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Culture informs a group’s rules for determining what constitutes the ‘right way’ of exercising authority and making decisions, and what constitutes the ‘wrong way’.

Problems and conflicts arise when very different governance rules, having contradictory values and types of accountability are imposed on people.

Aboriginal and Torres Strait Islander people today live under two very different sets of governance rules—their own, and those of non-Indigenous Australia.

A common challenge facing Aboriginal and Torres Strait Islander peoples is how to manage and align the often competing demands placed on them by these different sets of rules.

Many organisations are responding by exploring ways to renew their governance rules from the inside. Uppermost in their minds are issues of internal legitimacy and accountability.

6.2.1 Building cultural legitimacy into your rules

Redesigning governance arrangements is a sovereign decision.

From this viewpoint, the practice of developing and enforcing capable rules, on a daily basis, is actually what ‘self-determination in action’ is about.

Many Aboriginal and Torres Strait Islander people voice the common and deep concern that their cultures must have a place in their governance arrangements, and that this has to be respected and workable in today’s world.

Culture is not seen as a problem, but rather as a source of strength and innovation.

“Innovation and creativity are not new to our Indigenous cultures; all our cultures have traditions
where people experimented, did things differently, made innovative changes.

We can take that model and use it to continue to adapt into the future.”

(Manu Barcham, Comments at Common Roots, Common Futures: Different Paths to Self-determination, International Conversation, University of Arizona, Tucson, USA, February 2012)

In general, governance rules that have cultural legitimacy are ones that:

• assert and protect values that are important to you
• reflect your ideas about how power and authority should be shared in your organisation
• have the support of your people because they have helped develop them.

There are several critical areas where Aboriginal and Torres Strait Islander organisations can strengthen their governance through creating culturally legitimate rules.

Developing new or more effective governance rules does not mean ignoring the past. Nor does it require reinventing a cultural fantasy. It means building on the internal strengths and traditions of Aboriginal and Torres Strait Islander governance.

It may also involve people rethinking their ideas of how to govern, and creating rules and procedures that meet their contemporary needs.

“The challenge is to develop new governance models which are based on the best of the Aboriginal domain and tools from the non-Aboriginal domain. This would involve marrying Aboriginal law and tradition with non-Aboriginal ways.”

(Galawarruy Yunupingu, ‘Land rights, the Northern Territory and “development” into the 21st century’, Charles Darwin Symposium series, 18 July 2003, Darwin)

This process of developing cultural legitimacy can be challenging and shouldn’t be rushed. It takes time, courage, experimentation and some hard-headed realism to work out what suits different communities and groups.

The trick is to design rules that can pass both tests: that are at once both practical and legitimate.

As such, it is not surprising that many Aboriginal and Torres Strait Islander organisations stress the cultural importance of broad community consultation when developing new governance rules and processes.

For all these reasons, your new governance rules should not be set in legal concrete too quickly—they need time to be road-tested with your members and should have sufficient flexibility to be refined over time.

6.2.2 Incorporation rules and cultural rules

The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) sets out how incorporated Aboriginal and Torres Strait Islander organisations should create their rules. It includes western democratic standards of governance and accountability, but also allows people some leeway to craft rules more relevant to their own culture. For example:

• Non-indigenous directors. Organisations can choose whether to allow non-Indigenous people—experts, spouses and step-children, for example—to be members or directors. Indigenous people must always be in the majority so even if an organisation chooses to allow non-Indigenous members, it will always be controlled by Indigenous people. It is not compulsory to allow non-Indigenous people to be members or directors, but this gives organisations another option.
• Eligibility of members. All incorporated organisations must have a rule book that sets out its aims, its name, and a process for resolving disputes and any other matters. Eligibility criteria, such as requiring a member to live in a particular region, is an example of a matter that an organisation can include in its rule book.
• Who appoints the chair? An organisation can decide that instead of directors appointing the chair of a general meeting, the members can decide.
• Holding meetings remotely. Meetings can be held by video or teleconference—this is important for very remote organisations or for those whose directors cannot easily read and write English. Meetings can also be held in the local Indigenous language so long as some parts can be translated later if required.

Remember, a governing body has the inherent right to collectively develop its own rules, and to design culturally informed procedures for putting them into practice.

6.2.3 Charity governance standards and cultural rules

Charity has a special legal meaning which can include a wide range of not-for-profits, including Aboriginal and Torres Strait Islander organisations. There are a number of benefits of registering an organisation as a charity with the Australian Charities and Not-for-profits Commission (ACNC), including access to Commonwealth government tax concessions.

The Australian Charities and Not-for-profits Act 2012 (Cth) sets out the obligations registered charities need to meet, including governance standards. The governance standards are general western principles of good governance, but are general principles that set minimum requirements for governance, rather than precise rules. This allows for flexibility and organisations can develop good governance practices more relevant to their own culture, size and types of activities.

The ACNC will not ask every registered charity to demonstrate they are meeting the governance standards, only those that the ACNC believes may be in serious breach of the governance standards.

Organisations that follow the rules under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) will most likely meet the governance standards. Organisations that use the tools and resources in this toolkit will most likely develop good governance practices beyond the minimum standards required by the ACNC.