Bills Digest No. 6, 2018–19
PDF version [624KB]
James Haughton
Social Policy Section
9 August 2018
Contents
The Bills Digest at a glance
Purpose of
the Bill
Structure of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Date introduced: 28
March 2018
House: House of
Representatives
Portfolio: Indigenous
Affairs
Commencement: Sections
1-3 commence on Royal Assent. Schedule 1 and Part 1 of Schedule 2 commence the
earlier of a day fixed by Proclamation, or the day after six months after the
Act receives Royal Assent. Part 2 of Schedule 2 commences on the same date—unless
Schedule 1 of the Aboriginal and Torres Strait Islander Land and Sea Future
Fund (Consequential Amendments) Act 2018 has already commenced, in which
case it does not commence at all.
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 2018.
The Bills Digest at a glance
What the Bill does
The Indigenous Land Corporation
(ILC) was established to assist Aboriginal and Torres Strait Islander people to
acquire and manage land. The Bill extends the remit of the ILC’s functions to
enable it to include water-related functions. Consistent with these broader
functions, the ILC is renamed as the Indigenous Land and Sea Corporation (ILSC).
The amendments in the Bill recognise the evolution of native
title law to include recognition of Aboriginal and Torres Strait Islander
peoples’ traditional rights—not only to land—but also to water and sea.
The Government considers that the Bill is compatible with
human rights because it indirectly advances the right to self-determination and
the right to enjoy and benefit from culture.
Support for the Bill
The Bill is supported by Labor, the Greens, the ILC and a
large majority of Indigenous stakeholders. An inquiry into the Bill was
conducted by the Senate Financial and Public Administration Legislation
Committee which recommended that the Bill be passed subject to a suggested
amendment to address what the Committee considered was a possible drafting
error.
Key issues
Some provisions of the Bill may place some geographical
and financial limitations on Aboriginal and Torres Strait Islander people’s
purchase and use of water-related rights.
As the Bill expands the ILC’s remit without expanding its
budget, it can be expected that the ILC will face increased competition between
Indigenous stakeholder groups for its funding and management assistance, which
may give rise to stakeholder dissatisfaction and calls for increased funding
from government.
Context of the Bill
The Bill is part of a package of three Bills concerning
the ILC which are currently before the House of Representatives. The other two Bills
are:
These two Bills are discussed in a separate Bills Digest.
While the three Bills have been tabled as a package, they
accomplish separate legislative and policy purposes, and the Bill discussed
here does not depend upon the passage of the other two Bills to be effective.
Purpose of
the Bill
The purpose of the Aboriginal and Torres Strait Islander
Amendment (Indigenous Land Corporation) Bill 2018 (the Bill) is to amend the Aboriginal and
Torres Strait Islander Act 2005 (the ATSI Act) to:
- give
the Indigenous Land Corporation (ILC) functions in relation to water-related
rights
- require
the ILC to prepare a National Indigenous Land and Sea Strategy and Regional Indigenous
Land and Sea Strategies
- align
rules for dealings in water-related rights granted by the ILC, or acquired with
ILC assistance, with rules for dealings in land granted by, or acquired with,
ILC assistance
- include
experience in water management as a qualifying criteria for membership of the
ILC Board and
- amend
the ATSI Act and the Remuneration
Tribunal Act 1973 to rename the ILC as the Indigenous Land and Sea
Corporation (ILSC).[1]
Context of the Bill
The Bill is part of a package of three Bills concerning
the ILC which are currently before the House of Representatives. The other two
Bills are:
These two Bills are discussed in a separate Bills Digest.
While the three Bills have been tabled as a package, they
accomplish separate legislative and policy purposes, and the Bill discussed
here does not depend upon the passage of the other two Bills to be effective.
Structure
of the Bill
The Bill contains two Schedules.
Schedule 1 of the Bill has 99 Items:
Items 1–6 insert relevant definitions of
‘indigenous waters’, ‘internal waters of Australia’ (Schedule 1, item 1),
‘water-related rights’ (Schedule 1, item 5) and other, more generic,
terms into the ATSI Act.
Items 7–44 updates all sections of Part 4A of the ATSI
Act (which relates to the ILC and Aboriginal and Torres Strait Islander
Land Account) relating to the ILC’s land acquisition, loans and grants, management,
divestment, et cetera, functions to also empower the ILC to acquire, make loans
and grants for, manage and divest water-related rights (except section
191E(1)(b), which currently grants the ILC the power to carry out land management
activities on ILC land, is left partly unamended in a possible drafting error).
Items 45–72 change the existing requirements on the
ILC to prepare National and regional land strategies to require the ILSC to
prepare National and regional ‘land and sea’ strategies (‘land and sea’ is
understood to include fresh water). Item 68 removes an obsolete
requirement that the ILC consult the former Aboriginal and Torres Strait
Islander Commission (ATSIC) Regional Councils (abolished in 2005 when ATSIC was
abolished) when formulating regional strategies, instead giving the ILSC Board
the power to consult any persons or bodies the ILSC Board considers
appropriate.
Items 73–98 update Division 4 of Part 4A of the ATSI
Act, which concerns disposal of land obtained with ILC assistance, to cover
disposal of water-related rights obtained with ILC assistance.
Item 99 delays the requirement on the ILC to
produce national and regional land and sea strategies by six months from
commencement, in order to give the ILC time to prepare these revised
strategies.
Schedule 2 of the Bill has two Parts:
Part 1, items 1–106, renames the ILC as the
Indigenous Land and Sea Corporation (ILSC) and makes appropriate amendments to
the ATSI Act and the Remuneration Tribunal Act. This renaming
does not change the corporate continuity or identity of the corporation.
Part 2, items 107–110, amends sections of the ATSI
Act which concern the Aboriginal and Torres Strait Islander Land Account to
refer to the ILSC instead of the ILC. As the Aboriginal and Torres Strait
Islander Land Account is being repealed by the Consequential Amendments Bill,
to be replaced by a new Aboriginal and Torres Strait Islander Land and Sea
Future Fund under the ATSI Land and Sea Future Fund Bill (currently before
Parliament), this part of the Bill only takes effect if the Consequential
Amendments Bill has not commenced at the time the Bill commences, and
consequently the Aboriginal and Torres Strait Islander Land Account continues
to exist in its current form.
Background
Development of land and water
rights
The Land Rights Act
In 1974 the Woodward Royal Commission recommended that sea
waters up to two kilometres beyond the boundary of an Aboriginal land grant
should be deemed part of that land. The Aboriginal Land
Rights (Northern Territory) Act 1976 (the Land Rights Act)
enacted by the Fraser Government did not include this offshore ‘buffer zone’ or
other water rights. Instead, the Land Rights Act gave the Northern Territory
Legislative Assembly the power to make certain laws regarding access, fishing,
wildlife and sacred sites.[2]
A significant proportion of still unfinalised Land Rights claims under the Land
Rights Act concern claims over the beds and banks of rivers,
inter-tidal zones, and other such areas which were left in an ambiguous state
as a result of the Land Rights Act not explicitly providing for waters
and lands beneath waters.[3]
Response to the Mabo decision
The Keating government responded to the High Court’s
decision in Mabo v Queensland [No. 2] (1992)[4]
in a number of ways:
- first
it enacted the Native Title Act 1993
- second
it established the ILC and the associated Land Fund (subsequently the Land
Account) to acknowledge that many dispossessed Indigenous people would be
unable to regain control of land under the Native Title Act (either
because of historical extinguishment or disconnection from traditional lands).
The creation of the ILC was intended to complement native title laws and assist
dispossessed Aboriginal and Torres Strait Islander people to acquire and manage
land[5]
and
- the
third part was intended to be a social justice package which, apart from the
creation of the office of the Aboriginal and Torres Strait Islander Social
Justice Commissioner, was not legislated before the Keating Government lost
office.
Developments in case law and
state/territory law
Developments in native title case law following the
passage of the Native Title Act and the establishment of the ILC
clarified that the common law was capable of recognising native title rights with
respect to the use of water, and the taking of resources from waters, for any
purpose including commercial purposes.[6]
Parallel developments recognising Indigenous rights over
waters include the recognition of rights over inter-tidal zones and fisheries under
the Land Rights Act arising from decisions such as Northern Territory
v Arnhem Land Aboriginal Land Trust (2008) (widely known as
the Blue Mud Bay case).[7]
Subsequently, in 2017, the Minister for Indigenous Affairs Nigel Scullion
announced a grant of $7.5 million to the Northern Land Council to assist with
finalising unresolved claims over intertidal areas and river beds under the Land
Rights Act in the post Blue Mud Bay era, and a review of relevant issues by
the Aboriginal Land Commissioner.[8]
Indigenous water rights have increasingly been incorporated into other state
and territory legislation and water policy, although not without contestation.[9]
Support for UNDRIP
The UN Declaration
on the Rights of Indigenous Peoples (UNDRIP), adopted by the
General Assembly of the United National in 2007 also recognised indigenous
rights to water. Australia has supported UNDRIP since 2009.
These developments in the law and public policy
acknowledge the relationships of Aboriginal and Torres Strait Islander peoples
to waterscapes and their view that land and water are inseparable. As Collings
and Falk explain:
In Aboriginal culture in Australia, there is no clinical
distinction between land and water, either of water that flows over the land,
rests upon it or flows beneath it. Land and Water interface as equal components
of country.[10]
This Bill and the evolution of native title law it recognises
can be seen as a return to the more expansive Whitlam-era concept of land
rights which included water rights.
Consultation
From July to September 2017, the ILC consulted Aboriginal
and Torres Strait Islander people across Australia about including freshwater
and sea country in the ILC’s remit. A clear majority (81% of forum participants
and 83% of submissions received) supported expanding the ILC’s functions to
water.[11]
A few stakeholders expressed concerns that the ILC’s
resources would be ‘overburdened’ attempting to support Indigenous groups to
acquire water as well as land resources, and that the ILC would be departing
from its original mandate or would be in competition with other groups by doing
so.[12]
Committee
consideration
Senate Finance and Public
Administration Legislation Committee
The Bill was referred to the Senate Finance and Public
Administration Legislation Committee (the Committee) on 28 March 2018 for
inquiry and report by 8 May 2018.[13]
The inquiry considered all three of the Bills in the legislative package.
The Committee noted strong support for this Bill from almost
all submitters to the inquiry and in the consultations conducted by the ILC.[14]
Whilst the Committee noted that ‘there were concerns around the management of
the ILC and its resources’ it also noted that those concerns were ‘unrelated to
the Bills’ before it.[15]
The Committee noted an issue raised by the ILC in their
submission, being an omission from the Bill in relation to the current paragraph
191E(1)(b) of the ATSI Act, which enables the ILC to carry out land
management activities on land held by it. The Bill currently does not include
an amendment to this provision which explicitly references water. Accordingly,
the Committee recommended that the Bill be amended to ensure that the ATSI
Act gives the ILC ‘management of water or waters for which the Indigenous
Land Corporation has water-related rights’.[16]
Subject to this recommendation, the Committee recommended that the Bill be
passed.[17]
Senator Siewert, of the Australian Greens (the Greens),
concurred with these recommendations.[18]
Australian Labor Party (Labor) Senators on the Committee noted
the ‘complex overlapping jurisdictions and regulatory schemes governing water’,
and recommended the Bill should make clear that the ILC has the right to hold
water licenses in all jurisdictions, regardless of any potential limitations
placed on licensing by state or territory governments.[19]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
considered the Bill in Scrutiny Digest 5 of 2018, and made no comment.[20]
Policy
position of non-government parties/independents
Labor and Greens Senators on the Committee made additional
comments in relation to the Bill which are summarised above. At the time of
writing, no other parties or independents had expressed positions, and the Bill
had not yet been debated in the House of Representatives.
Position of
major interest groups
The ILC and almost all Indigenous stakeholders who made
submissions to the Committee—in particular the Torres Strait Regional
Authority— supported the extension of the ILC’s powers to water.[21]
The National Congress of Australia’s First Peoples’ submission
to the Committee expressed doubts that the ILC would be competent to manage
water-related rights given its past performance in managing land and property,
and suggested that a different specialist Indigenous water-management agency
might be better placed to do so.[22]
Extension of the ILC’s powers to water was almost
unanimously (more than 80%) supported by Indigenous stakeholders in the
community consultations carried out by the ILC.
Financial
implications
The Government has stated that there are no financial
implications arising from this Bill.[23]
However, the extension of the ILC’s remit without any expansion in its budget
may give rise to ILC or stakeholder requests for additional funding in future.
This is discussed in ‘Key Issues and provisions’ below.
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.[24]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights examined
the Bill in its Report 4 of 2018 and considered that it did not raise human
rights concerns.[25]
Key issues
and provisions
Key Issue – Committee recommendation
on ILC management functions
Section 191C of the ATSI Act sets out the functions
of the ILC. Essentially these are land acquisition functions and land
management functions. The Bill amends these terms so that they become general
acquisition functions and management functions.[26]
The description of acquisition functions in section 191D of the ATSI Act
is amended to make clear that the acquisition functions include
water-related rights.[27]
Similarly the description of the management functions in section
191E of the ATSI Act is amended to make clear that the management
functions include to carry on, or arrange for the carrying on of,
management activities in relation to indigenous waters.[28]
Further item 27 of Schedule 1 to the Bill repeals and replaces
paragraphs 191E(1)(d)–(f) so that the management functions of the ILC include:
- to
make grants of money for the carrying on of management activities
in relation to indigenous-held land and indigenous waters
- to
make loans of money (whether secured or unsecured) for the purpose of carrying
on management activities in relation to indigenous-held land and indigenous
waters and
- to
guarantee loans made for the purpose of carrying on management activities in
relation to indigenous-held land and indigenous waters.
What constitutes management activities is
set out in detail in proposed subsection 191E(5) inserted by item 37
of the Schedule 1 to the Bill. The activities include but are not limited to:
- carrying
on a business that involves the use, care or improvement of land, water or
waters[29]
- providing
certain services (whether on a commercial basis or otherwise) in connection
with a business that involves the use, care or improvement of land, water or
waters[30]
- providing
training (whether on a commercial basis or otherwise) in the skills and
knowledge relevant to the carrying on of a business that involves the use, care
or improvement of land, water or waters or the managed use, care or improvement
of land, water or waters.[31]
As stated above, the Committee noted that the Bill does
not amend subsection 191E(1)(b) of the ATSI Act to explicitly enable the
ILC to carry out management activities on indigenous waters for which it holds
a water-related right. Paragraph 191E(1)(b) currently reads ‘to carry on, or
arrange for the carrying on of, land management activities in relation to land
held by the Indigenous Land Corporation;’. Item 25 of the Bill merely
alters this to read ‘to carry on, or arrange for the carrying on of, management
activities in relation to land held by the Indigenous Land Corporation;’ which
could be read as not applying to water.
However any concerns may be allayed by item 26
which inserts proposed subsection 191(E)(ca) to allow the ILC ‘to carry on,
or arrange for the carrying on of, management activities in relation to
indigenous waters’.
In addition, the power to conduct water management
activities appears to be encompassed by the drafting in item 37 of proposed
subsection 191E(5) which, as stated above, sets out in detail the
activities which are management activities.
Key issue—Labor comment on
potential limitations
Labor senators on the Committee recommended that the Bill
should ‘make clear that the ILC has the right to hold water licenses in all
jurisdictions, regardless of any potential limitations placed on licensing by
state or territory governments’. This may have reflected concern expressed in
some of the ILC’s community consultations that existing state and territory
legislation could impede Indigenous people’s realisation of water interests.[32]
It is not clear what potential limitations the Labor
senators may have had in mind, as section 109 of the Constitution
provides that a Commonwealth law prevails over a state or territory law to the
extent of any inconsistency, and any attempt by states or territories to
specifically prevent the ILSC (as an Indigenous body) from purchasing or
otherwise legally acquiring water licences or property in general would
probably fall foul of the Racial
Discrimination Act 1975 (as established by the High Court in the
Koowarta v Bjelke-Petersen case).[33]
Key issue—restriction to Australian
waters
Section 191B of the ATSI Act provides that the
first purpose of the ILC is to assist Aboriginal persons and Torres Strait
Islanders to acquire land. Item 7 of Schedule 1 to the Bill amends this
purpose (paragraph 191B(a)) to include water-related rights. That
term is defined in item 6 (which inserts proposed section 4C(1) into
the ATSI Act) as any legal or equitable right or interest in, or in
relation to, water or waters (including the internal waters of Australia)
within the outer limits of the exclusive economic zone of Australia.[34]
The terms of proposed subsection 4C(1) are in
keeping with the purpose of the ILSC, to enable Aboriginal and Torres Strait
Islander people to purchase Australian land and water-related rights to
compensate for their previous dispossession of lands and waters. However, this
limitation to Australian waters might restrict the operation of the ILSC in the
Torres Strait and Northern Australia. For example, if a Torres Strait Islander
corporation were to seek to obtain water-related rights (for example, fishing
rights) which might be made available for purchase by the Papua New Guinean or
Indonesian governments in waters in the exclusive economic zones of these
immediately neighbouring states, the ILSC would be unable to assist them to do
so, even though those waters might form part of their traditional fishing
grounds.[35]
Key issue—encumbered water assets
Section 191S of the ATSI Act currently provides
that a body corporate which has acquired land with the ILC’s direct or indirect
assistance cannot dispose of or give a charge over the land without the ILC’s
consent.[36]
Items 74–78 of Schedule 1 to the Bill amend section 191S to also apply to
water rights.
Since the passage of Prime Minister and
Cabinet Legislation Amendment (2017 Measures No. 1) Act 2018 in February 2018, the Department of the
Prime Minister and Cabinet and the ILC’s ‘sister body’ Indigenous Business
Australia (IBA) have had the power to waive the requirement of consent to
dispose of or give a charge over assets held by Indigenous body corporates. In
contrast, the ILC can only waive this consent over lands in which it
‘inherited’ consent requirements from the former Aboriginal and Torres Strait
Islander Commission (ATSIC), but not over lands that the ILC itself has assisted
body corporates to acquire.[37]
The consent requirement is regarded by banks and other
financial entities as an encumbrance that prevents them issuing loans against
the land, and so limits the ability of the landholders to use the land as a
security.[38]
Similar limitations would presumably apply to any water rights obtained under
the Bill. Thus holders of water rights gained with the ILSC’s assistance might
find themselves unable to use those rights as a security, or, owing to the
extra step of obtaining consent to each trade, might experience difficulties in
trading them in water markets with frequent trades such as those in the Murray
Darling basin.
Key issue—reference to ‘sea’ in the
new name
Schedule 2 of the Bill renames the ILC as the Indigenous Land
and Sea Corporation and makes consequent amendments to the ATSI Act and
the Remuneration Tribunal Act. The ILC raised concerns about the
possibility of 'uncertainty among stakeholders about the inclusion of
fresh-water country within the remit of the ILC' as the new name describes the
organisation as the Indigenous Land and Sea Corporation. The ILC has proposed a
preamble to the ATSI Land and Sea Future Fund Bill which would clarify this
matter (as well as other matters specific to that Bill).[39]
The proposal for a new preamble was not supported by the Government.
Key issue—increased pressure on
ILSC resources
While approving the extension of the ILC’s remit to
include water, a number of stakeholders in the ILC’s consultation process
raised concerns that this would increase the competition for limited ILC funds
and management resources between Aboriginal and Torres Strait Islander groups
seeking ILC assistance, as the number of potentially purchasable assets and
rights has expanded but the ILC’s annual budget has not. The ILC expressed the
view that Aboriginal and Torres Strait Islander organisations would have to
accept ‘competition’ for ILC funds as a reality.[40]
This increased competition for funds and for attention and
assistance from ILSC management and staff may lead to increased stakeholder
dissatisfaction with the ILSC’s performance, and/or stakeholder requests to
increase the ILSC’s capital base and hence flow of funds through an increased
appropriation, in future. In one sign of this potential dissatisfaction, a
submission from the National Congress of Australia’s First Peoples to the
Committee inquiry expressed doubts that the ILC could competently expand its
activities to manage water-related rights given its past performance in
managing land and property, and suggested that a different specialist
Indigenous water-management agency might be better placed to do so.[41]
It might be argued that the reforms to the ILC’s Special
Account proposed in the ATSI Land and Sea Future Fund Bill (which are discussed
in detail in a separate Bills Digest) will address concerns about the ILC’s
funding. However, while that Bill places the ILC’s special account capital base
on a more financially sustainable footing, it does not increase the ILC’s
annual funding; in fact, the abolition of mandatory additional payments means
that, in the absence of discretionary payments (which are made at the
discretion of relevant Ministers), the ILC’s annual funding will be limited to
its base value of $45 million (in 2010 dollars) + a CPI-linked indexation
factor in future.[42]
In the short term, the demands on the ILC’s funds are likely to intensify
rather than diminish.
[1]. All
references in this Bills Digest to the ILC should be understood to also refer
to its future existence as the ILSC unless stated otherwise.
[2]. S
Brennan, ‘Wet
or dry, it's Aboriginal land: the Blue Mud Bay decision on the intertidal zone’,
Indigenous Law Bulletin, (7)7, 2008, pp. 6–9. Aboriginal Land
Rights (Northern Territory) Act 1976, section 73.
[3]. These
issues are currently the subject of a review
by the Aboriginal Land Commissioner, requested by Minister Scullion on
6 July 2017 and due to report 31 December 2018. N Scullion (Minister for
Indigenous Affairs), Terms
of Reference: Review of Detriment - Aboriginal land claims recommended for
grant but not yet finalised, PM&C, 6 July 2017, p. 1.
[4]. Mabo
v Queensland [No. 2] (1992) 175 CLR 1, [1992]
HCA 23.
[5]. Explanatory
Memorandum, Aboriginal and Torres Strait Islander Amendment (Indigenous
Land Corporation) Bill 2018, p. 3.
[6]. Significant
cases included Akiba v The Commonwealth (2013) 250 CLR 209, [2013]
HCA 33 which recognised a native title
right to take fish for commercial purposes in the waters of the Torres Strait
and Rrumburriya Borroloola Claim Group v Northern Territory (No 2), [2016]
FCA 908.
[7]. Northern
Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24, [2008] HCA 29.
[8]. N
Scullion (Minister for Indigenous Affairs), $7.5
million investment in NT sea country, media release, 30 May 2017; N
Scullion (Minister for Indigenous Affairs), Terms
of Reference: Review of Detriment - Aboriginal land claims recommended for
grant but not yet finalised, op. cit.; L Butterly, ‘A
decade on: what happened to the historic Blue Mud Bay case (and why is it in
the news again)?’ AusPubLaw, blog, 20 June 2017.
[9]. K
Taylor, ‘Can
Australia afford to ignore First People’s water rights?’, Global Water
Forum, blog, 11 September 2017; K Lindsay, ‘A
draft Aboriginal Culture and Heritage Bill released for consultation in NSW’,
SBS NITV Radio, transcript, 27 February 2018.
[10]. N Collings and V Falk, ‘Aboriginal peoples in Australia and their
spiritual relationship with waterscapes’ in E Johnston, M Hinton and D
Rigney (eds), Indigenous Australians and the law, 2nd ed,
Routledge-Cavendish, London, 2008, p. 131.
[11]. Indigenous
Land Corporation, Consultation
discussion paper, June 2017, pp. 5–6.
[12]. Indigenous
Land Corporation (ILC), Summary
report on stakeholder consultation regarding proposed reform to the Aboriginal
and Torres Strait Islander Act (2005), ILC, 2017, pp. 5–7.
[13]. Submissions
to the Committee, and the final report are available on the inquiry
homepage.
[14]. Senate
Finance and Public Administration Legislation Committee, Aboriginal
and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018
[Provisions] and related Bills, The Senate, Canberra, May 2018, p. 9.
[15]. Ibid.,
p. 11.
[16]. Ibid.,
p. 13.
[17]. Ibid.,
p. 14.
[18]. Australian
Greens, Additional
comments, Senate Finance and Public Administration Legislation Committee, Inquiry
into the provisions of the Aboriginal and Torres Strait Islander Amendment
(Indigenous Land Corporation) Bill 2018 and related Bills, The Senate,
Canberra, May 2018, p. 20.
[19]. Australian
Labor Party, Additional
comments, Senate Finance and Public Administration Legislation Committee, Inquiry
into the provisions of the Aboriginal and Torres Strait Islander Amendment
(Indigenous Land Corporation) Bill 2018 and related Bills, The Senate,
Canberra, May 2018, p. 15.
[20]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 9 May 2018, p. 5.
[21]. Senate
Finance and Public Administration Legislation Committee, Aboriginal
and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018
[Provisions] and related Bills, op. cit., p. 9; Torres Strait Regional
Authority, Submission
to Senate Finance and Public Administration Legislation Committee, Inquiry
into Aboriginal and Torres Strait Islander Amendment (Indigenous Land
Corporation) Bill 2018, Aboriginal and Torres Strait Islander Land and Sea
Future Fund Bill 2018 and the Aboriginal and Torres Strait Islander Land and
Sea Future Fund (Consequential Amendments) Bill 2018 [Provisions],10 April
2018.
[22]. National
Congress of Australia’s First Peoples (NCAFP), Submission
to Senate Finance and Public Administration Legislation Committee, Inquiry
into Aboriginal and Torres Strait Islander Amendment (Indigenous Land
Corporation) Bill 2018, Aboriginal and Torres Strait Islander Land and Sea
Future Fund Bill 2018 and the Aboriginal and Torres Strait Islander Land and
Sea Future Fund (Consequential Amendments) Bill 2018 [Provisions], April
2018.
[23]. Explanatory
Memorandum, Aboriginal and Torres Strait
Islander Amendment (Indigenous Land Corporation) Bill 2018, p. 5.
[24]. The
Statement of Compatibility with Human Rights can be found at pages 16–19 of the
Explanatory
Memorandum to the Bill.
[25]. Parliamentary
Joint Committee on Human Rights, Report,
4, 8 May 2018, p. 96.
[26]. Items
9 and 10 of Schedule 1 to the Bill amend paragraphs 191C(a) and 191C(b)
respectively.
[27]. Items
11—21 of Schedule 1 to the Bill.
[28]. ATSI
Act, proposed paragraph 191E(1)(ca) inserted by item 26 of
Schedule 1 to the Bill.
[29]. ATSI
Act, proposed paragraph 191E(5)(a).
[30]. ATSI
Act, proposed paragraph 191E(5)(b).
[31]. ATSI
Act, proposed paragraph 191E(5)(d).
[32]. ILC,
Summary
report on stakeholder consultation regarding proposed reform to the Aboriginal
And Torres Strait Islander Act (2005), op. cit., p. 6.
[33]. Koowarta
v Bjelke-Petersen (1982) 153 CLR 168, [1982]
HCA 27.
[34]. Inserted
by item 6 of Schedule 1 to the Bill.
[35]. Boundary
and fishing rights in the Torres Strait between Papua New Guinea and Australia
are defined by the 1978 Treaty
between Australia and the Independent State of Papua New Guinea concerning
Sovereignty and Maritime Boundaries in the area between the two Countries,
including the area known as Torres Strait, and Related Matters, done in
Sydney on 18 December 1978, 1985 ATS 4 (entered into force 15
February 1985). Issues regarding the management of fisheries in the Torres
Strait are discussed in the Foreign Affairs, Defence and Trade References
Committee report The
Torres Strait: Bridge and Border, The Senate, November 2010.
[36]. ATSI
Act, subsection 191S(2). The term charge means a charge
created in any way and includes a mortgage and an agreement to give or execute
a charge or mortgage, whether upon demand or otherwise.
[37]. N
Scullion, ‘Second
reading speech: Prime Minister and Cabinet Legislation Amendment (2017 Measures
No. 1) Bill 2017’, Senate, Debates, 13 February 2018, p. 864.
[38]. Ibid.
[39]. ILC,
Submission
to Senate Finance and Public Administration Legislation Committee, Inquiry
into Aboriginal and Torres Strait Islander Amendment (Indigenous Land
Corporation) Bill 2018, Aboriginal and Torres Strait Islander Land and Sea
Future Fund Bill 2018 and the Aboriginal and Torres Strait Islander Land and
Sea Future Fund (Consequential Amendments) Bill 2018 [Provisions], op.
cit.
[40]. ILC,
Summary
report on stakeholder consultation regarding proposed reform to the Aboriginal and
Torres Strait Islander Act (2005), ILC, 2017, pp. 5–7.
[41]. National
Congress of Australia’s First Peoples (NCAFP), Submission
to Senate Finance and Public Administration Legislation Committee, Inquiry
into Aboriginal and Torres Strait Islander Amendment (Indigenous Land
Corporation) Bill 2018, Aboriginal and Torres Strait Islander Land and Sea
Future Fund Bill 2018 and the Aboriginal and Torres Strait Islander Land and
Sea Future Fund (Consequential Amendments) Bill 2018 [Provisions].
[42]. Changes
to the ILC’s annual funding as a result of the ATSI Land and Sea Future Fund
Bill are discussed in more detail in the (forthcoming) Bills Digest to that
Bill. Abolition of mandatory additional payments from the existing Land Account
to the ILC received broad stakeholder support in the ILC’s stakeholder
consultation process: ILC, Summary
report on stakeholder consultation regarding proposed reform to the Aboriginal and
Torres Strait Islander Act (2005), op. cit.
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