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Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017



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BILLS DIGEST NO. 11, 2017-18 9 AUGUST 2017

Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017 Mary Anne Neilsen Law and Bills Digest Section

James Haughton Social Policy Section

Contents

The Bills Digest at a glance ................................................... 3

Purpose of the Bill ............................................................... 4

Structure of the Bill ............................................................. 4

Background ......................................................................... 4

Committee consideration .................................................... 5

Senate Standing Committee for the Scrutiny of Bills .............. 5

Policy position of non-government parties/independents ..... 5

Position of major interest groups ......................................... 5

Statement of Compatibility with Human Rights .................... 5

Parliamentary Joint Committee on Human Rights .................. 5

Key issues and provisions..................................................... 6

Schedule 1—Indigenous Business Australia ............................ 6

Schedule 2—consent to dispose of land acquired with ATSIC assistance or from ATSIC ............................................... 7

Background ............................................................................ 7

Key change ............................................................................ 7

Schedule 3—repeals ................................................................ 7

Key change ............................................................................ 8

Schedule 4—ANAO annual report ........................................... 8

Schedule 5—Royal Commissions ............................................. 9

Background ............................................................................ 9

Royal Commissions Act ....................................................... 9

Reform of the Royal Commissions Act .............................. 10

Date introduced: 30 March 2017

House: House of Representatives

Portfolio: Prime Minister and Cabinet

Commencement: The day after receiving Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

August 2017.

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Increased penalties ............................................................. 10

Commissioner power to require a person to give information or a statement in writing ................................. 12

Reversal of evidential burden of proof ............................. 14

Privilege against self-incrimination ................................... 14

Appendix : History of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act and the Council for Aboriginal Reconciliation Act .............................................................. 16

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The Bills Digest at a glance

Purpose of the Bill

The Bill is a mix of substantive, procedural and technical legislative changes in a number of areas within the Prime Minister and Cabinet portfolio.

Substantive changes

• Schedule 2 enables the Commonwealth, Indigenous Business Australia (IBA) and the Indigenous Land Corporation (ILC) (collectively, the consenting authorities) to waive the requirement under the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 that people or organisations who have received an asset via grant, loan or funds from the former Aboriginal and Torres Strait Islander Commission, get consent from the relevant consenting authority before disposing of that asset. This may create some inconsistency between classes of assets in which the consenting authorities have or had an interest.

• Schedule 5 enables a Royal Commission to require written statements, extending their existing power to require witnesses to appear and give oral evidence. This implements a recommendation of the Royal Commission into the Home Insulation Program. Schedule 5 also substantially increases penalties for offences of non-compliance with Royal Commission directions to a maximum of two years’ imprisonment. This implements a recommendation of the Royal Commission into Trade Union Governance and Corruption.

Procedural changes

• Schedule 4 strengthens the formal independence of the Auditor-General, an officer of the Parliament, by requiring the Auditor-General to table their annual report directly to the Parliament instead of presenting it to the responsible Minister for tabling in Parliament.

• Schedule 1 removes the requirement in the Aboriginal and Torres Strait Islander Act 2005 for the relevant Minister to table Indigenous Business Australia’s corporate plan. The government considers that this additional reporting requirement is not needed given IBA’s existing reporting requirements under the Public Governance, Performance and Accountability Act 2013. Schedule 1 also removes the requirement for the Minister to notify Parliament of any Ministerial request to IBA to change their corporate plan.

Technical legislative changes

• Schedule 3, Part 1, item 1 repeals a now-inoperative piece of legislation, the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978. This was made redundant by the Local Government (Aboriginal Lands) Act 1978 (Qld), the Community Services (Aborigines) Act 1984 (Qld) and the Community Services (Torres Strait) Act 1984 (Qld).

• Schedule 3, Part 1, item 2 repeals the Council for Aboriginal Reconciliation Act 1991. This Act ceased to have any effect after 1 January 2001, due to a sunsetting clause which ceased the Council for Aboriginal Reconciliation on that date. There is a small potential consequence to affect the operation of the Aboriginal and Torres Strait Islander Social Justice Commissioner (‘the Commissioner’) as the Australian Human Rights Commission Act 1986 refers to the Council for Aboriginal Reconciliation Act 1991 in establishing the objectives of the Commissioner.

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Purpose of the Bill The purpose of the Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017 (the Bill) is to amend various Acts within the Prime Minister and Cabinet portfolio, including the Indigenous Affairs portfolio to:

• update outdated provisions

• repeal redundant Acts

• align annual reporting requirements of the Auditor-General with his or her responsibility to the Parliament and

• amend the Royal Commissions Act 1902 to increase penalties relevant to offences in relation to Royal Commissions and provide Commissioners with the additional power to require a person to give a written statement.

Structure of the Bill The Bill contains five schedules to accomplish its various purposes. These are laid out in more detail on page 2 of the Explanatory Memorandum:

• Schedule 1 amends the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act) to remove the requirement for Indigenous Business Australia (IBA)’s corporate plan to be tabled in Parliament

• Schedule 2 amends the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (ATSIC Amendment Act) to enable the Commonwealth, IBA, or the Indigenous Land Corporation (ILC) to waive the requirement that an organisation or individual who acquired land or assets with assistance from the former Aboriginal and Torres Strait Islander Commission (ATSIC) get permission before disposing of those assets

• Schedule 3 repeals the redundant Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 and Council for Aboriginal Reconciliation Act 1991 and makes consequent amendments to the Age Discrimination Act 2004 and Australian Human Rights Commission Act 1986

• Schedule 4 amends the Auditor-General Act 1997 so that the Auditor-General, an officer of the Parliament, will present his or her annual report directly to Parliament instead of to the relevant Minister and

• Schedule 5 makes a number of amendments to the Royal Commissions Act, the more significant being changes to Commission powers and increased penalties relevant to offences in relation to Royal Commissions.

Background Schedules 1 and 2 are consistent with the Government’s policy of reducing administrative requirements and increasing the flexibility of Indigenous economic assets.1

Schedule 3 is consistent with the Government’s policy of reducing the size of the statute book through repealing redundant legislation.2 Although the Acts being repealed have almost no current effect, they are of some historic interest at a time when recognition of and reconciliation with Aboriginal and Torres Strait Islander peoples are in the national spotlight, and so a short historical discussion is included in the Appendix to the Bills Digest.

Schedule 4 restores the reporting requirements of the Auditor-General to what they were before the introduction and application to the Australian National Audit Office (ANAO) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) which resulted in the Auditor-General submitting their report to the relevant Minister rather than directly to Parliament.3

Schedule 5 introduces amendments to the Royal Commissions Act which were recommended by Mr Ian Hangar in the Report of the Royal Commission into the Home Insulation Program, subsequent to a similar

1. A Taylor, ‘Second reading speech: Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017’, House of Representatives, Debates, 30 March 2017, p. 3089. 2. Ibid.

3. Explanatory Memorandum, Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017, p. 12.

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recommendation of the Australian Law Reform Commission in 2009; and amendments recommended by the Hon John Dyson Heydon AC QC in the Report of the Royal Commission into Trade Union Governance and Corruption.4 Further background is provided under the Key issues and provisions section of the Bills Digest.

Committee consideration At the time of writing, the Bill had not been referred to a Parliamentary committee for inquiry and report.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (the Scrutiny of Bills Committee) reported on the Bill in its Scrutiny Digest of 10 May 2017.5 The Committee raised questions in relation to Schedule 5 of the Bill which amends the Royal Commissions Act. In particular, the Committee sought from the Minister for Indigenous Affairs:

• further justification for the proposed increases in penalties for offences relating to Royal Commissions

• further justification for reversing the evidential burden of proof for a person relying on the defences to offences for failure to give written statements or information to a Royal Commission when served with a notice to do so and

• further justification for the abrogation of the privilege against self-incrimination in relation to the same offences for failure to give written statements or information to a Royal Commission.

The Key issues and provisions section below provides further explanation.

Policy position of non-government parties/independents At the time of writing, the Opposition and other non-government parties and independents had not expressed positions on the Bill.

Position of major interest groups The Government has stated that Indigenous Business Australia has been consulted on Schedule 1.6

At the time of writing, no other major interest groups have expressed positions on the Bill.

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.7

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (Human Rights Committee) considered the Bill in its fourth report of 2017.8 The Committee focused on Schedule 5 and particularly the increased penalties for offences relating to Royal Commissions coercive powers and the new offence of failing to give written statements or information as requested. The Committee argues that the Government’s Statement of Compatibility with Human Rights (Statement of Compatibility) fails to adequately address the limitations on certain human rights in these measures.

In relation to the increased penalty for failure to appear as a witness and answer questions in circumstances where the witness is not afforded the privilege against self-incrimination, the Human Rights Committee argues that the Statement of Compatibility does not acknowledge that the measure engages and limits the right not to incriminate oneself and therefore does not provide an assessment of whether the limitation is justifiable.9 The Committee therefore seeks the advice of the Minister as to:

4. Ibid., pp. 14-15. 5. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, The Senate, 10 May 2017, pp. 51-57. 6. Explanatory Memorandum, Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017, p. 7. 7. The Statement of Compatibility with Human Rights can be found at pages 4-5 of the Explanatory Memorandum to the Bill. 8. Parliamentary Joint Committee on Human Rights, Scrutiny report, 4, 2017, The Senate, Canberra, 9 May 2017, pp. 28-34. 9. Ibid., paragraph 1.112.

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• whether the measure is aimed at achieving a legitimate objective for the purposes of international human rights law;

• how the measure is effective to achieve (that is, rationally connected to) that objective;

• whether the limitation is a reasonable and proportionate measure to achieve the stated objective; and

• whether a derivative use immunity10 would be workable.11

Similarly the Human Rights Committee argues that the Statement of Compatibility does not acknowledge that the increased penalty engages and limits the right to privacy and therefore does not meet the standards outlined in the Committee’s Guidance Note 1. The Guidance Note requires that, ‘where a limitation on a right is proposed the statement of compatibility provide a reasoned and evidence-based assessment of how the measure pursues a legitimate objective, rationally connected to that objective and is proportionate’.12

The Report also raises similar concerns with the new provision that would give a Royal Commission the power to issue a notice requiring a person to give information or a written statement. The Human Rights Committee argues that the measure engages and limits the right to privacy and the right not to incriminate oneself and in its view, the Statement of Compatibility has not demonstrated that the measure imposes proportionate and reasonable limitations on these rights to achieve the stated objectives.13

Key issues and provisions Schedule 1—Indigenous Business Australia Indigenous Business Australia (IBA) is an Indigenous-specific commercial organisation. Originally known as the Aboriginal and Torres Strait Islander Commercial Development Corporation,14 IBA has statutory functions to engage in commercial activities and promote and encourage Aboriginal and Torres Strait Islander self-management and economic self-sufficiency. Those commercial activities may include the performance of functions as an agent of the Commonwealth or other functions delegated by the Minister.15

Item 2 of Schedule 1 repeals subsections 150(4) and 150(5) of the ATSI Act.

Subsection 150(4) currently requires the Minister to lay a copy of IBA’s corporate plan before Parliament within 15 days of receiving it from IBA. This is an additional requirement to paragraph 35(1)(b) of the PGPA Act which requires a corporate plan to be prepared and presented to the Minister. Subsection 35(2) of the PGPA Act requires the IBA, as a Commonwealth corporate entity, to publish its corporate plan in accordance with the PGPA rules. Subsection 16E(3) of the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) currently requires that the corporate plan must be published on the entity’s website by the last day of the second month of the reporting period for which the plan is prepared. There is therefore no loss in transparency in repealing subsection 150(4).

Repeal of subsection 150(5) is a more significant provision that is not discussed in the Explanatory Memorandum or second reading speech. Subsection 150(3) enables the Minister to request, in writing, the IBA Board to change their corporate plan, which does not have a parallel in the PGPA Act for other commonwealth corporate entities. However, if the Minister does make such a request, subsection 150(5) requires the Minister to provide a copy of the written request to Parliament, within 15 days of doing so. Repealing subsection 150(5) without also repealing subsection 150(3), which the Bill proposes to retain (item 1 refers), would therefore potentially reduce the independence of the IBA Board from Ministerial interference in setting their corporate

10. A derivative use immunity means that any information, document or thing obtained as a direct or indirect consequence of the person having given information or evidence is not admissible in criminal proceedings against that person. Further discussion on a derivative use immunity is provided at p. 14 of the Bills Digest.

11. Parliamentary Joint Committee on Human Rights, Scrutiny report, op. cit., paragraph 1.112. 12. Ibid., paragraph 1.116. 13. Ibid., paragraphs 1.129 and 1.135. 14. It was established in March 1990 following the proclamation of the Aboriginal and Torres Strait Islander Commission Act 1989. 15. Section 147 of the ATSI Act.

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plan. Correspondence between the Minister and the IBA’s ‘sister’ body the Indigenous Land Corporation (ILC) about the content of the ILC’s corporate documents has previously been the topic of political controversy.16

It is worth noting that subsection 151(2) of the ATSI Act requires other directions given by the Minister to IBA to be provided to Parliament; thus the proposed repeal would create an anomaly where requests from the Minister to alter IBA’s corporate plan are not required to be provided to Parliament, but any other Ministerial directions to IBA are.

Schedule 2—consent to dispose of land acquired with ATSIC assistance or from ATSIC

Background Prior to its abolition in 2005, ATSIC had powers under the then Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act) to make grants of money or land or guarantee loans to individuals or organisations. This was usually used to assist Indigenous community organisations. Lands acquired with ATSIC’s assistance could not be disposed of without ATSIC’s consent. This provision was presumably made as a hedge against land speculation or profiteering by land grantees at ATSIC’s or the Commonwealth’s expense. Similar provisions were in the precursor Aboriginal Development Corporation Act 1980 and the Aboriginal Land Fund Act 1974. After ATSIC’s abolition, these statutory consent powers were vested in either the Commonwealth, IBA, or the ILC, (‘the appropriate consenting authority’) depending upon the nature of the grant or loan given to the recipient, as laid out in Schedule 1, subitem 200(13) of the ATSIC Amendment Act.

Key change Item 1 of Schedule 2 will insert proposed subitem 200(1A) to Schedule 1 of the ATSIC Amendment Act. This amendment would give the appropriate consenting authority the ability to waive the exercise of its statutory consent power by providing written notice to the organisation concerned that consent is no longer required. This is intended to reduce the administrative burden and increase the flexibility of Indigenous organisations in managing their assets.17 The consenting authority will presumably exercise its judgement in determining whether an organisation has sufficiently good governance that land will not be disposed of for illicit gain or against the overall purpose of such grants.

While the proposed change unambiguously increases the flexibility of the Commonwealth and IBA and thus the asset management flexibility of the Aboriginal organisations over which they exercise this oversight, it does create a potential anomaly for the ILC. Under subsection 191S(2) of the ATSI Act, grants of money, land or loans made by the ILC to Indigenous corporate bodies require the ILC’s consent before they can be disposed of. The proposed change creates a situation where the ILC can waive this consent requirement for statutory consent powers over land that they have ‘inherited’ from ATSIC, but cannot waive this consent for land grants the ILC has made itself, potentially creating extra administrative requirements for the ILC to track which lands and assets are in which category. A parallel amendment to the ATSI Act which gave the ILC the same flexibility over its own consent rights in land would resolve this anomaly and increase the ILC’s decision making flexibility to the same level as that given to the Commonwealth and IBA.

Schedule 3—repeals Item 1 of Schedule 3 to the Bill repeals the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978.

Item 2 repeals the Council for Aboriginal Reconciliation Act 1991. This is a self-repealing Act which ceased to be in force on 1 January 2001.18

While the repeal of these two redundant Acts has no practical consequences, Senators and Members may be interested in the history behind them as they were of considerable significance to Aboriginal and Torres Strait Islander Australians’ place in the nation when in operation. See the Appendix to the Bills Digest for a short history of these pieces of legislation.

16. Senate Finance and Public Administration Legislation Committee, Official committee Hansard, 5 May 2016, pp. 180-191. 17. Taylor, ‘Second reading speech: Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017’, op. cit. 18. Section 32 of the Council for Aboriginal Reconciliation Act.

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Key change While the Council for Aboriginal Reconciliation Act is now a dead letter, there is some symbolic diminution of the Aboriginal and Torres Strait Islander Social Justice Commissioner’s scope implicit in the Act’s repeal and the consequential amendment in item 5 of Schedule 3 to the Bill.

The Commissioner is currently required under paragraph 46C(4)(c) of the Australian Human Rights Commission Act to ‘have regard to the object of the Council for Aboriginal Reconciliation Act 1991’ in performing their duties. The object of the Council for Aboriginal Reconciliation Act is as follows:

The object of the establishment of the Council is to promote a process of reconciliation between Aborigines and Torres Strait Islanders and the wider Australian community, based on an appreciation by the Australian community as a whole of Aboriginal and Torres Strait Islander cultures and achievements and of the unique position of Aborigines and Torres Strait Islanders as the indigenous peoples of Australia, and by means that include the fostering of an ongoing national commitment to co operate to address Aboriginal and Torres Strait Islander disadvantage.

Item 5 of Schedule 3 to the Bill repeals paragraph 46C(4)(c) of the Australian Human Rights Commission Act, as a consequence of repealing the Council for Aboriginal Reconciliation Act, since there would be no ‘object’ to which the Commissioner could refer.

Previous Aboriginal and Torres Strait Islander Social Justice Commissioners have recommended that with the dissolution of the Council, promoting and tracking progress towards reconciliation should be made an explicit function of the Aboriginal and Torres Strait Islander Social Justice Commissioner’s office, which was also recommended by the Senate Legal and Constitutional Affairs Committee in 2004.19 The proposed change in item 5 would not practically affect the operations of the Aboriginal and Torres Strait Islander Social Justice Commissioner. However, it might be seen as diminishing the Commissioner’s role if promoting reconciliation were no longer an explicit object of the office.

Schedule 4—ANAO annual report The Auditor-General Act provides that there is to be an Auditor-General for the Commonwealth who is an independent office of the Parliament. Amongst other things, the Act sets out the powers, rights, immunities and obligations of the Auditor-General arising from that office. The Act also establishes the Australian National Audit Office (ANAO).

As the Explanatory Memorandum explains, since 2014 and the implementation of the PGPA Act the annual reporting requirements of the ANAO have been tied to those for non-corporate Commonwealth entities as set out in section 46 of the PGPA Act.20 Under section 46 of that Act the accountable authority of the entity must prepare and give an annual report to the entity’s responsible Minister for presentation to the Parliament on the entity’s activities during the period.21 Accordingly under section 46 of the PGPA Act the Auditor-General is required to present the ANAO annual report to the Finance Minister for tabling in Parliament. Prior to 2014 the Auditor-General had been required to present his or her annual report directly to the Parliament.22

The purpose of Schedule 4 to the Bill is to make amendments to revert to the pre-2014 arrangement. It is argued that the reintroduction of tabling of annual reports directly to the Parliament would demonstrate the independence of the Auditor-General office and its responsibilities to the Parliament. This would also be consistent with the handling of all other reports produced by the Auditor-General which are tabled directly in the Parliament.23

The key amendment in Schedule 4 is item 3 which would insert new section 28 into the Auditor-General Act, detailing the annual reporting requirements for the Auditor-General. Proposed section 28(1) would require the

19. T Calma (Aboriginal and Torres Strait Islander Social Justice Commissioner), Social justice report 2004, Human Rights and Equal Opportunity Commission, Sydney, 2005, p. 7. 20. Section 38 of the Auditor-General Act provides: For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) the Audit Office is a listed entity; and (b) the Auditor-General is the accountable authority of

the Audit Office. 21. Explanatory Memorandum, op. cit., p. 12. 22. Ibid.

23. Ibid.

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Auditor-General to prepare a report on the activities of the ANAO for the relevant financial year, and table the report in both Houses of Parliament.

Proposed section 28(5) would exclude section 46 of the PGPA Act from applying to the Auditor-General. However, under proposed section 28(3), the annual report must still comply with any rules made in accordance with section 46(3) of the PGPA Act as they relate to non-corporate Commonwealth entities.

In addition, proposed section 28(4) provides that the annual report of the ANAO is to be taken to be a report made under section 46 of the PGPA Act for the purposes of any other Act.

Items 1, 2 and 4 are consequential amendments to the Auditor-General Act which would remove references to the annual report being given to the Minister under section 46 of the PGPA Act and would substitute them with a reference to the annual report requirements under proposed section 28 in the Auditor-General Act.

Schedule 5—Royal Commissions The key provisions in Schedule 5 are amendments to the Royal Commissions Act to:

• increase penalties for offences of non-compliance with Royal Commission directions and

• provide Commissioners with the power to require a person to give written statements and information.

Background

Royal Commissions Act Commonwealth Royal Commissions are usually established under the Royal Commissions Act.24 The Royal Commissions Act authorises the Governor-General to issue Letters Patent establishing a Royal Commission, appointing Commissioners and describing the terms of reference. While it is independent of the Executive Government a Royal Commission is regarded as an instrument of the Executive Government and reports to it.

Royal Commissions do not lay charges but their recommendations or findings may include matters that lead to subsequent prosecutions, and in the course of the Commission’s work, their suspicions or concerns regarding possibly illegal conduct can be referred to law enforcement authorities.25

The Royal Commissions Act also sets out the powers and procedures of Royal Commissions. For instance under the Act a Royal Commission is empowered to:

• summons witnesses and take evidence (section 2)

• require a person appearing at a hearing to produce documents and things (section 2)

• apply to a judge for a warrant to search premises, vehicles, et cetera. (section 4)

• compel witnesses to give evidence, including self-incriminating evidence (sections 6 and 6A)

• issue an arrest warrant if a witness fails to appear (section 6B) and

• deal with contempt (section 6O).

A Royal Commission in Australia has unique powers of investigation which in some ways are more extensive than a court’s.26 It has been noted that maybe because such Commissions are not established to determine individual guilt their powers can be less fettered than a court’s. Thus under the Royal Commissions Act a natural person is not excused from giving evidence on the grounds of self-incrimination (section 6A). While evidence given to a Royal Commission is not admissible in evidence against the person in civil or criminal proceedings in any Australian court (section 6DD), a Royal Commission is empowered to disclose evidence relating to a contravention of the law to certain persons and bodies including the police and the Director of Public Prosecutions (section 6P).

The powers of a Royal Commission have been described as coercive with sanctions imposed inducing witnesses to cooperate. Those sanctions may be punishable either as contempt of the Commission or alternatively as

24. It is also possible for the Commonwealth Parliament to pass legislation establishing a specific Royal Commission, for example the Royal Commission on Espionage set up in 1954. 25. Section 6P of the Royal Commissions Act. 26. K Magarey, ‘Priests, penitents, confidentiality and child sexual abuse’, FlagPost, Parliamentary Library blog, Canberra, 24 November 2012.

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specific legislative offences. Where a person is summonsed to appear as a witness and fails to appear without reasonable excuse, the current penalty is $1,000 or six months’ imprisonment (section 3). The same penalties apply if a witness fails to produce a document or thing when under summons to do so or refuses to be sworn or answer questions.27

Part 3 of the Royal Commissions Act sets out additional offences and penalties relating to false or misleading evidence, destruction of documents, interference with witnesses and contempt. It is an indictable offence to knowingly give false or misleading evidence to a Royal Commission. The maximum penalties are five years’ imprisonment or a fine of $20,000 (section 6H).

Reform of the Royal Commissions Act As further background to the Bill, it is useful to note that the powers and procedures of Royal Commissions have been the subject of an extensive inquiry by the Australian Law Reform Commission (ALRC) which culminated in the 2009 report Making Inquiries: a New Statutory Framework (the ALRC Making Inquiries report).28 The report concluded a new legislative framework was needed.29

There have been critiques of the arrangements for Royal Commissions, including that they can function as a ‘star chamber’, whereby a Commissioner can be an ‘informant, prosecutor and judge’.30 The Law Council’s submission to the ALRC inquiry on Royal Commissions made a large number of suggestions for reform (as did the ALRC), and commented that, while coercive information gathering powers are needed to perform the important and legitimate function of public scrutiny of government action, these powers must be seen as exceptional, particularly when used in executive rather than judicial processes, given their intrusive impact on individual rights.31

There has been no Government response to the ALRC’s recommendations and the current Bill does not represent a response the Law Council’s and ALRC’s concerns. Rather the Bill proposes amendments to the Royal Commissions Act to provide Commissioners with additional powers and to increase penalties for non-compliance.

Increased penalties Currently under the Royal Commissions Act the following offences for non-compliance are subject to a penalty of up to 6 months’ imprisonment or a $1,000 fine:

• failure to attend as a witness before a Royal Commission, or to attend from day to day32

• failure of a witness or a person served with a notice to produce a document or other thing33

• failure of a witness to be sworn or to make an affirmation34

• failure of a witness to answer any question relevant to the inquiry.35

Schedule 5 of the Bill, items 4, 7, 10, 13 and 15, propose amendments to these offences so as to increase the maximum penalty to imprisonment for two years. As the Explanatory Memorandum notes, the proposed new penalties do not include references to a pecuniary penalty, because this is not necessary. Under section 4B of the Crimes Act 1914, where a person is convicted of a Commonwealth offence that is punishable by imprisonment only, a court has discretion to impose a pecuniary penalty instead of, or in addition to, imprisonment (unless the contrary intention appears). The Explanatory Memorandum states that it is intended

27. As noted in Magarey, ‘Priests, penitents, confidentiality and child sexual abuse’, op. cit., these penalties can, at the discretion of the Commission, be reapplied until compliance is achieved. 28. Australian Law Reform Commission (ALRC), Making inquiries: a new statutory framework, Report, 111, ALRC, Sydney, October 2009, paragraph 3.2. 29. Ibid.

30. Magarey, ‘Priests, penitents, confidentiality and child sexual abuse’, FlagPost, op. cit. 31. Australian Law Reform Commission, Royal commissions and official inquiries, discussion paper 77, 2009, quoted in Magarey, ‘Priests, penitents, confidentiality and child sexual abuse’, op. cit. 32. Subsection 3(1) of the Royal Commissions Act. 33. Subsections 3(2) and (4) and 6AB(1) and (2) of the Royal Commissions Act. 34. Section 6 of the Royal Commissions Act. 35. Section 6 of the Royal Commissions Act.

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that this discretion be available for these offences.36 For an offence punishable by imprisonment for two years, under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to 120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate) instead of, or in addition to, imprisonment.37

The Explanatory Memorandum states that the purpose of these amendments imposing increased penalties for non-compliance with Royal Commission directions is to implement recommendation 78 of the final report of the Royal Commission into Trade Union Governance and Corruption (the Trade Union Royal Commission).38 The Explanatory Memorandum states:

The Hon John Dyson Heydon AC QC stated in the Royal Commission into Trade Union Governance and Corruption that there was a marked inadequacy of existing penalties for a number of offences in the Royal Commissions Act 1902. Recommendation 78 recommended that the penalty for the offence be increased to at least a maximum of two years imprisonment or a fine of 120 penalty units or both.

39

The Explanatory Memorandum does not provide any further explanation, however, the Trade Union Royal Commission report noted that the reason for selecting two years’ imprisonment was that ‘this is consistent with the penalties available for failure to comply with notices issued by the Australian Securities and Investment Commission [ASIC] and the Australian Competition and Consumer Commission [ACCC]’.40

By way of comparison, it is of note that the ALRC Making Inquiries report considered the penalties for offences of noncompliance in relation to Royal Commissions and concluded that the current maximum penalty of six months’ imprisonment is an appropriate penalty.41 The ALRC argued for retaining the current penalties relating to imprisonment noting that this level of penalty is consistent with a broad range of federal legislation, including legislation governing courts and tribunals.42

In making comparisons with other legislation, the ALRC looked at the then Australian Crime Commission (ACC) 43 powers amongst others. Whilst similar conduct before the ACC44 attracts a higher level of penalty, the ALRC argued that such a penalty for Royal Commissions is unjustified. The ACC is a standing organisation responsible for investigating serious and organised crime. Witnesses before the ACC are likely to be facing significant criminal penalties, and a higher level of deterrence therefore may be necessary. The ACC is also subject to a much higher level of accountability than an ad hoc inquiry, with oversight mechanisms including a Board, an Inter-Governmental Committee, and a Parliamentary Joint Committee.45 Royal Commissions and official Inquiries, in contrast, are ad hoc bodies which are ‘not established for the purpose of enforcing laws or investigating breaches of laws but rather to inquire, report and make recommendations to government. The penalty required to deter non-compliance, therefore, is less than that required in investigations of serious and organised crime or corruption’.46

As noted above, the Scrutiny of Bills Committee also raised concerns with the increased penalties, arguing that A guide to framing Commonwealth offences, infringement notices and enforcement powers (‘the Guide to Framing Commonwealth Offences’) states that a penalty ‘should be consistent with penalties for existing offences of a similar kind or of a similar seriousness’.47 In addition, the Guide to Framing Commonwealth Offences provides that a ‘notice to produce or attend’ provision, being a provision that allows an enforcement or

36. Explanatory Memorandum, Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017, op. cit., p. 15. 37. Ibid. A penalty unit is currently equal to $210, (subsection 4AA(1) of the Crimes Act). 38. Explanatory Memorandum, Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017, op. cit., p. 15. 39. Ibid.

40. See Royal Commission into Trade Union Governance and Corruption, Final report, vol. 5, ch. 10, para. 27, 2015, quoted in Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, op. cit., paragraph 3.141. 41. ALRC, op. cit., paragraph 21.33. Note that the ALRC did recommend that the monetary penalty be adjusted to 30 penalty units ($3,300) in line with the formula in the Crimes Act. 42. Ibid.

43. Now the Australian Criminal Intelligence Commission (ACIC). 44. Now the ACIC. 45. Ibid., paragraph 21.34. 46. Ibid., paragraph 21.35. 47. Attorney-General’s Department (AGD), A guide to framing Commonwealth offences, infringement notices and enforcement powers, AGD,

Canberra, September 2011, p. 39, quoted in Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, op. cit., paragraph 3.144.

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regulatory agency to require a person to produce information or documents, or to appear at a hearing to answer questions, should, if this is to be an offence, generally be subject to six months’ imprisonment and/or a fine of 30 penalty units.48

In the Committee’s view the increased penalties of up to two years’ imprisonment as set out in the Bill are not comparable penalties with similar offences in other Commonwealth legislation. The Committee report argues:

In particular, under the Competition and Consumer Act 2010 it appears that a failure to furnish information or produce documents to the ACCC or appear before the ACCC is subject to imprisonment up to 12 months … Additionally, a failure to attend, be sworn or make an affirmation, answer a question or produce a document before the Australian Competition Tribunal is subject to up to 12 months imprisonment or a fine not exceeding 20 penalty units.

49

In relation to the powers of the Australian Securities and Investment Commission (ASIC) and the Commonwealth Ombudsman, the Scrutiny of Bills Committee observed:

… while some offences relating to ASIC’s investigation powers subject a person to up to two years imprisonment or 100 penalty units (or both), for a failure to appear for examination, answer a question or produce documents, 50

other provisions appear to provide for lower penalties. For example, an offence of failing to attend a hearing conducted by ASIC, or to take an oath or an affirmation or answer a question or produce a document at the hearing, is subject to up to three months imprisonment or 10 penalty units. 51

Similarly, a failure to attend, be sworn or make

an affirmation, furnish or publish information, answer a question or produce a document before the Commonwealth Ombudsman is subject to up to three months imprisonment or 10 penalty units. 52

The Scrutiny of Bills Committee therefore seeks the Minister’s detailed advice as to what is the level of penalty applicable to all comparable Commonwealth offence provisions relating to a failure of a person to attend or be sworn in or affirmed as a witness, answer questions or produce documents. In addition:

If such comparable provisions are not subject to two years imprisonment, the Committee requests the Minister’s detailed justification for the proposed increase in penalties in relation to offences relating to royal commissions (noting that the powers under the Royal Commissions Act 1902 could apply to any person in Australia relating to any matter for which the executive has established a Royal Commission).

53

At the time of publication of this Digest, no Ministerial response has been published by the Committee.

Commissioner power to require a person to give information or a statement in writing As noted above, a Royal Commission currently has power to require a person to appear to give oral evidence or to produce a document at a hearing (subsection 2(1)), or to produce a document without appearing at a hearing (subsection 2(3A)).

Item 2 in Schedule 5 would insert proposed subsection 2(3C) giving a member of a Royal Commission an additional power to issue a written notice to require a person to give information or a statement in writing to the Commission.

Proposed subsection 3(6A) makes it an offence, when served with a notice under subsection 2(3C), not to give information or a statement in writing to a Royal Commission.54 The maximum penalty for this offence is imprisonment for two years.55

48. Ibid., pp. 89 and 93, quoted in Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, op. cit., paragraph 3.144. 49. See sections 160 and 161 of the Competition and Consumer Act 2010, quoted in Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, op. cit., paragraph 3.142. 50. See section 63(1) of the Australian Securities and Investments Commission Act 2001. 51. See section 63(3) of the Australian Securities and Investments Commission Act 2001 (relating to contraventions of section 58). 52. See section 36 of the Ombudsman Act 1976, quoted in Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, op. cit.,

paragraph 3.143. 53. Ibid., paragraph 3.146. 54. Inserted by item 11.

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Proposed subsection 3(6B) provides that the offence would not apply where the person has a reasonable excuse for refusing to give the information or statement with the defendant having an evidential burden to prove the existence of a reasonable excuse.56 Proposed subsection 6A(1A) provides that it is not a reasonable excuse to refuse to give information on the grounds that giving the information or statement might incriminate the person or make the person liable to a penalty.57 Further amendments provide that the privilege against self-incrimination would not be abrogated in cases where offence charges are on foot.58 In addition, item 28 amends existing subsection 6DD(1) to ensure that the statement or disclosure made by a person in response to a notice by the Royal Commission is not admissible in evidence against the person in any civil or criminal proceeding, although the Commission would be empowered to disclose such evidence to certain persons and bodies including the police and the Director of Public Prosecutions.59 The Explanatory Memorandum explains that, in this way, ‘the evidence cannot be used against the person in any proceeding but may be used to obtain further evidence against the person’.60

This abrogation of privilege against self-incrimination is consistent with the abrogation of the privilege in other provisions and according to the Explanatory Memorandum ‘supports a Commission’s function to inquire into and report on matters of public importance’.61

Proposed subsection 3(6C) provides a defence to a prosecution for the offence of failing to give written statements or information if the information or statement is not relevant to the matters into which the Commission is inquiring. The defendant relying on this defence would bear an evidential burden in relation to that matter.62

There are related amendments to other offence provisions consequential on this new Commissioner power to obtain written statements or information. For example:

• it would be an offence for a person to give false and misleading information in response to a notice under new subsection 2(3C) to provide written statements63

• it would be an offence to bribe a person not to comply with such a notice64

• it would be an offence to practice fraud or deceit on a person with the intent of affecting the written information or statement required to be given in accordance with a notice under new subsection 2(3)65

• it would be an offence to practice fraud or deceit on a person with the intent that the person would not comply with such a notice66

• it would be an offence to intentionally prevent a person giving a statement or information in accordance with a notice issued under new subsection 2(3)67

55. Note also that for an offence punishable by imprisonment for two years, under section 4B of the Crimes Act, the court may impose a pecuniary penalty of up to 120 penalty units (for a natural person) or up to 600 penalty units (for a body corporate) instead of, or in addition to, imprisonment. See p. 11 above and footnote 38 for further explanation.

56. Generally, where a burden of proof is placed on a defendant it is an evidential burden only (Criminal Code Act 1995, subsection 13.3(1)). The evidential burden can be discharged by the defendant adducing or pointing to evidence suggesting there was a reasonable possibility that a matter existed or did not exist (Criminal Code, subsection 13.3(6)). The effect of imposing an evidential burden on a defendant is to defer the point in time at which the prosecution must discharge its legal burden to disprove the exemption. That is, if the defendant discharges his or her evidential burden, only then is the prosecution required to negate the existence of the exemption beyond reasonable doubt.

57. Proposed subsection 6A(1A) is inserted by item 19. 58. Items 20-25. 59. This is made clear by existing section 6P, which provides that where, in the course of inquiring into a matter, a Commission obtains information that relates to the contravention of the law, it may communicate that information to certain persons, including the police and the

Director of Public Prosecutions. 60. Explanatory Memorandum, Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017, op. cit., p. 19. 61. Ibid.

62. Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter. 63. Item 31 which amends subsection 6H(2). 64. Item 35 which amends subsection 6I(2). 65. Item 36 which amends subsection 6J(1). 66. Item 37 which amends subsection 6J(2).

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• it would be an offence to use, cause or inflict any violence, punishment, loss or disadvantage for, or on account of, a person having given information or a statement to a Commission in accordance with a notice issued under new subsection 2(3).68

The Government’s stated rationale for this new power in proposed subsection 2(3C) to obtain written statements and information is that it gives flexibility to a Royal Commission to gather evidence by giving an alternative to summonsing a person to appear to give oral evidence at a hearing.69 As the Explanatory Memorandum also notes, this amendment implements a recommendation by Mr Ian Hanger AM QC in the Report of the Royal Commission into the Home Insulation Program to amend the Royal Commissions Act ‘to empower a Royal Commission to compel the provision of a statement by a potential witness’. Commissioner Hanger supported the rational for a similar recommendation made by the ALRC in its 2009 Making Inquiries report. The ALRC considered that the power to require written statements other than by way of oral evidence ‘… may reduce the need for hearings and examinations and enable more flexible, less formal and more cost-effective inquiry procedures’.70

The Scrutiny of Bills Committee drew attention to two aspects of the new offence of non-compliance with a notice to provide written statements or information to a Royal Commission. Specifically the Committee questioned the reversals of the evidential burden of proof and the abrogation of privilege against self-incrimination.

Reversal of evidential burden of proof As the Scrutiny of Bills Committee explains, provisions that reverse the burden of proof and require a defendant to disprove or raise evidence to disprove one of more element of an offence interfere with the common law right to be presumed innocent until proven guilty.71 The Committee therefore expects any reversal of the evidential burden of proof to be justified and in its view, the reversals of the evidential burden of proof in proposed subsection 3(6C) have not been addressed in the explanatory materials.72 The Committee therefore has requested the Minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance.

Privilege against self-incrimination Similarly, the Committee questioned the rationale for overriding the privilege against self-incrimination in relation to the offence of refusing to give written statements and information to a Royal Commission.73

The Committee recognised there may be circumstances in which the privilege against self-incrimination can be overridden. In considering whether it is appropriate to abrogate the privilege against self-incrimination, the Committee considered whether the public benefit in doing so significantly outweighs the loss to personal liberty. In determining the appropriateness of abrogating the privilege against self-incrimination the Committee examined whether the legislation includes a use immunity and derivative use immunity.74 The provision provides a use immunity (that is, the statement or disclosure made by a person in response to a notice by the Commission is not admissible in evidence against the person) but not a derivative use immunity (that is, the statement or disclosure can be given to law enforcement bodies and used to obtain further evidence).

The Committee noted that no explanation is given as to why the provision as drafted allows evidence obtained as an indirect result of the person being required to give information or make a statement can be used against that person in criminal proceedings. Generally the Committee would expect information to be included

67. Item 40 which amends subsection 6L(2). 68. Item 41 which amends subsection 6M(c). 69. Explanatory Memorandum, Prime Minister and Cabinet Legislation Amendment (2017 Measures No. 1) Bill 2017, op. cit., p. 14. 70. Ibid.

71. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, op. cit., paragraph 3.130. 72. Ibid., paragraph 3.131. 73. Schedule 5, items 19-25 and 28. 74. Use immunity means that the information or evidential material given, and the fact that the person has given the information or evidence, is

not admissible evidence in criminal proceedings against that person. Derivative use immunity means that any information, document or thing obtained as a direct or indirect consequence of the person having given information or evidence is not admissible in criminal proceedings against that person.

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explaining whether providing such immunity would significantly undermine investigatory functions. Additionally, the Committee noted that limited information is given as to why it is considered necessary to abrogate the privilege against self-incrimination, other than the general statement that this supports the Commission’s functions. The Committee requested the Minister’s detailed justification for the proposed abrogation of the privilege against self-incrimination, in particular why no derivative use immunity is provided, by reference to the matters outlined in the Guide to Framing Commonwealth Offences.75

75. AGD, A guide to framing Commonwealth offences, infringement notices and enforcement powers, op. cit., pp. 94-99, quoted in Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, op. cit., paragraph 1.137.

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Appendix: History of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act and the Council for Aboriginal Reconciliation Act

James Haughton

Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 Well after Aboriginal and Torres Strait Islander Australians gained the right to vote in Queensland in 1965, and were counted by the Census in 1967, and the passage of the Racial Discrimination Act 1975, they were still subject to many repressive restrictions on their freedoms and behaviour if they lived in a Queensland reserve (or mission). In a system which began with the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld), Aboriginal and Torres Strait Islander Australians living in reserves could be expelled from, or refused entry to, reserves by the non-Indigenous Managers without cause or appeal, had their mail censored, were paid in rations or below-award wages for work on the reserves, had wages earned outside the missions placed in accounts controlled by the government76, were subject to arbitrary police violence, were not provided with education beyond a fourth-grade level, and were subject to many petty exercises of power, such as the power of the Manager of a reserve to forbid swimming without appropriate bathing costumes, or to forbid the playing of games.77 While some of the most discriminatory aspects of this system were eliminated in 1971 when the Aborigines Act 1971 (Qld) and the Torres Strait Islanders Act 1971 (Qld) gave some of the powers of Managers to Aboriginal councils, in practice these bodies were treated as rubber stamps by the government, with substantial control still in the hands of non-Indigenous administrators.78 This discrimination is reflected in available health statistics from Queensland reserves, which show an infant mortality rate of 66.7 Aboriginal and Torres Strait Islander infants per 1,000 in 1976, compared to a national average of 14.3 infants per 1,000.79

Despite this discrimination, the reserve system provided homes to Queensland Aborigines and Torres Strait Islanders. In the 1950s and 1960s, some missions, particularly those controlled by the Presbyterian Church including Aurukun and Mornington Island, were given increased opportunities for economic independence and to support and revive their culture, including establishing outstation settlements. This brought the Church and the mission communities into conflict with the Queensland Government, who objected to this deviation from the policy of assimilation and who also wanted to expel Aborigines and Torres Strait Islanders from some reserves located over valuable mining deposits.80

In 1958 the Queensland Government excised a third of Aurukun mission to grant as a mining lease to Comalco. When a number of Aboriginal men on the mission protested, they were forcibly deported to Palm Island in 1964.81 In 1970 it was revealed that Florence Bjelke-Peterson (the premier’s wife) and a number of Queensland state Ministers had received preferential share offers in Comalco before its public float.82 Then in 1975 the Queensland Government decided to resume state control over the entire mission for mining purposes. Three per cent of mining profits were to be paid into an ‘Aboriginal welfare fund’ as compensation. The Queensland Government claimed to have consulted with and obtained the consent of the Aurukun community for this, which was denied by the community. Aurukun residents sought and obtained a Queensland Supreme Court injunction against the mine, however, the Queensland Government had this overturned on appeal to the Privy Council in London in 1978.83

76. Giving rise to ‘stolen wages’ as these moneys were misappropriated, and the current Queensland Government stolen wages reparations scheme: Queensland Government, ‘For Queenslanders: Aboriginal and Torres Strait Islander peoples: having your say: reparations scheme’, Queensland Government website, 19 July 2017.

77. ‘Queensland History’, in D Horton (ed.), Encyclopaedia of Aboriginal Australia, Aboriginal Studies Press, Canberra, 1994, pp. 913-915; Commissioner for Community Relations, Discrimination against Aboriginals and Islanders in Queensland, Community Relations Paper 17, Human Rights Commission, Canberra, August 1981; Human Rights Commission, Aboriginal reserves by-laws and human rights, Occasional Paper No. 5, Australian Government Publishing Service (AGPS), Canberra, October 1983.

78. Commissioner for Community Relations, Discrimination against Aboriginals and Islanders in Queensland, op. cit. 79. House of Representatives Standing Committee on Aboriginal Affairs, Aboriginal health, AGPS, Canberra, 1979, p. 165. 80. Queensland Government, ‘Aboriginal and Torres Strait Islander community histories: community histories M: Mornington Island’, Queensland Government website, 4 February 2015.

81. Queensland Government, ‘Aboriginal and Torres Strait Islander community histories: community histories A-B: Aurukun’, Queensland Government webpage, 8 April 2015. 82. R Wear, Johannes Bjelke-Petersen: the Lord's Premier, University of Queensland Press, Brisbane, 2002, pp. 93-94. 83. Queensland Government, ‘Aboriginal and Torres Strait Islander community histories: Aurukun’, op. cit.

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Meanwhile Mornington Island had been devastated by Cyclone Ted in December 1976. The Queensland Government refused to spend the $1 million granted by the Australian Government for disaster relief as they objected to providing ‘upgraded’ housing for the residents and wanted to force those with ‘no employment prospects’ to leave the area instead of living on outstations. Following the decision of the Privy Council in Queensland’s favour in 1978, these disputes culminated in the Queensland Government cutting all funding to the Presbyterian (now Uniting) church missions in March 1978 and threatening to assume direct state control over Aurukun and Mornington Island reserves as of 31 March 1978.84

The residents of the reserves petitioned the Fraser federal Government for assistance. The Commonwealth provided direct financial support to the communities while negotiating with the Bjelke-Peterson Queensland Government and preparing the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978. The Act would have guaranteed local government self-management to any Aboriginal reserve communities who applied to the Federal Government to be brought under it, subject to oversight by the Commonwealth Minister and Parliament. However, after the Act had been passed by the Senate on the 7th of April 1978, but before receiving Royal Assent on the 10th of April 1978, the Queensland Government passed the Local Government (Aboriginal Lands) Act 1978 (Qld) which revoked Aurukun and Mornington Island’s status as reserves as of the 6th of April 1978 and converted them into local government areas, with the local community councils granted a 50-year lease over the lands. While this effectively granted some self-government to the communities, the terms of this Queensland Act reserved all decisions on land rights, mining rights and other such matters to the Queensland Government as well as giving the government the power to excise portions of the now local government areas for mining purposes.85 This rendered the Commonwealth Act a dead letter for its immediate purpose; however, it continued to have some use as an avenue for other Queensland Aboriginal and Torres Strait Islander reserve communities who then appealed to the Federal Government to apply it to their reserves, so as to pressure the Queensland Government to grant them land rights.86

The Aurukun and Mornington Island communities were not satisfied by this outcome and continued to protest Queensland Government control and potential mining of their land, resulting in the Queensland Government appointing administrators to the communities and, when the communities attempted to forcibly expel the administrators, dissolving the Councils in August 1978.87 Premier Bjelke-Petersen claimed that it was necessary the Queensland Government maintain control over land on the former reserves to forestall an alleged Communist plot to create a separate black nation.88 In 1981, Commonwealth parliamentarians attempted to force the issue with the Queensland Aboriginals and Torres Strait Islanders (Self-Management and Land Rights) Bill 1981, a private members bill from Senator Ryan of the ALP to grant land rights including veto rights over mining to Queensland Aboriginal and Torres Strait Islander reserves or communities, which passed the Senate but was not permitted by the government to proceed in the House of Representatives after assurances from the Queensland Government that they were taking steps to establish Aboriginal land rights for reserves.89 Agitation for community control in other reserves continued in Queensland until the passage of the Community Services (Aborigines) Act 1984 (Qld) and the Community Services (Torres Strait) Act 1984 (Qld) created the Deed of Grant in Trust (DOGIT) system under which most former reserves and missions sought and obtained local self-government and land control. The Native Title system has also meant that communities now have rights to negotiate and make Indigenous Land Use Agreements with regard to mining on their traditional lands.90

84. Queensland Government, ‘Aboriginal and Torres Strait Islander Community Histories: Mornington Island’, op. cit. 85. The Commonwealth Parliament had considered a Labor amendment which would have forestalled action by the Queensland Government, which would have made the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 apply to the territory of the reserves as they were on the 30th of March 1978, whatever subsequent changes might be made to their status by the

Queensland Government. This amendment was opposed by the Government on the grounds that it was likely that this would constitute the forced acquisition of Queensland Crown property by the Commonwealth, which would require significant compensation to be paid by the Commonwealth to Queensland. For more on the history and outcomes of the Act, see Senate Standing Committee on Constitutional and Legal Affairs, Report on Aboriginals and Torres Strait Islanders on Queensland reserves, The Senate, Canberra, November 1978. 86. For example, Residents of Mossman Gorge Mission, ‘Petition: Aboriginal land rights’, House of Representatives, Debates, 29 May 1978. 87. Queensland Government, ‘Aboriginal and Torres Strait Islander community histories: Aurukun’, op. cit. 88. Wear, Johannes Bjelke-Petersen: the Lord's Premier, op. cit., p. 116. 89. J Dawkins, ‘Motion to suspend standing and sessional orders: Queensland Aboriginals and Torres Strait Islanders (Self-Management and Land

Rights) Bill 1982’, House of Representatives, Debates, 16 September 1982, pp. 1549-1553. 90. Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Native title resource guide: Queensland, AIATSIS, Canberra, 31 December 2010, p. 38.

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Council for Aboriginal Reconciliation Act 1991 The Council for Aboriginal Reconciliation was established on 2 September 1991 in response to the final (339th) recommendation of the Royal Commission into Aboriginal Deaths in Custody, which states:

That all political leaders and their parties recognise that reconciliation between the Aboriginal and non-Aboriginal communities in Australia must be achieved if community division, discord and injustice to Aboriginal people are to be avoided. To this end the Commission recommends that political leaders use their best endeavours to ensure bi-partisan public support for the process of reconciliation and that the urgency and necessity of the process be acknowledged.

91

The Council for Aboriginal Reconciliation Act 1991 was passed with multipartisan support from the Labor Government, the Coalition parties and the Australian Democrats, due to extensive preliminary negotiation between then Minister for Aboriginal Affairs and Minister Assisting the Prime Minister for Aboriginal Reconciliation Mr Robert Tickner and then Shadow Minister for Aboriginal Affairs Dr Michael Woolridge.92 It acknowledged the dispossession and dispersal of Aboriginal and Torres Strait Islander people, the original occupiers of Australia, by the British Crown, that there had been no formal process of reconciliation, and that it was ‘most desirable’ that there be such a reconciliation by 2001.93

The Council for Aboriginal Reconciliation (CAR or ‘the Council’) was chaired from 1991 to 1997 by current Senator for Western Australia and Shadow Assistant Minister for Indigenous Affairs and Aboriginal and Torres Strait Islanders Pat Dodson, a role which earned him the sobriquet ‘the father of reconciliation’. Over the ten years of its existence the Council’s membership included many prominent Aboriginal and Torres Strait Islander leaders, including current MP for Barton and Shadow Minister for Human Services Ms Linda Burney.

The Council was guided by three triennial strategic plans over its existence.

The first strategic plan established goals and programs under the broad headings of communication, consultation, cooperation and community action for the period 1992-1995. Strategies were designed to:

• communicate with the nation about the process of reconciliation;

• consult the Australian community in order to advance the process of reconciliation;

• ensure that, at all levels of government and the community, there is a commitment to cooperate in furthering the process of reconciliation; and

• foster cooperative action to overcome disadvantage, and to increase understanding, with a focus on the local community level. 94

This first period finished with publication of the report Going Forward: Social Justice for the First Australians. It discussed many issues still being debated today, including the prospect of a treaty, constitutional change and recognition in the Constitution, dedicated Indigenous representation in Parliament, Indigenous incarceration rates, domestic violence in Aboriginal communities, and the date of Australia Day celebrations.

Another key initiative of the Council’s first period was its outreach methods, including creating a Mining Committee and a Rural Committee, which assisted mining and rural industries come to terms with the subsequent 1992 Mabo decision and the Native Title Act 1993. This work is documented in the Council report Exploring Common Ground. After many years of hostility to Aboriginal land rights, over the last twenty years Australia’s mining industry businesses have become world leaders in working with Indigenous peoples.95 The Council played a significant role in this change.

91. Royal Commission into Aboriginal Deaths in Custody, Recommendation 339, Volume 5, National report, 1991. 92. M Wooldridge (Shadow Minister for Aboriginal Affairs), ‘Second reading speech: Council for Aboriginal Reconciliation Bill 1991’, House of Representatives, Debates, 5 June 1991, p. 4824. 93. Preamble, Council for Aboriginal Reconciliation Act 1991. 94. Council for Aboriginal Reconciliation (CAR), Final report of the Council for Aboriginal Reconciliation to the Prime Minister and the

Commonwealth Parliament, CAR, December 2000, ch. 2. 95. M Langton, From conflict to cooperation: transformations and challenges in the engagement between the Australian minerals industry and Australian indigenous peoples, Mineral Council of Australia, Canberra, February 2015.

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The second strategic plan—for the 1995-1998 triennium—capitalised on the opportunities and community goodwill generated by the awareness-raising activities of Council's first term. It sought to achieve demonstrable reconciliation outcomes in local communities and specific sectors, in line with Council's vision. By the end of the second term, the word 'reconciliation' was part of common parlance. By 1997 National Reconciliation Week had become established in the national calendar, organised largely by local communities. The Week of Prayer, established in 1993, had become the largest annual multi-faith observance in Australia. An estimated 96 new reconciliation groups sprang from the regional meetings feeding into the May 1997 Australian Reconciliation Convention, which coincided with tabling of the Bringing Them Home report into the Stolen Generations in Parliament.96 This period finished with publication of the report Weaving the Threads—progress towards reconciliation, which documented the outcomes of the Australian Reconciliation Convention and further responded to the Bringing Them Home report by calling for a National Sorry Day to be established.

Strategic planning for Council's final term from 1998-2000, under Dr Evelyn Scott as chair, took into account the outcomes of the Australian Reconciliation Convention in May 1997. Among other things, the Convention helped to identify options for change most likely to gain the support of the Australian people. The plan focused on three key goals that sought to unite individuals, community groups, organisations, businesses and governments in their support of a national commitment to reconciliation. These goals were:

• Goal 1—Documents of Reconciliation: Achieve recognition and respect for the unique position of Aboriginal and Torres Strait Islander peoples as the Indigenous peoples of Australia through a national document of reconciliation and by acknowledgment within the Australian Constitution

• Goal 2—Partnerships in Reconciliation: Gain the commitment of governments, business, peak organisations and community groups to form partnerships which will achieve social and economic equality for Aboriginal and Torres Strait Islander peoples

• Goal 3—The People's Movement for Reconciliation: Encourage and support the people's movement for reconciliation to achieve justice and equity for all Australians, to embrace the unique place of Aboriginal and Torres Strait Islander peoples in the life of the nation and to ensure that the work of reconciliation continues beyond the life of the Council.

Goals two and three have since been carried forward by Reconciliation Australia and their Reconciliation Action Plans.

The Council produced two key documents to accomplish goal one:

• Corrobboree 2000: Towards Reconciliation which included the Australian Declaration Towards Reconciliation

• Roadmap for Reconciliation which included four National Strategies for Aboriginal and Torres Strait Islander advancement: a National Strategy to Overcome Disadvantage, a National Strategy for Achieving Economic Independence, a National Strategy to Recognise Aboriginal and Torres Strait Islander Rights and a National Strategy to Sustain the Reconciliation Process.

At the end of 2000 the Council also produced a final report, Reconciliation: Australia’s Challenge, which contained six recommendations:

1. The Council of Australian Governments (COAG) agree to implement and monitor a national framework whereby all governments and the Aboriginal and Torres Strait Islander Commission (ATSIC) work to overcome Aboriginal and Torres Strait Islander peoples' disadvantage through setting program performance benchmarks that are measurable (including timelines), are agreed in partnership with Aboriginal and Torres Strait Islander peoples and communities, and are publicly reported.

2. All parliaments and local governments pass formal motions of support for the Australian Declaration Towards Reconciliation and the Roadmap for Reconciliation, enshrine their basic principles in appropriate legislation, and determine how their key recommendations can best be implemented in their jurisdictions.

3. The Commonwealth Parliament prepare legislation for a referendum which seeks to:

96. CAR, Final report of the Council for Aboriginal Reconciliation to the Prime Minister and the Commonwealth Parliament, op. cit.

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recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia in a new preamble to the Constitution; and

remove section 25 of the Constitution and introduce a new section making it unlawful to adversely discriminate against any people on the grounds of race.

4. Recognising that the formal reconciliation process over the last decade has achieved much and has helped bring Australians together, all levels of government, non-government, business, peak bodies, communities and individuals commit themselves to continuing the process and sustaining it by:

affirming the Australian Declaration Towards Reconciliation and actioning the Roadmap for Reconciliation;

providing resources for reconciliation activities and involving Aboriginal and Torres Strait Islander peoples in their work;

undertaking educational and public-awareness activities to help improve understanding and relations between Aboriginal and Torres Strait Islander peoples and the wider community; and

supporting Reconciliation Australia, the foundation which has been established to maintain a national leadership focus for reconciliation, report on progress, provide information and raise funds to promote and support reconciliation.

5. Each government and parliament:

recognise that this land and its waters were settled as colonies without treaty or consent and that to advance reconciliation it would be most desirable if there were agreements or treaties; and

negotiate a process through which this might be achieved that protects the political, legal, cultural and economic position of Aboriginal and Torres Strait Islander peoples.

6. That the Commonwealth Parliament enact legislation (for which the Council has provided a draft in this report) to put in place a process which will unite all Australians by way of an agreement, or treaty, through which unresolved issues of reconciliation can be resolved.

The Council dissolved at the end of 2000, in accordance with the sunset clause in its legislation.

According to subsequent accounts, the Council and other Indigenous Australian leaders were divided about the Documents and final recommendations, particularly calls for a (conditional) apology for past wrongs in the Australian Declaration Towards Reconciliation and for treaties or similar agreements in recommendations 5 and 6, which had not previously appeared in the Documents. 97 Again prefiguring current debates around constitutional recognition and treaties, some felt calling for a treaty would alienate the Howard government and derail reconciliation, while others felt that the Council had failed to argue strongly for Indigenous rights and the position put in the Documents and final report was already compromised.98

The Documents and the final report were received coolly by the Howard government, which took two years to issue a response.99 The response stressed the programs the government was putting in place to change governance in remote Indigenous communities (later referred to as ‘the COAG trials’) and other programs to improve Indigenous people’s economic and social position, including the government’s continuing support for ATSIC, and rejected any proposals for an apology, constitutional change or treaties.100

97. A Gunstone, ‘Indigenous rights and the 1991-2000 Australian reconciliation process’, Cosmopolitan Civil Societies Journal, 1(3), 2009, pp. 35- 51. 98. Ibid.

99. Commonwealth of Australia, ‘Commonwealth Government response to the Council for Aboriginal Reconciliation final report Reconciliation: Australia's challenge’, reproduced in Australian Indigenous Law Reporter, 7(4), September, 2002. 100. Ibid.

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