5.1 Roles, responsibilities and rights of a governing body
Over the last 30 years, the duties and responsibilities of Aboriginal and Torres Strait Islander governing bodies have changed immensely and grown more complex.
The people who are selected or elected to the governing bodies of organisations must meet increasingly high standards of conduct.
Their own members and their external funders expect them to achieve important goals, be open, be representative and be accountable—but each stakeholder often applies different values and criteria.
At the same time, Aboriginal and Torres Strait Islander people want the governance models of their organisations to be rooted in culture.
Governing the Warlpiri Youth Development Aboriginal Corporation
The Warlpiri Youth Development Aboriginal Corporation (WYDAC) (formally known as the Mt Theo Program) was started in 1993 by elders of the Yuendumu community to address petrol sniffing in the community. Created by and for Warlpiri people, the program has now dedicated itself to providing opportunities for young people to grow strong, be proud, make healthy life choices, pursue meaningful pathways and become future leaders. This video explains what WYDAC does to ensure they have a strong communitis, a strong organisation and strong young people.
5.1.1 What is a governing body?
Definition: A governing body is the group of people given the power and authority to form the policy and steer the overall direction of an organisation. Its members can be elected to that position of power by voting, or selected through nomination by Aboriginal and Torres Strait Islander decision-making processes.
Individuals on the governing body of an organisation may be selected or elected because of their land-ownership credentials, special cultural knowledge, age or gender, or because of their position in their group, community, region or nation.
Once this process has happened, the individuals on the governing body are said to act as the ‘representatives’ of the people who selected or elected them.
The mix of the people on a governing body is said to be ‘inclusive’ when its members reflect the broad range of rights and interests of the group on whose behalf the organisation is working.
So governing bodies come in all shapes and sizes and have varied functions. A governing body could be a board, a council, a steering committee, an assembly of elders or traditional owners, or a selection of extended families or clans, and can be gender-based.
Importantly, it is the governing body as a collective unit that makes and implements decisions on behalf of its members and the organisation. It is not any single individual.
NPY Women’s Council: How NPY governance works
The NPY Women’s Council won the 2012 Indigenous Governance Awards. In this video NYP Women’s Council Chairperson, Yanyi Bandicha, and Coordinator, Andrea Mason, explain how their governance works.
How the governing body relates to its group members, management and staff
|Group members||Role of the group members is to elect or nominate the people on an organisation’s governing body. The governing body then represents the members|
|Governing Body||Role is to represent, plan strategic direction, set the organisation’s goals, lead the organisation, make the policies, oversee financial direction and accountability, supervise and evaluate management, inspire and role model for staff|
|Management||Role is to implement strategic plans, goals and policies made by governing body, administration, financial management, develop staff policies, and organise, supervise and evaluate the staff|
|Staff||Role is to perform duties under the instructions and direction of management, support governing body in their roles|
5.1.2 Governing roles and responsibilities
The primary job of the governing body is to protect the rights, interests and wellbeing of all the members on whose behalf the organisation is working.
The governing body as a whole does this by making sure the organisation runs smoothly and can achieve the goals and objectives it has promised to deliver to its members.
It does that by collectively carrying out four main roles and responsibilities, summarised below by Neil Sterritt, Gitxsan leader from British Columbia in his Canadian First Nations Governance Handbook.
A governing body has to:
|Governing roles||Governing responsibilities|
|1. Lead||Represent all members and make sure they can participate and be heard; create vision; advocate, negotiate and maximise self-determination.|
|2. Plan||Set overall direction, purpose, future strategies, goals, ethics and values.|
|3. Organise||Develop polices and governance arrangements; interact with management; steer relationships, alliances and collaborations with the public and among stakeholders.|
|4. Control||Ensure the organisation is accountable, legal and financially stable; hire, support and oversee the performance of the top manager; monitor overall outcomes.|
5.1.3 The role and responsibilities of the chair
The chair represents the organisation to the members and the outside world. The chair’s role is very important for the effective and legitimate governance of an organisation.
Yet, as Neil Sterritt points out:
“How often have you been asked to chair a meeting only to realise you do not know how?
You are not alone. This is a common problem for both Aboriginal and non-Aboriginal people who have been elected or appointed to councils or boards.”
(Old Massett Village Council Governance Reference Manual)
Chairing a meeting requires confidence, skills and training—it doesn’t just happen.
The chair is like the captain of the football team: an experienced leader whose job it is to bring everyone’s individual skills together and encourage members to play as a team, develop new skills and kick the winning goals.
The chair of a governing body has to:
- lead the governing body
- help steer the direction and performance of the organisation
- earn the respect of other members of the governing body
- not dominate the meeting with his or her own opinions
- listen to everyone in the meeting and encourage contributions by everyone
- initiate effective governance practices within the governing body
- be able to mediate when conflict arises
- promote good relationships with members and the community
- be a role model and promote high standards of behaviour and practice
- ensure that full, accurate information is provided at meetings.
When an inexperienced or bullying chair is in charge of a meeting, they are in danger of wasting everyone’s time, excluding people from the discussion, missing out on valuable ideas, making ill-informed decisions and not achieving outcomes.
The benefits of having a confident, skilled chair include better discussion, informed decision making, and building a shared spirit of cooperation and achievement among individuals in the governing body.
5.1.4 The rights of individual members of a governing body
Individuals who are selected or elected to sit on the governing body of a legally incorporated organisation have responsibilities, but they also have ‘rights’ associated with their roles.
For example, they have the right to:
- attend and participate fully and equally in meetings of the governing body
- raise issues and make motions to pass decisions
- speak and debate issues
- vote or come to consensus decisions on issues
- advocate the rights and interests of those who selected or elected them
- be free from intimidation and threats
- be fully and accurately informed
- be provided with inductions and training on their governance role and legal obligations
- raise and promote issues of cultural legitimacy and downward accountability to their members.
5.1.5 Legal duties of a governing body
The governing bodies of incorporated organisations have some important roles and responsibilities set out as legal duties in their incorporation rules and constitutions (as required under relevant state, territory and national laws like the Corporations Act 2001 (Cth) and local government legislation).
These legal duties place specific conditions and limitations on the governing body, which it must comply with collectively and individually.
Ignoring these legal duties can put members of the governing body at personal legal risk, and jeopardise the whole organisation. When you sit on a governing body you must pay particular attention to:
- Your fiduciary duty. A fiduciary is someone who holds something in trust. So a fiduciary duty means you have a responsibility to make the right decisions on behalf of all your members, and to act honestly and in the best interests of your members when you exercise your powers and do your job of governing the organisation. This legal duty requires you to always put your members’ interests ahead of your own. This means you should not be on a governing body for personal gain or to get favours.
- Your duty of care and due diligence. This means you must be cautious and careful when making your decisions, and ensure all your decisions are lawful ones. You may be personally liable for decisions you make that break the law. It does not mean that you have to be an expert on everything. It means if you are unclear or confused about an issue, you have a responsibility to get all the information you need (maybe from an outside expert) in order to make an ‘informed’ decision.
- Being cautious and careful. This means that you need to:
- understand the legal aspects of the legislation under which your organisation and governing body operate
- be informed about the activities of the organisation and general trends in any business it runs
- speak clearly for or against a decision being considered by your governing body
- publicly support decisions properly made by your governing body
- act in good faith
- declare any conflicts of interest.
- Conflicts of interest. This means being alert to self-serving behaviour. It occurs when your duty, roles and responsibilities as a member of a governing body conflict with your own personal interests (whether those are your business, family, or property interests). This can include situations where:
- an elected member, CEO or manager profits at the expense of the organisation they serve
- a person acts in their own interest rather than the best interests of the organisation.
Don’t put yourself in a position where what’s best for you personally or your family differs or goes against what is in the best interests of all your nation, community or group.
If you can see that this might occur, you must declare that you have a conflict of interest when this matter is discussed or decided upon by your governing body.
Check-up: When is there a conflict of interest?
If you sit on a governing body you will have to deal with conflicts of interest in your role. You can use this check-up to see when you may have a conflict of interest.
5.1.6 Cultural roles and challenges of a governing body
An Aboriginal and Torres Strait Islander governing body not only has legal duties, but also roles and responsibilities that arise out of cultural values and ways of behaving.
Those are usually not written down—they come from the laws, rules, traditions and processes at work in the people’s day-to-day lives.
This gives Aboriginal and Torres Strait Islander governing bodies something extra that distinguishes them from most mainstream boards and organisations—something that can be summed up as cultural legitimacy and cultural accountability.
In a rapidly changing world, this can create both strengths and challenges for the governing bodies of Aboriginal and Torres Strait Islander organisations.
For example, what may be seen as a conflict of interest or failure to show due diligence by western society may not be seen as such within Aboriginal and Torres Strait Islander society. In fact, it may be seen as a legitimate response to the normal demands of kinship and reciprocal sharing.
However, the governing body of an organisation must represent the rights, interests and wellbeing of all its members. The members of the governing body are not there to speak for themselves, or on the behalf of just a few people.
There may be cultural pressure to do so, but showing favouritism to one family, prioritising your own financial gain, or not declaring a conflict of interest gives out the wrong message to younger people that it is acceptable to act unethically.
The strengths of having cultural foundations for a governing body are obvious. A culture-based governing body benefits from consensus decision making styles, networked leadership, values of mutual obligation, shared land ownership rights and interests, and strong support relationships.
When a governing body reflects the cultural values and priorities of its members, and is accountable to them, those members naturally support it and have a personal investment in its success.
Without this core attribute of cultural legitimacy, organisations struggle to succeed.
Similarly, without the wider legitimacy that a governing body and organisation earns from being accountable upwards to funding agencies or partners, they can quickly lose their external credibility and effectiveness, and even become vulnerable to unilateral intervention by outsiders.
This means that Aboriginal and Torres Strait Islander governing bodies have a two-way source of power and accountability that requires them to ‘deftly negotiate the terrain between their communities and the requirements of funders and mainstream stakeholders’ (in the words of Mick Dodson).
Governing body two-way power and authority
From members and the wider community:
From the legal or funding framework:
|cultural powers||legal powers|
You can read more about two-way power and authority in Topic 2.2.