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QUEENSLAND ABORIGINALS AND TORRES STRAIT ISLANDERS (SELF-MANAGEMENT AND LAND RIGHTS) BILL 1981

The Senate, according to Order, resolved itself into Committee for the consideration of the Bill.

In the Committee

Bill, by leave, taken as a whole.

Senator Ryan, by leave, moved the following amendments together:

Page 1, clause 3, definition of ''Aboriginal'', after ''Australia'', insert '' identified as such by the community in which he lives''.

Page 2, clause 3, definition of ''Islander'', after ''belong'', insert ''and is identified as such by the community in which he lives''.

Page 3, clause 3, definition of ''Law of Queensland'', leave out the definition, insert the following definition: '' 'law of Queensland' means any law, whether written or unwritten and whether substantive or procedural, and as in force in Queensland from time to time, and includes:

(a) a law made by the Parliament of Queensland or a law having effect under, or by virtue of a law made by, the Parliament of Queensland, and includes regulations and other instruments (including by-laws), and

(b) any laws providing for the interpretation of laws specified in paragraph (a) ;''.

Page 4, clause 5, after sub-clause (4), insert the following new sub-clause:

''(5) Where a Council for an Aboriginal or Islander Community makes a request under sub-section 5 (1), (2), (3) or (4) of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self Management) Act 1978 that request shall be deemed to be a request under sub-section (1), (2), (3) or (4) as the case may be.''.

Page 4, clause 6, sub-clause (1), paragraph (b), leave out ''but the Minister is of the opinion that he should exercise his powers under this section to declare another body to be the Council for the Reserve or the Community'', insert ''but the declaration under section 5 has been made other than at the request of that Council, or the Minister is satisfied that the Council does not represent the wishes of a majority of the adult Aboriginals or Islanders who are resident on the Aboriginal or Islander Reserve, or who are members of the Aboriginal or Islander Community, as the case may be''.

Page 5, clause 6, sub-clause (1), leave out all words after paragraph (b), insert ''the Minister shall cause to be conducted by the Commonwealth Electoral Office, within thirty days of a declaration under section 5, an election for a Council, and upon the declaration of the election by the Commonwealth Electoral Office the persons duly elected in accordance with the regulations shall be constituted as the Council for the Reserve or for the Community, as the case may be, for the purpose of this Act''.

Page 5, clause 6, sub-clause (3), leave out the sub-clause, insert the following sub-clause:

''(3) The Governor-General may make regulations prescribing- (a) the ascertainment by the Commonwealth Electoral Office of the persons, being Aboriginals or Islanders, entitled to vote in elections conducted under sub- section (1);

(b) the method of voting for elections conducted under sub-section (1), providing that such method shall provide for election by secret ballot;

(c) the method of counting votes, provided that all votes cast are accorded equal values;

(d) the number of persons to be elected to a Council to be elected under sub- section (1);

(e) the manner in which persons entitled to vote may become candidates for election;

(f) provision for voting by illiterate persons; and

(g) all matters not inconsistent with sub-section (1), required or permitted by sub-section (2) or necessary or convenient for carrying out or giving effect to sub-section (1).''.

Page 5, clause 7, sub-clause (2), leave out ''Aboriginals and Islanders'', insert ''persons''.

Page 5, clause 7, sub-clause (4), leave out ''Aboriginals or Islanders'', insert ''persons''.

Page 6, clause 9, sub-clause (1), leave out ''for the Aboriginals or Islanders'' , insert ''for persons''.

Page 6, clause 9, sub-clause (1), leave out ''for such Aboriginals or Islanders' ', insert ''for such persons''.

Page 6, clause 9, sub-clause (1), after paragraph (m), add the following new paragraphs:

''(n) forestries;

(o) waterways;

(p) fisheries.''.

Page 6, clause 9, sub-clause (2), leave out ''Aboriginals or Islanders'', insert ''persons''.

Page 6, clause 10, sub-clause (3), leave out ''an Aboriginal or an Islander'', insert ''any persons''.

Page 6, clause 10, after sub-clause (3), add the following new sub-clauses:

''(4) Subject to this Act, by-laws made under sub-section (1) bind the Crown in right of the Commonwealth and the Crown in right of Queensland.

''(5) In sub-section (1), 'functions' includes the provision, making available, or arranging to make available services under sub-section 9 (1).

''(6) Where a Council makes by-laws under sub-section (1), the Council shall cause a copy of the by-laws to be received by the Minister within 3 days of the making of the by-laws.

''(7) Where the Minister receives a copy of any by-laws, he shall cause a copy of the by-laws to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he receives a copy of those by-laws.

''(8) Where a copy of any by-laws has been laid before a House of the Parliament in accordance with sub-section (5), sub-sections (4), (5), (5A) and ( 6) of section 48 of the Acts Interpretation Act 1901 apply to and in relation to those by-laws as if references in those sub-sections to regulations were references to such by-laws.

''(9) The Council for a Reserve to which this Act applies, or for a Community to which this Act applies, shall use its best endeavours to ensure that the by-laws of the Council are made known to Aboriginals or Islanders who reside on the Reserve or are members of the Community.

''(10) The by-laws may provide that any contravention of a by-law is an offence punishable, upon conviction, by a fine not exceeding $50.

''(11) In proceedings for an offence referred to in sub-section (10), it is a defence if the person charged proves that he was not aware of the by-laws to which the offence relates.''.

Page 7, clause 12, sub-clause (2), leave out ''approved by the Minister''.

Page 7, clause 14, leave out the clause, insert the following clause:

''14.(1) The Council for a Reserve to which this Act applies, or for a Community to which this Act applies, is not subject to control under a prescribed law of Queensland and, in particular, is not required to comply with any directions given to it under or by virtue of a prescribed law of Queensland.

(2) Subject to sub-sections (1) and (3), this Part does not affect the application to a Reserve, or to a Community of a law of Queensland to the extent that that law is capable of operating concurrently with this Part.

(3) The Regulations may make provision for the exclusion or modification of a law of Queensland which adversely affects Aboriginals or which discriminates against Aboriginals, in its application to Reserves or to Communities.''.

Page 8, clause 16, leave out the clause, insert the following clause:

Compensation ''16.(1) If the operation of this Part results in the acquisition of property from a person (including the Crown in right of Queensland), being an acquisition of property within the meaning of paragraph 51 (xxxi) of the Constitution, the Commonwealth is liable to pay to that person such compensation as is determined by agreement between the Commonwealth and that person or, in the absence of agreement, by action brought by that person against the Commonwealth in the Supreme Court of Queensland.

''(2) The Supreme Court of Queensland has jurisdiction, to the extent that the Constitution permits, with respect to matters arising under this section.''.

Page 8, clause 18, definition of ''Aboriginal tradition'', leave out '' Aboriginal tradition'', insert ''Aboriginal or Islander tradition''.

Page 8, clause 18, after definition of ''Incorporated Aboriginal Association'', insert the following new definition: '' 'interest or estate', in relation to land, means- (a) a fee simple estate in perpetuity,

(b) a legal or equitable estate or interest in the land, or

(c) a right, power or privilege over, or in connection with, the land;''.

Page 8, clause 18, after definition of ''Judge'', insert the following new definition: '' 'land' includes an interest or estate in land;''.

Page 9, clause 18, leave out definition of ''law of Queensland''.

Page 9, clause 18, definition of ''traditional Aboriginal owners'', leave out '' local''.

Page 9, clause 18, definition of ''traditional Aboriginal owners'', paragraph (b ), leave out ''and'', insert ''or''.

Page 9, clause 18, definition of ''traditional Aboriginal owners'', paragraph ( c), after ''Reserve'', insert ''or by virtue of having been born on a Reserve''.

Page 10, clause 21, paragraph (b), leave out the paragraph.

Page 10, clause 22, sub-clause (1), after ''residence'', insert ''or by birth on a Reserve,''.

Page 12, clause 24, sub-clause (3), leave out ''Council'' (second occurring), insert ''Land Trust''.

Page 12, clause 24, after sub-clause (6), insert the following new sub-clause:

''(6A) Decisions of the Land Trust shall be made only by a majority of members of that Land Trust.''.

Page 12, clause 24, sub-clause (9), leave out '', or is about to be,''.

Page 12, clause 24, sub-clause (9), after ''may'', insert ''with the consent of the Land Trust''.

Page 12, clause 24, after sub-clause (10), add the following new sub-clause: ''( 11) In sub-section (3) 'Council' includes a body which by virtue of regulations made under section 28A is responsible for the management and control of the affairs of the Aboriginals for whose benefit a Land Trust is established.''.

Page 12, clause 25, at end of clause, add the following new sub-clause: ''(2) Where, under sub-section (1), a member of a Land Trust, in respect of whom sub- section (1) applies, has been nominated by a Council under sub-section 24 (2) or (3), the Minister shall cause to be delivered to the Council a statement in writing as to the reasons for the request under sub-section (1) by the Land Trust and shall consult with the Council before terminating the appointment.''.

Page 13, clause 28, sub-clause (1), after ''estate'', insert ''in perpetuity''.

Page 13, clause 28, sub-clause (2), leave out ''shall'', insert ''may''.

Page 13, clause 28, sub-clause (2), leave out ''all'', insert ''any''.

Page 13, clause 28, after sub-clause (5), insert the following new sub-clause: ' '(5A) Subject to sub-section (5), the provisions of the Real Property ( Commonwealth Titles) Act 1924, of Queensland, as amended from time to time, apply to a deed of grant under this section.''.

Page 13, after clause 28, insert the following new clause:

Self-management of Aboriginal land ''28A. (1) Where a Land Trust has been established in respect of an area of land, the Governor-General may make regulations in accordance with this section.

''(2) The regulations may provide that- (a) a Council established under Part I in respect of an area of land held under Part II by a Land Trust;

(b) an Aboriginal Council;

(c) an Incorporated Aboriginal Association;

(d) a Land Trust; or

(e) a body established by the regulations constituted by Aboriginals who are traditional Aboriginal owners and are elected by the traditional Aboriginal owners,

shall be responsible for the management and control of the affairs of the Aboriginals for whose benefit a Land Trust is established under sub-section 22 ( 1).

''(3) Regulations made under this section shall provide for- (a) the services to be provided or made available, or arranged to be provided or made available, by a body specified in sub-section (2);

(b) the functions of a body specified in sub-section (2), being functions in relation to Aboriginals and Islanders for whose benefit a Land Trust is established under sub-section 22 (1); and

(c) powers in respect of the making of by-laws by a body specified in sub- section (2) in respect of its functions.

''(4) Sub-sections (4), (5), (5A) and (6) of section 48 of the Acts Interpretation Act 1901 apply to and in relation to by-laws made under regulations made in accordance with this section as if references in those sub- sections to regulations were references to such by-laws.

''(5) Until the making of regulations under this section, Part I applies to Aboriginal land as if such Aboriginal land were an Aboriginal or Islander Reserve and any Council established under Part I shall continue in existence with the powers specified in Part I until the regulations otherwise provide.

''(6) The Executive Council shall not offer advice to the Governor-General with respect to the making of regulations under this section unless the Minister has certified that the traditional Aboriginal owners understand the nature and purpose of the proposed regulations and as a group consent to the proposed regulations.''.

Page 13, clause 29, sub-clause (4), paragraph (a), leave out ''sub-section (2)'' , insert ''sub-section (3)''.

Page 14, clause 29, sub-clause (4), paragraph (c), leave out ''when the mission ceased to be entitled to occupy or use the land'', insert ''at the time of service of the notice under sub-section (2)''.

Page 14, clause 30, sub-clause (2), leave out ''sub-section (7)'', insert ''this section''.

Page 14, clause 30, sub-clause (3), leave out ''sub-section (7)'', insert ''this section''.

Page 14, clause 30, sub-clause (4), paragraph (b), after ''whole'' (first occurring), insert ''or any part''.

Page 15, clause 30, sub-clause (6), leave out the sub-clause.

Page 15, clause 30, sub-clause (9), leave out ''by virtue of sub-section (6), on account of fraud'', insert ''by failure of the Land Trust to comply with sub- section (5)''.

Page 15, clause 30, sub-clause (9), leave out ''the fraud'', insert ''that failure''.

Page 15, clause 30, after sub-clause 9, add the following new sub-clause:

''(10) In sub-section (9), 'notice' includes any information or matter of which a person could, by reasonable enquiry, have attained knowledge or become aware.' '.

Pages 15 and 16, clause 32, leave out the clause, insert the following clauses:

''32. (1) The Minister may appoint persons to act as Disputes Commissioners in accordance with this section.

''(2) Disputes Commissioners shall be persons familiar with Aboriginal or Islander tradition.

''(3) Before the appointment of any person to act as a Disputes Commissioner, the Minister shall consult as widely as possible with those bodies or groups who may be affected by decisions of that Disputes Commissioner.

''(4) The terms of appointment of a Disputes Commissioner shall specify the Land Trust or Land Trusts in respect of which the Disputes Commissioner has jurisdiction.

''(5) The terms and conditions upon which Disputes Commissioners hold office shall be determined by the Minister.

''32A. (1) This section applies to- (a) Aboriginals;

(b) Councils;

(c) Aboriginal Councils;

(d) Incorporated Aboriginal Associations and any other incorporated Aboriginal groups;

(e) any prescribed body with powers of self-management in respect of Aboriginal land; and

(f) a person in respect of whom a Land Trust refuses consent, under section 40, to enter or remain on Aboriginal Land held by the Land Trust.

''(2) Any Aboriginal person or body specified in sub-section (1) who is aggrieved by a decision or action of a Land Trust may appeal to a Disputes Commissioner appointed in respect of that Land Trust.

''(3) Any Aboriginal or Islander, who is prevented by a decision of a Council under sub-section 12(2), from residing on a Reserve or visiting a Reserve or Community may appeal to a Disputes Commissioner appointed in respect of that Council.

''(4) The Disputes Commissioner is not bound by the rules of evidence in proceedings under this section, but may inform himself in such manner as he thinks fit.

''(5) In proceedings under this section, the Disputes Commissioner should observe, and where appropriate give effect to, Aboriginal or Islander tradition.

''(6) A Disputes Commissioner may, in proceedings under this section- (a) give such directions as he considers just or expedient to resolve any matters in dispute; or

(b) refer the matter back to the Land Trust to be further dealt with in accordance with his directions.

''32B. (1) If a person refuses or fails to comply with a direction of any party to the proceedings before a Disputes Commissioner, that Disputes Commissioner may apply to a prescribed court for an order to compel that person to comply with that direction.

''(2) Upon an application under this section, the court shall, unless satisfied that the direction of the tribal assessor is unjust or unreasonable, make an order requiring the person against whom the direction was made to comply with the direction.

''(3) Proceedings under this section shall be conducted as expeditiously as possible and without undue formality.

''(4) In this section, 'person' includes a Land Trust and a Council.

''32C. Where proceedings are commenced before a court with respect to a dispute with respect to land in the area of a Land Trust, the judge or magistrate constituting the court may, if he thinks it appropriate, adjourn the proceedings and refer the matter to the Disputes Commissioner appointed in respect of that Land Trust.''.

Page 16, clause 33, paragraph (b), after ''made'', insert ''and that the applicant has complied with sub-section 35(2)''.

Page 17, clause 36, sub-clause (2), leave out ''whom he considers to be'', insert ''who is acceptable to the Land Trust and the applicant and is''.

Page 18, clause 37, sub-clause (1), leave out ''section 33'' (wherever occurring ), insert '' sub-section 35(2)''.

Page 18, clause 37, after sub-clause (1), insert the following new sub-clause: ' '(1A) The Arbitrator shall, at the request of the Land Trust, provide a statement in writing setting out the reasons for his determination under sub- section (1).''.

Page 19, clause 37, after sub-clause (3), add the following new sub-clause: ''(4 ) Where the Arbitrator appointed under sub-section (1) has determined the terms and conditions of an agreement and the applicant for the grant is not willing to enter into that agreement with the Land Trust, the Minister shall not appoint another person to act as an Arbitrator in respect of that mining interest.''.

Page 19, clause 40, sub-clause (1), after ''Act'' (second occurring), insert '' or by a law which by virtue of section 43 applies to Aboriginal land''.

Page 20, clause 43, sub-clause (2), after ''Queensland'', insert ''which adversely affects Aboriginals or which discriminates against Aboriginals''.

Page 20, clause 44, at end of clause, add the following new sub-clause: ''(2) The Executive Council shall not offer advice to the Governor-General with respect to the making of regulations under this section unless the Minister has certified that he has consulted in respect of regulations, or proposed regulations, with the body known as the National Aboriginal Conference and any Land Trust or Council likely to be affected by those regulations or proposed regulations.''.

Debate ensued.

Question-That the amendments be agreed to-put and passed.

Bill, as amended, agreed to.

Bill to be reported with amendments.

The Acting Deputy-President (Senator Lewis) resumed the Chair; and the Chairman of Committees (Senator McClelland) reported accordingly.

On the motion of Senator Ryan the Report from the Committee was adopted.

Senator Ryan, by leave, moved-That this Bill be now read a third time.

Debate ensued.

Question-put and passed.

Bill read a third time.