2022-2023

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

Northern Australia Infrastructure Facility Amendment (Miscellaneous Measures) Bill 2023

 

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Resources and Northern Australia, the Hon Madeleine King MP)

 

 

 

 

NORTHERN AUSTRALIA INFRASTRUCTURE FACILITY AMENDMENT (MISCELLANEOUS MEASURES) BILL 2023

 

OUTLINE

 

1.       The purpose of the Bill is to amend the Northern Australia Infrastructure Facility Act 2016 (‘the Act’) in order to extend the capability of the Northern Australia Infrastructure Facility (‘the NAIF’) to provide financial assistance to the States and Territories, and other entities, for the development of Northern Australia economic infrastructure.

2.       The Bill amends the Act to increase the NAIF’s appropriation from $5 billion to $7 billion. In the October 2022-23 Budget, the Government announced it would increase the NAIF’s appropriation from $5 billion to $7 billion.

3.       The Bill amends the definition of ‘Northern Australia’ within the Act to include Christmas Island and the Cocos (Keeling) Islands, collectively known as the Indian Ocean Territories.

4.       The Bill also clarifies that the objectives of the Act include the provision of financial assistance for the development of Northern Australia economic infrastructure for the benefit of Indigenous persons.

 

Financial impact statement

 

The Bill intends to increase the NAIF’s appropriation from $5 billion to $7 billion, as decided by Government in the October 2022-23 Budget.

 

 

 

 

Statement of Compatibility with Human Rights

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

 

Northern Australia Infrastructure Facility Amendment (Miscellaneous Measures) Bill 2023

 

This 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

The Bill amends the Act in order to:

1.       increase the NAIF’s appropriation from $5 billion to $7 billion;

2.       add Christmas Island and the Cocos (Keeling) Islands, collectively the Indian Ocean Territories, to the definition of ‘Northern Australia’ in the Act; and

3.       clarifies that the objectives of the Act include the provision of financial assistance for the development of Northern Australia economic infrastructure for the benefit of Indigenous persons, defined as an Aboriginal person or Torres Strait Islander, and that the persons to which section 7(1A)(b) of the Act refers are Indigenous persons.

Human rights implications

Schedule 1 to the Bill engages the following human rights:

·          the right to enjoy and benefit from culture; and

·          the rights of equality and non-discrimination

The right to enjoy and benefit from culture

The right to enjoy and benefit from culture is contained 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). Article 27 of the ICCPR protects the rights of individuals belonging to minorities 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.

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] The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.

This Bill promotes the rights of indigenous persons in Northern Australia to enjoy and benefit from culture. The Bill achieves this through amendment of the objects provision of the Act to clarify the objectives of the Act. It does this by adding text stating the objects of the Act include the provision of financial assistance for the development of Northern Australia economic infrastructure that meets the particular needs of Indigenous persons.

The rights of equality and non-discrimination

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 relevance in the context of this Bill, the Convention on the Elimination of All Forms of Racial Discrimination (CERD) establishes a general prohibition on racial discrimination. Article 1(4) of 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.” 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 have been achieved.

Section 7(1A)(b) of the Act relates to the provision of financial assistance to entities other than State and Territory Governments. Section 7(1A)(b) contains a general reference to section 51(xxvi) of the Constitution (on legislative powers relating to people of any race for whom it is necessary to make special laws), without direct reference to indigenous persons. This Bill will amend section 7(1A)(b) to clarify that the persons to which section 7(1A)(b) of the Act refers are indigenous persons. In doing so, this Bill supports the rights of equality and non-discrimination while allowing for ‘special measures’ to be applied for the benefit of indigenous persons in accordance with Article 1(4) of CERD.

Conclusion

The Bill is compatible with human rights because it promotes the protection of human rights.

 

Minister for Resources and Northern Australia,

the Hon Madeleine King MP

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.       Once enacted, the short title of the Bill will be the Northern Australia Infrastructure Facility Amendment (Miscellaneous Measures) Act 2023.

 

Clause 2: Commencement

 

2.       The whole of the Act will commence the day after this Act receives the Royal Assent, as set out in item 1 of the table at subsection 2(1).

3.       Subsection 2(2) specifies that information in column 3 of the table at subsection 2(1) is not a part of the Act, and information may be inserted in this column, or information in it may be edited, in any published version of this Act.

 

Clause 3: Schedule(s)

 

4.       This clause gives effect to the provisions in the Schedules to the Bill.

 

 

SCHEDULE 1 - Amendments

 

Northern Australia Infrastructure Facility Act 2016 (‘the Act’)

 

Item 1 - Subsection 3(1)

 

5.       Item 1 amends subsection 3(1) to state that the ‘ main ’ object of the Act is to establish the Northern Australia Infrastructure Facility to provide financial assistance to the States and Territories and other entities for the development of Northern Australia economic infrastructure, in order to clarify that the Act has multiple objectives.

6.       This amendment is a consequential amendment arising from changes proposed at Item 2.

 

Item 2 - After subsection 3(1)

 

7.       Item 2 inserts a subsection 3(1A) into Part 1 of the Act.

8.       The purpose of new subsection 3(1A) is clarify that the functions of the NAIF include provision of financial assistance for the development of Northern Australia economic infrastructure that for the benefit of Indigenous persons.

9.       This amendment is a consequential amendment arising from the changes proposed by Item 6.

 

Item 3 - Section 5

 

10.   Item 3 amends Section 5 (Definitions) of the Act to include definitions of the terms ‘ Aboriginal person ’, ‘ Indigenous person ’, and ‘ Torres Strait Islander ’, as provided in the Aboriginal and Torres Strait Islander Act 2005 .

11.   The purpose of this amendment is to clearly define, within the Act, the meaning of the three terms employed within the Act to refer to indigenous persons. This is a consequential amendment arising from the changes proposed by Item 6.

 

Item 4 - Section 5 (after paragraph (d) of the definition of Northern Australia )

 

12.   Item 4 is intended to expand the definition of the term ‘Northern Australia’, under Section 5 (Definitions) of the Act, through the inclusion of ‘the Territory of Christmas Island’ at paragraph (da), and ‘the Territory of Cocos (Keeling) Islands’ at paragraph (db).

13.   This amendment will enable the NAIF to provide financial assistance for the development of Northern Australia infrastructure that provides a basis for economic growth, or stimulates population growth, in the territories of Christmas Island and the Cocos (Keeling) Islands, collectively known as the Indian Ocean Territories.

 

Item 5 - Section 5 (paragraph (f) of the definition of Northern Australia )

 

14.   Item 5 amends Section 5 (Definitions) paragraph (f) to, consistent with the other geographical areas included in the definition of Northern Australia, ensure that the territorial sea adjacent to the Territory of Christmas Island and the Territory of Cocos (Keeling Islands) shall also be included in the definition of Northern Australia in the Act.

 

Item 6 - Paragraph 7(1A)(b)

 

15.   Item 6 omits reference to paragraph 51(xxvi) of the Constitution in 7(1A)(b) of the Act, so as to correct a minor drafting issue and make it clear that the Act enables the NAIF to provide financial assistance for the development of Northern Australia economic infrastructure for the benefit of Indigenous persons.

16.   As the intention of 7(1A)(b) is to enable the NAIF to provide financial assistance for the development of Northern Australia economic infrastructure for the benefit of Indigenous persons, the Bill seeks to amend 7(1A)(b) of the Act to clearly identify Indigenous persons as the people to whom section 7(1A)(b) refers and applies.

 

Item 7 - Section 41

 

17.   Item 7 amends Section 41 (Appropriation of Consolidated Revenue Fund) of the Act to increase the NAIF’s appropriation from $5 billion to $7 billion, as announced by the Government in the October 2022-23 Budget.