Chapter 1
Introduction
1.1
On 24 June 2014, the Aboriginal and Torres Strait Islander Amendment (A
Stronger Land Account) Bill 2014 (Bill) was introduced into the Senate as a
private Senator's Bill by Senator Rachel Siewert.[1]
1.2
On 26 June 2014, the Senate referred the Stronger Land Account Bill to
the Community Affairs Legislation Committee for inquiry and report by 2
September 2014.[2]
The Senate granted extensions of time to report until 29 October 2014[3],
3 December 2014[4],
4 March 2015[5],
and then until 25 March 2015.[6]
Purpose of the Bill
1.3
The Bill seeks to amend the Aboriginal and Torres Strait Islander Act
2005 (ATSI Act) to strengthen Indigenous control over the Aboriginal
and Torres Strait Islander (ATSI) Land Account (Land Account) and the
Indigenous Land Corporation (ILC) by:
-
introducing a clearer purpose for the Land Account, specifying
that it is a compensatory mechanism in acknowledgment of past injustices and
dispossession of traditional lands and acknowledging the special relationship
indigenous people have with their land;
-
preventing the Land Account from being utilised for any purpose
other than the land-related benefit of indigenous people;
-
strengthening indigenous control over the Land Account and the
ILC;
-
introducing strong new measures requiring the ILC to comply with
the highest standards of corporate governance, transparency and accountability;
and
-
introducing measures to ensure the Land Account increases in
value to meet future land acquisition and management needs into the future.[7]
Conduct of the Inquiry
1.4
Details of the inquiry, including a link to the Bill and associated
documents, were placed on the committee's website.[8]
The committee also wrote to 40 organisations and individuals, inviting
submissions by 29 August 2014. Submissions continued to be submitted after that
date.
1.5
The committee received 20 submissions for the inquiry, which are listed
at Appendix 1. All submissions and the transcript may be accessed through the
committee's website.
1.6
The committee held a public hearing on 13 February 2015 at Parliament
House in Canberra. A list of witnesses who appeared at the hearing is at
Appendix 2, and the Hansard transcript is available through the
committee's website.
Background
Aboriginal and Torres Strait
Islander Act 2005
1.7
In 2005, the Aboriginal and Torres Strait Islander Commission (ATSIC)
was abolished through the repeal of the Aboriginal and Torres Strait
Islander Commission Act 1989. ATSIC's functions and responsibilities were
transferred to two organisations—the ILC and Indigenous Business Australia
(IBA)—which are operated under the ATSI Act.
1.8
The ILC is funded through an annual disbursement from the
capital-preserved Land Account.[9]
The Land Account was established for ATSI people that could not benefit from
processes under the Native Title Act 1993 or other legislative land
claim/land acquisition mechanisms.[10]
The Land Account is a Special Account as provided for by section 20(10) of the Public
Governance, Performance and Accountability Act 2013 (PGPA Act) and defined
under the ATSI Act.[11]
This account is the sole source of income for the ILC and is used to assist
indigenous organisations to acquire and manage land 'so as to provide economic,
environmental, social or cultural benefits for Aboriginal persons and Torres
Strait Islanders'.[12]
Historical context for proposed
changes
1.9
Recent events have highlighted potential deficiencies in the current
legislation—in particular, the ILC purchase of the Ayers Rock Resort (ARR), and
recent reviews of the ILC and IBA.
Acquisition of Ayers Rock Resort by
the Indigenous Land Corporation
1.10
On 15 October 2010, ILC acquired a package of Central Australian assets
including the ARR from GPT Limited for $292 million. These assets were
purchased on behalf of the Wana Ungkunytja Aboriginal Corporation which
represents indigenous communities in the Uluru region. This followed
negotiations between ILC and GPT Limited from December 2008 to October 2010.[13]
Prior to the purchase, the Hon Jenny Macklin MP (Minister for Families,
Housing, Community Services and Indigenous Affairs) and Senator the Hon Penny
Wong (Minister for Finance and Deregulation) expressed concern to the ILC about
the acquisition process.[14]
1.11
In May 2013, the new Chair of the ILC Board, Dr Dawn Casey, wrote to
Minister Macklin raising 'serious questions about the decision to acquire ARR
and establish Voyages' and 'concerns in relation to the financial exposure of
the ILC to the ARR project, including its deteriorating financial performance
relative to acquisition forecast performance'.[15]
1.12
In November 2013, Mr Mike Dillon, Chief Executive Officer of the ILC,
outlined the impact of the ARR acquisition on the ILC:
[T]his transaction is going to impact for at least 15 or 20
years on the ILC's core statutory functions—our land acquisition and land
management functions. Of a budget of $50 million each year, which comes from
the land account, around $15 million or so goes on our internal processes. Of
the $35 million available for our core functions, at least $20 million will
have to go to paying off this debt, the interest and the principal.[16]
Recent Reviews of Indigenous Land
Corporation and Indigenous Business Australia
1.13
On 2 December 2013, the Minister for Indigenous Affairs, Senator the Hon
Nigel Scullion commissioned Ernst & Young to conduct a review into the ILC
and IBA, and recommend how to improve the effectiveness of these two bodies.[17]
A report was provided to the Minister on 17 February 2014 and released to the
public on 3 May 2014.[18]
1.14
This review highlighted two broad options that would help to improve the
purpose and governance of these organisations—a reconfigured stand-alone option
(option 3) or new entity recommendations (option 4). Option 3 has five
recommendations that focus on changes to the ILC's purpose, finance and
capital, governance and strategy, indigenous enterprise development, and land
tenure. Although some of the review's recommendations exceed the provisions of
the Stronger Land Account Bill there is clear overlap between some of the Ernst
& Young recommendations and the Bill.[19]
1.15
After releasing the report, the Minister stated:
I will continue to consider future options and will consult
on this matter with relevant stakeholders.[20]
1.16
The National Commission of Audit (NCA) recommends that the ILC and IBA
merge to 'achieve efficiencies, avoid duplication (these organisations already
share a common chair) and be more convenient for clients'.[21]
The Audit also recommends that the Land Account 'should be maintained to
provide a stable revenue stream to fund indigenous land acquisition and
management activities'.[22]
Minister Scullion confirmed this:
I specifically excluded the Land Account from the Ernst and
Young review because it is not the Government's intention to change this iconic
Indigenous fund.[23]
Aboriginal and Torres Strait
Islander Amendment (A Stronger Land Account) Bill 2014
1.17
In 2013, Dr Dawn Casey (ILC Chair) and Mr Mike Dillon (ILC CEO)
conducted a review of the ILC and its governance during the 2010 acquisition of
the ARR. Dr Casey has conveyed the Board's concerns about alleged failings
during this time to the Government.[24]
Further to this, the ILC Board noted in its submission that:
The Stronger Land Account Bill substantially reflects a Draft
Bill released by the ILC on 24 March 2014, and endorsed in principle on the
same day by a group of senior Indigenous leaders, including a number who were
involved in the native title negotiations of the 1990's.[25]
1.18
Upon introducing the Bill into Parliament, Senator Siewert expressed
concern as to whether the Government will accept the recommendations of the NCA
or Ernst & Young reviews, and whether this will compromise the intended
purpose of the ILC and the Land Account.
The Minister for Indigenous Affairs has indicated he is
considering a 'major overhaul' of both the ILC and [IBC]. It is unclear why
Government would consider significant change that has the potential to weaken
the ILC and put the land account at risk...Any new arrangement proposed for the
ILC comes with a risk that funds from the land account will be diverted to
non-land commercial purposes.[26]
At the time of writing, the Minister had not announced any
legislative changes to the ILC, IBA or the Land Account. On 24 October, 2014,
Minister Scullion stated to The Australian that he does not intend to
make changes to the ILC, IBA or the Land Account.[27]
As such, it is not clear which unannounced changes this Bill is seeking to
pre-empt.
Key provisions of the Bill
1.19
This Bill seeks to amend the Aboriginal and Torres Strait Islander
Act 2005 (ATSI Act) as outlined in Table 1 below.
Table 1: Key provisions and purpose of Bill
|
|
Proposed amendments to ATSI Act
|
Purpose of amendments to ATSI Act
|
|
i.
|
Insert Part 1, Division 1A—Objects of Part, section 191AB
Objects of Part
|
introduce
a clearer purpose for the Land Account, specifying that it is a compensatory
mechanism in acknowledgment of past injustices and dispossession of
traditional lands and acknowledging the special relationship indigenous
people have with their land
|
|
ii.
|
Substitute section
192X Purpose of Land Account
|
prevent
the Land Account from being utilised for any purpose other than the
land-related benefit of indigenous people
|
|
iii.
|
Insert section
191XA
Insert section
191XB
Substitute subsection
191X(3)
Substitute section
191L
Insert section
193GA
Insert section
193IA
|
strengthen
indigenous control over the Land Account and the ILC
|
|
iv.
|
Substitute section
191W
Insert section
191X
Insert section
191YA
Insert section
191YB
Substitute section
191Z
Substitute section
192F
Insert
section 192SA
|
introduce
strong new measures requiring the ILC to comply with the highest standards of
corporate governance, transparency and accountability
|
|
v.
|
Substitute subsection
193(3)
Insert subsection
193(5)
Insert section
193G
|
introduce
measures to ensure the Land Account increases in value to meet future land
acquisition and management needs into the future.[28]
|
Consideration of the Bill by other committees
Human Rights
1.20
The Parliamentary Joint Committee on Human Rights considered that the
Bill does not appear to give rise to human rights concerns. The committee noted
that to the extent the Bill strengthens indigenous control over the Land
Account and the ILC, the Bill promotes the right to self-determination in
Article 1 of both the International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the International Covenant on Civil and Political Rights
(ICCPR).[29]
Scrutiny of Bills
1.21
The Senate Standing Committee for the Scrutiny of Bills considered that
Item 21, proposed subsection 192SA(5), may 'insufficiently subject the
exercise of legislative power to parliamentary scrutiny, in breach of principle
1(a)(v) of the committee’s terms of reference.' The committee noted:
Proposed subsection 192SA(5) provides that a determination of
a ‘code of conduct for Indigenous Land Corporation officers’ under subsection
192SA(1) is not a legislative instrument. Such determinations will therefore be
exempt from the operation of the disallowance and sunsetting provisions of the Legislative
Instruments Act 2003 (the LI Act). Given that the code will operate
to impose general obligations on Indigenous Land Corporation officers, such a
determination would appear to fall within the definition of legislative
instrument contained in the LI Act. As the explanatory memorandum does not
justify what appears to be a substantive exemption from the requirements of the
LI Act, the committee seeks the Senator's advice as to the justification for
this exemption.[30]
Acknowledgement
1.22
The committee thanks those organisations who made submissions and who
gave evidence at the hearing.
Note on References
1.23
Reference to the committee Hansard is to the proof Hansard.
Page numbers may vary between the proof and the official Hansard transcript.
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