4 Treaty Authority
The Treaty Authority is established on the date this Agreement is signed. The Treaty Authority is constituted by individuals appointed under clause 7.
The Treaty Authority will commence operation on the date of appointment of its fifth Member.
5 Treaty Authority Members
5.1 Number of Members
Subject to the following, the Treaty Authority will consist of not less than five and not more than seven Members.
The initial membership will not exceed five Members.
If the number of Members falls below five but is at least two, the Treaty Authority may continue to perform its functions and exercise its powers, consistent with any practices and procedures made under clause 14.2. New Members or Acting Members will be appointed under clauses 7 or 10 to ensure there are at least five Members as soon as possible.
If the number of Members falls below two, the Treaty Authority must cease to perform its functions and exercise its powers under the Treaty Act and the Framework until such time as it has at least two Members. The fact that the number of Members has fallen below two does not invalidate any acts taken by the Treaty Authority whilst it had at least two Members. New Members or Acting Members will be appointed under clauses 7 or 10 to ensure there are at least five Members as soon as possible.
Notwithstanding any vacancy or alteration in the Treaty Authority’s membership, the Treaty Authority remains in existence.
5.2 Selection criteria
The Treaty Authority will comprise Aboriginal and Torres Strait Islander peoples who meet the selection criteria in Schedule B.
6 Panel
6.1 Establishment
The Parties will establish a panel of five individuals appointed under an instrument of appointment signed by the Parties.
The Panel will perform the functions and duties conferred on it under this Agreement and the instrument of appointment.
6.2 Appointment
The Panel will comprise five individuals, at least four of whom are Aboriginal and Torres Strait Islander peoples. The Panel will include:
- one individual nominated by the Aboriginal Representative Body
- one individual nominated by the State and
- three individuals nominated by agreement of the Parties, one of whom will have expertise and experience in facilitating negotiations or dispute resolution.
Panellists will meet the following eligibility criteria:
high standards of integrity and honesty in public and professional life
- well respected and highly esteemed in their community
- demonstrated experience and ability to make impartial decisions
- demonstrated ability to identify and manage conflicts of interest
- demonstrated experience in working as part of a team
- demonstrated understanding of First Peoples’ culture, Aboriginal Lore and Law, Cultural Authority and ways of doing business and
- demonstrated understanding of the workings of government.
6.3 Term
Panellists are appointed for a term not exceeding six years as specified in their instrument of appointment.
6.4 Reappointment
The Panellists are eligible for reappointment after the expiry of their term.
6.5 Panel guidance
The Panel will seek and take into account the guidance of the Elders’ Voice in the development and conduct of the process for the appointment of Members under clause 7. Any such guidance provided by the Elders’ Voice, and the Panel’s consideration of that guidance, will be made publicly available.
The Panel may seek the assistance of the Elders’ Voice in relation to its other functions under this Agreement, including the development of the standards of conduct under clause 20.1.
The Elders’ Voice will not be involved in the assessment of applications or selection of Members under clause 7 or the removal or suspension of Members under clause 8.
In developing the standards of conduct under clause 20.1, the Panel may also seek the assistance of legal specialists. The reasonable expenses of legal assistance will be met by the Parties.
6.6 Senior Panellist
The Panel will appoint a Senior Panellist at its first meeting for a term of three years. The Senior Panellist must not hold that office for more than three consecutive terms.
6.7 Meetings
Meetings of the Panel will be chaired by the Senior Panellist.
The Panel must meet at least once each year and otherwise may meet as and when required to perform its functions and duties under this Agreement.
A quorum is a majority of the Panellists.
Meetings may be held in person or by videoconference.
Decisions will be made by consensus of Panellists. If consensus cannot be achieved, as a last resort, the majority view prevails. The Senior Panellist does not have a casting vote.
6.8 Instrument of appointment
A Panellist is appointed or reappointed under an instrument of appointment signed by the Parties. An instrument of appointment must:
be executed by the Panellist appointed under it
provide that the Panellist is appointed on a sessional basis
provide that the Panellist agrees to act consistently with the terms of this Agreement
provide appropriate remuneration in accordance with clause 11 and
provide for higher remuneration in the event that the Panellist is appointed as the Senior Panellist.
6.9 Resignation
A Panellist may resign from the Panel by notifying the Senior Panellist in writing of the resignation. The Senior Panellist must notify the Parties of the resignation.
A Senior Panellist may resign from the Panel by notifying the Parties in writing of the resignation.
6.10 Removal of Panellist
The Parties may remove a Panellist from the Panel if the Parties jointly hold a reasonable belief that one or more of the following grounds for removal applies.
A Panellist may be removed from the Panel if the Panellist:
- is incapable of performing their functions and duties as a Panellist
- is negligent in performing their duties as a Panellist
- engages in conduct that brings the Panel or the Treaty Authority into disrepute
- fails to attend three consecutive meetings without approval of the Senior Panellist
- is convicted of an offence:
- that is punishable by imprisonment for 12 months or
- involves fraud or dishonesty or
- is or becomes bankrupt.
The Parties may suspend a Panellist from office without pay for up to six months if the Parties jointly hold a reasonable suspicion that a ground for removal exists.
6.11 Removal of Senior Panellist
The Senior Panellist may be removed or suspended following the process and on the grounds set out in clause 6.10, subject to the following modifications.
The Parties must consult with the remaining Panellists before making a decision under this clause.
In addition to the grounds set out in clause 6.10, a Senior Panellist may also be removed from the office of Senior Panellist if the Senior Panellist:
- is incapable of performing their functions and duties as a Senior Panellist or
- is negligent in performing their duties as a Senior Panellist.
6.12 Vacancy
A vacancy arises if a Panellist:
- resigns under clause 6.9
- is removed under clause 6.10 or 6.11 or
- otherwise discontinues office.
The Senior Panellist, or in their absence the remaining Panellists, must notify the Parties of the vacancy.
Any vacancy is to be filled by the Parties consistent with the requirements under clauses 6.2 and 6.8.
7 Appointment of Members
7.1 Appointment and reappointment
The appointment process under clause 7.3 must be followed for appointment of new Members.
The reappointment process under clause 7.4 must be followed for reappointment of existing Members.
7.2 Requirements for the process
The Panel will ensure that the appointment and reappointment process:
- ensures the independence of the Treaty Authority
- ensures the Members are qualified and competent to perform the functions and duties of the Treaty Authority and
- has the following features:
- culturally strong
- culturally safe
- transparency
- fairness
- impartial and free from bias including from other Members
- appropriate management of conflicts of interest
- respects the privacy of candidates and others involved in the process and
- respects the right of candidates to not have their reputation or identity unfairly attacked.
7.3 Appointment process
The following process must be followed for appointments of new Members:
- the Panel publicly advertises the upcoming recruitment of Members, providing public information about the role of the Treaty Authority, the responsibilities of its Members and the appointment process
- candidates are attracted through:
- a public call for nominations and
- an Aboriginal led recruitment process conducted by a Recruiter overseen by the Panel
- the Recruiter compiles applications and provides these to the Panel
- the Panel reviews the applications and creates a shortlist of candidates
- the Panel interviews the candidates on the shortlist
- the Panel selects the candidates for recommendation to the Parties on the basis of their application and their interview
- the Panel provides its recommendation to the Parties
- the Parties appoint each recommended candidate as a Member by an instrument of appointment under clause 7.7 and
- the Panel publicly announces the successful candidates, including information demonstrating the strengths and suitability of the candidates.
7.4 Reappointment process
For the reappointment of existing Members, the following process must be followed:
- the Panel interviews the Member
- the Panel decides whether to select the Member on the basis of their interview and performance as a Member
- the Panel provides its recommendation to the Parties and the Parties reappoint or do not reappoint the Member as recommended and
- the Panel publicly announce the reappointment.
7.5 Parties must follow recommendation
The Parties must appoint or reappoint Members recommended for appointment or reappointment by the Panel.
7.6 Term
Members are appointed for a term not exceeding five years as specified in their instrument of appointment.
7.7 Instrument of appointment
A Member is appointed or reappointed under an instrument of appointment signed by the Parties. An instrument of appointment must:
- be executed by the Member appointed under it
- provide whether the Member is appointed on a full-time basis or a part-term basis, including hours of work
- provide that the Member agrees to act consistently with the terms of this Agreement (including by meeting their duties under clause 19 and 20.1), the Framework, the Treaty Act and the Treaty Authority Act
- provide appropriate remuneration in accordance with clause 11
- provide for higher remuneration in the event that the Member is appointed the Chairperson and
- provide that the Member is indemnified out of assets held by the Treaty Authority on the following terms:
- the indemnity is for any debts or liabilities incurred personally by a Member when acting on behalf of the Treaty Authority, so long as the Member was authorised to take that action and acting in good faith and in the best interests of the Treaty Authority
- the indemnity is a continuing obligation and is enforceable by a person even if that person is no longer a Member and
- the indemnity applies to the extent the person is not otherwise indemnified by another person including an insurer.
7.8 Chairperson
The Treaty Authority will appoint a Chairperson at its first meeting for a term of three years. The Chairperson must be a Member and not hold that office for more than two consecutive terms.
The Chairperson will chair meetings and perform other functions and duties provided under this Agreement.
8 Resignation and removal
8.1 Resignation
A Member may resign from the Treaty Authority by notifying the Chairperson in writing of the resignation. The Chairperson must notify the Panel and the Parties of the resignation.
A Chairperson may resign from the Treaty Authority by notifying the Panel in writing of the resignation. The Panel must notify the Parties of the resignation.
8.2 Removal of Member
The Parties, on the recommendation of the Panel, may remove a Member from office if the Panel holds a reasonable belief that one or more of the following grounds for removal applies.
A Member may be removed from office if the Member:
- is incapable of performing their functions and duties as a Member
- is negligent in performing their duties as a Member
- engages in conduct that brings the Treaty Authority into disrepute
- fails to attend three consecutive meetings without approval of the Chairperson
- is convicted of an offence:
- that is punishable by imprisonment for 12 months or
- involves fraud or dishonesty or
- is or becomes bankrupt.
The Parties, on the recommendation of the Panel, may suspend a Member from office for up to six months without pay if the Panel has a reasonable suspicion that a ground for removal exists.
The Panel must consult with the Chairperson before making a recommendation to the Parties under this clause.
The Parties must follow the recommendation of the Panel in relation to removing or suspending a Member under this clause.
8.3 Removal of Chairperson
The Chairperson may be removed or suspended following the process and on the grounds set out in clause 8.2, subject to the following modifications.
The Panel must consult with the remaining Members before making a recommendation to the Parties under this clause.
In addition to the grounds set out in clause 8.2, a Chairperson may also be removed from the office of Chairperson if the Chairperson:
- is incapable of performing their functions and duties as a Chairperson or
- is negligent in performing their duties as a Chairperson.
9 Vacancy
A vacancy arises if a Member:
- resigns under clause 8.1
- is removed under clause 8.2 or
- otherwise discontinues office.
The Chairperson, or in their absence the remaining Members, will notify the Panel of any vacancy that arises.
The Panel must notify the Parties of the vacancy.
If the vacancy causes the number of Members to be less than five then, subject to clause 10, a new Member must be appointed following the appointment process in clause 7.3. In such circumstances, an Acting Member must be appointed within 30 days to fill the vacancy until a new Member is appointed.
If the vacancy leaves at least five Members still appointed, the Panel may, in its discretion, decide to fill the vacancy. If the Panel decides that the vacancy should be filled, a new Member must be appointed following the appointment process in clause 7.3.
10 Acting Members
The Parties may appoint a person who meets the selection criteria in clause 5.2 as an Acting Member for a period of up to six months on the recommendation of the Panel.
The appointment of an Acting Member will be made by an instrument of appointment that meets the requirements under clause 7.7 and confers and imposes the same or similar entitlements, functions and duties as the Member for whom they are acting.
The Panel may make a recommendation for the appointment of an Acting Member under this clause if it is satisfied that the person meets the selection criteria in clause 5.2 upon being notified by the Chairperson or in their absence remaining Members of circumstances where:
- a vacancy has arisen under clause 9 and it is impractical to appoint a new Member under the appointment process within the following six-month period
- a vacancy has arisen under clause 9 which causes the number of Members to be less than five
- a Member is unable to act due to illness for a period of time
- a Member takes a leave of absence or other leave under their instrument of appointment for a period of time or
- a Member is otherwise unable to perform the functions and duties of a Member for a period of time.
An Acting Member may act in the office of the Member:
- during a vacancy in that office or
- during a period or all periods when the person holding that office
- is absent from duty or
- for any other reason, is unable to perform the functions and duties of that office.
An Acting Member holds office on the terms and conditions specified in the instrument of appointment.
11 Payments
A Member and Panellist will be remunerated for their services in accordance with their instrument of appointment and reimbursed for any reasonable fees incurred in performing their functions and duties.
Remuneration will be agreed and set by the Parties:
- for a Member, at least at the level payable to executives employed in public service bodies, as determined by the Victorian Independent Renumeration Tribunal, of similar skill and experience and
- for a Panellist, at least at the level payable under the Appointment and Remuneration Guidelines for a similar appointment.
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