Bills Digest 112 1995-96
Aboriginal and Torres Strait Islander Commission Amendment Bill (No. 2)
1996
WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments.
This Digest was available from 1 July 1996
CONTENTS
Date Introduced: 20 June 1996
House: Senate
Portfolio: Aboriginal and Torres Strait Islander Affairs
Commencement: Royal Assent
The Aboriginal and Torres Strait Islander Commission Amendment Bill
(No. 2) has a number of provisions affecting the Indigenous Land Corporation
(ILC) including:
- ensuring that when making decisions, the ILC takes into account the
needs of Aborigines and Torres Strait Islanders who are most disadvantaged
with regards to access to lands;
- enabling the ILC to make grants of land, or money to buy land, or
to stand guarantor to Aboriginal or Torres Strait Islander corporations,
the trustess of indigenous trusts, or, in exceptional circumstances,
individuals or partnerships; and
- empowering the Minister to make additional appointments from time
to time to the board of the ILC.
The Bill also contains provisions affecting the Aboriginal and Torres
Strait Islander Commission (ATSIC) including:
- empowering the Minister to sack a full-time commissioner or chairperson
of a cegional Council who takes additional paid employment without written
consent; and
- preventing a Commissioner or a Regional Councillor who has been removed
from office by ATSIC for misbehaviour, from standing at the next round
of elections.
The first land acquisition programs(1)
The history of land acquisition programs in Australia has been chequered.
The first Commonwealth-funded land acquisition program for Aboriginal
people, the Aboriginal Land Fund Commission, was established in May 1975
by the Whitlam government. It had its origins in the 1973 recommendation
by Justice Woodward that the Commonwealth establish a fund to buy land
for Aboriginal groups in all parts of Australia. However, it was beset
with conflict and controversy, and in 1980, it was abolished, its functions
taken over by the newly created Aboriginal Development Corporation (ADC).
The functions of the new body were expanded to include providing loans
and grants to Aboriginal communities for housing and business enterprises.
In March 1990, the ADC handed its functions over to the new Aboriginal
and Torres Strait Islander Commission - the government's principle agency
for administering Aboriginal affairs and land acquisition programs.
Then, in November 1993, the government announced it would be establishing
a new land fund. This was to be the second component of a three-pronged
response to the High Court's decision in Mabo v Queensland [No. 2](2),
(the other components being native title legislation and a social
justice package).
The government believed a land fund was necessary, because, whilst Mabo
recognised the existence of native title, the court said native title
only survived if the traditional owners had maintained their connection
with the land, and if no inconsistent title had been granted.
This meant that most Aboriginal people would not benefit because they
had been previously dispossessed
The government established the National Aboriginal and Torres Strait
Islander Land Fund under Section 201 of the Native Title Act 1993.
The detail of the fund's operations was to be left to regulation.
In his second reading speech to the Native Title Act 1993, Prime
Minister Keating said:
While these communities remain dispossessed of land their economic
marginalisation and their sense of injury continues. As a first step,
we are establishing a land fund. It will enable indigenous people to acquire
land and to manage and maintain it in a sustainable way in order to provide
economic, social and cultural benefits for future generations.(3)
The 1994 budget allocation $200 million to the fund for the 1994-95
financial year. Subsequently, however, the government wanted to refine
the fund's operation, and on 30 June 1994, introduced the ATSIC Amendment
(Indigenous Land Corporation and Land Fund) Bill 1994 into the House
of Representatives.
Senate amendments to the ATSIC Amendment (Indigenous Land Coporation
and Land Fund) Bill 1994
The ATSIC Amendment (Indigenous Land Corporatin and Land Fund BIll
1994) met resistance in the Senate, which proposed a series of amendments.
The Bill was eventually replaced by the Land Fund and Indigenous Land
Corporation (ATSIC Amendment) Bill 1994. This Bill incorporated about
30 of the Senate amendments to the earlier Bill, but ommitted about 40.
Amendments the government did NOT adopt included:
- requiring the ILC to give priority to the 'most severely dispossessed
of their traditional lands';
- providing that the ILC may grant land and money to Aboriginal or Torres
Strait Islander individuals and trusts as well as coporate bodies;
- requiring the Minister to have regard to the needs of the broader
Aboriginal and Torres Strait Islander communities when making appointments
to the ILC board, and reducing ATSIC representation.
This Bill was assented to on 29 March 1995 and proclaimed on 1 June
1995.
The new land fund
The Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act
1995 established the Aboriginal and Torres Strait Islander Land Fund
which took over the money allocated to the land fund established by the
Native Title Act. Under the new fund, land management money was
to be spent on any indigenous-held properties, not just those acquired
under the fund. Land acquired by the ILC was to be granted to Aboriginal
or Torres Strait Islander corporations. The fund's operating details were
also now contained in the Act rather than left to regulations.
The Act established the land fund as a Government trust account, managed
in accordance with the Audit Act. An indexed amount of $121 million was
to be allocated annually from Consolidated Revenue from the 1995-96 financial
year to the 2003-4 financial year. The return on land fund investment
was to go to Consolidated Revenue but would be returned to the fund by
way of a standing appropriation. Thereafter, the fund was to have sufficient
capital to make payments to the Indigenous Land Corporation (ILC) from
the interest generated by its investments. The land fund itself was to
remain the property of the Commonwealth.
.
Coalition election promises
The Aboriginal and Torres Strait Islander Commission Amendment Bill
implements many of the Coalition's pre-election promises contained
in its Aboriginal and Torres Strait Islander Affairs Policy.
Some of the amendments to the earlier ATSIC Amendment (Indigenous
Land Corporation and Land Fund) Bill 1994 which were passed by the
Senate but ignored by the previous government when finalising its Bill,
have also resurfaced.
These include:
- requiring the ILC to give priority to those most disadvantaged through
lack of access to land (the previous Senate amendment referred to 'most
dispossessed');
- widening the ILC's power to enable it to grant land to Aboriginal
trusts, partnerships, or individuals; and
- broadening the ILC's membership.
However, the Government has said it won't be fulfilling its promise
to provide an additional $3 million grant to the ILC each year for administration.
In the second reading speech, the Minister for Aboriginal and Torres Strait
Islander Affairs, the Hon. John Herron said:
In a general climate of budgetary restraint we will not seek
to appropriate an additional allocation for the ILC's addministrative
costs. Instead, we will require the ILC to ensure that its administrative
costs are kept as low as possible and within the comparison with other
program delivery agents.
The Coalition has also decided against putting into law some of their
other promises, including requiring the ILC to:
- consider disadvantage suffered in acccess to health, housing, education
or employment when making decisions;
- consult with traditional owners or those with traditional links prior
to granting land; and
- base its National Land Strategies on Regional Land Strategies.
However, Senator Herron has made it clear he expects the ILC to take
the government's wishes into account. In the second reading speech, he
said:
The ILC's National Indigenous Land Strategy, tabled in Parliament
on 6 May 1996, is underpinned by a policy of identifying and consulting
with traditional owners so far as is possible and reasonable. The government
expects that, prior to granting land, the ILC would consult with traditional
owners and those with historical links to the land as far as is possible
and reasonable. It is also the government's expectation that, in future,
when the next National Strategy falls to be determined, the approach will
be to work from Regional Strategies towards the development of a National
Strategy.
'Most disadvantage'
Item 10 of Schedule 1 adds a new subsection 191C(2). It requires
the ILC to 'have regard to the needs of Aboriginal persons and Torrest
Strait Islanders who suffer most disadvantage in access to land'.
The arguments(4)
Those in favour of requiring the ILC to 'have regard to the needs of
Aboriginal persons, and Torres Strait Islanders, who suffer most disadvantage
in access to land', would argue its only fair that those who have suffered
most should be recompensed, and groups who already have land should not
get more land before those who have none. In addition, as there will not
be enough money to satisfy all requests, it is right and proper to give
the ILC some guidance on what to take into account when making decisions.
Those arguing against, could say that it is impossible to rank Indigenous
people according to the extent of their disadvantage or dispossession,
it is abhorrent and could encourage in-fighting between various Idigenous
groups.
Further more, it is unclear what 'most disadvantage in access to land'
means. This vagueness could make it very difficult for the ILC to make
decisions about land purchases, because those whose applications are refused
could challenge in the courts.
Trusts, partnerships and individuals
Items 11 and 12 of schedule 1 repeal the old sections 191D(1)(a),
191D(1)(c), 191D(1)(d), and insert two new paragraphs widening the ILC's
power. The new sections would allow the ILC to grant land, or money to
buy land, or guarantee loans, to, not only Indigenous corporations, but
trusts, and in exceptional circumstances, individuals or Indigenous partnerships.
The arguments
The amendments give the ILC the powers to deal. not only with Indigenous
corporations, but also trusts, and, in exceptional circumstances, partnerships
or individuals.
Those in favour of this would argue that Indigenous Australians should
have the same land holding rights as other citizens, that it is unfair
to restrict land ownership to corporations, and that land grants should
be made to what ever types of bodies best suit different communities and
family groups.
A director of Palm River Pty Ltd and councillor for ATSIC's Tumbukka
Region, Ms Sharon Firebrace, told a Senate Select Committee hearing considering
a similar amendment that for some communities, trusts are more appropriate
than corporations.
...the ILC should have the flexibility to make grants of land
to individuals, groups and families, as well as corporations. Whilst acknowledging
the long-held principle of indigenous community ownership, we must be
conscious of the changing place, role and contribution of Aboriginal people
in contemporary Australia, particularly urban localities. ...We have fought
long and hard for equal rights; let us not be constrained by traditional
ownership practices that are foreign to many in contemporary indigenous
communities in the south-east of Australia.(5)
Further more, families rather than corporations, are a traditional way
for some Aboriginal groups to conduct their affairs. Corporations are
part of a white-imposed alien culture.
Those against could argue that these amendments go against the principle
of community ownership of indigenous land, that in some parts of Australia,
individual ownership of any sort is contrary to indigenous concepts of
goup ownership, and that it might encourage young Aboriginal people to
adopt a non-indigenous way of life.
ATSIC told the Senate Committee that:
... by limiting landholding entities to incorporated bodies,
the ILC would be clearly identifying its charter as acquiring land to
redress the dispossession of land. The land was taken from communities
and communal owners in the past, and the Land Fund is 'buying back' communal
land(s). ... [Therefore] the applicants, the community and the ILC are
better served by adherence to the proven policy of incorporated bodies
being the holders of title in perpetuity of the title to land.(6)
Furthermore, corporations are legally responsible to their shareholders
and answerable to their communities and are therefore the best way to
manage land.
This amendment could raise false hopes in individuals and families,
because the Land Fund has only limited means and cannot deliver on all
requests.
Additional appointments
Item 23 of schedule 1 adds a new subsection 191V(2)(h). This
new subsection allows the Minister to appoint additional members to the
board of the ILC as the Minister determines, after consultation with the
other members. Item 25 of schedule 1 amends subsection 191X(4).
The new section requires the Minister to be satisfied that all appointed
board members have experience in land or environment management, business
or financial management, or Aboriginal or Torres Strait Islander community
life. Under the legislation, six of the seven board members are appointed,
the exception being the chairperson of ATSIC who sits on the board as
of right (section 191(V)(2)(c)). Under existing law, only four of the
seven members must meet the criteria.
The arguments
Those in favour of allowing the Minister to appoint additional members
to the board of the ILC could argue that this will allow for greater diversity,
broader representation, and the ability to increase the board's management
and financial expertise.
Those against could argue that the Minister is trying to water down
the influence of ATSIC (it has two board members), and the large, non-urban
land councils.
Paid employment
Item 3 of schedule 1 inserts a new section 30(3) allowing an
ATSIC commissioner to engage in paid employment in addition to his or
her official duties, but only with the written approval of the Minister.
Item 4 schedule 1 inserts a new section 40(7A) allowing the Minister
to terminate the commissioner's employment if this condition is not met.
Item 7 of schedule 1 inserts a new section 127A(1A) allowing
the chairperson of a regional council to take additional paid work but
only with written approval. Item 8 of schedule 1 inserts a new
section 127C(7A) allowing the Minister to remove the chairperson from
office if this condition is not met.
Disqualification from election
Item 6 schedule 1 inserts a new subsection 102(1B). The new section
prevents a former regional concillor who has been removed from office
by ATSIC for misbehaviour or other grounds from standing again until after
the next round. Other grounds for removal include:
- being convicted of an offence and sentenced to jail for one year or
longer;
- being convicted of an offence involving dishonesty and sentenced to
jail for three months or longer;
- failing without reasonable cause to disclose a pecuniary interest
in a matter under consideration;
- being absent from three consecutive meetings of the council without
leave and without reasonable excuse;
- becoming bankrupt, or applying to take the benefit of any law for
the relief of bankrupt or insolvent debtors;
- compounding with his or her creditors; or
- assigning his or her salary to creditors.
Item 9 of schedule 1 repeals old subsection 131(2) and inserts
a new one. The new section prevents an ATSIC commissioner whose appointment
has been terminated by the Minister for misbehaviour or other grounds,
from standing again until after the next round of elections. Other grounds
include:
- being convicted of an offence and sentenced to jail for at least one
year;
- being convicted of an offence involving dishonesty and sentenced to
jail for at least three months;
- being absent from duty, except on leave, for 14 consecutive days or
for 28 days in any 12 month period; or
- failing to disclose an pecuniary interest in a matter being dealt
with by ATSIC.
(1) This Section draws heavily on an unpublished paper by Dr John Gardiner-Garden,
a research specialist with the Parliamentary Research Service, and Fabienne
Bayet
(2) (1992) 175 CLR 1.
(3) Australia. House of Representatives. Parliamentary Debates, 16
November 1993: 2877.
(4) The arguments canvassed in the Main Provisions section of this Bills
Digest draw heavily on the Report of the Senate Select Committee on the
Land Fund Bill Land, February 1995.
(5) ibid: 20.
(6) ibid: 23.
Bronwyn Young Ph. 06 277 2699
27 June 1996
Bills Digest Service
Parliamentary Research Service
This Digest does not have any official legal status. Other sources should
be consulted to determine whether the Bill has been enacted and, if so,
whether the subsequent Act reflects further amendments.
PRS staff are available to discuss the paper's contents with Senators
and Members and their staff but not with members of the public.
ISSN 1323-9032
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library, 1996.
This page was prepared by the Parliamentary Library, Commonwealth of
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Last updated: 1 July 1996
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