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Thursday, 25 October 2018
Page: 11119


Ms BURNEY (Barton) (10:13): I want to say at the outset that Labor is going to support the Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018 in the House. The bill consists of something like six schedules. I won't go through all of those—

Mr Snowdon: Oh, go on.

Ms BURNEY: except to say—if you insist—that part 1 talks about what the bill's in relation to; part 2 is the Aboriginal and Torres Strait Islander Land and Sea Future Fund and a number of issues to do with that; part 3 is the Indigenous Land Corporation Funding Special Account; part 4 is investment of the Aboriginal and Torres Strait Islander Land and Sea Future Fund; part 5 is the reporting obligations, which are very important of course; and part 6 is the miscellaneous bits and pieces to the bill.

I want to begin, particularly when we are talking about these issues, by recognising country and paying our respects appropriately. I also want to pick up something that the member for Lingiari mentioned in relation to another piece of legislation, which this is connected to, when it was last debated in this parliament. It is in relation to the social justice package which was the third part of the Mabo High Court decision. I was personally involved in the consultations and the development of that social justice package under the leadership of Paul Keating. And the member for Lingiari is absolutely right: had there not been a change of government, we would not be seeing some of the social disadvantage and dislocation experienced by First Nations communities that we are still seeing today. One of the great tragedies in the last 20 years in the Indigenous affairs space is the lack of implementation of that social justice package. I think if people pulled out that social justice package today and had a look at it, it would be as relevant today as it was at the time of its development.

We need to remind ourselves that on 3 June 1992 the High Court of Australia delivered the Mabo judgement overturning the long-held assumption of Australia's settlement. Whether it was settlement is contested. Of course, it was taught to us at school as settlement. From an Aboriginal perspective, it was nothing of the sort. The land belonged to no-one. In recognising the continuing title of First Nations people to land, I think it's really significant that we pause and remind ourselves about 3 June 1992. It was one of those moments in our nation's history that defined us. I remember absolutely where I was and what I was doing. I was listening to the radio, driving down City Road towards Sydney city, when I heard the Mabo decision saying terra nullius had been overturned. To me, as a First Nations woman, that was a moment when tears sprang to our eyes, because for 200 years in this country we had the idea that First Nations people didn't exist—because the way in which this land was usurped, of course, was using the doctrine of terra nullius.

Apart from the many things that have been highlighted already by both speakers on this side of the House, we must remind ourselves that the notion of terra nullius was overturned in the Mabo judgement. The judgement recognised in Australian common law that Aboriginal and Torres Strait Islander peoples' traditional title to land, native title, had survived the British settlement of the continent. Once again, we contest that notion of settlement—I certainly do. It also found that native title had been extinguished by many of the titles granted to other Australians by successive Australian governments. And that was also absolutely crucial. I know this incredibly well. Despite Rob Borbidge and Tim Fischer's disgusting campaign saying backyards were under threat and your Hills hoist was going to go, the truth of that decision was that native title only existed if all other title had been extinguished. That's a very important point to make in this debate as well.

As I said, that decision also found that native title had been extinguished by many other titles granted to other Australians by successive Australian governments. Shortly thereafter, the federal government, led by Prime Minister Keating, sought to codify native title in legislation through a process of negotiation with Indigenous leaders. We remember that time very, very well. Many of us in this debate were part of that history—certainly the member for Hasluck, the member for Lingiari and me. The first part of the settlement was the Native Title Act 1993, legislated in December 1993. The Native Title Act codified and defined native title and established a process for its negotiation—where there had been, as I have said, no extinguishment.

The land fund, now officially known as the land account, was the second part of that settlement and, as the member for Lingiari explained, the third part was supposed to be the social justice package. At the time, the government and Indigenous leaders were conscious that many Indigenous Australians had seen their traditional country overlaid by land titles by other Australians. It was a magnificent time in our history. There was the Cape York land agreement and many other things that I think would be very difficult to achieve in today's climate.

The land account provides a mechanism for some compensation for dispossession of Aboriginal and Torres Strait Islander peoples since 1788. The land account was established with legislated appropriations over 10 years to build a capital base, after which the account's own income would support the operations of a new statutory authority, created at the same time as the land account, the Indigenous Land Corporation—not too different to the philosophical background of the establishment of the New South Wales Land Rights Act and the New South Wales Aboriginal Land Council.

Since that time, the ILC has used the land account to purchase property for the use and enjoyment of Indigenous Australians whose native title has been extinguished. After 20 years, the ILC began to initiate a review into its functions. I think one of the shining examples in the city that I live in of the ILC's success in this is the purchase of the property in Redfern, the National Centre of Indigenous Excellence, which is something that all Australians can be absolutely proud of. It is a shining example of just how important this fund is.

From early July to the beginning of September 2017, the ILC undertook a series of consultations to gain community feedback on legislative changes to the Aboriginal and Torres Strait Islander Act 2005—firstly, the financial sustainability of the Aboriginal and Torres Strait Islander land account and, secondly, the extension of the ILC's remit to include freshwater and saltwater based activities—and, culturally, that is extremely important. There were 16 consultations, with 11 undertaken in locations around Australia, involving more than 75 First Nations organisations. So it was a very comprehensive consultation—and, appropriately, right across this country.

According to the report produced, 75 per cent of the consultation sessions provided consensus support for both areas of proposed reform. That's quite fantastic. More than 85 per cent of the sessions provided consensus support to the reform of management and government arrangements of the land account. Unanimous support for reform to the investment mandate of the land account was expressed in the written submissions that dealt with this issue. Of the 17 submissions that addressed both issues, 77 per cent gave support to both, with only eight per cent indicating they did not support the reform relating to water. The reason that we are seeing in this House right now support for these initiatives is that those consultations provided the basis for consensus.

In terms of the legislation, on 28 March 2018, the government introduced two substantive pieces of legislation and one piece of consequential legislation to alter the functions and governance of the ILC and the ILA. The first bill amends the Aboriginal and Torres Strait Islander Act to give the ILC functions in relation to water related rights. I cannot underscore just how important it is that water related rights are included in this. We know that, in Aboriginal dreaming stories and in Aboriginal culture, the issue of water, both freshwater and saltwater, absolutely underpin the culture, the ownership and the occupation of lands and waters. Many of our stories originate in waters, and those rights to land are not extinguished at the shoreline.

These additional functions, to be consistent with the ILC's functions in relation to land, include: the acquisition of water related rights and divestment to Aboriginal and Torres Strait Islander corporations; the provision of assistance grants loans and loan guarantees to Aboriginal or Torres Strait Islander corporations to acquire water based rights, which is also incredibly significant; the carrying on of management activities in relation to Indigenous waters; and the provision of assistance grants loans or loan guarantees for the purpose of carrying on management activities in relation to Indigenous waters.

I might, for the edification of the House, just explain a little bit. Among the many ways in which Aboriginal people describe ourselves, we are either a saltwater or a freshwater person. I and, I think, Ken are freshwater.

Mr Wyatt: Yes.

Ms BURNEY: My associations go back to the good old Murrumbidgee River. I am of the Murrumbidgee Wiradjuri.

The second bill gives effect to the government's decision to establish a dedicated financial asset fund—I won't go through the acronym for that; it's very long!—to support the making of annual and discretionary additional payments to the ILC. This fund will replace the Indigenous Land Account, which we spoke about earlier, the closure of which will be effected by the Aboriginal and Torres Strait Islander Land and Sea Future Fund (Consequential Amendments) Bill 2018. The bill provides for the transfer of the moneys and financial assets currently allocated to the land account to the new fund, which will be managed by the Future Fund board. That all sounds very bureaucratic, and it probably is, but it's important to outline these arrangements in the House today.

The ATSILSFF will be credited with amounts equal to the balance of the land account special account and the value of the investments of the land account. This special account will then be debited to provide an annual payment to the ILC to be credited to and paid for from the ILC funding special account. The finance minister and the Indigenous affairs minister may also determine once a financial year that an additional payment be made to the ILC after considering the advice of the Future Fund board about the impact of any additional payment on the sustainability of annual amounts to the ILC. That component is also very important—that there is the continuing discretion of the ministers involved to be able to undertake those discretionary payments.

The Future Fund board will be responsible for deciding how to invest the new fund to enhance the Commonwealth's ability to make annual payments for any additional payments to the ILC. The bill requires a responsible minister to issue an investment mandate to the Future Fund board, and that's very much about accountability regarding the investments of the new fund. The purpose of the investment mandate is to provide a mechanism for the government to provide strategic guidance to the Future Fund board on its expectations for the investment of the new fund. That also is incredibly important to the government of the day and to First Nations people. The Indigenous Land Account has achieved an average return over the past three years of approximately CPI plus 1.5 per cent per annum. Under the new arrangements, the government expects that account will achieve a return—and this is really important—of CPI plus 2.6 per cent after fees.

There are a few other points I'd like to make in closing. Expenses associated with the investment and administration of the fund incurred by the Future Fund board will be met by ATSILSFF. I want to put forward what the Labor position is. You can see that with me putting forward this position how much work has gone into making sure that this is for the benefit of those it has been designed for. Labor supports the intent of this legislation. We accept the need to improve the financial sustainability of the fund and we support the expansion of the remit of the fund to cover water. However, after consultation with stakeholders, we took the view that there were a number of ways in which the legislation could be strengthened—and I understand there's been discussion on this—in order to protect the land fund for future generations. We have requested a number of minor amendments to the bill which we believe will achieve that.

Firstly, we have requested of the government that they include provisions in the bill that the minister must have regard to the sustainability of the fund prior to making any additional transfers. I'm sure that minor amendment is something that the government could accommodate. This will help to ensure that these transfers are not used to deplete the fund over time. We also requested that the fund's long-term sustainability be a necessary consideration where the minister sets out the investment mandate. I'm sure that the minister would be considering that as a matter of course. I am pleased that the government has now moved amendments to address both of those issues.

Our second concern is related to the removal of any oversight role of the ILC in relation to the fund. That's important because, when you've got the ILC as the board, they need to understand what's going on in terms of any investments. At present, the ILC board provides oversight of the account. This is not an active oversight role, but, rather, a way for the ILC board to maintain a clear line of sight as to how the account is being invested. Once again, that's a very sensible suggestion. The bill before us, in its original form, removed this. We did not support this. I'll say that again: the bill before us, in its original form, removed this and we did not support this. At a time when there were growing calls for a greater Indigenous say over issues that impact on Indigenous lives, we felt the removal of the oversight was inconsistent with the need to maintain as much Indigenous involvement as possible. We do welcome the government's decision to require the Future Fund to brief the ILC board on their investment decisions, restoring that important oversight of the ILC. We thank the government for that recognition.

We know that this will be a passive oversight role that is not designed to interfere with the functions of the Future Fund but, rather, to ensure that the fund, which is designed to assist Indigenous Australians, is never removed entirely from Indigenous involvement—once again, going very much forward with a philosophical view of the involvement of First Nations people. We also welcome the amendment that will require the minister to consult with the ILC in relation to the investment mandate. This, once again, provides an opportunity for important input from First Nations people into the management of the fund. We believe that these amendments strengthen the bill. We recognise the minister for working with us to achieve a bipartisan position. Having reached agreement on these matters, Labor is happy to support this bill.