22 August 2022
PDF version [770 KB]
James
Haughton
Social Policy
Contents
Introduction
ALP election platform measures
requiring legislation
Unfinalised issues before the 46th
Parliament before dissolution
Outstanding inquiries, reports, and
recommendations
Relevant measures from the Gillard/Rudd
government
Introduction
The ALP laid out an extensive First
Nations policy platform during the 2022 election campaign.[1]
The majority of items in this platform are budget commitments (which will usually
not require legislation, except for a Budget appropriations bill), executive
actions (such as establishing an Ambassador for First Nations, or negotiating
new National Partnership Agreements) and commitments to the Uluru Statement
from the Heart, including a constitutional Voice to Parliament. Constitutional
change requires a Bill to be passed by Parliament, but as a referendum must be
held within six months
of a constitutional amendment bill passing, it is likely this would not occur
without extensive preparation for a referendum first taking place.[2]
This paper considers what might also appear in the new
government’s legislative and ministerial Indigenous Australians agenda, by
listing what is already ‘on the table’. This includes:
- Measures
in the ALP’s First
Nations policy platform which are likely to require legislation
- Unresolved
issues before the 46th Parliament, particularly those with some bipartisan
support, which lapsed when the 2022 election was called
- Reports
and inquiries not fully responded to by recent Coalition governments, or about
which the ALP indicated at the time that they believed the government response
was inadequate, eg relevant reports of the former House
of Representatives Standing Committee on Indigenous Affairs (HORSCIA), the Australian Law Reform Commission (ALRC) and
others
- Still-relevant
measures advanced by the Gillard/Rudd ALP government, which were terminated,
abandoned or lapsed after the 2013 election.
A short overview, including relevant sources, is given for
each potential measure.
This list is not exhaustive, and does not imply any
commitment by the incoming government, or knowledge of their policy intentions
by the author, other than those measures listed in the ALP’s election policy
platform. It does reflect measures about which significant policy work already
exists, which may therefore be adopted relatively quickly by an incoming
government, or advanced by members of the 47th Parliament.
ALP election platform measures
requiring legislation
Uluru Statement from the Heart
The Uluru Statement from the Heart called for ‘Voice,
Treaty, Truth’: a constitutionally recognised Indigenous Voice to Parliament
and a Makarrata Commission which would assist with treaty negotiations and
oversee a truth-telling process.
Adding an Indigenous Voice to Parliament to the Australian
Constitution will require legislation and a referendum. This is
discussed in detail in the Parliamentary Library Briefing Book article ‘Indigenous
Constitutional Recognition and Representation’.[3]
Whether establishing
a Makarrata Commission with responsibility for truth-telling and treaty[4]
requires legislation, letters
patent (used to establish a Royal Commission),[5]
or simply executive action (to create a new government agency) would depend
upon its intended form, function and powers. The comparable Victorian Yoorrook Justice Commission
is established as an Inquiry, with letters patent from the Victorian Governor
giving it powers equivalent to a Royal Commission.[6]
Protecting First Nations
intellectual property
The ALP committed
to ‘get on with’ a Productivity Commission inquiry into protecting ‘First
Nations Intellectual Property’, and, following this inquiry, to ‘work with
First Nations to establish standalone legislation to protect First Nations
peoples’ traditional knowledge and cultural expressions, as well as reviewing
the operation of the Indigenous Art Code.’[7]
The Productivity Commission is already conducting an Inquiry
into Aboriginal and Torres Strait Islander Visual Arts and Crafts on
referral from the Morrison government, in response to the 2017
HORSCIA inquiry on inauthentic Aboriginal and Torres Strait Islander
'style' products, and has now released a draft report for comment.[8]
The 2017
HORSCIA inquiry heard that approximately 80 per cent of ‘Indigenous’ art
and souvenirs currently sold are inauthentic.[9]
The ALP’s commitment fulfils the main recommendations of that inquiry, which
were also largely supported
by the Morrison government.[10]
Protecting Aboriginal and Torres Strait Islander art and craft from inauthentic
imitation products was also the aim of two private member’s bills in previous
parliaments, one
by Independent Bob Katter MP (seconded by Rebekha Sharkie MP),[11]
and one
by Senator Sarah Hanson-Young of the Australian Greens,[12]
which was subsequently the subject of a 2019–20 Senate
Environment and Communications Legislation Committee Inquiry.[13]
This may indicate that some of the current crossbench would be likely to
support legislation with similar aims.
It is not clear whether the ALP’s commitment reaches beyond
art and cultural expressions to include protecting other forms of First Nations
intellectual property, such as traditional ecological and medicinal knowledge
with commercial potential.[14]
Abolishing the Cashless
Debit Card
The ALP committed, in a section titled ‘Abolishing mandatory income
management’, to ‘scrap the Liberal Government’s discriminatory Cashless Debit
Card and make the Basics Card voluntary for those
individuals or communities who wish to keep a form of income management’.[15]
During the campaign, particular reference was made to the Auditor-General’s
report on Implementation
and Performance of the Cashless Debit Card Trial – Follow-on to justify
this decision.[16]
Other key reports on Income Management include the 2014 Parliamentary Joint
Committee on Human Rights Review
of Stronger Futures in the Northern Territory Act 2012 and related legislation,[17]
and the 2014 University of New South Wales report Evaluation
of New Income Management in the Northern Territory.[18]
On 27 July 2022, the Albanese government introduced the Social
Security (Administration) Amendment (Repeal of Cashless Debit Card and Other
Measures) Bill 2022 in part-fulfilment of this commitment. According to the
Explanatory Memorandum of that Bill, a subsequent Bill will address issues
relating to the income management scheme.[19]
For more information, see the Bills
Digest.[20]
Further discussion of measures necessary to abolish the
Cashless Debit Card and make the Basics Card voluntary can be found in the Parliamentary
Library Briefing Book article ‘Where
to for Income Management and the Cashless Debit Card?’.[21]
Abolishing the Community
Development Program (CDP)
The ALP committed
to ‘abolish the Liberal Government’s punitive Community Development Program
(CDP)’.[22]
It should be noted that in 2021, former Morrison Government
Minister for Indigenous Australians Ken Wyatt had already removed many
of the CDP’s mutual obligation requirements,[23]
and had committed
to phasing out the CDP and replacing it with a ‘Remote Engagement Program’,
to be piloted in various regions in 2023 before a full rollout of a new program
in 2024.[24]
These pilots were to be governed by the Social Security
Legislation Amendment (Remote Engagement Program) Act 2021.[25]
See the Bills
Digest,[26]
and the Senate Finance and Public Administration Legislation Committee Inquiry
Report, for further discussion.[27]
In its current form, the CDP is an ‘approved program of
work’ under Section 28 of the Social Security Act
1991. As such, to the extent permitted by that Act, it may be modified,
replaced or abolished by legislative instrument (although simple abolition
would place remote claimants within the ‘mainstream’ social security system),
and/or by amending the CDP
Head Agreement with service providers.[28]
Alternatively, the ALP may use the legislative machinery
created by the previous government’s Social Security
Legislation Amendment (Remote Engagement Program) Act 2021 (new
subsection 661A(2) of the Social Security Act 1991) to create a ‘remote
engagement program’ by legislative instrument. However, some amendments made
(new sections 661E and 661F of the Social Security Act 1991) may
conflict with the ALP’s commitment that the ‘new program will pay real wages
[and] ensure people have access to super, leave and other conditions’ as they
place a ceiling on payments to participants (661E(3)(b)) and place participants
outside superannuation and workplace health and safety legislation (661F). Creating
full access to superannuation, leave and other conditions for participants may
therefore require further amendment of the Social Security
Act 1991, or a new legislative scheme.
Some recent key reports on the CDP are:
Protecting First Nations heritage
The ALP committed
to ‘reform our national heritage protection framework and prevent such
destruction [of Juukan Gorge] occurring in the future. This includes through
new stand-alone First Nations heritage protection legislation.’[33]
The current legislation is the Aboriginal and
Torres Strait Islander Heritage Protection Act 1984, which is
administered by the Minister for the Environment.
The ALP First Nations platform states that their new
framework and legislation will ‘take into account’:
The 2021
State of the Environment Report, which also reports on the state of
Indigenous and other heritage, is likely to be relevant.[38]
Potential new legislation in this area is discussed further
in the Parliamentary Library Briefing Book article ‘Protecting
Indigenous cultural heritage’.[39]
Unfinalised issues before the
46th Parliament before dissolution
Jervis Bay reforms
On 30 March 2022, shortly before dissolution of the 46th
Parliament, the Morrison government introduced the Aboriginal
Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance
Provisions) Bill 2022. According to the Second
Reading speech, the Bill was codesigned with the Wreck Bay Aboriginal
Community Council and the broader Wreck Bay community and would ‘strengthen the
council's governance structures; enhance local control over decision-making;
and help to enable homeownership style leases on Aboriginal land in the Jervis
Bay Territory.’[40]
Bills negotiated with Aboriginal traditional
owners under Commonwealth land rights legislation acts have frequently
attracted bipartisan support in the past. The incoming ALP government may
consequently consider reintroducing this, or a similar, bill.
Aboriginal and Torres Strait
Islander Corporations reforms
At the dissolution of the 46th Parliament, the Corporations
(Aboriginal and Torres Strait Islander) Amendment Bill 2021 was before the Senate, having passed the House of
Representatives. This bill was the Government’s response to the Comprehensive
Review of the Corporations
(Aboriginal and Torres Strait Islander) Act 2006,[41]
as well as a number of previous reviews; for full discussion, see the Bills
Digest.[42]
In the report
of the Senate Finance and Public Administration committee Inquiry
into the bill, both ALP
and Greens
senators expressed support for many of the overall objectives of the bill,
subject to amendments, but expressed concern about the short time available for
consultation, particularly during the COVID-19 pandemic.[43]
Both parties subsequently moved amendments in the Senate (see the Bill
homepage).[44]
This support for the Bill’s overall objectives suggests similar measures may be
presented to Parliament by the new government.
HORSCIA Inquiry into Corporate
Engagement
At the time of dissolution of the 46th Parliament, HORSCIA
was undertaking an inquiry into ‘How
the corporate sector establishes models of best practice to foster better
engagement with Aboriginal and Torres Strait Islander consumers’. In March
2022 the Committee issued an ‘Interim
report on better corporate engagement with Aboriginal and Torres Strait
Islander consumers: an issues paper’.[45]
This interim report did not make recommendations, other than that the inquiry
be continued when the committee was reconstituted in the 47th Parliament.
Reconstituting ongoing committee
inquiries has frequently been supported by new Parliaments. However, as
HORSCIA has now been replaced by a new Joint Standing Committee on Aboriginal
and Torres Strait Islander Affairs,[46]
which has now had the UNDRIP inquiry referred to it (see below) it is uncertain
whether this inquiry will continue.
Senate Standing Committee on
Legal and Constitutional Affairs References Inquiries
At the time of dissolution of the 46th Parliament, this
committee was engaged in two relevant inquiries. Neither inquiry had produced a
report at the time of dissolution. These inquiries have now been re-referred as
detailed below.
Application
of the United Nations Declaration on the Rights of Indigenous Peoples in
Australia
This
inquiry was to report by 15 September 2022.[47]
Its terms
of reference covered various aspects of Australian support, application and
legal issues regarding the United
Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).[48]
The inquiry has now been referred to the new Joint Standing Committee on
Aboriginal and Torres Strait Islander Affairs.[49]
As the committee has yet to meet, no reporting date has yet been set.
Missing and
murdered First Nations women and children
This
inquiry was to report by 30 June 2022.[50]
It has now been re-referred,
with a reporting date of 31 July 2023.[51]
Its terms
of reference cover history, causes, context and systemic issues affecting
the safety of First Nations women and children, particularly those who have
been murdered or are missing. One inspiration for this inquiry may have been
the significant 2019 Canadian National
Inquiry into Missing and Murdered Indigenous Women and Girls.
New Closing the Gap framework
‘Closing the Gap’ has been an overarching bipartisan
Indigenous policy framework for both ALP and Coalition governments since its
introduction by the Rudd government in 2007, although the parties have
sometimes differed significantly in their approaches. A new National Agreement
on Closing the Gap was negotiated in 2020 by the Morrison government with state
and territory (and local) governments and the Coalition of Aboriginal and
Torres Strait Islander Peak Organisations. The incoming government has not
given any indication that they will abandon this framework. For detailed
discussion, see the Parliamentary Library Briefing Book article ‘Closing
the Gap’.[52]
Stolen Wages class action
The Morrison government’s 2022–23 budget provided a
non-published amount for discovery processes associated with McDonald v
Commonwealth, a
stolen wages class action brought in the Federal Court by Aboriginal and
Torres Strait Islander people who lived and worked in the Northern Territory
between 1 June 1933 and 12 November 1971 and had their wages withheld.[53]
Responding to this class action will now be the responsibility of the Albanese
government.
Potential Commonwealth responsibility for stolen wages in
the Northern Territory was previously raised in the Senate Standing Committee
on Legal and Constitutional Affairs 2006 report, Unfinished
business: Indigenous stolen wages, which recommended a research and
discovery process and compensation scheme.[54]
However, this proactive approach was rejected
in 2010 by the Rudd government.[55]
It remains to be seen whether the new government will contest, settle, or take
some other approach to this class action, such as a compensation scheme. As a
point of comparison, the Queensland government settled
a comparable action for $190 million in 2019.[56]
Outstanding inquiries,
reports, and recommendations
Inquiry into the Opportunities
and Challenges of the Engagement of Traditional Owners in the Economic
Development of Northern Australia
In January 2022 the Joint Standing Committee on Northern
Australia submitted the report The
engagement of traditional owners in the economic development of northern
Australia.[57]
The report recommended
(in summary): extensive support and capacity building for Native Title
Prescribed Bodies Corporate (NTPBCs); creating an Indigenous-specific economic
development strategy including support from the Indigenous Land and Sea
Corporation, Indigenous Business Australia and Supply Nation; support for
rangers and ‘caring for country’-based work; reform of land tenure systems
(particularly to enable development and leasing on native title land without
surrender or loss of the native title); support for increasing the long-term
benefits of native title agreements; a review of the Native Title Act 1993,
with the aim of addressing inequalities between traditional owners and
development proponents in the agreement-making process; and considering
relevant amendments to the Aboriginal Land Rights Act 1976 (Cth).[58]
At the dissolution of the 46th Parliament, the government
had not responded to this report. However, increased support for NTPBCs and
ranger programs was a prominent feature of the Morrison government’s 2022–23
Indigenous budget.[59]
Report on the Australian
Government’s Northern Australia agenda
The Senate Select
Committee on the effectiveness of the Australian Government’s Northern
Australia agenda presented its final
report on 28 April 2021.[60]
The Select Committee was chaired by Senator Murray Watt (now Minister for Agriculture,
Fisheries and Forestry and Emergency Management) and included First Nations
senators Patrick Dodson and Malarndirri McCarthy.
While the Committee’s ‘headline’ recommendations concerned
the Northern Australia Infrastructure Facility (NAIF), it made several recommendations
concerning First Nations economic development.[61]
In summary, these included dedicating a portion of the NAIF to First Nations
projects, investing in First Nations health and housing, and a new focus on
First Nations economic opportunities, particularly relating to water, working
on country, and carbon abatement and other climate-related development.
Coalition Senators’ additional
comments did not support these recommendations, which they argued
misconstrued the purpose of the Northern Australia agenda, stating ‘The
development of Northern Australia is about addressing the geographic and
economic disadvantage which is felt to some degree by all who live and work
there. There are already existing programs and organisation that are able to
support Indigenous Australians in a much more direct and helpful way.’[62]
However, the Morrison government’s announcement
of a $10 million Indigenous Business and Employment Hub for the NT on 4 April
2022 might be regarded as fulfilling recommendation 22.[63]
The government did not issue a formal response to the report.
Many items in the ALP’s First
Nations platform might be regarded as responding to these recommendations,
particularly commitments to investment in remote First Nations health
infrastructure, health workers, and housing,[64]
and commitments
to First Nations perspectives in the proposed National Water Commission.[65]
However, the ALP’s Regional
Policy does not commit any NAIF funds to First Nations development
(Recommendation 21).[66]
Inquiry into the Adequacy of
Newstart
The Senate Standing Committees on Community Affairs’ 2019
inquiry into Adequacy
of Newstart and related payments and alternative mechanisms to determine the
level of income support payments in Australia[67] was
chaired by then-senator for the Australian Greens Rachel Siewert. As well as
calling for significant rises in the Newstart Allowance[68]
and other social security payments, it made two recommendations of
particular relevance to Aboriginal and Torres Strait Islander people.
Recommendation 21 called for raising and remote-inflation-indexing the Remote
Area Allowance, and Recommendation 22 called for the NIAA to conduct a study
into high levels of disconnection from the social security system among First
Nations people in remote communities.
The government did not issue a formal response to this
report. Coalition Senators issued a short dissenting
report that ‘generally [did] not endorse’ the recommendations, although
recommendations 21–22 were not specifically discussed.[69]
ALP members of the Committee did not make any separate comments.
Review of Detriment report on
outstanding Aboriginal Land Rights claims
On 6 July 2017, as part of a commitment to resolve
outstanding land claims under the Aboriginal Land
Rights (Northern Territory) Act 1976 (ALRA), and noting that the
legal environment had changed as a result of the High
Court’s 2008 ‘Blue Mud Bay’ decision,[70]
Minister for Indigenous Affairs Nigel Scullion commissioned
the Aboriginal Land Commissioner, John Mansfield AM QC, to conduct a review
of claims of detriment which had prevented 16 land rights claims, originally
recommended by the Commissioner between 1981–2004, from being granted.[71]
Under ALRA, whether or not to grant a land rights claim, when others have
claimed they would suffer detriment from the claim being granted, is a decision
for the Minister.
The Commissioner’s review,
tabled on 21 February 2019, recommended that, apart from some small excisions
for public infrastructure, the land claims should be granted.[72]
The Commissioner described
many of the submitted claims of detriment as ‘wholly speculative’, ‘disappointing’,
‘inflated’, ‘pedantic’, and ‘ungracious’,[73]
and stated that to accept many of them as grounds for refusing land rights
claims ‘would amount to little more than to reflect the attitude of many of the
first European settlers. It would be to ignore the beneficial purpose of the
ALRA, and the underlying theme of cases such as the Mabo (No. 2) case.’[74]
The Commissioner found that the most substantial claims, relating to access to
land by pastoralists and waters by recreational fishers, could be accommodated
by agreements with, or an online fishing permit system proposed by, the
Northern Land Council.[75]
However, Minister
Scullion declined to act further.[76]
At the time, ALP Senator for the Northern Territory
Malarndirri McCarthy stated
‘The minister has received the advice from the commissioner, which is an
independent statutory office holder. Now he needs to act on these outstanding
cases and resolve them as soon as possible and give clarity to all stakeholders’.[77]
Any further action on these land claims is now the responsibility of the new
Minister for Indigenous Australians Linda Burney.
Connection to Country: ALRC Review
of the Native Title Act 1993
In 2013, Attorney-General Mark Dreyfus QC asked the ALRC to
review the Native
Title Act 1993. The review was to have regard to developments in case
law, the United Nations
Declaration of the Rights of Indigenous Peoples (UNDRIP),[78]
delays in the resolution of claims, and stakeholder concerns, and make
particular reference to:
- the
legal requirements for establishing connection to country including:
- whether
there should be a presumption of continuity of connection, including that
recent and continuous occupation and use is not required
- the
definition of ‘traditional’ and how this could allow for evolution and
adaptation
- whether
there should be clarification that native title rights and interests can be of
a commercial nature
- whether
courts should be empowered to disregard substantial interruption or change in
connection where it is in the interests of justice
- any
barriers imposed by the Act’s authorisation and joinder provisions to access to
justice for claimants, potential claimants and respondents.
In 2015 the ALRC issued their report Connection
to Country: Review of the Native Title Act 1993 (Cth).[79]
It contained 30 recommendations.
In summary:
- Recommendations
1–8 proposed broadening the Act’s definition of native title and reducing the
level of evidence of connection to country that native title claimants must
demonstrate for a successful claim. These changes would relax the current
strict requirements for native title applicants to demonstrate almost
uninterrupted physical, spiritual and legal connection to country before native
title can be found to exist, which have been imposed by the courts as the
result of High
Court decisions in the Fejo (1998), Yorta Yorta (2002) and
Ward (2002) cases.[80]
- Recommendations
9–10 recommend that the fact that native title rights can be commercial in
nature be recognised in the Act. This would generalise the right to commercial
use of native title resources found in the Akiba
case (2013) to more native title holders.[81]
- Recommendations
11–19 concerned reforming the Act’s requirements for decision-making processes
for native title groups, particularly to allow voting by majority in some situations.
- Recommendations
20–30 concerned reform of notification, authorisation, joinder and court
processes, and other technical improvements.
The Turnbull government did not issue an official response
to the ALRC report. However, a number of the ALRC report’s recommendations and
the Government’s position on them were subsequently discussed in a
2017 article by then Attorney-General George Brandis QC.[82]
Attorney-General Brandis’s article essentially rejected
recommendations 1 through 8. This rejection was based upon the uncertainty
about past and future claims that this might create, and on the argument that
reducing the burden of proof required for a native title claim would be unfair
to native title claimants whose claims had already been lodged or settled
(often adversely). Attorney-General Brandis was more supportive towards
recommendations 11–30, and many of these, and other legal and procedural
reforms, were subsequently taken up (or addressed in other ways) in the
Morrison government’s Native Title
Legislation Amendment Act 2021 (see that Act’s Bills
Digest for full discussion).[83]
The Morrison government characterised these amendments as
providing ‘improvements to native title claims resolution, agreement-making and
dispute resolution processes, rather than proposing significant changes to key
concepts of the law (including on connection and the content of native title).’[84]
AIATSIS’ analysis of the amendments stated
that without addressing the issues of connection and commercial rights, the
amendments were unlikely to achieve ‘major progress’ in improving native title
holders rights or ability to make economic gains from native title.
In the report
of the Senate
Legal and Constitutional Affairs Committee inquiry into the native title
amendments,[85]
ALP Senators on the committee (Kim Carr and Patrick Dodson) concluded:
While it is clear that the broad objectives of this Bill are
supported, evidence received by this committee overwhelmingly demanded a
comprehensive overhaul of the Native Title Act … Multiple submitters noted that
the high original undertaking of the Native Title Act has been brought into
disrepute via amendments that have progressively eroded the rights and
interests of First Nations.[86]
And recommended:
Labor Senators call on the Minister for Indigenous
Australians to instruct the Aboriginal and Torres Strait Islander Social
Justice Commissioner to conduct a review of the operation of the Native Title
Act and its impact on native title holders.
Labor Senators call on the Government to provide a
comprehensive response to the 30 recommendations for reform in the Australian
Law Reform Commission's 2015 report on Connection to Country: Review of the
Native Title Act 1993.
Labor Senators call on the Government to work with First
Nations people on a comprehensive legislative package to overhaul the Native
Title Act so that native title holders can better leverage their land and sea
assets without putting at risk their native title rights and interests.[87]
In response, Minister Ruston stated in the Bill’s second
reading speech in the Senate that:
[T]he Government will request the Aboriginal and Torres
Strait Islander Social Justice Commissioner conduct a review of the operation
of the Native Title Act and its impact on native title holders, following the
completion of stage two of the Wiyi Yani U Thangani (Women's Voices) report and
any associated work … This Bill represents the Government's response to the
ALRC's report … Further overhaul of the native title system, including so that
native title holders can better leverage their land and sea assets as
recommended by Recommendation 3 of the Minority Report, would need to be
considered in light of the Aboriginal and Torres Strait Islander Social Justice
Commissioner's review and the results of the formal evaluation mechanism
included in the Bill.[88]
The ALP have not yet stated whether they will initiate this
review and legislative package now they are in government.
Pathways to Justice: ALRC Inquiry
into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples
On
27 October 2016, Attorney-General George Brandis announced that the
Government would ask the ALRC to ‘examine the factors leading to the
over-representation of Aboriginal and Torres Strait Islander peoples in our
prisons, and consider law reform to ameliorate this national tragedy’.[89]
The ALRC formally commenced the inquiry on 10 February 2017. The report, Pathways
to Justice, was presented to the Attorney-General in December 2017 and
tabled in Parliament on 28 March 2018.[90]
The ALRC
made 35 recommendations in a number of criminal justice areas including
bail, sentencing, access to justice and interpreters, parole, fines, police
conduct, women in the criminal justice system, family violence and child
protection.[91]
While the majority were addressed to the states and territories, several were
addressed to the Commonwealth, including proposing a Justice Reinvestment body
and trials (Recommendations 1–2), supporting community-led alcohol controls
(Recommendations 27–28), statutory requirements for police to contact an
Aboriginal and Torres Strait Islander legal service (Recommendation 31), a
national inquiry into child protection laws and processes affecting Aboriginal
and Torres Strait Islander children (Recommendation 33) and national criminal
justice targets to reduce incarceration and violence (Recommendation 34).
The Turnbull and Morrison governments did not issue any
formal response to the report. On 25 November 2019, Minister for Indigenous
Australians Ken Wyatt stated
that that ‘Consideration of the Australian Law Reform Commission report is
expected to be finalised before the end of 2019.’[92]
Shadow Attorney-General Mark Dreyfus and Senator Patrick
Dodson issued
a statement on 18 September 2018 criticising the lack of a government
response, and specifically calling for justice targets as part of the Closing
the Gap framework (recommendations 34–35).[93]
The Morrison government subsequently incorporated justice targets within the
new National Agreement
on Closing the Gap (targets
10–12).[94]
The ALP’s election platform committed to invest $79 million
in Justice Reinvestment trials as part of its First
Nations policy platform (recommendations 1–2).[95]
The First Nations policy platform also commits to a First Nations women’s
safety program (recommendations 21–22).[96]
The ALP have not indicated whether they will prepare a
formal response to the ALRC inquiry, conduct a national inquiry into child
protection laws (Recommendation 33), or whether and how they intend to support
recommendations primarily directed towards the states and territories.
Wiyi Yani U Thangani (Women's
Voices) report
This report
by the Aboriginal and Torres Strait Islander Social Justice Commissioner, June
Oscar AO, aims to captures the needs of Aboriginal and Torres Strait Islander
women and girls, the principles they think ought to be enshrined in the design
of policy and programs, and the measures they recommend ought to be taken to
effectively promote the enjoyment of their human rights in the future. [97]
It was tabled
in the House of Representatives on 9 December 2020.[98]
The Commissioner has also developed an Implementation
Framework,[99]
as well as a Community
Guide[100]
for Wiyi Yani U Thangani. The next steps in the implementation framework are a
National Summit followed by a National Action Plan.
The report contains a large number of recommendations,
grouped under seven overarching recommendations or themes (pp. 98–100):
- A National Action Plan on advancing the wellbeing of Aboriginal and
Torres Strait Islander women and girls
-
Conduct a National Summit and establish a National Aboriginal and Torres
Strait Islander Women and Girls Advisory Body
-
Empowering women’s leadership on the ground
-
Protecting, supporting, and reviving Aboriginal and Torres Strait
Islander cultural practices and knowledge systems
-
An urgent focus on healing from intergenerational trauma
-
National action to eradicate racism
-
Local and regional focused engagement.
In response, the Morrison Government Ministers Ken Wyatt and
Marise Payne issued a
statement welcoming the report.[101]
The National
Indigenous Australians Agency (NIAA) stated on 26 March 2021 that the it
was preparing a formal response, but this has not yet been released.[102]
However the Commonwealth committed to funding stage 2 of the report in the Closing
the Gap Commonwealth Implementation Plan.[103]
On 12 May 2021, ALP Senator Susan Lines criticised
the Morrison government for not having responded to the report, and
expressed support for it.[104]
The ALP’s First
Nations policy platform commits to a First
Nations Women’s Summit (Recommendation 2),[105]
a key step in the Implementation
Framework.[106]
Selected HORSCIA Inquiries and Recommendations
The former House
of Representatives Standing Committee on Indigenous Affairs (HORSCIA, previously
the House
of Representatives Standing Committee on Aboriginal and Torres Strait Islander
Affairs) had a long tradition of producing bipartisan reports, with
recommendations agreed by all members. It was most recently chaired by Julian
Leeser, now Shadow Minister for Indigenous Australians.[107]
It has now been replaced by a new Joint Standing Committee on Aboriginal and
Torres Strait Islander Affairs.[108]
Some relevant
reports by HORSCIA are already discussed or noted above. This section does not
provide an exhaustive overview of all
recent HORSCIA reports,[109]
but notes particular reports and recommendations that were not acted on at the
time and may be of particular or ongoing relevance. This focus should not be
taken to imply that previous governments did not respond to other
recommendations, or did not respond to issues identified by the committee in
other ways.
Report on
food pricing and food security in remote Indigenous communities (2020)
High food prices in remote Indigenous communities are an
ongoing problem, which has recently
been exacerbated by COVID-19, the fuel-price spikes from the war in
Ukraine, and other inflationary pressures.[110]
Among other measures, this
report recommended an Australian Competition and Consumer Commission (ACCC)
investigation into prices, establishing a national real-time price monitoring
system, and a national licencing scheme for remote community stores (replacing
the current NT-specific licencing scheme under the Stronger Futures
in the Northern Territory Act 2012).[111]
The Morrison government did not implement these recommendations, although it
acted on some others, and asked the National Federation Reform Council’s
Indigenous Affairs Taskforce to develop a national strategy for priority
actions on food security, including considering a national licencing scheme.[112]
Commonwealth involvement in the NT-specific store licencing scheme ended with
the Stronger
Futures in the Northern Territory Act 2012 on 16 July 2022 (s 2,
s 118). In the 2022–23 budget, the Morrison government provided $7.5 million
over two years from 2021–22 to transition administration of the remote
community store licensing scheme to the Northern Territory Government.
On 25 June 2022, ALP Senator for the Northern Territory Malarndirri
McCarthy was reported as saying that ‘the government was still committed to
that work’ [of implementing the committee’s recommendations] and that the ALP’s
proposed scheme to replace the CDP would ‘actually pay decent wages [and] can
certainly provide some relief for cost of living pressures in the bush’.[113]
This may indicate the government is prioritising addressing demand rather than
supply issues in responding to remote food prices.
The power
of education: From surviving to thriving – Educational opportunities for
Aboriginal and Torres Strait Islander students (2017)
Among other matters, this
report supported English as a Second Language-based teaching and support
for Indigenous languages and culture in schools, and expressed considerable
scepticism about the ‘boarding school only’ model for remote Indigenous
secondary education pursued by the NT government,[114]
and supported by the Commonwealth through the National
Partnership on Northern Territory Remote Aboriginal Investment.[115]
The report called for a much greater emphasis on placing schools in the same
regions as communities, and ensuring that boarding schools for Indigenous
students met high, culturally safe standards, recommendations which were
‘noted’ by the government in their
response.[116]
Since 2017, school
attendance in the NT has further and significantly declined,[117]
even before the effects of the COVID-19 pandemic were felt. However, the
Morrison government continued to support a boarding-school-centric strategy in
the March 2022 budget’s $29.4 million School Education Support measure
(see discussion in the Parliamentary
Library’s 2022–23 Budget Review).[118]
The Northern Territory government has recently committed to reviewing
its school attendance and funding strategy, including revisiting its
previous stance against bilingual education.[119]
The ALP First
Nations platform committed to supporting First Nations language teachers in
60 schools Australia-wide.[120]
The new government has not otherwise indicated what policies they will pursue
to support remote and Indigenous education.
Alcohol,
hurting people and harming communities: Inquiry into the harmful use of alcohol
in Aboriginal and Torres Strait Islander communities (2015)
Many of the recommendations of this report[121]
have now been acted on by the creation of the National
Fetal Alcohol Spectrum Disorder (FASD) Strategic Action Plan 2018–2028,[122]
the integration of alcohol-related strategies as cross-cutting elements of the Commonwealth’s
Closing the Gap Implementation Plan,[123]
and the ALP’s commitment
to a Justice Reinvestment Strategy.[124]
Others relating to community Alcohol Management Plans are now obsolete given
the imminent
expiry of Commonwealth alcohol bans under the Stronger Futures
in the Northern Territory Act 2012.[125]
Two significant recommendations not yet acted upon by the
Commonwealth are recommendation four: introduction of a national minimum floor
price on alcohol, and prompt consideration of the recommendations of the Henry
Tax Review on volumetric tax; and recommendation six: that the Commonwealth
ensure a nationally consistent and coordinated approach to alcohol advertising,
including:
- Banning
alcohol advertising during times and in forms of the media which may influence
children
- Banning
alcohol sponsorship of sporting teams and sporting events, including but not
limited to those in which children participate or may be involved, and
- That
the Australian Communication and Media Authority change the Commercial
Television Code of Practice to ensure that alcohol is not able to be advertised
before 8.30pm and that no exemptions are given for alcohol promotion during
sport broadcasting.
The committee noted 2013 research findings that if
the Wine Equalisation Tax (the primary driver of cheap cask and fortified wine
availability) were abolished and replaced with a volumetric tax on wine,
taxation revenue would increase by $1.3 billion per year, alcohol consumption
would be reduced by 1.3 per cent, $820 million would be saved in health care
costs, and 59,000 disability-adjusted life-years would be gained.[126]
These recommendations to reform alcohol taxation and prevent alcohol
sponsorship of sport at a national level were subsequently repeated in the
Northern Territory’s 2017 Alcohol
policies and legislation review final report (‘the Riley
review’).[127]
Since HORSCIA issued this report, in response to the Riley
review, the Northern Territory has introduced a floor price for alcohol, which
is estimated
to have cut consumption of cheap cask (‘goon’) wine by half.[128]
No other jurisdictions have yet followed the NT’s lead.
On alcohol advertising in sport, a 2015
study found that Australian children and adolescents collectively are
exposed to approximately 50 million advertisements for alcohol per year via
advertising in the AFL, NRL and cricket.[129]
This advertising is largely self-regulated by the alcohol industry. The
potential harmful effects are extensively discussed in the Australian
Government Clearinghouse for Sport 2021 report, Alcohol
Sponsorship and Advertising in Sport.[130]
The ALP has not made any recent comment on these
recommendations or related issues.
Relevant measures from the
Gillard/Rudd government
Several measures being advanced by the Gillard/Rudd
government in 2013 were dropped by the incoming Abbott government but remain
relevant to current Aboriginal and Torres Strait Islander policy issues.
Schedule
2 of the Native Title Amendment Bill 2012: good faith negotiations
The Native
Title Amendment Bill 2012 was introduced in the House of Representatives of
the 43rd Parliament on 28 November 2012. According to the Second
Reading speech by Attorney‑General Nicola Roxon, the bill was
intended to ‘make the native title system fairer and more flexible’ and marked
the 20th anniversary of the Mabo decision.[131]
Two Parliamentary inquiries were conducted into the Bill, by
the House of Representatives Standing Committee on Aboriginal and Torres
Strait Islander Affairs[132] and the Senate Legal and Constitutional Affairs Committee.[133]
At the time, some state governments, the Coalition, and some industry interests
did not support the 2012 Bill, but the majority of native title representative
bodies did, as well as a number of interested non-government organisations (see the Bills Digest for a full analysis).[134] The bill was not
further debated before lapsing at dissolution in August 2013.
The bill contained four Schedules. Schedules 1, 3 and 4
were largely duplicated (or equivalent provisions were provided) and enacted in
the Morrison government’s Native Title
Legislation Amendment Act 2021.
Schedule 2 remains unenacted. It proposed to define the
meaning of negotiating in ‘good faith’ under the Act, and the conduct and
effort expected of parties to a potential native title agreement (eg an
Indigenous Land Use Agreement or Future Act Agreement) in seeking to reach a
negotiated agreement. It also proposed to extend negotiating time from six to
eight months before a party could seek compulsory arbitration from the National
Native Title Tribunal (NNTT) or other arbitral bodies,[135]
and to require a party to establish that they had acted in good faith if it had
been alleged that they had not. In explaining the rationale for this Schedule,
Attorney-General Roxon stated:
Many negotiating parties are already building strong and
positive relationships with Indigenous Australians. Many are already fulfilling
these 'good faith' obligations. But there are those, at the fringes, who are
acting capriciously or unfairly, those who are not seriously sitting down at
the table with proposals or offers, or not turning up to meetings regularly and
withholding information which is not commercially sensitive and would assist in
reaching an agreement. There is a minority who are just sitting through
negotiations, waiting for the clock to tick and time to expire before rushing
off to an arbitral body.
The government does not believe these practices are
widespread, but this amendment will clearly set out the expectations of all
parties—both Indigenous and non-Indigenous—in operating under the 'right to
negotiate' regime. This bill is designed to address these types of situations.[136]
In submissions to the Senate inquiry into the Native Title
Amendment Bill 2019 (now the Native Title Amendment Act 2021), the
National Native Title Council (NNTC) drew attention to this schedule, and
recommended that similar measures be enacted.[137]
The NNTC elsewhere stated that, between 2009 and 2017, the NNTT dealt with over
100 applications for compulsory arbitration of the grant of a mining title
because agreement could not be reached between the native title parties and
miners. On only two occasions had there been a determination that the grant of
a mining title could not proceed.[138]
By effectively strengthening the bargaining position of native title parties,
this schedule would contribute to native title holders achieving better
economic outcomes from their land. This would also address recommendations of
the 2022 The
engagement of traditional owners in the economic development of northern
Australia report.[139]
The
Treasury Working Group report: Indigenous Community Development Corporation
The Treasury’s 2013 Taxation of
Native Title and Traditional Owner Benefits and Governance Working Group Report
to Government (‘the Treasury Working Group report’) was commissioned by
the Gillard Government in order to examine options for native title and
traditional owner groups to strengthen governance and promote sustainability of
land-related payments and other benefits.[140]
It particularly responded to a joint proposal by the National Native Title
Council and the Minerals Council of Australia to establish a new form of
non-profit tax-exempt corporation or trust, the Indigenous Community
Development Corporation (ICDC), which could hold and effectively invest
land-related payments to promote economic development in Indigenous
communities. The report recommended (Recommendation 1) that the Government
introduce legislation to make an ICDC-like entity available to Indigenous
communities, and made three other recommendations concerned with regulating
private agents in native title negotiations, native title future act (Section
31) agreements, and responsibility for native title funds.[141]
The second
Rudd Government responded to the Treasury
Working Group report in 2013, accepted all recommendations in principle, and
expressed the intent to pass legislation, but did not put forward legislation
before losing office in September 2013.[142]
Recommendations 3b and 4 were subsequently enacted by the Morrison government’s
Native Title
Legislation Amendment Act 2021.[143]
Acting on the other recommendations, particularly
recommendation 1, would fulfil The
engagement of traditional owners in the economic development of northern
Australia report’s recommendation nine, that the government ‘provide
support for Aboriginal and Torres Strait Islander organisations and traditional
owners to work with mining proponents and pastoral interests to maximise
long-term benefits from agreements’.[144]
According to the Treasury Working Group report, the tax treatment of native
title related payments currently disincentivises long-term investment by native
title holders.[145]
Ratifying ILO Convention 169:
Indigenous and Tribal Peoples Convention
International Labour Organisation (ILO) Convention 169, the Indigenous
and Tribal Peoples Convention (1989) is less well-known than the 2007
United
Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which
Australia has supported since 2009.[146]
However, as a Convention, it has a higher status
in international law, and more defined requirements of signatory states,
than a Declaration.[147]
ILO Convention 169’s Articles cover issues particularly significant to
Aboriginal and Torres Strait Islander peoples, including consultation on
legislation and representative institutions (Article 2), criminal law and
incarceration (Articles 8–10), land rights (Articles 13–19), access to social
security (Article 24) and health services (Article 25), use of Indigenous
languages in schools (Article 28), and historical truth-telling (Article 31).
Australia’s engagement with the Convention might be said to
have begun in 1958, when the Federal Council for Aboriginal Advancement (FCAA,
later FCAATSI) called on
Australia to sign its (now closed) predecessor, ILO
Convention 107, the Indigenous and Tribal Populations Convention (1957).[148]
When ILO Convention 169 was first presented in 1989, Australian delegates
to the ILO voted
in favour of it, and ATSIC
subsequently recommended to the Hawke and Keating governments that
Australia become a signatory (as did Gough Whitlam).[149]
The Hawke government expressed
support but did not proceed to sign the convention.[150]
Active Australian attention to ILO Convention 169 then waned after the
abolition of ATSIC, and international legal attention shifted to the
preparation and negotiation of UNDRIP.
In 2011, the UN Human Rights Council’s
Universal Periodic Review (UPR) first review of human rights in Australia recommended that Australia sign the
convention.[151]
The Gillard government then re-engaged with ILO Convention 169, and
discussed ratification with the states between 2011
and 2013.[152]
Ratification was also supported
by the then-extant National Congress of Australia’s First
Peoples.[153]
After the 2013 election, the incoming Abbott government discontinued
this process.[154]
Ratification of ILO Convention 169 was again recommended by
the UN Human Rights Council’s second UPR of human rights in Australia in 2016 (recommendation
57).[155]
The Turnbull government responded
that the recommendation (and hence the Convention) would not be considered
further at that time.[156]
It seems likely that the UN Human Rights Council will
continue to recommend ratification of ILO Convention 169 in future UPRs.
Ratifying the Convention may therefore deserve proactive consideration by the
Australian government.
[1]. Australian
Labor Party, Labor’s
Commitment To First Nations Peoples, Australian Labor Party policy
document, Election 2022.
[2]. ‘Referendums’,
Australian Electoral Commission.
[3]. Sally McNicol
and James Haughton, ‘Indigenous
Constitutional Recognition and Representation’, Briefing Book: 47th Parliament,
(Canberra: Parliamentary Library, June 2022).
[4]. ‘Fulfilling
the Promise of Uluru’, Australian Labor Party.
[5]. ‘About
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[6]. Yoorrook Justice Commission
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[7]. Australian
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Commitment To First Nations Peoples, ALP policy document, Election
2022, 14.
[8]. Productivity
Commission, Aboriginal
and Torres Strait Islander Visual Arts and Crafts Draft report, July
2022
[9]. House of
Representatives Standing Committee on Indigenous Affairs, Report
on the impact of inauthentic art and craft in the style of First Nations
peoples, (Canberra: The Senate, 2018).
[10]. Australian
Government, Australian
Government response to the House of Representatives Standing Committee on
Indigenous Affairs: Report on the impact of inauthentic art and craft in the
style of First Nations peoples, (Canberra: September 2020).
[11]. Competition and
Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017.
[12]. Competition and
Consumer Amendment (Prevention of Exploitation of Indigenous Cultural
Expressions) Bill 2019.
[13]. Senate
Environment and Communications Legislation Committee, Competition
and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural
Expressions) Bill 2019, (Canberra: The Senate, 2019).
[14]. Jacqueline
Carroll, ‘Indigenous
knowledge: adding value to science and innovation’, FlagPost, (Canberra:
Parliamentary Library, November 2017)
[15]. Australian
Labor Party, Labor’s
Commitment To First Nations Peoples, ALP policy document, Election
2022, 14.
[16]. Australian
National Audit Office (ANAO), Implementation
and Performance of the Cashless Debit Card Trial – Follow-on, 2 June 2022,
Auditor-General Report, No.29, 2021–22, (Canberra: ANAO, 2022).
[17]. Parliamentary
Joint Committee on Human Rights, Review
of Stronger Futures in the Northern Territory Act 2012 and related legislation,
(Canberra: The Parliament, 2016).
[18]. J Rob Bray,
Matthew Gray, Kelly Hand and Ilan Katz, Evaluating
New Income Management in the Northern Territory: Final Evaluation Report,
UNSW Social Policy Research Centre, September 2014.
[19]. Amanda
Rishworth, Explanatory
Memorandum: Social Security (Administration) Amendment (Repeal of Cashless
Debit Card and Other Measures) Bill 2022, 27 July 2022, 2.
[20]. Don
Arthur, ‘Social
Security (Administration) Amendment (Repeal of Cashless Debit Card and Other
Measures) Bill 2022’, Bills Digest, 1, 2022–23, (Canberra:
Parliamentary Library, 2022).
[21]. Anthony Lotric,
‘Where
to for Income Management and the Cashless Debit Card’, Briefing Book: 47th
Parliament, (Canberra: Parliamentary Library, June 2022).
[22]. Australian
Labor Party, Labor’s
Commitment To First Nations Peoples, ALP policy document, Election 2022,
14.
[23]. National
Indigenous Australians Agency (NIAA), ‘The Community
Development Program’, NIAA website.
[24]. National
Indigenous Australians Agency (NIAA), ‘Remote
Engagement Program’, NIAA website.
[25]. Social Security
Legislation Amendment (Remote Engagement Program) Act 2021.
[26]. Matt Thomas and
James Haughton, ‘Social
Security Legislation Amendment (Remote Engagement Program) Bill 2021’, Bills
Digest, 23, 2021–22 (Canberra: Parliamentary Library, October 2021).
[27]. Senate Finance
and Public Administration Legislation Committee, Social
Security Legislation Amendment (Remote Engagement Program) Bill 2021
[Provisions], (Canberra: The
Senate, October 2021).
[28]. National
Indigenous Australians Agency, Community
Development Program (CDP) Head Agreement and Operational Guidance,
(Canberra: NIAA, 2020).
[29]. Senate Standing
Committee on Finance and Public Administration, Social
Security Legislation Amendment (Remote Engagement Program) Bill 2021
[Provisions], (Canberra: The
Senate, October 2021).
[30]. House of
Representatives Standing Committee on Indigenous Affairs, Report
on Indigenous Participation in Employment and Business, (Canberra: The House of Representatives,
August 2021).
[31]. Australian
Government, Australian
Government response to the House of Representatives Standing Committee on
Indigenous Affairs report: Indigenous Participation in Employment and Business,
(Canberra: House of Representatives, March 2022).
[32]. Senate Standing
Committee on Finance and Public Administration, The
appropriateness and effectiveness of the objectives, design, implementation and
evaluation of the Community Development Program (CDP), (Canberra: The
Senate, 2017).
[33]. Australian
Labor Party, Labor’s
Commitment To First Nations Peoples, 19.
[34]. Joint Standing
Committee on Northern Australia, A
Way Forward, (Canberra: The Parliament, 2021).
[35]. Professor
Graeme Samuel, Independent
Review of the EPBC Act – Final Report, (Canberra: Department of
Agriculture, Water and Environment, 2020).
[36]. Heritage Chairs
of Australia and New Zealand, Dhawura
Ngilan: a vision for Aboriginal and Torres Strait Islander heritage in
Australia and the Best Practice Standards in Indigenous cultural heritage
management and legislation, (Canberra: Department of Agriculture, Water and
the Environment, 2020).
[37]. UN General
Assembly, United
Nations Declaration on the Rights of Indigenous Peoples, adopted by
General Assembly on 2 October 2007, A/RES/61/295.
[38]. ‘State of the Environment
report’, Department of Climate Change, Energy, the Environment and Water,
19 July 2022.
[39]. Evan Hamman, ‘Protecting
Indigenous cultural heritage’, Briefing Book: 47th Parliament,
(Canberra: Parliamentary Library, June 2022).
[40]. Trevor Evans, Second
Reading Speech: Aboriginal Land Grant (Jervis Bay Territory) Amendment
(Strengthening Land and Governance Provisions) Bill 2022, House of
Representatives, Debates, 30 March 2022, 1176.
[41]. National
Indigenous Australians Agency (NIAA), CATSI Act Review,
(Canberra: NIAA, 2020).
[42]. Jaan Murphy, ‘Corporations
(Aboriginal and Torres Strait Islander) Amendment Bill 2021’, Bills
Digest, 26, 2021–22, (Canberra: Parliamentary Library, 2021).
[43]. Senate Standing
Committees on Finance and Public Administration, Corporations
(Aboriginal and Torres Strait Islander) Amendment Bill 2021 [Provisions],
(Canberra: The Senate, 2021).
[44]. Corporations
(Aboriginal and Torres Strait Islander) Amendment Bill 2021, Parliament of
Australia website.
[45]. House of Representatives Standing Committee on Indigenous
Affairs, Interim
report on better corporate engagement with Aboriginal and Torres Strait
Islander consumers: and issues paper,
(Canberra: The House of Representatives, March 2022).
[46]. Tony Burke, Aboriginal
and Torres Strait Islander Affairs – Proposed Joint Standing Committee, House
of Representatives, House Votes and Proceedings (proof), 27 July 2022,
63–65. See also Tom Ravlic, ‘Joint
committee a significant move for Indigenous affairs’, The Mandarin,
1 August 2022.
[47]. Senate Standing
Committees on Legal and Constitutional Affairs, ‘Application
of the United Nations Declaration on the Rights of Indigenous Peoples in
Australia’, Parliament of Australia website.
[48]. United Nations
Declaration on the Rights of Indigenous Peoples, adopted by General
Assembly on 13 September 2007, A/RES/61/295.
[49]. Patrick Dodson,
Joint
Standing Committee on Aboriginal and Torres Strait Islander Affairs: Reference,
Senate, Debates, 2 August 2022, 44–45.
[50]. Senate Standing
Committee on Legal and Constitutional Affairs (46th Parliament), ‘Missing
and murdered First Nations women and children’, Parliament of Australia
website.
[51]. Senate
Standing Committee on Legal and Constitutional Affairs (47th Parliament), ‘Missing
and murdered First Nations women and children’, Parliament of Australia
website.
[52]. Sally McNicol, ‘Closing
the Gap’, Briefing Book: 47th Parliament, (Canberra: Parliamentary
Library, 2022).
[53]. Jason Walls, ‘NT
class action looms to recoup stolen wages’, Northern Territory News,
13 July 2019: 1.
[54]. Senate Standing
Committee on Legal and Constitutional Affairs, Unfinished
business: Indigenous stolen wages, (Canberra: December, 2006).
[55]. Australian
Government, Australian
Government response to recommendations from Unfinished business: Indigenous
stolen wages, (Canberra: Department of Families, Housing, Community
Services and Indigenous Affairs, 2013).
[56]. James Haughton,
Compensation
Payments to Aboriginal and Torres Strait Islander Australians,
Flagpost, (Canberra: Parliamentary Library, 7 August 2019).
[57]. Joint Standing
Committee on Northern Australia , The
engagement of traditional owners in the economic development of northern
Australia, Joint Standing Committee on Northern Australia, (Canberra:
The Parliament, January 2022).
[58]. Ibid, xvii–xx.
[59]. James Haughton,
Indigenous
Affairs: leadership, land, economic development and education, Budget
Review 2022–23, (Canberra: Parliamentary Library, 2022).
[60]. Senate Select
Committee on the Effectiveness of the Australian Government’s Northern
Australia Agenda, Report
of the Select Committee on the effectiveness of the Australian Government’s
Northern Australia agenda,
(Canberra: The Senate, 2021).
[61]. ibid,
xiii-xviii; particularly Recommendations 1, 14, 17, 18, and 21–24.
[62]. ibid, 262.
[63]. NIAA, ‘Australian
Government announces a new Indigenous Business and Employment Hub for the NT’,
4 April 2022
[64]. Australian Labor
Party, Labor’s
Commitment To First Nations Peoples, 8-9.
[65]. Australian Labor
Party, ‘Labor’s
Plan to Future-Proof Australia’s Water Resources’, ALP website, 15 June
2022 .
[66]. Australian
Labor Party, ‘A Better
Future for our Regions’, ALP website, 12 May 2022.
[67]. Community
Affairs References Committee, Adequacy
of Newstart and related payments and alternative mechanisms to determine the
level of income support payments in Australia, (Canberra: The Senate,
2020).
[68]. Newstart
Allowance ceased on 20 March 2020. JobSeeker Payment is now the main income
support payment for those between 22 and Age Pension age.
[69]. Community
Affairs References Committee, Adequacy
of Newstart and related payments and alternative mechanisms to determine the
level of income support payments in Australia, 163-172.
[70]. Northern
Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 (the ‘Blue
Mud Bay’ case): for commentary, see L Butterly, ‘A
decade on: What happened to the historic Blue Mud Bay case (and why is it in
the news again)?’, Australian Public Law (blog), 20 June 2017.
[71]. Nigel Scullion
(Minister for Indigenous Australians), ‘Statement
on the Aboriginal Land Commissioner’s Report on Review of Detriment’, 21
February 2019.
[72]. John Mansfield, Report
on Review of Detriment: Aboriginal Land Claims Recommended for Grant But Not
Yet Finalised, report prepared for the National Indigenous Australians
Agency (NIAA), (Canberra: NIAA, 2019).
[73]. Lorena Allam, ‘Aboriginal
land rights claims unresolved despite all-clear from independent review’, The
Guardian, 29 March 2019.
[74]. John Mansfield,
Report
on Review of Detriment: Aboriginal Land Claims Recommended for Grant But Not
Yet Finalised, 15.
[75]. Northern Land
Council, ‘Report
into detriment review tabled in Parliament’, 21 February 2019.
[76]. Lorena Allam, ‘Aboriginal
land rights claims unresolved despite all-clear from independent review’, The
Guardian, 29 March 2019.
[77]. Ibid
[78]. United Nations
Declaration on the Rights of Indigenous Peoples, adopted by General Assembly
on 13 September 2007, A/RES/61/295.
[79]. Australian Law
Reform Commission, Connection
to Country: Review of the Native Title Act 1993 (Cth), ALRC Report,
126, (Canberra: ALRC, April 2015).
[80]. National Native
Title Tribunal, 25
Years of Native Title Recognition, report, 2017.
[81]. Ibid.
[82]. George Brandis,
‘Honouring
Mabo’s Legacy – The Next Phase of Native Title Reform’, James Cook
University Law Review 15, (2017): 47–51.
[83]. Kaushik Ramesh,
James Haughton, Matthew Keene, ‘Native
Title Legislation Bill 2019’, Bills Digest, 21, 2020–21 (Canberra:
Parliamentary Library, 2017).
[84]. Attorney-General’s
Department (AGD), Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Native Title Legislation Amendment Bill 2019, [Submission no. 6],
28 November 2019, 3.
[85]. Senate Standing
Committee on Legal and Constitutional Affairs, Native
Title Legislation Amendment Bill 2019 (Canberra: The Senate, 2019).
[86]. Senate Standing
Committee on Legal and Constitutional Affairs, Native
Title Legislation Amendment Bill 2019, 57.
[87]. Senate Standing
Committee on Legal and Constitutional Affairs, Native
Title Legislation Amendment Bill 2019, 57–58.
[88]. Anne Ruston, Second
Reading Speech: Native Title Legislation Amendment Bill 2020, Senate, Debates,
12 November 2020.
[89]. Australian Law
Reform Commission, ‘Incarceration
rates of Aboriginal and Torres Strait Islander peoples’,ALRC website, 1
December 2016.
[90]. Australian Law Reform Commission,
Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal
and Torres Strait Islander Peoples, ALRC Report, 133, (Canberra: ALRC,
2017).
[91]. Australian Law Reform Commission,
Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal
and Torres Strait Islander Peoples, 13-18.
[92]. Rebekha Sharkie
and Ken Wyatt, Question
in Writing: Incarceration Rates (Question No.214), House of Representatives,
Debates, 25 November 2019, 5827.
[93]. Patrick Dodson
(Shadow Assistant Minister for Indigenous Affairs and Aboriginal and Torres
Strait Islanders) and Mark Dreyfus (Shadow Attorney-General, Shadow Minister
for National Security), ‘Six
Months Since ALRC ‘Pathways to Justice’ Report Released – Still No Response
From the Government’, media release, 18 September 2018.
[94]. ‘National Agreement
on Closing the Gap’, Closing the Gap.
[95]. Australian Labor
Party, Labor’s
Commitment To First Nations Peoples, ALP policy document, Election
2022, 10.
[96]. Australian
Labor Party, Labor’s
Commitment To First Nations Peoples, 12.
[97]. Australian
Human Rights Commission, Wiyi
Yani U Thangani (Women’s Voices), (Canberra: AHRC, 2022).
[98]. House of
Representatives, House
Votes and Proceedings No. 92, 9 December 2020, 1527.
[99]. Australian Human Rights Commission, Wiyi
Yani U Thangani (Women’s Voices) – Implementation Framework (2022), (Canberra: AHRC,
2021).
[100]. Australian Human Rights Commission, Wiyi
Yani U Thangani Community Guide (2020), (Canberra: AHRC, 2020).
[101]. Ken Wyatt (Minister for Indigenous Australians), ‘Wiyi
Yani U Thangani report elevates the voices of Aboriginal and Torres Strait Islander
women’, media release, 10 December 2020.
[102]. Senate Finance and Public Administration Legislation
Committee, Estimates, Official
Committee Hansard, 26 March 2021, 32.
[103]. Department of the Prime Minister and Cabinet (PM&C), Closing
the Gap Commonwealth Implementation Plan
(Canberra: PM&C, 2021), 73.
[104]. Susan Lines, Statement:
Kimberley Aboriginal Women’s Council, Senate, Debates,
12 May 2021.
[105]. Australian Labor Party, Labor’s
Commitment To First Nations Peoples, ALP policy document, Election
2022, 12.
[106]. Australian Human Rights Commission, Wiyi
Yani U Thangani (Women’s Voices) – Implementation Framework (2022).
[107]. House of
Representatives Standing Committee on Indigenous Affairs, Interim
report on better corporate engagement with Aboriginal and Torres Strait
Islander consumers: and issues paper,
(Canberra: The House of Representatives, 2022), iii.
[108]. Tony Burke, Aboriginal
and Torres Strait Islander Affairs – Proposed Joint Standing Committee,
House of Representatives, House Votes and Proceedings (proof), 27 July
2022, 63–65. See also Tom Ravlic, ‘Joint
committee a significant move for Indigenous affairs’, The Mandarin,
1 August 2022.
[109]. House of
Representatives Standing Committee on Indigenous Affairs, ‘Completed
inquiries and reports’, Parliament of Australia.
[110]. Roxanne Fitzgerald, Remote
Northern Territory food prices skyrocket, worries for health of communities,
ABC, 28 June 2022.
[111]. House of
Representatives Standing Committee on Indigenous Affairs, Report
on food pricing and food security in remote Indigenous communities, (Canberra: The House of Representatives, December
2020).
[112]. Australian
Government, Australian
Government response to the House of Representatives Standing Committee on
Indigenous Affairs report: Inquiry into food pricing and food security in
remote Indigenous communities, (Canberra:
The House of Representatives, December 2021).
[113]. Roxanne
Fitzgerald, ‘Remote
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[115]. ‘Northern
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[116]. Australian
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[119]. Isaac Nowroozi
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[120]. Australian
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[123]. National
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[125]. Jess Thompson,
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[126]. C Doran, J
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[131]. Nicola Roxon, Second
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[132]. House of
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[134]. Diane Spooner,
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[135] Under s 38(2) of
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payments to native title parties calculated on the basis of the profit, income
or production of the land use (eg a mine). There is thus a financial incentive
for non-native title land users to seek an arbitrated agreement rather than
agree to any form of royalty or profit-sharing. Cf NNTC, Realising
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[136]. Nicola Roxon, Second
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[137]. Submissions
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[138]. NNTC,
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[142]. Australian
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[143]. Native Title
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[144]. Joint Standing
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[145]. Briefly, this
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native title holder, it is not taxable income; but if the payment is invested
on the native title holder’s behalf, dividends from that investment are taxable
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[148]. Sue Taffe, ‘Behind the
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than to override their laws; therefore consultation with the states and
territories was necessary prior to signing. ‘ILO
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(Geneva: Human Rights Council, 2016).
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