The Ethics Council: some inconvenient truths?

ATSIC had its flaws, as the Minister for Aboriginal Affairs was quick to remind us during the “consultation” phase of the new body by repeatedly stating that the new body “would not be another ATSIC”. However, ATSIC was a statutory body with external legislative safeguards that could be utilised to prevent or remedy abuses of power within the organisation. The new body will not have ATSIC’s service delivery role but it will have a major advisory and advocacy role (including research) with government committing close to $30 million to December 2013.

How exactly then will the Ethics Council vet Executive Council members? This is not clear, apart from Calma’s sweeping statement that decisions will accord with the Nolan Principals. Decisions of the Ethics Council will not fall within the realm of public administrative law, unlike the decisions of ATSIC, that were subject to external checks and balances under the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”).

Under the ADJR, persons aggrieved by decision of federal bodies can seek an independent review of that decision, which may be set aside by the Court. The grounds of appeal include: breach of the rules of natural justice; that the decision was induced or affected by fraud; that there was no evidence or other material to justify the making of the decision. Also, that the decision was improper because irrelevant consideration were taken into account; or that relevant consideration were not taken into account; that the decision was made in bad faith; or at the direction or behest of another person; in accordance with a rule or policy without regard to the merits of the particular case; so unreasonable that no reasonable person could have so exercised the power; and an abuse of power.

The Freedom of Information Act 1982 also meant that Aboriginal people could apply to ATSIC for access to relevant information. As a private body corporate, FOI legislation will not apply to the decision of the Ethics Council.

Is the “Ethics” Council the centerpiece of the new “representative” body and a mechanism by which ethics, transparency and even representation can be circumvented? The process by which members have been appointed was not reflective of best practice, there can be no guarantee that it will operate independently at arms length from the Congress and there is no right of review or appeal from the important decisions that it has been entrusted to make.

The Indigenous representative body was supposed to be “a new dawn”, but one has to wonder whether its beginnings are more reminiscent of ATSIC’s final days.

Al Gore powerful exposé forced people to acknowledge climate change and confront their denial over its very existence. Likewise, the Ethics Council has raised some inconvenient truths. The question is: who will be prepared to notice?