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Constitution or by regulation or bylaw. They also wish to have independent legal advice. The Panel reflects this in its recommendations.
Eighth visit to APY Lands: 12 March 2014 The Panel Chair attended at the APYE meeting at Umuwa on 12 March 2014. The APYE commenced its meeting after lunch. The report by the Panel Chair on the Review was one of the agenda items. The Panel Chair was not invited to present the report until just before 7 pm and had to leave by 7.20 pm, when the APYE meeting also had to finish. There were four APYE members present in the room and three APYE members present by telephone. The discussion was interpreted by the Director of APY. The Panel Chair circulated papers which included a summary of the final recommendations (Appendix S) and documents describing the electorates and the manner of voting (Appendices M and R). The Panel Chair focused on what the Panel had heard following its Interim Report, and in particular the effect of the SGM. The Panel Chair explained that there were modifications to the recommendations and that the following important points would be made in its Final Report: • there would be no recommendation as to how changes should be made, for example by an amendment to the Act, a bylaw, a regulation or an amendment to the Constitution. Instead, it was recommended that such a decision could remain until Anangu decide on what they want on the main issues • that the Government acknowledge the request of Anangu to have independent legal advice • that Anangu want further time for consultation and discussion about the Review recommendations • that a modification had been made by the Panel about the eligibility requirement of no ‘serious offences‘. After hearing Anangu, the Panel recommended that there be a time limit: that a candidate should not have convictions for serious offences during the 15 years before standing. This modification may be able to achieve consensus when views of Anangu differed • that the recommendations of the Panel remained unconfirmed as Anangu had not answered the questions, and that they had neither accepted nor rejected them at the SGM • a recommendation that after any independent legal advice is obtained by Anangu, that the Government consider further consultation or discussion by the Panel with Anangu taking into account the independent legal advice, with the aim of Anangu reaching consensus. The Panel Chair then indicated that she would take any questions or comments. There were none and the meeting was closed.
P a g e | 42 Conclusion and Recommendations
This section brings together the effect of all the consultations and meetings before and after the Interim Report and recommendations of 21 November 2013 finishing with the Panel Chair attending the APYE meeting on 12 March 2014. The Panel hoped that Anangu would discuss and reach consensus on some or all of the recommendations in its Interim Report at the SGM, but that did not occur for reasons discussed in detail at pp. 37-41 Based on the views of Anangu who were present and spoke at the many community consultations meetings, the Panel considers that although no specific answers were given to the recommendations at the SGM, the absence of final answers does not alter the validity of the findings and recommendations in the Interim Report as amended in this Final Report. The Panel makes the following general findings based on what Anangu have told the Panel over the course of the consultations: • Firm support for changing the way the current way that the APYE is elected and operates so as to improve representation of all Anangu on the APY Lands • Anangu clearly stated that they want the APYE to do things differently and would like to see changes to help achieve a better future for all Anangu • Anangu and Anangu women in particular, clearly stated that they wanted gender balance on the APYE. At the same time Anangu women emphasised their respect for men who have sat on the APYE over the years and for the historical importance of their work since the Act was passed in 1981.12 Women expressed a strong desire to work together with men on the APYE for the future of all Anangu.
12 NPY Women's Council and Ku Arts written submissions.
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What Anangu Say is Wanted
The following firm principles emerged from the various meetings, discussions and written submissions and take account of the discussions heard at the SGM and the meeting on previous day. These principles underpin the recommendations set out later at pp. 46-57, but remain unconfirmed by Anangu: • equal numbers of men and women on the APYE13 • a new election system that not only has gender balance but also allows: • smaller communities to also be represented on the APYE14 • all Anangu to have a right to vote in the election for APYE members, even if living away from the APY Lands • strong men and women who can speak up and act for all Anangu, not just families, kinship groups and their own community • standards for candidates for election to the APYE– in addition to being Anangu and over the age of 18 years candidates should: • be physically and mentally fit to do the work of the APYE • have no convictions for serious offences confirmed by a police clearance. This would not include less serious offences, for example, driving and simple drinking offences
In early consultations, Anangu, particularly Anangu women, said they wanted a requirement that a candidate have no convictions for serious offences at any time prior to standing for election. Later consultations suggest a modification may be required to allow a consensus of Anangu to be reached on this sensitive topic as discussed in this Report. The Panel therefore recommends a time limit that candidates have ‘no convictions for serious offences for 15 years prior to standing for election to the APYE’ 15.Further this requirement would not apply to Anangu members of the Law and Culture Advisory Committee of the APYE
• live on the APY Lands but also live in the community the candidate seeks to represent • report to the APYE about what their community wants the APYE to do and also report back to the community about decisions made by the APYE after each meeting • the APYE members to maintain these standards upon which they were elected • support for pre-election information in communities about the work of the APYE and elections processes. Post-election induction training for APYE members about
13 A contrary minority view was expressed by two male elders who are members of the Law and Culture Advisory Committee and are also members on the APYE. 14 A contrary minority view was that smaller/ homelands communities should not have representation in their own right but have their interests taken into account by members elected from larger linked communities. 15 Subsequent meetings with APYE, the Law and Culture Advisory Committee and discussion at Special General Meeting, suggest this modification may be preferred. This compromise may meet with consensus of Anangu.
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APYE business as well as discussing how men and women may work together respectfully on the APYE. • ways to encourage and support younger men and women to stand for and become members of the APYE • some support for the idea of a separate economic advisory committee to provide advice to the APYE on matters related to business development opportunities, employment, economic development and industry skills and expertise • only limited support for the addition of two skilled based directors to be co-opted by the APYE to provide advice to the APYE • more time for discussion by Anangu about Panel recommendations • concern about amending the Act to have changes made • wanting independent legal advice for Anangu about the review and recommendations
How Anangu want changes
At the consultations the Panel informed Anangu that the Minister had said that no more than 10-12 persons could be on the APYE. Therefore, when expressing views about what changes they wanted, Anangu made suggestions with this in mind. The Panel heard no view against the limit on numbers as expressed by the Minister. The Panel did not have any real opportunity to discuss with Anangu how the recommendations would be effected, in particular whether it should be by changes to the Act or whether it should be by bylaw or regulation or in the APY Constitution. In the recommendations in the Interim Report, there were two references to legislation and that was with regard to equal numbers of men and women on the APYE and maintaining standards of the APYE members. Nothing was said about the way in which other recommendations should be effected. For reasons set out hereunder, those two recommendations are modified. As a result of views expressed by Anangu after the Interim Report about distrust about amending the Act, the desire for independent legal advice and noting that there are various ways in which changes could be effected other than by amending the Act, the Panel does not make any specific recommendation as to how recommendations in this Final Report could be legally achieved.
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The Panel recommendations
This section of the report describes the changes that Anangu told the Panel are wanted and includes the recommendations of the Panel as to how those changes could be best achieved in accordance with Anangu wishes, with additional detail and reasons for the changes. These are separately identified under each heading.
Important Note: At the Special General Meeting, Anangu did not confirm or reject the recommendations of the Panel. Therefore the recommendations set out below are unconfirmed by Anangu.
Gender balance on the APYE
Anangu There was enthusiastic and overwhelming support by Anangu men and women for equal numbers of men and women on the APYE16. The common assumption at early consultations was that there would be legislation to ensure there are equal numbers of men and women on the APYE although one minority view had been expressed that this change could be a policy of the APYE or inserted in the APY Constitution rather than legislated. This minority view was subsequently picked up by other speakers at the Umuwa two-day meeting, see discussion at p.41. For those reasons and also the observations made by the Panel about the different ways this could be legally done (see pp.23-24), the Panel therefore modifies its earlier recommendation by deleting any reference to amend the Act.
Panel recommendation That the APYE consist of equal numbers of men and women to be elected or appointed in accordance with the Act.
Panel reasons This recommendation is consistent with Anangu views and will require specific legal advice as to how best to legally achieve that.
16 See minority view expressed at pp. 35, 36, 38
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A new election system for the APYE
Anangu As previously described, four ideas emerged and were discussed during the consultations. At the present time the majority of the communities on the APY Lands wish to have three wards : East APY, Central APY, West APY. Each of the three wards would have four representatives: two men and two women, and with at least one representative from the smaller communities/homelands - a total of 12 members on the APYE. However with regard to East APY, Iwantja and Mimili communities wish to do things differently. They wish to retain two separate communities, those being: • Iwantja (and associated smaller communities, Railway Bore, Amuruna, Witjintitja and Wallatinna) • Mimili (and an associated homeland Sandy Bore). These two communities of Iwantja and Mimili each with their associated communities, would be entitled to have two members on the APYE, one a man and one a woman. If symmetry is kept, there would be one vote for the smaller communities in each case17. There would therefore overall still be 12 members on the APYE.
Panel recommendation Each voter in communities in Central APY and West APY wards to cast four votes, two for men and two for women. The election of APYE members in Central APY and West APY wards to be decided using the following stepped approach. 1. Elect the person with the highest votes from any community whether the person is a man or a woman 2. Elect the person with the highest votes who is the opposite gender from 1 and who is from a community other than 1 3. Elect the person who with the highest votes from a smaller/homelands community whether the person is a man or woman, unless that person is from a community already represented in 1 or 2. In that situation elect the person with the highest votes from a community other than 1 or 2 4. Elect the person with the highest votes who is the opposite gender to 3, regardless of which community the person comes from.
17 It is noted that having a representative for Sandy Bore may be difficult because of problems with the housing facilities in Sandy bore and the potential that there may be no one who could fulfil the requirement to live in that homeland. If that is the case then Mimili itself could have two members on APYE.
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Note 1: There may need to be a qualification in step 4 to accommodate an unusual or skewed pattern of voting. Qualification: in the event that the strict application of step 4 results in Community A which already has an elected member through steps 1 to 3, obtaining another member for Community A and there is a Community B which has a reasonable residential population but has gained insufficient votes for a candidate to be elected. Preference is to be given to elect the candidate of the appropriate gender with the highest vote from Community B. This qualification requires further discussion, in particular as to whether and if so how that discretion could be exercised.
In the case of the communities in the East APY ward, each voter in each of the two communities of Iwantja (and associated homelands/ smaller communities) and Mimili (and associated homelands/ smaller communities) to cast two votes, one for a man and one for a woman. 4 members to be elected in this order: Iwantja 1. Elect the person with the highest votes from Iwantja whether that person is a man or a woman 2. Elect the person with the highest votes form a smaller/homelands community who is the opposite gender from 1. Mimili 1. Elect the person with the highest votes from Mimili whether that person is a man or a woman 2. Elect the person with the highest votes form a smaller/homelands community who is the opposite gender from 1.
Panel reasons The reason for this approach is that proportional representation as is common in elections in western societies is not an approach which accommodates or is even relevant to Aboriginal communities such as Anangu. Instead a different approach is required which takes into account cultural context and history. The above recommendation is endeavoring to reflect and achieve Anangu’s request for equal numbers of men and women on the APYE; to achieve what Anangu want, which is to ensure smaller communities can be assured of representation; to ensure that bigger communities with much larger populations do not dominate the electing of members on to the APYE to the exclusion of other bigger communities with smaller populations; and to achieve a better balance on the APYE to represent all Anangu. The casting of votes in the three wards, with each voter having four votes requiring equal voting for both men and women (or two votes each in the case of the two communities in East APY), allows for a better distribution and affirms the situation of women taking their place on the APYE. It enables each voter to not only vote for someone in their own community but also to vote for a person in another community in the ward so that votes can be for the best persons to represent all Anangu and not just for their own family, kinship group or community. This process may take some time to fully achieve and there is an expectation that Anangu may still tend to vote for representatives from their own community in preference to voting for someone from another community. Hence the stepped approach to
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provide balance if that is needed and also the qualification to step 4 which is based on community and cultural expectations.
Strong men and women on the APYE
Anangu This requirement for strong men and strong women was commonly emphasised at all consultations. The reference to ‘strong’ as it was used in the discussion, referred to the need for members to have personal attributes which meant that they were capable of speaking out at executive meetings and not simply remaining silent or submissive in meetings. It was also linked to the members having the respect of the community for this strength and not have other characteristics of a personal nature which could compromise their ability to speak out, for example, previous serious convictions or other unfitness. It also required potential candidate to be knowledgeable and informed. A number of Anangu referred to a time prior to the 2005 amendments, when there was a process whereby people spoke about what they would do if they were elected to the APYE. Reference was also made to times when women have been bullied and harassed when at meetings with men and inappropriately excluded from discussion on the basis that what is being discussed is men’s business, when it was not.
Panel recommendation That there be pre-election processes before voting to include: • Development of a process to provide information in communities about the work of the APYE; the election process; and eligibility requirements for candidates who wish to be elected as members of the APYE • Development of a process which enables candidates for election to be given the opportunity in a community meeting(s) to say publicly why they would be a good member of the APYE • Development of a tailor-made training program and workshop for Anangu who may be interested in becoming members of the APYE, this training to focus upon the good management skills required for such a position.
Panel reasons The reason for the first of these recommendations is that during the consultations a number of persons expressed the need for better information about the work of the APYE. It was also apparent that many did not understand some of the work currently done by the APYE. Further, any new election process would require information and that in turn will assist in attracting candidates for election who understand what is required for that work and in particular to understand the
P a g e | 49 eligibility requirements, discussed below. This process could be assisted by consultation with the Electoral Commission which already has experience of election processes on the APY Lands. The reason for the second recommendation is that during the consultations some participants spoke about benefits of providing an opportunity for candidates to publicly demonstrate their capacity to speak out and say why they would be good members and what they would be able to contribute to the work of the APYE. This process used to occur on the APY Lands at an AGM for the election of members, prior to the 2005 amending Act. This process is one which could be discussed with the various Community Councils and as well as the current the APYE. The reason for the third recommendation is that such a training program and workshop can provide valuable information and skills for potential Anangu candidates so that they will be better equipped to do the important work required for the continuing advancement of the APYE. It could also be a way of attracting younger Anangu, both men and women and providing APYE members with business and organisation skills. At some time in the future it could even become an essential requirement for membership of the APYE.
Panel recommendation That there be post-election formal induction training for the elected members of the APYE to include information not only on the work of the APYE but also a workshop which could discuss issues concerning how men and women on the APYE can work respectfully together and how to take account of cultural gender matters if they arise.
Panel reasons The Panel is aware that some induction processes have taken place in the past. The reason for this recommendation is that these inductions could and should be strengthened and extended. Induction should include training on: • the statutory duties and responsibilities • the APY Constitution • the Code of Conduct • working collaboratively with the General Manager • understanding the type of documents which come before the APYE such as financial accounting and budgets • the general nature of the work of the APYE • understanding how to identify inappropriate behaviour or actions, particularly related to financial matters
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• how to deal with the situation if they become aware of inappropriate behaviour • understanding the difference between matters that can be publicly spoken about and those which should be confidential.18 The induction should also include discussion about how men and women can work together on the APYE respectfully so that there is no bullying or harassment or otherwise intimidating behaviour and how this can be achieved. Training should be provided by the Government in conjunction with respected Anangu to provide the cultural context.
Eligibility and standards for candidates for election to the APYE
Anangu The expression ‘fit and proper person’ does not translate from English into Pitjantjatjara well and so the Panel used the expression ‘what makes a good member to be elected to the APYE’. This concept gave rise to consensus during earlier Anangu consultations on a number of requirements, standards and qualities which they expected of a good member of the APYE. This included that they live on the APY Lands in the community for which they seek election; that they are physically and mentally fit to do the work; that they do not have convictions for serious offences and should have ‘a clean police record’; that they not have any drug or alcohol problems and that they will inform the APYE about the views of community on issues and report back to the community about decisions made by the APYE. Later consultations after the Interim Report revealed considerable sensitivity and concern about the effect of a requirement that excluded an Anangu from ever standing for the APYE if they had a conviction at any time for a serious offence. It was said by some Anangu that allowance should be given for the fact that Anangu, particularly when younger, may have such convictions, but not later.
Panel recommendation The nomination form should be signed by the candidate that includes a statement that he or she: 1. is Anangu and over the age of 18 years 2. lives1on the APY Lands in the community for which they seek election 3. does not have convictions for serious offences1 in the 15 years prior to standing for election
18 It is to be noted that the current Code of Conduct is far too broadly expressed and states ‘Do not talk with anyone else about APY business or personal information that you know about because you work for APY’.
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4. is physically and mentally fit to do the work of the APYE 5. does not have drug or alcohol problems 6. promises that he/she will inform the APYE about the views of community on issues and report back to the community about decisions made by the APYE 7. authorises the obtaining of a police check document1 (the police check document is to later be attached to the nomination to support eligibility in 3).
Panel Reasons The reason for this recommendation is that the statement includes what Anangu expressed that they wanted of a candidate. The statement is to formally require candidates to confirm their eligibility to be a candidate. Items 1, 2 and 3 are capable of being objectively confirmed prior to election. Items 4 and 5 are matters of assertion and if challenged by an Anangu voter, may require an inquiry and a medical report. Item 6 is an undertaking for the future which underscores a major concern expressed by Anangu that members had not kept community informed about decisions made by the APYE. The Panel notes that the topic of ‘fit and proper person’ was already the subject of a recommendation in the 2008 Review (Recommendation 18 in Appendix E). Further that the issue of lack of communication and not reporting back to community was also addressed in (Recommendation 2 Appendix E). The Panel was unable to have a specific discussion with Anangu about the definition of ‘serious offences’ or ‘lives’. The intention was to have a discussion about these matters at the SGM, but this did not occur. The Panel sets out its recommendations but stresses that they need to be the subject of further discussion particularly about a qualification of a term of years in relation to serious offences and also important clarification as to what is meant by ‘lives’ in the community
Panel recommendation That the requirement that a candidate for election must live on the APY Lands in the community in which they seek election means that they must live in that community for the month before seeking election. Thereafter, the member must live in that community for nine months or more in every year that they are a member of the APYE.
Panel reasons The Panel looked at requirements for candidates for election to local councils in South Australia. The reference to one month is contained in the Local Government (Elections) Act) 1999, although it is differently worded. The reference to living in the
P a g e | 52 relevant community for nine months in every year is similar to the requirement for being a member of the Australian Aboriginal Legal Rights Movement. There is however a further requirement to be discussed by Anangu and that is what it means to live in the ‘same community’ for which they were nominated for nine months or more in every year, and whether that requirement would be fulfilled if they lived in another community or communities as long as it was in the same ward as the community for which they were elected. In relation to the definition of serious offence the Panel recommends as follows.
Panel recommendation The requirement that a candidate for election cannot stand as a candidate for the APYE if they have been convicted of a serious offence within 15 years of standing for election, means conviction during that time for any of the following: • an offence resulting in the death or serious harm to a person • murder • manslaughter • criminal neglect causing harm or death • causing death or serious harm to a person when using a motor vehicle • assault causing a person serious harm • sexual crimes • rape • sexual offences against children • child pornography • serious trespass or robbery offences • very serious criminal trespass (with a weapon or with another person) • serious robbery (with a weapon or with another person) • serious drug, grog or petrol offences • manufacture, sale, supplying and trafficking of commercial amounts of drugs of dependence • sale supply and giving of drugs of dependence to children • offences under the Act for sale and supply of petrol and grog • Serious dishonesty offences • making up or using false documents* • Any offence for which the maximum term of imprisonment is 15 years or greater.
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Panel reasons The Panel observes that the condition that a candidate not have convictions for serious offences is a common requirement which can exclude an Aboriginal person from being a director or an employee of a number of different Aboriginal organisations such as Nganampa Health, the National Congress of Australia’s First Peoples, the SA Aboriginal Legal Rights Movement and the NPY Women’s Council. A better example is the Far West Coast Aboriginal Corporation which governs the largest of the Native Title corporations in South Australia, some 80,000 sq km and requires that the 12 directors have ‘no indictable offences for five years’ before standing as a director. The description of ‘indictable offences’ is broader than the ‘serious offences’ in the Panel recommendation, but the number of years to which this applies is less. There is also a requirement in a non-Aboriginal context for a candidate who seeks to be elected as member of a local government council. Section 17 of the Local Government (Elections)Act) 1999 is more stringent than the Panel recommendation and provides that a person is not eligible to be a candidate for a local government council if the person ‘has been sentenced to imprisonment’ and the wording would also include a person who was given a suspended sentence. This requirement may exclude persons convicted of less serious offences. The Panel recognises that each of these organisations is different and their eligibility requirements depend on its functions. The common ingredient is that they require persons who undertake these important roles to be and be seen to be persons of trust and respect. This is one way of achieving good governance. Anangu need to make a decision on how this should be done for the APYE. Almost all crimes set out in the recommendation carry a maximum term of imprisonment of 15 years or more. Some of them have less than 15 years depending on the particular circumstances of the offending, notably criminal neglect, child pornography and certain sexual offences against children. However, these crimes are recommended to be included because Anangu may regard them as serious crimes of particular concern on the APY Lands. There has also been a qualification: that instead of convictions for serious crimes excluding a candidate from ever standing for election, allowance is given for the fact Anangu, particularly when younger, may have had such convictions. Also some Anangu may have been convicted for such crimes in payback situations. Therefore the suggestion is a requirement of no convictions for serious offences in the 15 years prior to standing for election. This in particular requires further discussion, especially with Anangu women who expressed that they wanted a candidate to have no serious convictions at any time before standing for election. Alternatively, Anangu may decide that some serious offences may permanently exclude a person from standing and others may not. Finally, this recommendation does not apply to an Anangu who is a member of the Law and Culture Advisory Committee.
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Panel recommendation That the Government appoint an independent Panel, after consultation between the APYE and the Government, that Panel to have responsibility for checking the eligibility requirements of the nominated candidates and to determine challenges to a nomination. This should include the process of obtaining current electoral rolls which can be used by the Electoral Commission when elections are conducted.
Panel reasons This recommendation would establish a system specifically devised for APYE elections. The Panel did not have time to discuss this during consultation with communities and this was one of the questions identified for discussion at the SGM. The Panel has spoken briefly with the Electoral Commission which helpfully provided information about its experience of electoral issues on the APY Lands, in particular issues which arise because of the movement of Anangu on and off the APY Lands and also between remote communities. There have been challenges to eligibility in the past and although not great in number, they have taken time to deal with. It is therefore best if this is done by a dedicated body familiar with the APY Lands. The setting up of such a Panel should be discussed with the Electoral Commission.
Maintaining the standards for the APYE
Anangu The complaint by Anangu was that no action was taken to remove persons from the APYE even when some members had not been physically or mentally fit for duties and have engaged in serious misconduct or been convicted of serious offences. Anangu expressed the view that a person convicted of a serious offence should be automatically removed as a member of the APYE. Further, there should be a complaints process for removal of a member from the APYE if they are frequently not attending meetings without reasonable excuse or the representative is not reporting back to community about decisions of the APYE.
Panel recommendation That the standards of members be strengthened and enforced including a process for removing members who are not fit to do the work of the APYE and also a provision that a member who is convicted of a serious offence is to be automatically removed. There should also be a complaint mechanism if a member is not fulfilling their responsibilities to attend meetings and report back to community.
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Panel reasons The Act provides for the removal of a member of the APYE from office for failure to comply with certain duties, becoming physically or mentally incapable of carrying out official duties or the other statutory duties, not engaging in serious misconduct or being sentenced to imprisonment for an offence. This requires action either by a two-thirds majority of the APYE or a direction from the Minister. In the case of a sentence for imprisonment for an offence this results in a vacancy on the APYE which requires a supplementary election. (s.9D) It is to be noted that s.9D(1) refers to ‘serious misconduct’ which is not defined and removal on that basis requires at least a two-thirds majority of the APYE. There is no power for the Minister to remove the person for serious misconduct. Further, s.9D(2) refers to a person being ‘sentenced to imprisonment for an offence.’ There are other forms of sentencing other than ‘imprisonment’ and a conviction for a serious crime may not necessarily give rise to such a sentence. At the same time, the provision as it stands would also include a sentence of imprisonment following conviction for a much less serious offence and could include driving offences. This section requires clarification and modification. The Panel also notes that this topic was the subject of a similar recommendation – Recommendation 15 – in the 2008 Review (Appendix E). There is no complaint mechanism by which an Anangu may have a member of the APYE removed for unfitness or some other breach of statutory duty. The present Code of Conduct (Appendix H) refers in very general terms to complaints but the process is loosely described and also there are alternative processes described with no clarity. Further it is only concerned with complaints for breaches of the Code of Conduct and not complaints about breach of the statutory duties and requirements for fitness. It does not, for example, deal with members not reporting back to community and not attending meetings on a regular basis with no reasonable excuse. The Panel recommends that there should be a complaint mechanism which is simple and clear to determine the complaint if it cannot be resolved within community. This process should be well-publicised.
Encouraging and supporting involvement of young men and women in the APYE
Anangu Many speakers highlighted the importance of encouraging and supporting young men and young women to become involved and also to become members of the APYE. Some said they wanted to see ‘smart young men and women’ to be on the APYE and at the same time recognising that they would need to have opportunities to learn about decision-making and doing things also in the traditional way for Anangu. Discussions in two communities suggested that youth and also young men
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and women could be encouraged to understand the work done by the APYE by attending meetings from time to time. This would provide an opportunity not only to know what the work of the APYE is but also to help understanding about decision-making processes. It was also suggested that the APYE could meet in other communities from time to time and not just at Umuwa so that the communities could see them in operation.
Panel recommendation That Government working together with Community Councils discuss ways to encourage youth and also young men and young women to attend meetings of the APYE on a formal and regular basis. This could include scheduling meetings of the APYE to meet in communities other than Umuwa.
Panel reasons This recommendation takes up the suggestions made by Anangu. This recommendation would also have an added advantage of enabling communities to see first hand the work that is done at the APYE.
Other topics and recommendations not yet discussed at all consultations
The following topics and recommendations have arisen as a result of discrete conversations in some communities but have not been discussed more broadly. They warrant consideration and further discussion with Anangu across all communities.
Appointment of Chair and Deputy Chair of the APYE to support gender equality Given the strongly expressed views supporting gender balance on the APYE, the Panel recommends that consideration be given to alternating a man and woman to occupy the positions of Chair and Deputy Chair. This issue was raised in a different form at the NPY Women’s Council AGM where there was strong support having joint Chairs or co- Chairs, one being a man and one being a woman. However, the notion of co-Chairs may not be appropriate for a statutory body, rather, alternate the role of Chair and Deputy Chair. This proposal has not been discussed more broadly during consultations.
Panel recommendation That consideration be given to alternating a man and woman to occupy the positions of Chair and Deputy Chair of the APYE for every election.
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