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Wednesday 15 October 2003, Media Release

NSWALC RESPONDS TO INVESTIGATOR

The New South Wales Aboriginal Land Council has lodged its formal response to the report of a Government-appointed investigator which has recommended the duly elected 13-member council be sacked and replaced with an administrator.

NSWALC's response was delivered to the Minister for Aboriginal Affairs, Dr. Andrew Refshauge, at a meeting today with NSWALC Chairperson, Mr. Les Trindall, and the Council's Chief Executive Officer, Mr William Johnstone.

Council has requested the Minister table its response in State Parliament to ensure informed parliamentary and public debate on both documents given their importance to the future of the land rights system in New South Wales.

The report of the investigator was tabled in Parliament by Doctor Refshauge on September 16.

Mr Trindall made it clear today that NSWALC would accept many of the procedural recommendations contained in the investigator's report. It had already introduced many of the recommended measures in a comprehensive and ongoing process of internal reform.

NSWALC, however, categorically rejected the principal recommendation that the duly elected councillors be sacked and replaced with an administrator for 18 months.

"The substantial majority of NSWALC's councillors and our new CEO, William Johnstone, are totally united in their opposition to this recommendation," he said.

"We have presented the Minister with a well considered alternative which will preserve our hard won rights, and those of our constituents under the Act, and provide a new and improved regime of transparency and accountability," he added.

"This would be a far more effective formula for enduring reform of NSWALC's culture and structures than that proposed by the investigator."

Mr Trindall said NSWALC's reform process included:

· A comprehensive review of its present policies, procedures and practices in all areas of activity and administration.

· The development and adoption of new governance policies and procedures.

· The development of a new Code of Conduct in collaboration with the Registrar and the revision of NSWALC's Model Rules.

· The appointment of a new CEO under terms which reflect the separation of powers and functions now embedded in legislation

· A renewed commitment on behalf of all councillors to addressing issues affecting NSWALC's effectiveness and efficiency.

Mr Trindall said the Council of NSWALC had already demonstrated its commitment to the process.

"Amongst other things, we have developed, and unanimously adopted, a range of key policies and procedures on corporate governance and decision making, and in relation to our functions in respect of Local and Regional Aboriginal Land Councils," he said.

"Copies of these policies and procedures have been with the Minister since early September," he added.

"The Council is working with its administrative arm, through the CEO, to implement these."

Mr Trindall said NSWALC had also provided a written undertaking to the Minister that the CEO could provide him with an independent monthly report on Council's adherence to its new policies and procedures.

"We have also advised the Minister we will approach the Auditor General to arrange the secondment, at NSWALC's expense, of an independent probity officer to monitor the continuation of the reform process," he said

"This officer would report monthly to the Minister, the Auditor General and the Council of NSWALC. We have also proposed a range of other checks and balances in our undertaking."

Mr Trindall said NSWALC did not intend to publicly release its formal response at this time "but we do wish to place on the public record a number of key points."

"NSWALC is prepared to accept fair criticism and does accept the need for changes to its policies and practices on corporate governance," he said.

"This is a fact clearly acknowledged in our response together with details of the reform process and the written undertaking which we have provided to the Minister," he added.

"However, we want to make it abundantly clear that we can find no evidence, argument or analysis in the investigator's report to justify his key recommendation that an administrator be appointed for 18 months to take over all of the functions of the duly-elected Council.

"The investigator has also advanced no argument or rationale at all in favour of the administrator being appointed in relation to all of NSWALC's functions.

"An 'all functions' administration may be justified where an organisation is incapable of effectively administering its functions.

"The investigator has presented no evidence in his report that this is the case with NSWALC. He does not attempt to justify his primary recommendation on that ground.

"The investigator's reports shows no appreciation of our land rights legislation and contains, at best, a superficial exploration of the facts on a number of substantive issues."

Mr Trindall said the investigator had noted briefly in his "Summary of Key Recommendations" that the appointment of an Administrator would result in the removal of duly elected councillors.

"NSWALC finds it extraordinary that this theme is discussed nowhere in the substantial body of the report," he said.

"The representative nature of Aboriginal land councils and the extensive provisions in relation to voting rights and elections is a central aspect of the administrative regime established by the Act.

"The removal of the elected representatives is antithetical to one of the clear purposes of the Act.

"NSWALC has respectfully suggested the Minister should not take this step without being entirely satisfied no other course of action is open to him to secure the proper performance of NSWALC's functions. There is no evidence, argument or analysis in the investigator's report which leads to that conclusion.

"The extent to which this matter has been considered by the investigator is indicated by the recommendation that an Aboriginal person be appointed as the Administrator.

"This suggestion is, frankly, insulting to the electors.

"It strongly suggests a lack of appreciation of the importance of the representational nature of the constitution of land councils in New South Wales."

Mr Trindall said the superficiality of the investigator's inquiry was also displayed in the fact that the Minister would be acting ultra vires if he followed the primary recommendation.

He pointed out that sub section 226 (2) of the Act provides that where an administrator is appointed to all of NSWALC's functions, all councillors are removed from office.

Clause 99 of the regulation requires that the election of a new council take place on a date to be determined by the Minister, in consultation with his or her appointee, but that election must occur "no later than 12 months after the appointment of an administrator."

Mr Trindall said a close examination of the report showed the principal recommendation was based largely on what the investigator perceived to be an inadequate or inappropriate separation of powers between Council and its body corporate (CEO and staff).

"This is incorrect," he said.

"At one stage in the report the investigator claims the CEO will struggle to direct the body corporate and implement the required changes. This is a mere assertion.

"There is no evidence to support it, no argument is developed, yet the investigator's principal recommendation relies heavily upon it."

"An administrator is required, he says, 'to enable the CEO, without interference of Council, time to establish a strong culture of professional management and integrity.'

"Mr Johnstone was well aware of the investigation and the challenges that are ahead of the organisation when he took the job on.

"He does not agree with the assessment made by the investigator about the need to shelter him from interference by Council.

"The combination of Council and a new, well qualified and enthusiastic CEO, operating under a new and more clearly defined constitutional framework, is far more likely to be an effective formula for enduring reform of NSWALC's culture and structures than that proposed by the investigator."