Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002

Administered by Department of Social Services

Legislation au F2005B01559 Not in force Legislative Instrument

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Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002

I, PHILIP MAXWELL RUDDOCK, Minister for Immigration and Multicultural and Indigenous Affairs, make this Determination under subsection 4A (1) of the Aboriginal and Torres Strait Islander Commission Act 1989.

Dated 14 November  2002

PHILIP RUDDOCK

Minister for Immigration and Multicultural and Indigenous Affairs

Contents

 1 Name of Determination 

 2 Commencement 

 3 Definitions 

 4 Application of Determination 

 5 Behaviour taken to be misbehaviour for the purposes of the Act 

 6 Determination not exhaustive 

 7 Revocation 

 

 

 

1 Name of Determination

  This Determination is the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002.

2 Commencement

  This Determination commences on gazettal.

3 Definitions

  In this Determination:

Aboriginal body means:

 (a) a body that is established by or under the Act; or

 (b) an Aboriginal or Torres Strait Islander corporation.

Note   Aboriginal or Torres Strait Islander corporation is defined in section 4 of the Act as meaning:

(a) an Aboriginal association incorporated under Part IV of the Aboriginal Councils and Associations Act 1976; or

(b) a body corporate where either of the following conditions is satisfied:

 (i) all the members of the body corporate are Aboriginal persons or Torres Strait Islanders, or both;

 (ii) a controlling interest in the body corporate is held by Aboriginal persons or Torres Strait Islanders, or both.

Act means the Aboriginal and Torres Strait Islander Commission Act 1989.

Administrator of a Regional Council means an Administrator appointed under section 115, 123, 123A or 124J of the Act to administer the affairs of a Regional Council.

duties includes obligations under the following Acts:

 (a) Commonwealth Authorities and Companies Act 1997;

 (b) Public Service Act 1999;

 (c) Financial Management and Accountability Act 1997;

 (d) any other Act that:

 (i) imposes obligations or duties on a person holding an office or position; or

 (ii) requires the person to comply with a code of conduct.

Note    Other terms defined or used in the Act have the same meaning in this Determination (Acts Interpretation Act 1901).  These include the following:

 appointed Indigenous Land Corporation Director

 Chairperson of a Regional Council

 Chairperson of the TSRA

 Chief Executive Officer

 Commission

 Commissioner

 Deputy Chairperson of a Regional Council

 Deputy Chairperson of the TSRA

 Director of Evaluation and Audit

 Indigenous Business Australia Director

 member of the TSRA

 Regional Councillor

 TSRA

 TSRA Administrator

 TSRA General Manager.

4 Application of Determination

  This Determination applies in relation to the behaviour of a person holding or occupying one or more of the following offices or positions:

 (a) Commissioner (includes Chairperson and Deputy Chairperson of ATSIC) (section 40 of the Act);

 (b) Regional Councillor (section 122A of the Act);

 (c) Chairperson of a Regional Council (section 127C of the Act);

 (d) Deputy Chairperson of a Regional Council (section 127G of the Act);

 (e) Chief Executive Officer (of ATSIC) (section 53 of the Act);

 (f) Director of Evaluation and Audit (of ATSIC) (section 77G of the Act);

 (g) Administrator of a Regional Council (section 124F of the Act);

 (h) Chairperson of the TSRA (section 143Y of the Act);

 (i) Deputy Chairperson of the TSRA (section 144B of the Act);

 (j) member of the TSRA (section 143S of the Act);

 (k) TSRA General Manager (section 144P of the Act);

 (l) TSRA Administrator (section 144ZN of the Act);

 (m) Indigenous Business Australia Director (includes Chairperson and Deputy Chairperson of the Indigenous Business Australia Board) (section 165 of the Act);

 (n) appointed Indigenous Land Corporation Director (includes Chairperson and Deputy Chairperson of the Indigenous Land Corporation) (section 192H of the Act).

Note   The section references are references to the sections of the Act under which, because of misbehaviour:

(a) the person may be suspended or removed from office; or

(b) the person’s appointment may be terminated.

5 Behaviour taken to be misbehaviour for the purposes of the Act

 (1) For subsection 4A (1) of the Act, the behaviour of a person in each of the following circumstances is taken to be misbehaviour:

 (a) the person, at a meeting of an Aboriginal body:

 (i) behaves in a way that has a seriously disruptive effect on the meeting; and

 (ii) continues to do so after the person who is presiding at the meeting requests the person to refrain from the behaviour;

 (b) the person contravenes subsection 90 (2) of the Act;

 (c) the person gives incorrect or misleading information, or fails to disclose relevant information, with the intention or result that the person is paid remuneration or allowances by an Aboriginal body or under a law of the Commonwealth;

 (d) the person sexually harasses another person within the meaning of Division 3 of Part II of the Sex Discrimination Act 1984;

 (e) the person harasses, intimidates or interferes with:

 (i) a member or an employee of an Aboriginal body; or

 (ii) another person in relation to a member or an employee of an Aboriginal body;

  with the intention or result that the member or employee breaches a code of conduct applicable to him or her, or otherwise fails in his or her duties;

 (f) the person influences or attempts to influence a member or an employee of an Aboriginal body in the performance of his or her duties with the intention or result that the person or another person gains an improper advantage;

 (g) the person dishonestly or improperly seeks a benefit from an Aboriginal body to which the person is not entitled;

 (h) the person behaves in a way that brings the integrity and public reputation of an Aboriginal body into public disrepute;

 (i) the person bribes or attempts to bribe another person;

 (j) the person seriously misuses the facilities, funds or equipment of an Aboriginal body;

 (k) the person is convicted of an offence for which there is a penalty of imprisonment.

 (2) Behaviour mentioned in paragraphs (1) (a) to (k) includes behaviour of the person whether or not the person is performing duties or functions as the holder or occupier of an office or position mentioned in section 4.

 (3) For paragraph (1) (e), a person is not taken to interfere with a member or employee of an Aboriginal body if the person is acting:

 (a) in good faith; and

 (b) in the performance of his or her own duties or functions, whether as the holder or occupier of:

 (i) an office or position mentioned in section 4; or

 (ii) another office or position.

 (4) Behaviour mentioned in paragraph (1) (h) includes behaviour of the person that:

 (a) occurred after the commencement of this Determination and before the person held or occupied the office or position; and

 (b) becomes public knowledge after that time.

 (5) For paragraph (1) (k), a person is taken to be convicted of an offence if:

 (a) the person is convicted, whether summarily or on indictment, of the offence; or

 (b) the person is charged with, and found guilty of, the offence but discharged without a conviction being recorded.

6 Determination not exhaustive

 (1) Section 5 is not intended to limit the kinds of behaviour that are misbehaviour for the Act.

 (2) Any behaviour that is misbehaviour within the general meaning of the Act does not cease to be misbehaviour because of anything in this Determination.

7 Revocation

  The ATSIC (Misbehaviour) Determination No. 2 is revoked.

 

Overview

The Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 was enacted to provide clarity and consistency in addressing misbehaviour by individuals holding or occupying specific offices or positions within the Aboriginal and Torres Strait Islander Commission (ATSIC) and related entities. This Determination was made by Philip Maxwell Ruddock, the Minister for Immigration and Multicultural and Indigenous Affairs, under subsection 4A(1) of the Aboriginal and Torres Strait Islander Commission Act 1989. It was introduced to ensure that the actions of those in significant roles within Aboriginal and Torres Strait Islander bodies are held to high standards of integrity and conduct. The Determination outlines specific behaviours that constitute misbehaviour, thereby enabling appropriate actions to be taken under the Act when such conduct occurs. This approach aims to maintain the integrity, public reputation, and effective functioning of Aboriginal and Torres Strait Islander bodies.

Scope and Application

The Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 applies to the conduct of individuals holding or occupying specific offices or positions within the Aboriginal and Torres Strait Islander Commission (ATSIC) and related entities. This includes the Commissioner (including the Chairperson and Deputy Chairperson of ATSIC), Regional Councillors, Chairpersons and Deputy Chairpersons of Regional Councils, the Chief Executive Officer, Director of Evaluation and Audit, Administrators of Regional Councils, Chairpersons and Deputy Chairpersons of the Aboriginal and Torres Strait Islander Regional Authority (TSRA), members of the TSRA, TSRA General Manager, TSRA Administrator, Indigenous Business Australia Director (including the Chairperson and Deputy Chairperson of the Indigenous Business Australia Board), and appointed Indigenous Land Corporation Director (including the Chairperson and Deputy Chairperson of the Indigenous Land Corporation). The scope of this Determination is national, extending across all states and territories of Australia, thereby enforcing uniform standards of behaviour for these public officials. Notably, this Determination does not limit the broader definition of misbehaviour as outlined in the Aboriginal and Torres Strait Islander Commission Act 1989, ensuring that any conduct deemed misbehaviour under the Act remains valid irrespective of this specific Determination.

Key Provisions

The Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 sets out specific behaviours that are considered misbehaviour for the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989. This Determination applies to the conduct of individuals holding various offices or positions within Aboriginal bodies, such as Commissioners, Regional Councillors, and other administrative roles (section 4). Misbehaviour includes actions such as seriously disrupting meetings of an Aboriginal body despite requests to cease (section 5(1)(a)), providing incorrect information to be paid remuneration (section 5(1)(c)), and sexually harassing another person (section 5(1)(d)). The Determination imposes specific obligations on the individuals covered by it, requiring them to conduct themselves in a manner that maintains the integrity and public reputation of Aboriginal bodies. They must refrain from actions that could be considered disruptive, dishonest, or detrimental to the functioning of these bodies (section 5(1)). Additionally, they are expected to comply with any applicable codes of conduct and avoid any behaviour that could bring discredit to their offices or the bodies they serve (section 5(1)(e)-(h)). Failure to adhere to the standards of behaviour outlined in the Determination can result in serious consequences. Misbehaviour may lead to suspension or removal from office, as well as termination of appointment (section 4(a) and (b)). The Act does not limit the definition of misbehaviour, meaning that any conduct deemed inappropriate by the relevant authorities can be subject to disciplinary action (section 6). The Determination also revokes the previous ATSIC (Misbehaviour) Determination No. 2, ensuring that only the current standards apply (section 7).

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