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Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018

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2016-2017-2018

 

 

 

 

 

THE P A R L I A M ENT O F THE C O MM ON W E A L TH O F A U S T R A L I A

 

 

 

 

 

 

H OU S E OF R E P R E S E N T A T I VES

 

 

 

 

 

 

ABORIGINAL AND TORRES STRAIT ISLANDER AMENDMENT (INDIGENOUS LAND CORPORATION) BILL 2018

 

 

 

 

 

SUPPLEMENTARY EX P L A N AT O R Y M E M O R A NDUM

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

( Ci rc u l a t e d b y t he a u t h or i t y of t he M i n i s t e r f o r Indigenous Affairs , S e n a t or t he H on Nigel Scullion)



Amendments to the Aboriginal and Torres Strait Islander Amendment ( Indigenous Land Corporation) B ill 2018

 

Context

 

1.       The Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018 (the Bill) amends the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act) to extend the functions of the Indigenous Land Corporation (ILC) to rights in relation to water, and for related purposes. The ILC is established by subsection 191A(1) of the ATSI Act.

 

2.       The ILC’s new functions provided for in the Bill include carrying on, or arranging for the carrying on of management activities in relation to ‘indigenous waters.’ As defined in the Bill, ‘indigenous waters’ includes waters in relation to which certain entities or persons have ‘water-related rights’ (an expression defined in the Bill). However, the Bill does not enable the ILC to perform management functions in relation to water, or waters, in relation to which the ILC has water-related rights. This is a gap in the Bill.

 

3.       The Senate Finance and Public Administration Legislation Committee report of its inquiry into the Bill recommended that the Bill be amended to address this gap. [1]  

 

Summary

 

4.       The amendments to the Bill give the ILC management functions in relation to water, or waters, in relation to which the ILC has water-related rights, and update drafting of the definition of ‘indigenous waters’ in the Bill to maintain drafting consistency. 

 

F i n a n cial I mp a c t S t a t e m e nt

 

5.       The amendments to the B ill h a ve no f in a n c i a l imp ac t.

 

Statement of Compatibility with Human Rights

 

6.       The amendments to the Bill are compatible with the human rights and freedoms recognized or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

7.       By enabling the ILC to perform expanded water-related management functions to benefit Aboriginal persons and Torres Strait Islanders, the amendments engage relevant human rights in the same way as the Bill. That is, the amendments:

 

a.        indirectly advance the right to self-determination, and the right to enjoy and benefit from culture; and

 

b.       indirectly engage rights to equality and non-discrimination by incorporating an additional component in the ILC special measure, and further broadening the scope of arrangements that may be regarded as legitimate differential treatment.

 

8.       Further discussion of the human rights implications of the Bill, including discussion relevant to the human rights implications of the amendments to the Bill, are set out in the Statement of Compatibility with Human Rights for the Bill.

 

 



Amendments to the Aboriginal and Torres Strait Islander Amendment ( Indigenous Land Corporation) B ill 2018

 

N ot e s o n Amendments

 

Amendment 1

 

9.       Amendment 1 updates the drafting of the definition of ‘indigenous waters’ in item 1 of Schedule 1 to the Bill . Item 1 of Schedule 1 to the Bill inserts a definition of ‘indigenous waters’ in subsection 4(1) of the ATSI Act.

 

10.   The effect of the amendment is to separate the qualifying phrase “in relation to which water-related rights are held…” from both of the antecedents ‘water’ and ‘waters’.

 

11.   The existing tail to the definition of ‘indigenous waters’ (that is, the subordinate clause in parentheses at the end of the definition) indicates the qualifying phrase “in relation to which water-related rights are held…” qualifies both antecedents. However, the amendment is done for consistency with the drafting approach adopted for Amendment 2, and is intended to remove any doubt that both antecedents are qualified.  

 

Amendment 2

 

12.   Amendment 2 amends item 26 of Schedule 1 to the Bill to insert new paragraph 191E(1)(cb) after new paragraph 191E(1)(ca). This amendment implements recommendation 1 of the report of the Senate Finance and Public Administration Legislation Committee inquiry into the Bill.

 

13.   Item 26 of Schedule 1 to the Bill inserts new paragraph 191E(1)(ca) to give the ILC management functions in relation to ‘indigenous waters’. Item 1 of Schedule 1 to the Bill defines ‘indigenous waters’ to mean water or waters in relation to which water-related rights are held by an Aboriginal or Torres Strait Islander corporation, or an Aboriginal person or a Torres Strait Islander. New paragraph 191E(1)(ca) corresponds with the ILC’s management functions in relation to Indigenous-held land in paragraphs 191E(1)(a) and (c) of the ATSI Act. 

 

14.   The effect of the amendment to item 26 of Schedule 1 to the Bill is to insert a new paragraph 191E(1)(cb) in the ATSI Act to give the ILC the function of carrying on, or arranging for the carrying on of, management activities in relation to water, or waters, in relation to which the ILC has water-related rights. New paragraph 191E(1)(cb) corresponds with the ILC’s management functions in relation to land held by the ILC in paragraph 191E(1)(b) of the ATSI Act.

 

15.   The use of commas to separate the qualifying phrase “in relation to which the ILC has water-related rights” from both of the antecedents ‘water’ and ‘waters’ is intended to ensure that both antecedents are qualified. Without the amendment, the qualifying phrase “in relation to which the ILC has water-related rights” could be interpreted as qualifying only the immediately preceding antecedent ‘waters’.

 

16.   New paragraph 191E(1)(cb) refers to the ‘Indigenous Land Corporation.’ Item 18 of Schedule 2 to the Bill, commencing the same time as Schedule 1 to the Bill, will insert ‘and Sea’ after each occurrence of ‘Indigenous Land’ in subsection 191E(1) of the ATSI Act. This will result in new paragraph 191E(1)(cb) referring to the ‘Indigenous Land and Sea Corporation’ once the ATSI Act is compiled following commencement of the Bill.

 




[1] Senate Finance and Public Administration Legislation Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018 [Provisions] and related bills (8 May 2018) [2.31].