Chapter 5

Land Trusts and the Public Works Committee Act

5.1 Schedule 5 would insert a new section 5A into the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act), which would provide that the Public Works Committee Act 1969 (the PWC Act) does not apply to a Land Rights Act Aboriginal Land Trust. The government indicated that this was a minor amendment to address an issue that, while arising from a legislative amendment made thirty years ago, has been only recently recognised.

5.2 The PWC Act establishes the Joint Parliamentary Standing Committee on Public Works. It examines all public works for the Commonwealth which are estimated to cost more than $15 million, and does so to consider:

the stated purpose of the proposed work and its suitability for that purpose
the need for the work
the cost-effectiveness of the proposal
the amount of revenue it will produce if the work is revenue producing
the current and prospective value of the work.[1]

5.3 The Land Trusts are vehicles that hold title to Aboriginal land in the Northern Territory. A Land Trust operates on the instructions of the relevant Land Council:

it can only act in accordance with directions given to it by the relevant land council, and a land council can only give a direction with the consent of Aboriginal traditional owners and having consulted with other Aboriginals affected by any particular decision.[2]

What is a public work?

5.4 At the time that the Land Rights Act was passed in 1976, there was a relatively simple definition in the PWC Act of those works to which it applied:

''public work'' means a work-

(a) that is proposed to be carried out by or for the Commonwealth within Australia or within a Territory not forming part of Australia; and

(b) in respect of the carrying out of which moneys appropriated by the Parliament are proposed to be expended by the Commonwealth;

5.5 This definition was revised in 1981,[3] becoming more elaborate. The new definition was more complex, and introduced the concept of an 'authority of the Commonwealth'. The new definition of public work included:

(a) a work-

(i) that is proposed to be carried out by or for the Commonwealth, either within or outside Australia; and

(ii) in respect of the carrying out of which moneys appropriated by the Parliament are proposed to be expended by the Commonwealth;

(b) a work-

(i) that is proposed to be carried out, either within or outside Australia, by or for an authority of the Commonwealth to which this Act applies by virtue of section 6A; and

(ii) in respect of the carrying out of which moneys appropriated by the Parliament, or moneys of the authority, are proposed to be expended by the authority; or

(c) a work in respect of which a declaration referred to in sub-section (2) of section 6B is in force,

but does not include-

(d) a work that is proposed to be carried out by or on behalf of the National Capital Development Commission-

(i) for the Commonwealth; or

(ii) for an authority of the Commonwealth to which this Act applies (including that Commission),

unless the work is, under the regulations, a prescribed work for the purposes of this definition; or

(e) a work that is proposed to be carried out by or for the Commonwealth by way of assistance to an overseas country;

5.6 An 'authority of the Commonwealth' was defined as:

(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment;

(b) a body established by the Governor-General or a Minister otherwise than in accordance with an enactment; or

(c) an incorporated company over which the Commonwealth is in a position to exercise control, but does not include an inter-governmental body.

5.7 The 1981 amendments also established a framework for exemptions from the provisions of the PWC Act in a new section 6A. These were:

(1) Subject to sub-section (2), this Act applies to every authority of the Commonwealth.

(2) This Act does not apply to -

(a) an authority of the Commonwealth in respect of which a declaration referred to in sub-section (3) is in force;

(b) the Parliament House Construction Authority; or

(c) an authority of the Commonwealth established for the purpose of providing, or for purposes which include the purpose of providing, tertiary education in the Australian Capital Territory.

(3) Where the Governor-General is satisfied that an authority of the Commonwealth is engaging in trading or other activities, or is providing services, in competition with another body or other bodies, or with persons, the Governor-General may make regulations declaring that this Act does not apply to that authority.[4]

5.8 This provision governing exemptions is the same today as when it was introduced. There was however a period during which the Australian Maritime College was exempted from the PWC Act by being listed in subsection (2). This was added under Statute Law (Miscellaneous Amendments) Act (No. 2) 1982 (No. 80, 1982) and removed by Maritime Legislation Amendment Act 2007 (No. 150, 2007).

Land Trusts and the Public Works Committee Act

5.9 The Explanatory Memorandum for the Bill states:

Aboriginal Land Trusts have not in practice been considered to be Commonwealth authorities to which the PWC Act applies.[5]

5.10 FAHCSIA advised the committee that it had received legal advice that had drawn attention to a possible problem in relation to the application of the PWC Act:

It only came to our attention late last year when we sought legal advice into one of the projects, the community stores project, which was a large project for the Aboriginals Benefits Account funding some community stores, upgrades and rebuilds... it had never been contemplated before that these land trusts would be captured, and once we received that advice there was a question as to whether it was.[6]

5.11 There appeared to be a difference of view between FaHCSIA and the Public Works Committee. The legal advice received by FaHCSIA suggested that the Land Trusts might be captured by the PWC Act, FaHCSIA itself believed they should not be captured by the Act, while the Public Works Committee believed that they currently are subject to its scrutiny.[7]

5.12 FaHCSIA officers explained the need to make the amendment in the context of the history of the PWC Act, and in particular the amended definitions outlined above:

In 1981 there was an amendment going through to the Public Works Committee Act that introduced the concept of Commonwealth authorities. At that stage the concept of land trusts had been in existence for five years. At the time of the amendment going through, our understanding—and I guess the understanding of all of the lawyers that we have had involved—is that there has been no consideration of the fact that land trusts should be captured or be considered to be Commonwealth authorities for the purpose of the PWC. Over the last 30 years it has not come to the fore; it has not been an issue that we know of where there has been legal advice. It is not an issue that the right thing has not been done, but this is the first time that we had advice that said, on balance, that land trusts could be perceived to be Commonwealth authorities for the purpose of the PWC Act. Because it was on balance and it is a matter of 'It could be' we wanted to put that beyond doubt, because it actually starts to raise some issues and we wanted to clarify absolutely that that was not the case.[8]

5.13 As the case of the Australian Maritime College demonstrates, a body has in the past been exempted by inclusion in section 6A of the PWC Act. The committee raised this issue with FaHCSIA. In response, the department indicated:

The amendment could have been put through under either the Public Works Committee Act or the Aboriginal Land Rights (Northern Territory) Act. Given that its scope used to apply only to Aboriginal land trusts, which exist only within the scope of [the Aboriginal Land Rights Act], that was an appropriate place for it to be.[9]

5.14 The committee is aware that the Public Works Committee has expressed concern about ensuring that all relevant works are subject to the scrutiny intended by the Act.[10]

Committee view

5.15 The committee was concerned whether the schedule would set a precedent in how exemptions to the Public Works Committee Act occur. It was concerned that there was a difference of view between that Parliamentary committee and FAHCSIA about the application of the Act.

5.16 Having heard evidence from FaHCSIA, the committee is satisfied that the schedule formalises an arrangement that has been the understanding of FaHCSIA and, crucially, the Land Councils, ever since the Public Works Committee Act was amended in 1981. The committee notes that FaHCSIA advised that the Land Councils 'are comfortable with the amendment as it effectively promotes existing practice'.[11] This is reflected in the Northern Land Council's support for the amendment, saying it 'accords with the practice of all parties since the inception of the land Rights Act 1976'.[12] The committee received no other correspondence from the Land Councils, other Indigenous representatives, or any other stakeholder, suggesting there was any issue with the proposed amendment.

5.17 Finally, the committee notes that the amendment would not alter the basic objective of public works scrutiny, namely that 'if work is undertaken by or for the Commonwealth, even on Aboriginal land trust land, it will be subject to scrutiny by the Public Works Committee'.[13]

5.18 In light of these considerations, the committee does not object to the schedule.

Recommendation 2

5.19 The committee recommends that the Bill be passed.

Senator Claire Moore
Chair

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