Aboriginal and Torres Strait Islander Elected Body Regulation 2017

The central concept is the code of conduct (schedule 1), which is a set of nine behavioural standards that apply to ATSIEB members. The code is not aspirational; section 5(1) makes it a legal requirement. Each standard imposes a specific duty. Honesty and fairness (clause 1.1) requires members to act honestly and fairly, and prohibits improper influence, favouritism, or patronage when conducting ATSIEB business. Care and diligence (clause 1.2) requires reasonable care and diligence, including attending meetings, participating in discussions, reading papers, and raising concerns. That is a relatively low, objective standard measured against what a reasonable person would do in the role. Conflict of interest (clause 1.3) imposes a duty to take “all reasonable steps” to avoid any actual or perceived conflict of interest, and to declare any conflict that cannot reasonably be avoided. This is notable because it extends to “perceived” conflicts, not only actual ones. The clause cross-references section 27 of the Act, which requires disclosure of a material interest in an issue being considered by ATSIEB. Respect for privacy and reputation (clause 1.4) requires members to respect the dignity and privacy of individual Aboriginal and Torres Strait Islander people in the ACT, and to consider a person’s rights and reputation before making a statement about them to another member, the community, or the ACT Government. This goes beyond general privacy law by creating a specific duty in the exercise of functions under the Act. Confidential information (clause 1.5) prohibits taking improper advantage of information gained as a member, and prohibits improper disclosure of confidential information obtained through membership. An example given is forwarding an email intended only for confidential consideration to a non-member. Accountability and transparency (clause 1.6) prohibits improper use of a territory resource and requires open and accountable use of public resources. Mutual respect (clause 1.7) requires professional and respectful treatment of other members, ACT Government employees, and the public, and prohibits bullying, harassment, or intimidation. Accessibility (clause 1.8) requires members to ensure they are “reasonably accessible” to the Aboriginal and Torres Strait Islander people of the ACT, and to conscientiously represent those interests. ATSIEB chair (clause 1.9) imposes specific duties on the chair to encourage decision-making, encourage participation, ensure fair and open discussions, and maintain constructive working relationships with government agencies and other stakeholders. Another key concept is the pecuniary and personal interests declaration (section 6). This is a mandatory disclosure regime that operates at the start of the term and on any change. The declaration must cover employment, memberships, financial interests, and directorships. The recording and availability to the Minister create a transparency mechanism but also a compliance burden: members must be aware of when a change triggers a new declaration, and ATSIEB must maintain a proper record. The role of the chair and deputy chair are also key concepts: the chair represents ATSIEB and prepares agendas; the deputy chair steps in when the chair is unable. These roles are defined by the regulation but rely on additional functions under the Act (noted in cross-references, such as calling meetings under section 21 of the Act, presiding, and granting leave). The concept of non-displacement (section 5(2)) is important: the code does not displace any duty or liability under Territory, Commonwealth, or State law. That means a breach of the code could also be a breach of another law, and vice versa. It also means the code is additional, not substitutive. The expiry of subsections 6(4) and (5) is a temporal concept: those provisions were in force only for one year from the regulation’s commencement (30 November 2017 to 30 November 2018). Their removal means the current law is narrower than the original; whatever additional requirements they imposed (likely transitional or reporting) no longer apply.

The regulation directly affects the seven members of the Aboriginal and Torres Strait Islander Elected Body (ATSIEB), which is an elected body representing Aboriginal and Torres Strait Islander people in the ACT. Each member must comply with the code of conduct (section 5(1)) and table a declaration of pecuniary and personal interests (section 6(1)). The ATSIEB chair and deputy chair have additional duties under sections 7 and 8 and clause 1.9 of the code. The ATSIEB body as a whole is affected: it must maintain a record of all declarations and make that record available to the Minister (section 6(3)). That imposes an administrative burden on the secretariat or whoever handles record-keeping. The Minister (the ACT Minister for Aboriginal and Torres Strait Islander Affairs) is affected as the recipient of the record. The Minister may have powers under the Act to act on breaches or declarations, though the regulation does not specify those powers. ACT Government employees who interact with ATSIEB members are also affected indirectly: they are protected by the mutual respect clause (1.7) which prohibits bullying, harassment, or intimidation, and they may be involved in providing resources that must not be improperly used under clause 1.6. Aboriginal and Torres Strait Islander people living in the ACT are the ultimate beneficiaries of the code, particularly through the accessibility clause (1.8) which requires members to be reasonably accessible and to conscientiously represent their interests. However the regulation gives no direct enforcement rights to those individuals; they cannot sue for breach of the code. Other stakeholders such as government agencies and organisations that interact with ATSIEB are affected by the chair’s duty to maintain constructive working relationships (clause 1.9). The regulation does not affect the broader public, the private sector, or other statutory bodies. Compliance professionals advising ATSIEB members need to be aware of the obligations. The regulation does not create any duties for corporations or non-government organisations, but those entities could be affected if a member has a conflict of interest with them (clause 1.3) or if they receive confidential information improperly (clause 1.5). The regulation does not impose any compliance costs on the private sector; the costs fall on the ACT Government (funding the ATSIEB secretariat) and on individual members (time spent on declarations, reading papers, attending meetings). The pecuniary interests declaration may require members to disclose business interests, which could deter some individuals from standing for election if they value privacy. There is no exemption for small business owners or sole traders; all directorships and financial interests in any body must be declared. That is a compliance burden and a potential privacy cost. The regulation does not affect voters, candidates, or the election process itself , those are dealt with in the Act. The expiry of subsections 6(4) and (5) may have removed certain obligations from some members or ATSIEB as an institution; the current regime is simpler but less transparent if the expired provisions required additional reporting. Anyone affected should confirm what those subsections contained (they are not in the republication but may be accessible in the original notification).

The regulation imposes duties on ATSIEB members; it does not grant any rights to members or third parties. The paramount duty is to comply with the code of conduct (section 5(1)). That includes duties to act honestly and fairly (clause 1.1), exercise reasonable care and diligence (clause 1.2), avoid actual or perceived conflicts of interest (clause 1.3), respect privacy and reputation (clause 1.4), not take improper advantage of or improperly disclose confidential information (clause 1.5), not improperly use territory resources and use public resources openly and accountably (clause 1.6), treat others with respect and not bully, harass, or intimidate (clause 1.7), be reasonably accessible and conscientiously represent interests (clause 1.8), and for the chair, to encourage decision-making, encourage participation, ensure fair discussions, and maintain constructive relationships (clause 1.9). The duty to declare pecuniary and personal interests (section 6(1)) is separate: members must table a declaration at the first meeting they attend and on any change. The information must include current employment, memberships, financial interests, and directorships (section 6(2)). There is no discretion; it is a categorical obligation. ATSIEB has a duty to maintain a record of those declarations and make it available to the Minister (section 6(3)). The chair has duties to prepare meeting agendas in consultation with members (section 7(b)) and to perform the representational role (section 7(a)). The deputy chair has duties to act as a representative and to perform the chair’s functions when the chair is unable (section 8). The regulation does not confer any rights on members. There is no right to be indemnified, no right to legal representation, no right to challenge a finding of breach within the regulation itself. The code does not create a right of action for third parties. The privacy clause (1.4) is phrased as a duty on the member, not a right in the individual community member. The note to clause 1.3 cross-references section 27 of the Act, which requires disclosure of a material interest; that may give ATSIEB the right to require disclosure, but the regulation itself does not create that right. The regulation gives no right to appeal a requirement to table a declaration; it is an immediate obligation. The regulation creates no right to access the record of declarations for the public; only the Minister is entitled to it. However, the Freedom of Information Act 2016 (ACT) might allow public access , but that is external. The regulation does not give members any right to refuse to participate in ATSIEB business when they have or perceive a conflict; they must take all reasonable steps to avoid the conflict and declare if it cannot be avoided (clause 1.3). That might effectively require recusal, but the right to recuse is not stated as a right; it is a duty to avoid. The regulation also does not give the Minister any explicit powers to investigate or sanction breaches; those powers would need to be in the Act. The duty to make the record available to the Minister implies the Minister can request it and presumably act on it, but the regulation stops there. The note to section 7 points to other functions under the Act, such as calling meetings and presiding; those are powers under the Act, not the regulation. The regulation’s duties are structurally sound but they create a compliance burden that is largely self-policed unless the Act provides enforcement mechanisms. The duty to be accessible is vague , “reasonably accessible” , and could be interpreted subjectively, creating uncertainty for members about what specific actions are required. The duty to conscientiously represent interests (clause 1.8(2)) is a subjective standard that could be difficult to enforce. The duty in clause 1.4(2) to consider a person’s rights and reputation before making a statement imposes a procedural requirement that might hinder free discussion if overinterpreted. Members have no right to make statements without prior consideration, but the scope of “consider” is not defined. The duty not to apply improper influence, favouritism, or patronage (clause 1.1(2)) could restrict legitimate advocacy for community interests; the line between proper representation and improper patronage is not drawn.

The regulation itself does not prescribe penalties for breach of the code or the declaration duty. The note at the front of the republication states that “the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation”, but that is a standard note for any ACT law that creates offences. It does not mean this regulation creates any specific offences. No provision in the regulation says “a person commits an offence if…”. Section 5(1) says “must comply” but does not create an offence. The Legislation Act 2001 (ACT) section 127(3) provides that a “must” in a law does not of itself create an offence. Therefore breach of the code is not a criminal offence under this regulation. It likely constitutes a breach of duty that could be dealt with under the Act , for example, the Act may provide for removal of a member for misbehaviour or incapacity (though that is not in the regulation text). The pecuniary interests declaration requirement in section 6(1) also uses “must” but no penalty is stated. There is no express power for the Minister to impose fines or the ATSIEB to suspend members. Enforcement would need to be found in the Act or in general law (e.g., breach of statutory duty, public law remedies). The regulation does provide for a record of declarations (section 6(3)) to be maintained and made available to the Minister. That at least enables the Minister to see any omissions or changes. If a member fails to table a declaration, the Minister could presumably raise it. But there is no penalty for late or incomplete tabling. The code’s provisions are largely aspirational in enforcement terms; a member could be found to have acted dishonestly but there is no stated consequence. The non-displacement provision (section 5(2)) preserves existing duties under other laws, so if the conduct also breaches, say, the Criminal Code 2002 (ACT) (e.g., for bribery or misuse of public office), that can be prosecuted. But the regulation adds nothing to the penalty calculus. For practitioners, this means the regulation is a compliance benchmark that may be used internally to censure members, or as grounds for suspension or removal if the Act allows. But there is a real risk that the code is unenforceable in practice unless the Act has teeth. The expiry of subsections 6(4) and (5) may have removed a penalty or enforcement mechanism that originally existed. Those subsections are not reproduced, but it is possible they created an offence for failure to comply. Without them, the current regulation is lighter on enforcement. The Minister, ATSIEB, or members could seek declaratory relief or an injunction from the ACT Supreme Court if a member breaches the code, but that is expensive and unlikely. The regulation does not create any mechanism for community members to complain about breach. The lack of penalties means the regulation imposes a compliance burden without strong enforcement, which may lead to selective compliance. It also means that members who take their duties seriously bear a higher relative cost than those who ignore them, because there is no enforcement to level the playing field. The code’s obligations, especially the conflict of interest and confidentiality clauses, could be enforceable as contractual or fiduciary duties if the member has signed an agreement, but that is outside the regulation. The regulation is a delegate of behavioural standards, but its enforcement gap is significant.

Section 5(2) explicitly states that the code of conduct “does not displace any duty or liability that an ATSIEB member has under a law of the Territory, the Commonwealth or a State in relation to a matter covered by the code.” This means the regulation is cumulative. It does not replace the Public Sector Management Act 1994 (ACT), the Criminal Code 2002 (ACT), the Government Procurement Act 2001 (ACT), or any Commonwealth law such as the Commonwealth Electoral Act 1918 or the Racial Discrimination Act 1975. If conduct breaches both the code and another law, both may apply. The note to section 6 of the dictionary states that terms used in the regulation have the same meaning as in the Aboriginal and Torres Strait Islander Elected Body Act 2008. That Act defines core terms such as ATSIEB, ATSIEB chair, ATSIEB deputy chair, ATSIEB member, and ATSIEB term. The regulation must be read together with that Act. For example, the Act contains section 27 on disclosure of material interests, which the code’s conflict of interest clause cross-references. The Act also likely contains provisions on removal, resignation, and the functions of the elected body. The regulation also interacts with the Legislation Act 2001 (ACT). Section 3 references the dictionary; notes explain that the Legislation Act definitions apply. The code’s provisions on confidential information (clause 1.5) may interact with the Government Information (Public Access) Act 2009 (ACT) (the GIPA Act) and privacy laws. Improper disclosure under the code may also be an offence under the Criminal Code 2002 if it involves official secrets. The requirement to use public resources in an open and accountable way (clause 1.6) aligns with the Financial Management Act 1996 (ACT) but does not replace it. The Public Interest Disclosure Act 2012 (ACT) could apply to whistleblowers in ATSIEB; the code’s confidentiality clause should not be used to quiet proper disclosures under that Act. The regulation does not create any immunity. The regulation’s requirement to make declarations available to the Minister interacts with privacy laws: the declarations contain personal information, but the regulation itself authorises the collection and disclosure to the Minister. However, broader disclosure to the public is not authorised by the regulation; any request for access would be under the GIPA Act. The expiry of subsections 6(4) and (5) means the regulation’s interaction with transitional provisions has ceased; practitioners should not assume those subsections are relevant to current affairs. The regulation does not interact with the Aboriginal and Torres Strait Islander Heritage Act 2006 (ACT) or land rights legislation. It is entirely focused on the internal governance of the elected body. There is no interaction with corporation law (other than members disclosing directorships). Practitioners advising ATSIEB members need to be aware that the code is not a “safe harbour”: a member who complies with the code may still breach other duties. The non-displacement proviso ensures that the regulation is additive, not substitutive. The lack of a penalty in the regulation does not shield a member from prosecution under other laws for the same conduct. For example, misuse of territory resources could also be an offence under the Criminal Code 2002 (theft or fraud). The mutual respect clause (1.7) may interact with anti-discrimination laws and workplace health and safety laws. The regulation does not create any new interaction with cross-border laws; it is an ACT law only.

The regulation was made as SL2017-34, notified on the ACT Legislation Register on 29 November 2017. Sections 1 and 2 commenced on that date (29 November 2017) under the Legislation Act 2001 section 75(1). The remainder of the regulation commenced on 30 November 2017 (per section 2 of the regulation). There has been only one formal amendment, which was actually an expiry. The amendment history (endnote 4) records: “s 2 om LA s 89 (4)” , meaning section 2 (the commencement provision) was omitted by operation of the Legislation Act 2001 section 89(4), which is standard removal of spent commencement provisions. That is a mechanical editorial change, not a substantive amendment. The more significant change is in the pecuniary interests declaration provisions: “s 6 s (4), (5) exp 30 November 2018 (s 6 (5))”. This means that subsections 6(4) and 6(5) had a sunset clause; they expired on 30 November 2018, exactly one year after the main provisions commenced. Those subsections are now omitted from the republication. The current text shows only subsections 6(1)-(3) and the dictionary definition. The content of the expired subsections is not included in this republication; practitioners would need to consult the original subordinate law as notified in 2017 to see what they said. Likely they required additional declarations or periodic reporting that was intended to be transitional. Their expiry means the original broader regime is now limited to the first meeting and change-based declarations. This is an important point for anyone reviewing compliance history: there is no longer a requirement to do whatever subsections 6(4) and (5) required after November 2018. The republication is numbered R2, effective 1 December 2018. That republication captures the law after the expiry. Since then, the regulation has not been amended (as of the republication date). There are no pending amendments. The legislation history shows the regulation was not amended between 2017 and the republication. It is a relatively stable instrument. Practitioners should note that any future amendment may be gazetted; the current regulation is now several years old and could be updated. The absence of amendment history beyond the expiry may indicate that the government considers the current framework sufficient. However, the expiry of subsections without replacement also means the original drafters anticipated a temporary obligation. The reason for the sunset is not stated. The regulation has not been repealed; it remains in force. The endnotes also contain a table of earlier republications: R1 was effective 30 November 2017 to 30 November 2018, for the new Act. R2 is the current republication. The regulation has not been amended substantively since commencement; only the expiration and the editorial removal of the commencement section.

The regulation itself has no recorded litigation history in the source. The endnotes and text do not mention any cases. The regulation is a subordinate instrument that has been in force since 2017 with limited substantive content; it is unlikely to have been litigated directly. However, the source does not contain any data on ACT case law. It is possible that a provision of the Act (the Aboriginal and Torres Strait Islander Elected Body Act 2008) has been litigated, but that is outside the regulation. The regulation does not create private rights of action, so it is not fertile ground for litigation. The pecuniary interests declaration requirements might be the subject of a dispute if a member refuses to disclose, but that would likely arise under the Act or under administrative law. The code of conduct could be referenced in proceedings about a member’s removal, but again that would be under the Act. The non-displacement provision (section 5(2)) explicitly preserves other duties, so any litigation would likely be based on those other laws. The regulation’s conflict of interest clause (1.3) could be cited as evidence of a breach of duty in a civil action, but the regulation itself does not create a cause of action. The confidentiality clause (1.5) could be relevant to an action for breach of confidence or for misuse of information under the Criminal Code, but the regulation is not the primary source of the duty. There is no record of any judicial consideration of this specific regulation. The lack of litigation history does not mean the regulation is irrelevant; it means that compliance is likely managed internally without court involvement. The absence of penalties and the vague standards may make it difficult to enforce in court, which could explain the lack of cases. Practitioners should not assume the regulation is immune to future challenges; a member could seek a declaration regarding the scope of “reasonably accessible” (clause 1.8) or “improper” (clauses 1.5, 1.6). But no such cases are reported in the source. The main lesson is that the regulation operates below the radar of adversarial litigation, relying on political and administrative enforcement.

Several provisions in this regulation are wider or more ambiguous than they first appear. First, the conflict of interest duty extends to “perceived” conflicts (clause 1.3(1)). That is a lower threshold than actual conflict. A member could be in breach even if there is no actual conflict, if a reasonable observer would perceive one. This creates a trap for members who have family or community ties that could be seen as influencing decisions. The obligation to take “all reasonable steps” to avoid any such conflict is open-ended; it may require recusal from many discussions, especially in a small community where members know each other. Second, the pecuniary interests declaration (section 6(2)) requires disclosure of “any body of which the ATSIEB member is a member” and “any body in which the ATSIEB member has a financial interest”. The term “body” is broad , it could include a local sports club, a church, a resident association, or an unincorporated group. Practitioners should also note “directorship of any corporation or organisation” , that covers directorships in non-profits, companies limited by guarantee, and even some incorporated associations. The regulation does not provide a materiality threshold; even a small financial interest must be declared. This creates a heavy paperwork burden at the start of the term. Third, the expiry of subsections 6(4) and (5) means the current text is missing whatever those subsections provided. Anyone relying on the original version must be careful not to assume expired requirements remain. Fourth, the code is mandatory but unpenalised. A member who breaches the code might face no direct consequence under this regulation. But other laws may apply. For instance, improper use of a territory resource (clause 1.6) could be an offence under the Criminal Code 2002 regardless of the code. The non-displacement clause (5(2)) means the code does not shield a member from other liability. Fifth, the confidentiality clause (1.5) prohibits “improper” disclosure but does not define “improper”. That is a subjective term. A member who discloses information to a community member to ensure accountability may be accused of improper disclosure, while the same disclosure could be defended as proper. That ambiguity creates risk; members should err on the side of not disclosing any non-public information unless they have explicit authorisation. Sixth, the accessibility clause (1.8) requires members to be “reasonably accessible” to Aboriginal and Torres Strait Islander people. This is vague; it does not specify means (email, phone, drop-in sessions) or frequency. A member could be found in breach for not returning phone calls quickly enough. Similarly, the duty to “conscientiously represent” the interests of those people is a subjective standard that could be used to criticise a member’s advocacy. Seventh, the chair’s duties under clause 1.9 include maintaining “a constructive working relationship with government agencies”. This could be interpreted to require the chair to avoid confrontational advocacy, which may conflict with the duty to represent community interests robustly. There is an inherent tension between constructive relationships and zealous representation. Eighth, the dictionary defines “code of conduct” by reference to schedule 1, and section 3 makes the dictionary part of the regulation. That is standard. But note 3 in the dictionary says terms used in the regulation have the meaning they have in the Act. That means the Act’s definition of “ATSIEB member” applies, but also that any undefined term in the regulation may be imported from the Act or from the Legislation Act. Practitioners must cross-check. Ninth, the note to clause 1.3 points to section 27 of the Act regarding material interest disclosure. But the regulation’s clause 1.3(2) requires declaration of a conflict of interest that “cannot reasonably be avoided” , that is additional to the Act’s material interest disclosure. A member must comply with both. Tenth, the regulation has no grandfathering or transitional provisions in its current form. The expired subsections 6(4) and (5) were likely transitional; without them, any new member in a new term must immediately comply with all requirements. Also, the regulation does not specify what happens if the first meeting is delayed; the member must table at “the first meeting … at which the member is present”, so if a member misses the first meeting, they may table at the next meeting they attend.

Compliance with this regulation requires a systematic approach by ATSIEB members and the ATSIEB secretariat. Step one: Understand the code of conduct. Each member should read schedule 1 in full and keep a copy. The obligations are not just aspirational; they must be observed in day-to-day activities. The secretariat should provide an induction session covering each clause, especially the conflict of interest, confidentiality, and mutual respect obligations. Step two: Prepare and table the pecuniary and personal interests declaration before or at the first meeting of the term. The declaration must include current employment, membership of any body, financial interest in any body, and directorship of any corporation or organisation. Members should err on the side of inclusion: if in doubt, include the interest. The declaration must be tabled at the first meeting the member attends , it cannot be delayed. ATSIEB should have a standard form for this; if not, the secretariat should create one that captures the required categories. Step three: Monitor changes. Section 6(1)(b) requires a new declaration at the next ATSIEB meeting after any change in the information. This could be a change of employment, a new directorship, or a new membership. Members should promptly notify the secretariat of any such change, even if the next meeting is weeks away. The secretariat should maintain a rolling list and remind members before each meeting if any changes need to be reported. Step four: ATSIEB must keep a record of all declarations and make that record available to the Minister. The secretariat should establish a secure filing system (paper or electronic) and ensure the Minister can access it upon request. The record should include the date each declaration was tabled and any changes. Step five: Adhere to the code in all functions. Specific action items: avoid any actual or perceived conflict of interest; if a conflict arises, disclose it immediately to the chair and recuse from relevant discussions. Do not use territory resources for personal or unauthorised purposes. Do not disclose confidential information without proper authorisation. Treat all individuals with respect; avoid any behaviour that could be perceived as bullying, harassment, or intimidation. Ensure you are reasonably accessible to community members; the secretariat could maintain a contact list and schedule regular open sessions. Step six: The chair and deputy chair must specifically work to encourage decision-making and participation, and maintain constructive relationships. The chair should prepare meeting agendas in consultation with members , this implies a collaborative process, not unilateral agenda-setting. The deputy chair should be prepared to step in at short notice. Step seven: Review and refresh. The secretariat should schedule an annual training session on the code of conduct and the declaration requirements. New members must receive training before or at their first meeting. Step eight: Consider the interaction with other laws. Compliance with the code does not mean compliance with the Act or other laws; members should seek advice on broader obligations, such as confidentiality under the Act and criminal laws on misuse of public office. Step nine: Document everything. Keep minutes of meetings where declarations are tabled, conflict disclosures are made, and decisions are taken. The regulation does not require that, but it protects members against retrospective allegations. Step ten: If in doubt about whether a particular action breaches the code, seek advice from the ACT Government Solicitor or the secretariat. The regulation’s vagueness in certain areas (e.g., “improper”, “reasonably accessible”) means that proactive clarification is better than facing a complaint later. The cost of compliance is primarily time and vigilance; there are no filing fees or external audits required. However the burden on members who also have jobs or business interests is significant due to the broad declaration requirements. Using a standard form and a central record-keeping system mitigates the administrative load. Given the lack of penalties, some members may be tempted to be lax, but that risks reputational damage and potential action under the Act. The best practice is full and timely compliance.