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Native Title Amendment (Infrastructure and Public Facilities) Bill 2020

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2019-2020

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

NATIVE TITLE AMENDMENT (INFRASTRUCTURE AND PUBLIC FACILITIES) BILL 2020

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

 

 

 

 

 

 



 

NATIVE TITLE AMENDMENT (INFRASTRUCTURE AND PUBLIC FACILITIES) BILL 2020

General Outline

1.                 The Native Title Amendment (Infrastructure and Public Facilities) Bill 2020 (the Bill) amends the Native Title Act 1993 (the Native Title Act) to extend the operation of Subdivision JA for another 10 years.

2.                 Subdivision JA provides a process to assist the timely construction of public housing, staff housing and a limited class of public facilities by or on behalf of the Crown, a local government body or other statutory authority of the Crown in any of its capacities, for Aboriginal and Torres Strait Islander people in communities on Indigenous held land.

3.                 Extending the operation of Subdivision JA for a further 10 years will support relevant authorities to continue to meet unmet public infrastructure needs while continuing to safeguard the rights and interests of native title holders and claimants. Limiting the period of the extension to a further 10 years provides the opportunity to reassess the need for the provision at a later time.

4.                 The Native Title Amendment Act (No. 1) 2010 inserted a new Subdivision JA into the ‘future acts regime’ in Division 3, Part 2 of the Native Title Act.

5.                 The future acts regime sets out how acts that will affect native title (called ‘future acts’) can be undertaken. If an act will not affect native title, it is not subject to the Native Title Act and the future acts regime. If an act will affect native title, it will be valid to the extent of any effect on native title only where it is covered by one of the Subdivisions of the future act regime. 

6.                 Subdivision JA sets out when a future act is covered by it (subsections 24JAA(1) - (3)), then sets out the consequences of coverage (subsections 24JAA(4) - (18)).

7.                 A future act is covered by Subdivision JA if all of the following requirements are met:

·          The future act relates, to any extent, to an onshore place (paragraph 24JAA(1)(a)). This means an act can be covered if it relates to both an onshore place and an offshore place.  Acts relating solely to offshore places are covered by Subdivision N.

·          The future act must relate to an area of Aboriginal or Torres Strait Islander held land (subparagraph 24JAA(1)(b)(i)) or land held for the benefit of Aboriginal or Torres Strait Islander people (subparagraph 24JAA(1)(b)(ii)). This is because the discrete Indigenous communities intended to benefit from facilities provided under the process are situated on such lands.

·          Currently, the future act must be done (in the case of a legal act such as the grant of leases, subleases, licences, permits, authorities or approvals outlined in paragraph 24JAA(1)(c)(i)) or commenced (in the case of an activity such as construction outlined in 24JAA(1)(c)(ii)) within 10 years of the commencement of Subdivision JA (paragraph 24JAA(1)(d)). The Bill extends the operation of Subdivision JA for another 10 years.   

·          The future act must facilitate or consist of the establishment of specific types of facilities (set out in subsection 24JAA(3)) by or on behalf of the Crown or a local government body or other statutory authority of the Crown in any of its capacities. Essentially, this is intended to cover the public provision of those types of facilities. The provision of funding to a person by an action body does not of itself mean that the person will be acting ‘on behalf of' the Crown.

·          There must be a Commonwealth, State or Territory law that makes provision for the preservation or protection of areas or sites in the area where the act is done that may be of particular significance to Aboriginal and Torres Strait Islander people in accordance with their traditions (paragraph 24JAA(1)(e)). This would include state heritage legislation.

8.                 Subsection 24JAA(2) makes it clear that Subdivision JA does not apply to a future act that is the compulsory acquisition of the whole or part of any native title rights and interest.

9.                 The types of facilities that may be provided under Subdivision JA are:

·          Public housing for Aboriginal and Torres Strait Islander people living in, or in the vicinity of, the area. This is intended not to cover housing for private ownership (paragraph 24JAA(3)(a)).

·          Public education and health facilities, and police and emergency facilities that principally or primarily benefit Aboriginal and Torres Strait Islander people living in the area (paragraph 24JAA(3)(b)). It is intended that a facility could be covered by Subdivision JA even if it provides some incidental benefit to other persons. For example, a public health clinic established primarily for the local Indigenous community but which also provided services to non-Indigenous community staff would be covered by Subdivision JA. A further example is the establishment of a fire department which may service the surrounding region as well. However, it is not intended that Subdivision JA be used to establish facilities intended primarily to service, say, a nearby non-Indigenous community.

·          Staff housing (paragraph 24JAA(3)(c)) provided in connection with those things listed in paragraphs 24JAA(3)(a) and (b) - that is, in connection with public housing for Aboriginal and Torres Strait Islander people living in, or in the vicinity of, an area referred to in paragraph 24JAA(1)(a) and (b), and public education facilities, public health facilities, police facilities and emergency facilities that benefit those people.

·          Certain facilities provided in connection with housing or other facilities covered by paragraphs 24AA(3)(a), (b) and (c) (paragraph 24JAA(3)(d)). These include the facilities covered by Subdivision K, sewage treatment facilities, and things prescribed by regulation, if any. 

10.             The remaining paragraphs set out the consequences of a future act being covered by Subdivision JA. 

11.             Subsections 24JAA(4)-(6) provide that the validity of a future act to which Subdivision JA applies is dependent on the action body giving notice of the act and an opportunity to comment; the action body providing a consultation report to the Commonwealth Minister; and the act not being done (in the case of a legal act such as the grant of leases, subleases, licences, permits, authorities or approvals outlined in paragraph 24JAA(1)(c)(i)) or commenced (in the case of an activity such as construction outlined in 24JAA(1)(c)(ii)) before the end of the consultation period.

12.             Subsection 24JAA(7) provides that the non-extinguishment principle applies to an act, which is validly done under Subdivision JA.

13.             Subsection 24JAA(8) provides for compensation in accordance with Division 5 where native title holders would be entitled to compensation under subsection 17(2) if the act were assumed to be a past act referred to in that section.

14.             Subsection 24JAA(9) deals with who pays compensation in relation to future acts done under Subdivision JA. Essentially, liability for compensation rests with the government responsible for the future act unless legislation provides otherwise.

15.             Subsections 24JAA(10) to 24JAA(18) detail the procedural rights of native title parties under Subdivision JA. The main elements are as follows:

·          Action bodies are required to notify, in the way determined by legislative instrument by the Commonwealth Minister, any registered native title claimant, any registered native title body corporate and any representative Aboriginal and Torres Strait Islander body in relation to the relevant area of land or waters (paragraph 24JAA(10)(a)). 

·          All notified parties are afforded a two month opportunity to comment on the act (paragraphs 24JAA(10)(b) and (11)(b)(i)). The two month period begins on the date specified (the notification date) by the action body in the notification (subsection 24JAA(11)). The notification day must be set on a day by which it is reasonable to assume that all notices will have been received by, or will otherwise have come to the attention of, the relevant native title parties (subsection 24JAA(12)). This gives native title parties the option to provide feedback to the action body about a proposal while allowing it to proceed quickly should they consider further consultation is unnecessary.

·          Any registered native title claimant or body corporate may, within two months of notification, request to be consulted. If they do, the action body must consult about ways of minimising the impact of the act on native title and, if relevant, any access to the land or waters or the way in which anything authorised by the act may be done (subsections 24JAA(13) and (14)).

16.             Subsection 24JAA(18) provides that notification under subsection 24JAA(10) of two or more acts to which Subdivision JA applies can be given in the same notice. This allows action bodies to deal with a range of future acts relating to a project in a single process and minimises the burden on native title parties by reducing the number of notices they receive about related acts and allowing related acts to be considered together.

17.             Subsection 24JAA(15) provides that in consulting with a native title claimant or registered native title body corporate, the action body must comply with any requirements determined by the Commonwealth Minister by legislative instrument. The legislative instrument may specify requirements as to the manner of consultation and matters to be dealt with through consultation. It may, for example, require the action body to hold one or more face-to-face meeting with native title claimants or body corporate who have requested consultation, provide translators during consultation, or address issues of the design, location and nature of the proposed act. The Commonwealth Minister is able to refine these requirements in light of the experiences of action bodies and native title parties over time and having regard to differing projects and community circumstances.

18.             The procedural rights of native title parties are reinforced by subsection 24JAA(16), which requires an action body to report to the Commonwealth Minister on the operation of the notice, opportunity to comment, and consultation requirements in each case. The report must be in writing and comply with specific requirements which may be determined by the Commonwealth Minister by legislative instrument. The instrument may, for example, require the report to cover information as to whether or not a claimant or body corporate requested to be consulted, and whether or not comments were received by the action body in relation to the act. It may also outline the steps taken by the action body to consult with native title parties about the proposed act, for example whether a meeting was held with claimants and bodies corporate. To promote transparency, the report may be published by the Commonwealth Minister.

19.             There may be circumstances where there is more than one action body for a future act covered by Subdivision JA. This may arise where a number of Crown bodies are jointly responsible for a particular project. In these instances subsection 24JAA(17) provides that if one action body for a future act meets a requirement of subsections 24JAA(10), (11), (12), (14), (15) and (16) in relation to an act, then any other action body in relation to the act is taken also to have met that requirement. The intention is to avoid duplication of those requirements in subsections 24JAA(10), (11), (12), (14), (15) and (16).

20.             Subsection 24JAA(19) defines consultation period , and registered native title rights and interests as it applies to section 24JAA.

FINANCIAL IMPACT

21.             The Bill will have nil financial impact.

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Native Title Amendment (Infrastructure and Public Facilities) Bill 2020

1.                 The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

2.                 The Bill amends the Native Title Act 1993 (the Native Title Act) to extend the operation of Subdivision JA of the Native Title Act from 10 to 20 years.

3.                 Subdivision JA provides a process to assist the timely construction of public housing, staff housing and a limited class of public facilities (including public education, public health, police and emergency facilities) and facilities to support that infrastructure (such as staff housing or sewerage treatment facilities) by or on behalf of the Crown, a local government body or other statutory authority of the Crown in any of its capacities, for Aboriginal and Torres Strait Islander people in communities on Indigenous held land.

 

Consultation

4.                 The Bill has been informed by targeted consultation undertaken in 2017, 2019 and 2020. In 2017, the Australian Government received submissions in response to an options paper on the continuation of Subdivision JA. The options paper formed part of a broader review of native title regulations and legislation which were due to sunset in the future. In 2019 and 2020, the Australian Government sought views of stakeholders affected by Subdivision JA on extending the provision for a further 10 years. This included consultations with native title peak bodies, native title representative bodies and service providers and targeted state and local governments.

 

Human rights implications

5.                 The Bill engages the following human rights:

·          the right to enjoy and benefit from culture in Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

·          the right to self-determination in Article 1 of ICCPR and Article 1 of the ICESCR;

·          the rights of equality and non-discrimination in Articles 2, 16 and 26 of the ICCPR and Article 2 of the International Convention on the Elimination of all forms of Racial Discrimination (CERD);

·          the right to an effective remedy in Article 2(3) of the ICCPR and Article 6 of the CERD;

·          the right to an adequate standard of living in Article 11(1) of the ICESCR and Articles 5(e)(iii) and 7 of the CERD;

·          the right to health in Article 12(1) of the ICESCR and Article 5(iv) of the CERD; and

·          the right to education is contained in Article 13 of the ICESCR and Article 5(e)(v) and 7 of the CERD.

 

The right to enjoy and benefit from culture

6.                 The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the ICESCR. Article 27 of the ICCPR protects the rights of individuals belonging to minority groups within a country to enjoy their own culture. Article 15 of the ICESCR protects the right of all persons to take part in cultural life.

7.                 The United Nations Human Rights Committee (UNHRC) has stated that culture can manifest itself as a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples, which may include such traditional activities as fishing or hunting and the right to live on lands protected by law. [1]

8.                 The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) has also stated that Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected. [2] UNCESCR has also provided guidance on the communal and individual aspects of the right to culture, in particular that the reference to ‘everyone’ in Article 15 of the ICESCR may denote either individual or collective rights to culture. [3] UNCESCR has noted, in particular, that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions. [4]

9.                 The Native Title Act as a whole promotes the right to enjoy and benefit from culture by establishing processes through which native title can be recognised, and providing protection for native title rights and interests. Native title rights and interests are by their nature communal, held collectively by all individual holders of native title (known as ‘common law holders’) who are recognised in an approved determination of native title.

10.             Subdivision JA continues to promote the right to enjoy and benefit from culture by ensuring that the representative Aboriginal or Torres Strait Islander body and any registered native title claimants and registered native title bodies corporate are notified and afforded an opportunity to comment on acts which could affect native title. Further, a registered native title claimant or registered native title body corporate must be consulted with, upon request, about ways of minimising the act’s impact on native title, about any access to the land or waters, or about the way in which any thing authorised by the act may be done.

 

The right to self-determination

11.             The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to collectively pursue their economic, social and cultural development without outside interference. The right to self-determination is a collective right applying to groups of ‘peoples’.

12.             The Native Title Act as a whole promotes the right to self-determination by recognising native title rights and interests, thereby restoring native title holders’ ability to speak for, manage and utilise their traditional lands. The Native Title Act also upholds the collective nature of native title rights and interests, consistently with the right to self-determination. 

13.             The Bill limits the procedural rights of native title holders to the extent that, where the process in Subdivision JA is adopted, native title holders and registered claimants have only the right to be consulted about ways of minimising impacts on native title rights and interests, and do not have to consent to the proposed future act. Moreover, native title groups have a maximum of four months in which to be consulted. However, these limitations are necessary and proportionate to achieving the rights of Indigenous community members to an adequate standard of living, health and education - through ensuring the timely provision of public facilities in limited circumstances. Indigenous Land Use Agreements (ILUAs) are the standard and preferred mechanism for undertaking these kinds of acts on land subject to native title rights and interests. Where an ILUA cannot be agreed or is facing extended negotiations, Subdivision JA ensures important public infrastructure can still be delivered while guaranteeing native title holders and claimants retain a mechanism for raising concerns about land use. For example, where procedural issues (such as a lack of quorum) or disputes between native title groups impact ILUA negotiations in circumstances where a project nevertheless enjoys widespread community support, Subdivision JA provides an alternative mechanism for the delivery of that infrastructure without extinguishing native title rights .

14.             Moreover, the Bill is consistent with the right to self-determination by providing native title holders and registered claimants with the right to participate in a consultation process about proposed future acts on the relevant land, while providing a mechanism that can be used to ensure that Indigenous communities are not prevented from benefiting from public infrastructure where competing claims by native title groups, or other disputes or practical issues, make resolution of an ILUA impracticable.

15.             Various views on Subdivision JA were raised in stakeholder consultations. A number of stakeholders noted it diminished the procedural rights of native title holders. However, those involved in delivering public facilities and infrastructure supported the use of Subdivision JA as a pragmatic mechanism to facilitate the timely construction of public infrastructure on Indigenous land for the benefit of Indigenous Australians. To balance these concerns, the Bill limits the extension of the provision to a further 10 years to provide the opportunity to reassess the need for Subdivision JA at a later time.

 

The rights of equality and non-discrimination

16.             The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against. Of particular relevance, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements the prohibition in Australian domestic law.

17.             Subsection 8(1) of the Racial Discrimination Act 1975 , in accordance with Article 1(4) of the CERD, allows ‘special measures’ which are designed to ensure advancement of certain groups. Special measures are an exception to the general prohibition on racial discrimination and are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms.’ [5] For a measure to be characterised as a ‘special measure’ it must:

 

·          be for a particular group or individuals;

·          be taken for the sole purpose of securing the adequate advancement of that group or those individuals;

·          be ‘necessary’; and

·          not continue after its objective has been achieved.

18.             The Bill complements existing measures in the Native Title Act and can been characterised as components of a broader ‘special measure’, being the Native Title Act in its entirety. Special measures are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms’ and are deemed not to be discrimination. In the Seventh Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (The Native Title Amendment Bill 1996 and the Racial Discrimination Act), it was argued that the ‘special measures’ provided under the Native Title Act can be modified without offending the Racial Discrimination Act 1975 . [6]

19.             The proposed measure is appropriate, adapted and proportionate to ensure public infrastructure needs of Aboriginal and Torres Strait Islander people on Indigenous land can continue to be addressed quickly while enabling registered native title claimants or native title bodies corporate to be consulted. The Bill will extend Subdivision JA for a further 10 years. This extension will support efforts to address overcrowding and poor housing conditions in remote Indigenous communities and ensures Subdivision JA is available as a mechanism to help states to meet the Indigenous housing target as agreed to under the National Agreement on Closing the Gap.

 

The right to an effective remedy

20.             The right to an effective remedy is contained in Article 2(3) of the ICCPR. Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) also provides a right to an effective remedy for acts of discrimination contrary to that Convention. 

21.             The right to an effective remedy provides a right to appropriate reparation where rights have been breached. This may include compensation, restitution and changes to laws and practices to protect against repetition of breaches of rights. 

22.             The Native Title Act as a whole supports the right to an effective remedy by recognising native title rights and interests under Australian law, including by allowing the extinguishment of native title to be disregarded in certain circumstances. The Native Title Act also establishes a statutory scheme for compensation for the extinguishment or impairment of native title for certain categories of acts. 

23.             The Bill will promote the right to an effective remedy by providing native title holders with an entitlement to compensation on just terms for the effect of any act done under Subdivision JA on their native title rights and interest. Native title is not extinguished by any valid act done under Subdivision JA.

 

The right to an adequate standard of living, including food, water and housing

24.             The right to an adequate standard is guaranteed by Article 11(1) of the ICESCR, and requires States parties to take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing for all people. State and territory governments are responsible for many aspects of the living conditions that are dealt with in Article 11 of ICESCR. Articles 5(e)(iii) and 7 of the CERD also requires countries to guarantee the right of everyone to housing, without distinction as to race, colour, or national or ethnic origin.

25.             The UNCESCR has issued guidance on a number of aspects of the right to an adequate standard of living, namely on food, water and housing. The key obligations are that countries must ensure the availability and accessibility of the resources that are essential to the realisation of the right. In particular, the UNCESCR has stated that housing must provide adequate shelter, which means adequate privacy, space, security, lighting and ventilation, basic infrastructure and location with regard to work and basic facilities, all at a reasonable cost. [7] Everyone should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services. [8]

26.             Article 21 of the United Nations Declaration on the Rights of Indigenous Peoples states that Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including housing, sanitation, health and social security. This Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous peoples.

27.             The Bill promotes the right to an adequate standard of living and assists governments to ensure Indigenous Australians, particularly those living in remote communities, can access adequate and safe public housing and infrastructure. The Bill will ensure Subdivision JA will continue to be available to quickly facilitate the delivery of essential public infrastructure, in particular housing, to address overcrowding in remote Indigenous communities.

 

The right to health and a healthy environment

28.             The right to the enjoyment of the highest attainable standard of physical and mental health is contained in Article 12(1) of the ICESCR, and is fundamental to the exercise of other human rights. The UNCESCR has stated that the right to health is not a right for each individual to be healthy, but is a right to a system of health protection that provides equality of opportunity for people to enjoy the highest attainable level of health. [9]

29.             The UNCESCR also reports that the ‘highest attainable standard of health’ takes into account the country’s available resources. [10] This right may be understood as a right of access to a variety of public health and health care facilities, goods, services, programs and conditions necessary for the realisation of the highest attainable standard of health.

30.             The Bill promotes the right to health by ensuring governments can utilise Subdivision JA to construct and maintain public health facilities to address current and emerging health needs of Aboriginal and Torres Strait Islander people on Indigenous held land. The Bill further promotes the right to health by ensuring associated infrastructure such as sewerage treatment facilities and water supply facilities including bores and wells can also be constructed in a timely manner.

 

The right to education

31.             The right to education is contained in Article 13 of the ICESCR and Articles 5(e)(v) and 7 of the CERD. The UNCESCR has stated that the right to education requires that functioning educational institutions and programs have to be available in sufficient quantity within a country. [11] Education must be within safe physical reach, either by attendance at some reasonably convenient geographic location or via access to a 'distance learning' program. All institutions and programs are likely to require appropriate physical facilities.

32.             Article 14 of the Declaration on the Rights of Indigenous Peoples states that Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous peoples.

33.             The right to education is promoted by this Bill as it ensures public education facilities and associated infrastructure, such as housing for teachers, can be built expediently to meet community need.

 

Conclusion

34.             The Bill is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.



 

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                    This clause provides for the short title of the Act to be the Native Title Amendment (Infrastructure and Public Facilities) Act 2020 .

Clause 2 - Commencement

2.                    This clause provides for the commencement of each provision in the Bill, as set out in the table.  Item 1 in the table provides that the whole of the Act will commence on the day after the Act receives Royal Assent. 

Clause 3 - Schedules

3.                    This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.

 

 



 

Schedule 1 - Amendments

Native Title Act 1993

Item 1 - Subparagraphs 24JAA(1)(d)(i) and (ii)

4.                    Item 1 omits the words “10 years” and substitutes them with “20 years”.

 




[1] UNHRC, CCPR General Comment No 23: Article 27 (Rights of Minorities) , 50 th sess, UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) [7].

[2] UNCESCR, General Comment No 21: Right of everyone to take part in cultural life (art. 15, para. 1(a) of the Covenant on Economic, Social and Cultural Rights) , UN Doc E/C.12/GC/21 (21 December 2009) [36].

[3] UNCESCR, General Comment No 21: Right of everyone to take part in cultural life (art. 15, para. 1(a) of the Covenant on Economic, Social and Cultural Rights) , UN Doc E/C.12/GC/21 (21 December 2009) [9 and 37].

[4] UNCESCR, General Comment No 21: Right of everyone to take part in cultural life (art. 15, para. 1(a) of the Covenant on Economic, Social and Cultural Rights) , UN Doc E/C.12/GC/21 (21 December 2009) [37].

[5] UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation no. 32, The meaning and scope of special measures in the International Convention on the Elimination of All Forms [of] Racial Discrimination , CERD/C/GC/32 (24 September 2009) [11].

[6] Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Seventh Report: The Native Title Amendment Bill 1996 and the Racial Discrimination Act, Chapter 4, [4.19].

[7] UNCESCR, General Comment No 4: The right to adequate housing (art. 11(1) of the Covenant on Economic, Social and Cultural Rights) , UN Doc E/1992/23 (13 December 1991) [7].

[8] UNCESCR, General Comment No 4: The right to adequate housing (art. 11(1) of the Covenant on Economic, Social and Cultural Rights) , UN Doc E/1992/23 (13 December 1991) [8].

[9] UNCESCR, General Comment No 14: The Right to the Highest Attainable Standard of Health (art. 12 of the Covenant on Economic, Social and Cultural Rights) , UN Doc E/C.12/2000/4 (11 August 2000) [8]. 

[10] UNCESCR, General Comment No 14: The Right to the Highest Attainable Standard of Health (art. 12 of the Covenant on Economic, Social and Cultural Rights) , UN Doc E/C.12/2000/4 (11 August 2000) [8]. 

[11] UNCESCR, General Comment No. 14: The right to education (art. 13 of the Covenant on Economic, Social and Cultural Rights) , UN Doc E/C.12/1999/10 (8 December 1999) [6].