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Aboriginal and Torres Strait Islander Commission Amendment Bill (No.2) 1996



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House: Senate

Portfolio: Aboriginal and Torres Strait Islander Affairs

Commencement: Royal Assent

Purpose

The Aboriginal and Torres Strait Islander Commission Amendment Bill (No. 2) has a number of provisions affecting the Indigenous Land Corporation (ILC) including:

. ensuring that when making decisions, the ILC takes into account the needs of Aborigines and Torres Strait Islanders who are most disadvantaged with regards to access to lands;

. enabling the ILC to make grants of land, or money to buy land, or to stand guarantor to Aboriginal or Torres Strait Islander corporations, the trustess of indigenous trusts, or, in exceptional circumstances, individuals or partnerships; and

.

empowering the Minister to make additional appointments from time to time to the board of the ILC.

The Bill also contains provisions affecting the Aboriginal and Torres Strait Islander Commission (ATSIC) including:

empowering the Minister to sack a full-time commissioner or chairperson of a cegional Council who takes additional paid employment without written consent; and

. preventing a Commissioner or a Regional Councillor who has been removed from office by ATSIC for misbehaviour, from standing at the next round of elections.

Background

The first land acquisition programs 1

The history of land acquisition programs in Australia has been chequered.

The first Commonwealth-funded land acquisition program for Aboriginal people, the Aboriginal Land Fund Commission, was established in May 1975 by the Whitlam government. It had its origins in the 1973 recommendation by Justice Woodward that the Commonwealth establish a fund to buy land for Aboriginal groups in all parts of Australia. However, it was beset with conflict and controversy, and in 1980, it was abolished, its functions taken over by the newly created Aboriginal Development Corporation (ADC). The functions of the new body were expanded to include providing loans and grants to Aboriginal communities for housing and business enterprises.

In March 1990, the ADC handed its functions over to the new Aboriginal and Torres Strait Islander Commission - the government's principle agency for administering Aboriginal affairs and land acquisition programs.

Then, in November 1993, the government announced it would be establishing a new land fund. This was to be the second component of a three-pronged response to the High Court's decision in Mabo v Queensland [No. 2] 2 , (the other components being native title legislation and a social justice package).

The government believed a land fund was necessary, because, whilst Mabo recognised the existence of native title, the court said native title only survived if the traditional owners had maintained their connection with the land, and if no inconsistent title had been granted.

This meant that most Aboriginal people would not benefit because they had been previously dispossessed

The government established the National Aboriginal and Torres Strait Islander Land Fund under Section 201 of the Native Title Act 1993. The detail of the fund's operations was to be left to regulation.

In his second reading speech to the Native Title Act 1993, Prime Minister Keating said:

While these communities remain dispossessed of land their economic marginalisation and their sense of injury continues. As a first step, we are establishing a land fund. It will enable indigenous people to acquire land and to manage and maintain it in a sustainable way in order to provide economic, social and cultural benefits for future generations. 3

The 1994 budget allocation $200 million to the fund for the 1994-95 financial year. Subsequently, however, the government wanted to refine the fund's operation, and on 30 June 1994, introduced the ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994 into the House of Representatives.

Senate amendments to the ATSIC Amendment (Indigenous Land Coporation and Land Fund) Bill 1994

The ATSIC Amendment (Indigenous Land Corporatin and Land Fund BIll 1994) met resistance in the Senate, which proposed a series of amendments. The Bill was eventually replaced by the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Bill 1994. This Bill incorporated about 30 of the Senate amendments to the earlier Bill, but ommitted about 40. Amendments the government did NOT adopt included:

. requiring the ILC to give priority to the 'most severely dispossessed of their traditional lands';

. providing that the ILC may grant land and money to Aboriginal or Torres Strait Islander individuals and trusts as well as coporate bodies;

. requiring the Minister to have regard to the needs of the broader Aboriginal and Torres Strait Islander communities when making appointments to the ILC board, and reducing ATSIC representation.

This Bill was assented to on 29 March 1995 and proclaimed on 1 June 1995.

The new land fund

The Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 established the Aboriginal and Torres Strait Islander Land Fund which took over the money allocated to the land fund established by the Native Title Act. Under the new fund, land management money was to be spent on any indigenous-held properties, not just those acquired under the fund. Land acquired by the ILC was to be granted to Aboriginal or Torres Strait Islander corporations. The fund's operating details were also now contained in the Act rather than left to regulations.

The Act established the land fund as a Government trust account, managed in accordance with the Audit Act. An indexed amount of $121 million was to be allocated annually from Consolidated Revenue from the 1995-96 financial year to the 2003-4 financial year. The return on land fund investment was to go to Consolidated Revenue but would be returned to the fund by way of a standing appropriation. Thereafter, the fund was to have sufficient capital to make payments to the Indigenous Land Corporation (ILC) from the interest generated by its investments. The land fund itself was to remain the property of the Commonwealth.

Coalition election promises

The Aboriginal and Torres Strait Islander Commission Amendment Bill implements many of the Coalition's pre-election promises contained in its Aboriginal and Torres Strait Islander Affairs Policy.

Some of the amendments to the earlier ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994 which were passed by the Senate but ignored by the previous government when finalising its Bill, have also resurfaced.

These include:

. requiring the ILC to give priority to those most disadvantaged through lack of access to land (the previous Senate amendment referred to 'most dispossessed');

. widening the ILC's power to enable it to grant land to Aboriginal trusts, partnerships, or individuals; and

. broadening the ILC's membership.

However, the Government has said it won't be fulfilling its promise to provide an additional $3 million grant to the ILC each year for administration. In the second reading speech, the Minister for Aboriginal and Torres Strait Islander Affairs, the Hon. John Herron said:

In a general climate of budgetary restraint we will not seek to appropriate an additional allocation for the ILC's addministrative costs. Instead, we will require the ILC to ensure that its administrative costs are kept as low as possible and within the comparison with other program delivery agents.

The Coalition has also decided against putting into law some of their other promises, including requiring the ILC to:

. consider disadvantage suffered in acccess to health, housing, education or employment when making decisions;

. consult with traditional owners or those with traditional links prior to granting land; and

. base its National Land Strategies on Regional Land Strategies.

However, Senator Herron has made it clear he expects the ILC to take the government's wishes into account. In the second reading speech, he said:

The ILC's National Indigenous Land Strategy, tabled in Parliament on 6 May 1996, is underpinned by a policy of identifying and consulting with traditional owners so far as is possible and reasonable. The government expects that, prior to granting land, the ILC would consult with traditional owners and those with historical links to the land as far as is possible and reasonable. It is also the government's expectation that, in future, when the next National Strategy falls to be determined, the approach will be to work from Regional Strategies towards the development of a National Strategy.

Main provisions

'Most disadvantage'

Item 10 of Schedule 1 adds a new subsection 191C(2). It requires the ILC to 'have regard to the needs of Aboriginal persons and Torrest Strait Islanders who suffer most disadvantage in access to land'.

The arguments 4

Those in favour of requiring the ILC to 'have regard to the needs of Aboriginal persons, and Torres Strait Islanders, who suffer most disadvantage in access to land', would argue its only fair that those who have suffered most should be recompensed, and groups who already have land should not get more land before those who have none. In addition, as there will not be enough money to satisfy all requests, it is right and proper to give the ILC some guidance on what to take into account when making decisions.

Those arguing against, could say that it is impossible to rank Indigenous people according to the extent of their disadvantage or dispossession, it is abhorrent and could encourage in-fighting between various Idigenous groups.

Further more, it is unclear what 'most disadvantage in access to land' means. This vagueness could make it very difficult for the ILC to make decisions about land purchases, because those whose applications are refused could challenge in the courts.

Trusts, partnerships and individuals

Items 11 and 12 of schedule 1 repeal the old sections 191D(1)(a), 191D(1)(c), 191D(1)(d), and insert two new paragraphs widening the ILC's power. The new sections would allow the ILC to grant land, or money to buy land, or guarantee loans, to, not only Indigenous corporations, but trusts, and in exceptional circumstances, individuals or Indigenous partnerships.

The arguments

The amendments give the ILC the powers to deal. not only with Indigenous corporations, but also trusts, and, in exceptional circumstances, partnerships or individuals.

Those in favour of this would argue that Indigenous Australians should have the same land holding rights as other citizens, that it is unfair to restrict land ownership to corporations, and that land grants should be made to what ever types of bodies best suit different communities and family groups.

A director of Palm River Pty Ltd and councillor for ATSIC's Tumbukka Region, Ms Sharon Firebrace, told a Senate Select Committee hearing considering a similar amendment that for some communities, trusts are more appropriate than corporations.

...the ILC should have the flexibility to make grants of land to individuals, groups and families, as well as corporations. Whilst acknowledging the long-held principle of indigenous community ownership, we must be conscious of the changing place, role and contribution of Aboriginal people in contemporary Australia, particularly urban localities. ...We have fought long and hard for equal rights; let us not be constrained by traditional ownership practices that are foreign to many in contemporary indigenous communities in the south-east of Australia. 5

Further more, families rather than corporations, are a traditional way for some Aboriginal groups to conduct their affairs. Corporations are part of a white-imposed alien culture.

Those against could argue that these amendments go against the principle of community ownership of indigenous land, that in some parts of Australia, individual ownership of any sort is contrary to indigenous concepts of goup ownership, and that it might encourage young Aboriginal people to adopt a non-indigenous way of life.

ATSIC told the Senate Committee that:

... by limiting landholding entities to incorporated bodies, the ILC would be clearly identifying its charter as acquiring land to redress the dispossession of land. The land was taken from communities and communal owners in the past, and the Land Fund is 'buying back' communal land(s). ... [Therefore] the applicants, the community and the ILC are better served by adherence to the proven policy of incorporated bodies being the holders of title in perpetuity of the title to land. 6

Furthermore, corporations are legally responsible to their shareholders and answerable to their communities and are therefore the best way to manage land.

This amendment could raise false hopes in individuals and families, because the Land Fund has only limited means and cannot deliver on all requests.

Additional appointments

Item 23 of schedule 1 adds a new subsection 191V(2)(h). This new subsection allows the Minister to appoint additional members to the board of the ILC as the Minister determines, after consultation with the other members. Item 25 of schedule 1 amends subsection 191X(4). The new section requires the Minister to be satisfied that all appointed board members have experience in land or environment management, business or financial management, or Aboriginal or Torres Strait Islander community life. Under the legislation, six of the seven board members are appointed, the exception being the chairperson of ATSIC who sits on the board as of right (section 191(V)(2)(c)). Under existing law, only four of the seven members must meet the criteria.

The arguments

Those in favour of allowing the Minister to appoint additional members to the board of the ILC could argue that this will allow for greater diversity, broader representation, and the ability to increase the board's management and financial expertise.

Those against could argue that the Minister is trying to water down the influence of ATSIC (it has two board members), and the large, non-urban land councils.

Paid employment

Item 3 of schedule 1 inserts a new section 30(3) allowing an ATSIC commissioner to engage in paid employment in addition to his or her official duties, but only with the written approval of the Minister. Item 4 schedule 1 inserts a new section 40(7A) allowing the Minister to terminate the commissioner's employment if this condition is not met.

Item 7 of schedule 1 inserts a new section 127A(1A) allowing the chairperson of a regional council to take additional paid work but only with written approval. Item 8 of schedule 1 inserts a new section 127C(7A) allowing the Minister to remove the chairperson from office if this condition is not met.

Disqualification from election

Item 6 schedule 1 inserts a new subsection 102(1B). The new section prevents a former regional concillor who has been removed from office by ATSIC for misbehaviour or other grounds from standing again until after the next round. Other grounds for removal include:

being convicted of an offence and sentenced to jail for one year or longer;

. being convicted of an offence involving dishonesty and sentenced to jail for three months or longer;

. failing without reasonable cause to disclose a pecuniary interest in a matter under consideration;

. being absent from three consecutive meetings of the council without leave and without reasonable excuse;

. becoming bankrupt, or applying to take the benefit of any law for the relief of bankrupt or insolvent debtors;

. compounding with his or her creditors; or

assigning his or her salary to creditors.

Item 9 of schedule 1 repeals old subsection 131(2) and inserts a new one. The new section prevents an ATSIC commissioner whose appointment has been terminated by the Minister for misbehaviour or other grounds, from standing again until after the next round of elections. Other grounds include:

. being convicted of an offence and sentenced to jail for at least one year;

. being convicted of an offence involving dishonesty and sentenced to jail for at least three months;

. being absent from duty, except on leave, for 14 consecutive days or for 28 days in any 12 month period; or

. failing to disclose an pecuniary interest in a matter being dealt with by ATSIC.

Endnotes

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1 This Section draws heavily on an unpublished paper by Dr John Gardiner-Garden, a research specialist with the Parliamentary Research Service, and Fabienne Bayet

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2 (1992) 175 CLR 1.

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3 Australia. House of Representatives. Parliamentary Debates, 16 November 1993: 2877.

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4 The arguments canvassed in the Main Provisions section of this Bills Digest draw heavily on the Report of the Senate Select Committee on the Land Fund Bill Land, February 1995.

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5 ibid:20.

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6 ibid: 23.

Bronwyn Young Ph. 06 277 2699

Bills Digest Service

27 June 1996

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1996.