Defining ACCOs after the Statewide Treaty

The Treaty and its institutions

Just a little over a week ago, the first treaty between any Australian government and Australian First Nations People was signed. The signing in Victoria of the Statewide Treaty was an occasion of great consequence. Where, in 1835, John Batman had paid 40 pairs of blankets, 42 tomahawks, 130 knives, 62 pairs of scissors, 40 looking glasses, 250 handkerchiefs, 18 shirts, 4 flannel jackets, 4 suits of clothes and 150 lb. of flour in return for 600,000 acres of Melbourne, now there is a real agreement.

To the reader, the Treaty may appear legalistic. Perhaps that is inevitable when we want to give effect to big ideas and we want to avoid ambiguity. Yet within its formal language sit institutions of real consequence: a representative body, “Gellung Warl” (“the tip of the spear”), incorporating an elected First Peoples Assembly; a truth-telling commission, “Nyerna Yoorrook Telkuna”; and an accountability body, “Nginma Ngainga Wara”. If this is merely the tip, what flows from it may be more powerful still.

Why ACCO definitions matter

An interesting aspect of the Statewide Treaty is that one of its immediate reforms concerns the creation of A First People’s Infrastructure Fund. Part B5 provides that Gellung Warl will establish and operate the fund, from 1 July 2026 onward. This is a critical aspect of self-determination.

There is an immediate question posed by the machinery set out in Part B5, being:

(ii) Gellung Warl will operate the Infrastructure Fund to support Aboriginal Community-Controlled Organisations (ACCOs), as defined under the National Agreement on Closing the Gap, with maintenance, minor building works, capital works, infrastructure upgrades and related project planning;

(iii) the Infrastructure Fund will be administered in accordance with guidelines developed by the First Peoples’ Assembly of Victoria in line with its larbargirrar gnuurtak tulkuuk (community answerability) principles and best practice financial management principles;

How Gellung Warl administers the Infrastructure Fund is going to be very influential for the philanthropic community. Philanthropic funders often look for fixed criteria, but the reality of ACCO legitimacy is relational. It will provide answer to the question of what constitutes an Aboriginal Community-Controlled Organisation (or “ACCO”) as defined under the National Agreement on Closing the Gap, even if the answer is one which can be observed and intuited even if not bound by strict, stated rules.

Each time I have attempted to answer this question I have found it difficult. Why? Despite ACCO having become a widely-used term, the National Agreement on Closing the Gap (“the National Agreement”) is a set of principles rather than a strict set of rules. The intent of the National Agreement is that ACCOs be funded, not that they be perfectly defined. There are aspects of the meaning of ACCO which are ultimately in the eye of the beholder, meaning that interpretations differ and generally reflect the interests of the funder rather than the members of the ACCO. Where Gellung Warl is at an advantage is that it will be a First Nations body funding First Nations organisations. What Gellung Warl accepts as an ACCO should, presumably, reflect an appropriately culturally-informed view of what First Nations control actually means.

The National Agreement on Closing the Gap provides as follows:

42. Aboriginal and Torres Strait Islander community control is an act of self-determination. Under this Agreement, an Aboriginal and/or Torres Strait Islander Community-Controlled Organisation delivers services, including land and resource management, that builds the strength and empowerment of Aboriginal and Torres Strait Islander communities and people and is:

(a) incorporated under relevant legislation and not-for-profit

(b) controlled and operated by Aboriginal and/or Torres Strait Islander people

(c) connected to the community, or communities, in which they deliver the services

(d) governed by a majority Aboriginal and/or Torres Strait Islander governing body.

You might assume that many of these can be easily answered as they look like simple factual matters. Is there the required control and operation? Is there connection to community? Is there appropriate governance? Answers can come from an organisation’s constitution or rules, its policies, its habitual activities in relation to reporting back to community, its membership, its board and so on.

Community, control and corporate form

But fact and degree are critical. Connection to community is case in point. “Community” is not a static or singular concept. It has cultural, historical, geographic and relational dimensions. It can be anchored in Country, kinship, language or shared experience. It can also be shaped by circumstances: displacement, urbanisation, service need, or the absence of alternatives. Depending on how you define “community” you might find that the way in which an ACCO serves a community or communities could include:

1.     In a town where there are multiple communities, not all of whom make use of the service.

2.     In an urban setting where First Nations peoples from many different communities make use of the service.

3.     By providing a service to First Nations people across a state, territory, or even the nation as a whole.

A statewide body might be deeply connected to numerous communities through formal partnerships, cultural authority or long-standing program delivery. An organisation created by Traditional Owners for a specific region holds a different kind of connection. A grassroots group formed in response to a local issue may show extraordinary community legitimacy without holding the scale or structure of a mature service provider. Each is “connected to community”, but each in a different way. Engaging with the topic necessarily requires flexibility in thinking, but I doubt it is where issues arise.

Where a real issue lies, though, is in relation to the phrase “incorporated under relevant legislation and not-for-profit”. Now, you might wonder what could possibly be difficult about this. Well, the standard types of incorporation that you might encounter for a not-for-profit in Australia are: (i) an association incorporated under state or territory legislation (“incorporated association”), (ii) a company limited by guarantee incorporated under the Corporations Act 2001 (Cth) (Corporations Act), or (iii) a company incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).

However, there is a pervasive narrow approach to the understanding of which corporate forms are acceptable for ACCOs. A neat example is provided by the NSW Government’s Department of Communities and Justice site addressing Aboriginal Community-Controlled Organisations. Onto the end of the four key points drawn from the National Agreement it adds on that:

DCJ recognises that ACCOs may be registered with:

·       the NSW Aboriginal Land Council (NSWALC); or

·       Aboriginal Health & Medical Research Council of NSW (AH&MRC) ; or

·       National Aboriginal Community-Controlled Health Organisation (NACCHO).

·       Office of the Registrar of Indigenous Corporations (ORIC)

·       Supply Nation

·       NSW Indigenous Chamber of Commerce.

Organisations registered under the Office of the Registrar of Indigenous Organisations (ORIC), Supply Nation, or the NSW Indigenous Chamber of Commerce may be ACCOs or Aboriginal organisations. Further investigation of entity status may be undertaken by DCJ to clarify this.

In the event that it is not clear whether your organisation is an ACCO or Aboriginal organisation, DCJ will seek advice from the Coalition of Aboriginal Peak Organisations (CAPO) Secretariat.

There is no mention of the possibility that an ACCO might be registered with ASIC, the regulator for companies limited by guarantee. Nor is there mention of Fair Trading NSW which regulates incorporated associations in NSW. Instead, only ORIC is mentioned, with ORIC being the regulator of companies incorporated under the CATSI Act.

The NSW Department of Communities and Justice’s approach could be treated as a matter of curiosity if it were not the case that its (apparent) assumption that it is necessary for an organisation to be registered under the CATSI Act had not come to be understood as a requirement. There are many excellent organisations that you would assume satisfy the definition of an ACCO and which therefore would under the principles of the National Agreement warrant support in their service delivery which just might not be if it is simply not good enough to be a company limited by guarantee.

It’s not a simple change. Nor is it a change that would necessarily serve the ongoing operation of an organisation well. The CATSI Act exists for good reasons. It provides protections, reporting rules and governance structures designed for Aboriginal and Torres Strait Islander corporations, especially smaller or remote organisations that benefit from hands-on regulatory support. But it is not the only legitimate corporate form through which an ACCO can operate. A company limited by guarantee, or an incorporated association, can be just as community-controlled, just as culturally grounded, and just as accountable to the people it serves.

This is where the NSW approach raises concern. What appears at first glance to be a neutral administrative preference takes on a different character once placed in the wider regulatory context. The CATSI Act is a “special measure”, introduced to replace the outdated Aboriginal Councils and Associations Act. It is designed to offer protection, flexibility and cultural alignment. Yet the persistence of policies that treat CATSI incorporation as the default or even only proper home for Indigenous organisations risks transforming a protective measure into a restrictive one. As noted in the 2021 review of the CATSI Act, the very powers that were intended to support organisations can become paternalistic when applied indiscriminately.

Towards a culturally informed approach

A culturally legitimate organisation can sit under multiple legislative umbrellas. The National Agreement anticipates this. It deliberately refers to “relevant legislation” rather than prescribing a single statute, recognising that Indigenous organisations operate across a spectrum: from small-community organisations, to housing providers, to multi-million dollar enterprises seeking capital, forming joint ventures or handling significant assets. What matters is not the statute under which the organisation was incorporated, but whether it is controlled by First Peoples and connected to community.

The difficulty with treating CATSI incorporation as a proxy for legitimacy is that it misunderstands the way contemporary Aboriginal organisations actually operate. Many sophisticated organisations, particularly in areas like housing, infrastructure, energy, or large-scale service delivery, are likely to be advised by experts to incorporate under the Corporations Act. This aligns structure with operational reality. Banks and commercial partners often prefer the predictability of the Corporations Act, particularly its well-understood external administration and creditor-rights regimes. By contrast, the CATSI Act’s power of “special administration”, where the regulator can intervene even when a corporation is solvent, creates a form of risk that may complicate commercial arrangements. None of this reflects on an organisation’s cultural standing.

There is an important contrast between NSW and Victoria. The Statewide Treaty does not tie Aboriginal organisational legitimacy to a registry. It anchors it in community accountability. By referencing the National Agreement definition of ACCO, rather than imposing a Victorian or Commonwealth corporate form, the Treaty affirms that community control is a matter of governance, culture and accountability, not a matter of which statutory regime the constitution was lodged under. In other words, Victoria has aligned with the spirit of the National Agreement. Depending on how Gellung Warl proceeds, substance will (hopefully) have prevailed over form.

To whom does this matter? It matters both to ACCOs and philanthropists. Organisations want to be set up for success. Philanthropists, generally, are guided by the principles in the National Agreement. A clear articulation by Gellung Warl of its approach would be beneficial. Although, perhaps even more important will be the adequate funding of the Infrastructure Fund.