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
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the public.
ISSN 1323-9032
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library,
1996.
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Last updated: 1 July 1996
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