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Reconciliation Bill 2001 [2004]

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1998-1999-2000-2001

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

 

 

 

 

 

 

Reconciliation Bill 2001

 

 

 

Explanatory Memorandum

 

 

(Circulated by authority of Senator Ridgeway)



Long title

The long title explains the purpose of the Act.  It is used an interpretive tool to assist in understanding what other sections of the Act mean.  Here, the long title identifies the overall purpose of the legislation, in building on the work of the Council for Aboriginal Reconciliation to further advance reconciliation, as well as identifying that a process will be necessary to reach agreement on unresolved issues.

 

The Preamble

The Preamble sets out the background to the Act and provides the context and principles that led to its enactment. It can be used as an aid to interpretation for other sections of the Act. The Council for Aboriginal Reconciliation identified the following matters for inclusion in a Preamble:

·          the status of Aboriginal and Torres Strait Islander peoples as Australia’s first peoples

·          that reconciliation is an on-going process and that there are issues that are unresolved

·          reference to the work of the Council for Aboriginal Reconciliation, including its strategies and final report to Parliament

·          the importance of developing partnerships between Aboriginal and Torres Strait Islander peoples and the wider community

·          the desirability of a whole-of-government approach to ongoing reconciliation

The proposed Preamble integrates the Preamble of the Council for Aboriginal Reconciliation Act 1991 with these principles identified by the Council, and draws upon the proposed preamble to the Aboriginal and Torres Strait Islander Commission Bill and the preamble to the Native Title Act 1993 .

 

 

Part 1 — Preliminary

 

1   Short title

The short title sets out the name the Act will be known by.  A number of names were canvassed in the consultations by the Council, including this one: The Reconciliation Act .  Others referred to the processes or outcomes included in the Act.

 

2  Commencement

The Commencement section identifies when the Act will become law. Federal legislation usually becomes law 28 days after it receives the Governor-General’s assent.  In this Act we have suggested that commencement be brought forward to the date of the Governor General’s Royal Assent.  This will bring forward the date for the first Convention under Part 3 and the negotiations under Part 4.

 

3  Interpretation

This section defines terms within the legislation that may cause confusion. There are a number of items that will be included in the list of definitions when the Act is being finalised. 

 

Human rights:

The definition of human rights used here is a reflection of the definition used by the 1986 Human Rights and Equal Opportunity Commission Act

 

Reconciliation:

A definition of reconciliation, is inherently difficult, and indeed, is not defined in the Council for Aboriginal Reconciliation Act .  In the proposed legislation the Council’s vision has been used as the basis for a definition. 

 

Unresolved issues for reconciliation:

The definition of unresolved issues for reconciliation was also difficult.  While the definition could have contained a list of issues, similar to that contained in the Council’s document Recognising Aboriginal and Torres Strait Islander Rights , it has been left deliberately general to avoid pre-empting the matters that will be identified by the processes contained in this Act.  The definition refers to the fact that many of these issues have already been identified, including through the work of the Council.  They may include, but are not limited to:

·          a comprehensive agreements process for the settlement of native title and other land claims;

·          compensation and reparation with respect to loss of legal rights over land and waters;

·          protection of Aboriginal and Torres Strait Islander culture, heritage and intellectual property;

·          the achievement of substantive equality;

·          the effective implementation of relevant recommendations of the Royal Commission into Aboriginal Deaths in Custody, the Human Rights and Equal Opportunity Commission’s Bringing them Home Report and other reports;

·          recognition of Aboriginal and Torres Strait Islander customary law;

·          Aboriginal and Torres Strait Islander self-government and regional autonomy;

·          economic development;

·          constitutional reform to enable the recognition of Aboriginal and Torres Strait Islander peoples and the protection of their rights;

·          effective political participation;

·          a bill of rights that specifically protects the rights of Aboriginal and Torres Strait Islander peoples; and

·          principles for negotiated outcomes at other levels.

 

4  Objects

The objects of the Act set out the intention of the Act. This section is also used as an interpretive tool when other parts of the Act may be unclear. For this reason, it sets out the Council for Aboriginal Reconciliation’s objectives in proposing the implementation of this legislation.  The objects are based on the overall purposes of the Act, as reflected in the long title, and the objectives of each part of the Act.

 

 

Part 2 — Recognition of the unique status of Aboriginal and Torres Strait Islander peoples

This part of the legislation seeks to recognise the unique status of Aboriginal and Torres Strait Islander peoples and incorporates the Australian Declaration Towards Reconciliation .

 

5  The Australian Declaration Towards Reconciliation

This section recognises the status of Aboriginal and Torres Strait Islander peoples and incorporates the Australian Declaration Towards Reconciliation into the Act via Schedule 1. A Schedule to an Act forms part of the Act and as such, carries greater interpretive weight than it otherwise would as an external document or even as part of the preamble. The Declaration provides a starting point for the recognition of the place of Aboriginal and Torres Strait Islander peoples in Australian society.

 

 

Part 3 — A Process to Identify and Resolve Issues for Reconciliation

This part of the Act provides for the holding of National Reconciliation Conventions to identify and prioritise issues for discussion, and to debate and develop strategies to overcome those matters that constitute the unresolved issues for reconciliation.  The Conventions are the centrepiece of the legislation.  They provide a forum for vigorous debate with a view to achieving outcomes in relation to unresolved issues.

 

It is envisaged that these Conventions will provide a model for State, regional and even local conventions that will address issues at those levels.  In this legislation, the National Conventions are established in a way that will allow any other complementary mechanisms to feed into the cycle of consultation, preparation and follow-up. Also, the Conventions have been proposed every three years for a period of 12 years to allow sufficient time for a network of these events to be held in the lead up to each National Reconciliation Convention. 

 

6  A National Reconciliation Convention

This section provides for the establishment of National Reconciliation Conventions to deal with unresolved issues for reconciliation.  It is necessary that some body take responsibility for the organisation of the Conventions, whether it be ATSIC or another government department.  However, it is imperative that the Conventions not be seen to be focused solely on one agenda.  It is hoped that the Conventions would be attended by delegates from diverse backgrounds who contribute to a debate about reconciliation.  They are an opportunity for debate with the aim of bringing together a variety of views in order to reach achievable plans for action that will be adopted and followed through. 

 

The model put forward here places responsibility for the organisation of the National Reconciliation Conventions on ATSIC and ensures that there is input into the attendance and agenda by the government, representatives of the Aboriginal and Torres Strait Islander peoples, and representatives of the wider community.  While it is not possible to provide for resourcing of the Conventions in this legislation, it is essential that sufficient funds be allocated to the organising body to ensure that the Conventions adequately fulfil their aims.

 

7  The Functions of the National Reconciliation Convention

This section identifies the functions of the National Reconciliation Conventions and the kind of issues that National Reconciliation Conventions should address.  The functions that have been set down reflect the need for extensive consultation prior to the Conventions, the need to allocate responsibility and make recommendations, and to take follow up action and report back to the next Convention. 

 

 

Part 4 — A Negotiation and Agreement Process to Resolve Issues for Reconciliation between Aboriginal and Torres Strait Islander Peoples and the Commonwealth Government

This part of the legislation establishes a process that allows Aboriginal and Torres Strait Islander peoples and government to reach agreement on a framework for negotiation of unresolved issues for reconciliation as these issues relate to outcomes at a national level.   It is acknowledged that many of the ideas surrounding the negotiations at this national level are complex and may require further development and analysis before outcomes can be identified.  However, it is timely to capture the sense of urgency and goodwill engendered by the reconciliation process to begin the process of negotiation.  It is also imperative that there is a linkage in the legislation between these formal negotiations and the development of priorities and initiatives in the wider community, including the National Reconciliation Conventions.

 

8  A Negotiation Process to Facilitate Resolution of Reconciliation Matters

This section provides a mechanism to initiate negotiations between the government and the Aboriginal and Torres Strait Islander Commission on a process to reach agreement on unresolved issues for reconciliation. It also sets a timeframe to ensure the expedient development of the process, conveying the sense of urgency for these issues to be dealt with immediately.

 

9  Protocols

This section sets out principles to guide the negotiation of unresolved issues for reconciliation.  It seeks to ensure that negotiations both at the initial stages of developing the process for which this legislation provides, and also in the negotiations that follow, take place in the spirit of good faith, that Government and Aboriginal and Torres Strait Islander protocols are in place and that negotiations are adequately resourced to ensure equitable participation by the parties.  The protocols in the proposed legislation are informed by the reports on the Social Justice package, in particular the report of the Aboriginal and Torres Strait Islander Commission, Rights Recognition and Reform , as well as the findings of the Canadian Royal Commission on Aboriginal peoples which directly addressed this issue. However, the provision also provides scope for the inclusion of other protocols, as agreed between the parties, to guide the negotiations.  It is intended that this provision will be a model for negotiations at other levels.

 

 

Part 5 — A Process for Reporting on Reconciliation

This part of the Act establishes a reporting procedure to monitor the progress of reconciliation. It comprises three elements: the monitoring incorporates a yearly report on the general progress towards reconciliation in the context of Aboriginal and Torres Strait Islander peoples’ enjoyment of human rights, a three yearly detailed report on progress, including an assessment of key indices, and an ongoing monitoring process by the Commonwealth Parliament.  This comprehensive reporting structure on the progress of reconciliation ensures that there are regular monitoring mechanisms and that there is monitoring and assessment at a Commonwealth Government level.  However, in deciding on this model care has been taken not to overburden the process with reports.  Where possible, existing reporting structures have been augmented rather than new reporting structures created.

 

Division 1 Reports

10  Reports by the Aboriginal and Torres Strait Islander Social Justice Commissioner

This section provides for the Yearly Report of the Social Justice Commissioner to include a specific reference to reconciliation and report on the progress towards reconciliation in accordance with the fundamental principles of human rights.  Under the Human Rights and Equal Opportunity Commission Act this report must be tabled by the Minister responsible for that Act, the Attorney-General.  Currently, the Social Justice Commissioner may, in carrying out his or her functions, make reference to the objects of the Council for Aboriginal Reconciliation Act .  The inclusion of a specific provision will replace this general reference and ensure that the progress of reconciliation is addressed on a regular basis.  While other bodies may be able to perform the function of producing a new yearly report, the proposed provision allows for an annual assessment by a competent statutory body with the requisite degree of independence and expertise where the requirement fits comfortably with existing reporting functions.

 

11  Three Yearly National Report on the Progress Toward Reconciliation

This section provides for a Three Yearly National Report on the Progress Towards Reconciliation and identifies the subject matter to be included as part of the Three Yearly Report.  This report is the primary reporting mechanism under the proposed legislation.  As well as undertaking qualitative assessments of the progress towards reconciliation, the report will examine a variety of socioeconomic and other indicators relevant to the assessment of the progress towards reconciliation. 

 

A number of bodies were considered as possibly fulfilling the functions under this section.  The Auditor-General may have the requisite independence from the activities being reported on, and may be able to give a comprehensive assessment of the effective implementation of policy in this area.  However, the Auditor-General cannot adequately inquire into State and regional activity, which is a necessary requirement of this more comprehensive reporting.  In the Overcoming Disadvantage document, the Council nominated the Human Rights and Equal Opportunity Commission and the Aboriginal and Torres Strait Islander Commission to prepare a five yearly report of a similar nature.  Those two bodies together have the expertise in this area, although there may be concerns about the role of ATSIC reporting on programs for which it has responsibility. 

 

It may be that in order to secure the requisite independence and expertise a special task force may be drawn together.  With this in mind, the Council has recommended that the report be undertaken by an independent body or task force appointed by the Minister.  The Council recognises that which ever body is chosen to carry out this reporting function, additional resources and expertise will be required.

 

12  Tabling of the Report on the Progress Towards Reconciliation

This section directs the Minister to table the Three Yearly Report on the Progress Towards Reconciliation. This ensures Parliamentary scrutiny of the findings of the report.

 

Division 2—Monitoring the Process Towards Reconciliation

13-15  Parliamentary Joint Committee

This section establishes an ongoing mechanism to monitor the reconciliation process that places reconciliation at the forefront of Parliament’s deliberations.  It gives responsibility to a Parliamentary Joint Committee to report on the implementation of the reconciliation processes established under this Act. This ensures that the Commonwealth Parliament takes responsibility for, and has an appropriate mechanism to assess, the progress of reconciliation. 

 

The establishment of a Parliamentary Committee by legislation is somewhat unusual but there are precedents, for example in the Australian Security Intelligence Organization Act and most notably, in the Native Title Act 1993 . It is acknowledged that existing parliamentary committees could be charged with this responsibility, for example, the Parliamentary Joint Committee on Native Title and the Indigenous Land Fund could have its powers and duties extended, through legislation, to cover the monitoring of the progress of reconciliation.  However, this committee has a focus on land that may limit the perspective with respect to the much broader scope of reconciliation.  The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs could also fulfil a role here, although the Council is strongly committed to the process of reconciliation being considered more broadly than as a singularly Indigenous issue. It is an issue for all Australians.  An additional benefit of the proposed Parliamentary Joint Committee is the multi-party representation and involvement that has been crucial to the reconciliation process. 

 

This section, then, draws on the Native Title Act example and describes the membership of the Parliamentary Joint Committee and provides that the powers and procedures of the Committee are to be determined by the resolution of both houses of parliament, ensuring consensus and agreement on those issues. It lists the duties of the Parliamentary Joint Committee which include consultation with Aboriginal and Torres Strait Islander peoples and organisations, all levels of government, and other appropriate bodies, which may include the foundation Reconciliation Australia .  The Parliamentary Joint Committee will also, as part of its duties, review the reports on the progress towards reconciliation. To allay concerns of over-reporting, the Parliamentary Joint Committee has not been charged with a regular report, but may report from time to time.