House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Indigenous Australians, the Honourable Linda Burney MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

BACKGROUND

2. The Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Land Grant Act) provides a legislative framework for the declaration of Aboriginal Land in the Jervis Bay Territory to be granted to the Wreck Bay Aboriginal Community Council (Council) and the establishment of the Council to hold title to, and manage, the Aboriginal Land. The Council is able to grant domestic leases to its registered members for housing on Jervis Bay Territory Aboriginal Land.

OVERVIEW OF THE BILL

3. The Bill will amend the Land Grant Act in four key areas:

a)

Facilitate home ownership style leases

The Bill will exempt certain leases granted by the Council (for a term of 40 years or more) from the application of the Residential Tenancies Act 1997 (RTA). This will help to facilitate registered members (and non-registered members under section 38(2)(d) of the Land Grant Act) voluntarily entering into a home ownership style lease with the Council.

b)

Strengthen local decision-making

The Bill will increase the payment amount at which the Council is required to seek approval from the Minister before entering into a contract, from $100,000 to $1 million.

c)

Improve the Council's governance and corporate operations

The Bill will:

i.

empower the executive committee to perform the full functions and powers of the Council (and to delegate some of those functions and powers);

ii.

empower the registered members to remove the executive committee (as a whole) at a special general meeting (by a two thirds majority) and prescribe a process for electing a new executive committee at a special general meeting;

iii.

introduce a fit and proper person test for executive members and prospective executive members;

iv.

introduce standard provisions to declare vacant the seat of any executive member who misses three consecutive meetings without being on leave and without reasonable excuse;

v.

establish the Chief Executive Officer (CEO) position, confer functions and powers on the CEO, and prescribe the CEO's role as being to administer the Council's affairs in accordance with general directions issued by the executive committee. The CEO will also be added to the accountable authority of the Council for the purposes of the Public Governance, Performance and Accountability Act 1999 (PGPA Act);

vi.

alter the numbers required to constitute a quorum at a reconvened general meeting from 40 members to 10 per cent, and numbers required to sign a written request calling for a special general meeting from 20 members to 10 per cent;

vii.

clarify processes and rules for the establishment of subcommittees of the Council;

viii.

confer on the Registrar powers to administer and constitute part of the accountable authority of the Council in the event the membership removes the executive committee, call and oversee an election for a new executive committee, administer the fit and proper person test for executive candidates and members, and declare the position of Chairperson vacant if the Chairperson misses three consecutive executive committee meetings without being on leave and without reasonable excuse; and

ix.

empower the Minister to remove an executive member from office if the executive member ceases to be a registered member.

d)

Amend or remove outdated or unclear provisions

The Bill will:

i.

change the name of the Land Grant Act to the "Aboriginal Land and Waters (Jervis Bay Territory) Act 1986";

ii.

repeal subsection 9A(2) of the Land Grant Act, which requires the Council to enter into an agreement to lease with the Director of National Parks before land in the Booderee National Park can be declared as Aboriginal Land;

iii.

provide that the Council serves the registered members and eligible children, rather than the Community more generally; and

iv.

update the wording in relation to the term "physical or mental incapacity" (of executive members) at paragraph 33(1)(b) of the Land Grant Act.

4. The Land Grant Act provides a legislative framework for declaring land as Aboriginal Land in Jervis Bay Territory to be granted to the Council and the establishment of the Council to hold title to, and manage, the Aboriginal Land. The Council is able to grant leases for domestic purposes on Aboriginal Land (that are leases to which the RTA applies).

5. The reforms in this Bill are designed to address the longstanding needs and requests of the Community and executive committee. The reforms will help to facilitate registered members voluntarily entering into home ownership style leases, build the Council's corporate capability, reduce red tape and remove certain provisions that have historically limited the Council's decision making processes. All reforms have been informed by an extensive co-design process between the Council, the Australian Government and the Community more generally.

6. Some reforms were proposed by the National Indigenous Australians Agency (NIAA) and others by the executive committee and past CEOs during a series of meetings over multiple years. These co-design meetings culminated in an agreed list of proposed reforms in mid-2020. A series of targeted in-person, telephone and online meetings were conducted during the next phase of the co-design process in 2020 and 2021. These sessions provided opportunities for specific subsets of the community, including elders, a youth group, subcommittees and men's and women's groups, as well as the Community more generally, to provide feedback on the proposed reforms. An exposure draft of the Bill was sent to the executive committee on 11 February 2022 and NIAA staff met in person with the executive committee to discuss the Bill further. Every reform in the Bill has been explicitly endorsed by the executive committee. The Bill was introduced into the House of Representatives on 30 March 2022 but lapsed when Parliament was prorogued. The Council's executive committee requested the Bill be reintroduced unchanged. NIAA held community information sessions on the Bill in Wreck Bay in August 2022 and there was consensus for the Bill to be reintroduced unchanged at the earliest opportunity.

HUMAN RIGHTS IMPLICATIONS

7. This Bill engages the following human rights:

a)

the right of self-determination in Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

b)

the right to enjoy, practice and benefit from culture in Article 27 of the ICCPR and Article 15 of the ICESCR;

c)

the rights of equality and non-discrimination in Articles 2, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the International Convention on the Elimination of all forms of Racial Discrimination (CERD); and

d)

the right to privacy and reputation in Article 17 of the ICCPR.

The right to self-determination

8. The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to collectively pursue their economic, social and cultural development without outside interference. The right to self-determination is a collective right applying to groups of "peoples". This is in contrast to the right to enjoy, practice and benefit from culture, which protect the rights of individuals within a group. The right is widely understood to be exercisable in a manner that preserves territorial integrity, political unity and sovereignty of a country.

9. The right is also contained in Articles 3 and 4 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). While UNDRIP is not included in the definition of "human rights" under the Human Rights (Parliamentary Scrutiny) Act 2011, it informs the way governments engage with and protect the rights of Indigenous peoples. Article 18 of UNDRIP also provides that "Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions".

10. The Bill protects the right to self-determination for the Community through:

a)

The Council directly setting policies and changes for their community

The Bill addresses the longstanding needs and requests of the Community and Council. Shared decision making and the principle of co-design have guided the development of the reform measures. The Bill has been co-designed with the Council over a number of years and every reform in the Bill has been explicitly endorsed by the executive committee, therefore reflecting the Council's right to self-determination by directly setting the policies and changes for their community themselves.

b)

Strengthening the Council's governance structures

The Bill empowers the executive committee to perform the full functions and powers of the Council, and empowers the Council's members to remove the executive committee (through a prescribed process) leading to additional accountability for the executive committee. The Bill also changes quorum requirements from set numbers to percentages of overall members, ensuring that as the number of the members continues to grow, small groups of members are not able to make decisions on behalf of all members. These measures will further allow the Community to make decisions and provide their informed consent, upholding the collective nature of decision making.

c)

Enhancing local control over decision making

The Bill removes provisions that have historically limited the Council's decision making processes. The Bill raises the amount the Council can enter into a contract without obtaining approval from the Minister. This amount will increase from $100,000 to $1 million, giving the Council greater autonomy in pursuing commercial ventures. The Bill also removes a provision that prevents the Minister granting land in Booderee National Park to the Council unless the Council has entered into an agreement to lease the land back to the Director of National Parks.

d)

Enhancing economic development opportunities

The Bill will help to empower members of the Council to hold long-term home ownership style leases, if they choose to do so. The strengthening of land tenure on Aboriginal Land could assist to bolster economic development opportunities and prosperity in the Community. It is envisioned that the assets could be monetised via sale of the leasehold interest to future generations or other Council members. This measure will facilitate the Community's ability to invest in their property to realise their own economic development and to continue to pursue their own financial autonomy.

11. As outlined above, the proposed measures will advance the right to self-determination by implementing measures designed by the Community, strengthening the Council's governance structures, enhancing local control over decision making and growing economic development opportunities.

The right to enjoy, practice and benefit from culture

12. The right to enjoy, practice and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the ICESCR. Article 27 of the ICCPR protects the rights of individuals belonging to minority groups within a country to enjoy their own culture. Article 15 of the ICESCR protects the right of all persons to take part in cultural life.

13. The United Nations Human Rights Committee has stated that culture can manifest itself as a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples, which may include such traditional activities as fishing or hunting and the right to live on lands protected by law.

14. The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) has stated that Indigenous peoples' cultural values and rights associated with their ancestral lands and their relationship with nature should be protected and regarded with respect. UNCESCR has also provided guidance on the communal and individual aspects of the right to culture, in particular, that the reference to "everyone" in Article 15 of the ICESCR may denote either individual or collective rights to culture. UNCESCR has noted, in particular, that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions.

15. Lastly, the UNCESCR has noted, in particular, the right to take part in cultural life for Indigenous peoples may be strongly communal. It notes that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions.

16. The Bill advances the right of individuals within the Community to enjoy and benefit from culture by:

a)

Updating the title of the Land Grant Act to include waters

The Bill updates the name of the Land Grant Act to the "Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 ", recognising the Community's ownership of, and strong connection to, waters as well as land. This connection is experienced through natural and cultural landscapes. A strong association exists between the natural landscape and the living traditions and belief of Aboriginal people in and around the Jervis Bay Territory.

b)

Strengthening the Council's governance structures and decision making powers

The Land Grant Act established the Council to hold title to Aboriginal Land in the Jervis Bay Territory, to manage that land for the benefit of the Community, and to advocate for and serve the Community more generally, including promoting the social and cultural wellbeing of Aboriginal peoples. Strengthening the Council's governance structures and decision making powers, as outlined above, directly links to protecting cultural heritage, traditional knowledge and cultural expressions. Strengthening and empowering the Council to further create economic and community development outcomes will allow the Community to further enjoy, practice and benefit from its unique identity, heritage and culture.

The rights of equality and non-discrimination

17. The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against. Of particular relevance in the context of this Bill, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements the prohibition in Australia's domestic law.

18. Subsection 8(1) of the Racial Discrimination Act 1975, in accordance with Article 1(4) of CERD, allows "special measures" which are designed to ensure advancement of certain groups. Special measures are an exception to this general prohibition and are designed to "secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms". Where a special measure is taken, it is deemed not to be racial discrimination. For a measure to be characterised as a special measure it must:

a)

be for a particular group or individuals;

b)

be taken for the sole purpose of securing the adequate advancement of that group or those individuals;

c)

be "necessary"; and

d)

not continue after its objective has been achieved.

19. The measures in this Bill complement and enhance the existing measures in the Land Grant Act and, consequently, may be characterised as components of a broader special measure.

20. The Land Grant Act is enacted for the members of the Council. There is an ongoing need for the provisions in the Land Grant Act, and the Bill, as evidenced in the continuing levels of disadvantage confronting Aboriginal persons compared to other Australians, including in relation to economic self-sufficiency, positive cultural identity and social and emotional wellbeing. The Land Grant Act remains necessary to address this continuing disadvantage.

21. The mechanisms in the Land Grant Act, and the Bill, are appropriate, adapted and proportionate, as they address historical dispossession and promote self-management and self-sufficiency, with minimal impact on other persons.

The right to privacy and reputation

22. Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.

23. The United Nations Human Rights Committee has not defined "privacy", however it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

a)

Nature and scope of the amendments

24. The Bill requires the Registrar to investigate, upon the request of the Minister, CEO or an executive member, whether a prospective or serving executive member is a fit and proper person. For the purposes of the investigation, the Registrar may request that a person obtain a specified kind of criminal history check and provide it to the Registrar and/or provide their consent for the Registrar to access criminal, bankruptcy or insolvency records.

25. Prospective executive members will be required, in the course of nominating for election to the executive committee, to declare that they are a fit and proper person. Prospective executive members will also undertake to notify the Registrar if they cease to be a fit and proper person whilst being a member of the executive committee.

26. The Registrar must remove an executive member from office if they are not a fit and proper person, was not a fit and proper person at the time when they were nominated for office or fail, without reasonable excuse, to comply with a notice under subsection 34G(2) or (4) of the Bill.

b)

Nature and scope of the information collected

27. The information that may be collected includes criminal, bankruptcy or insolvency records, which is personal and sensitive information under the Privacy Act 1988. The information can be provided to the Registrar or obtained by the Registrar with the person's consent. However, if they elect not to comply with a request from the Registrar and they do not have a reasonable excuse, they must be removed from office.

c)

Safeguards

28. Careful consideration was given to the protection of personal and sensitive information in designing the relevant provisions so as to strike an appropriate balance between the objective of ensuring suitable persons are serving as officers on the executive committee and the Registrars access to personal and sensitive information. In this context, the information collected is considered to be reasonable and proportionate for the Register in determining whether a person is a fit and proper person to be an executive member.

29. Requiring a signed declaration as to fitness and propriety - rather than the provision of criminal and bankruptcy records - upon nomination for election to the executive committee is designed to limit the collection of personal and sensitive information. This mechanism ensures that the relevant personal and sensitive information will only be collected in circumstances where it is provided by, or collected with the consent of, the person being investigated. This is to ensure the proper operation of the fit and proper person test.

30. The Bill makes clear that the provisions requiring the disclosure of criminal history do not affect the operation of the spent convictions scheme under Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

31. Requiring prospective executive committee candidates to sign a declaration confirming they meet the prescribed fit and proper person test is broadly consistent with the process used by the Torres Strait Regional Authority, a comparable statutory authority and corporate Commonwealth entity established by the Aboriginal and Torres Strait Islander Act 2005. Requiring members to commit to informing the Registrar if they cease to be fit and proper is consistent with the comparable process used by some corporations registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (for example, the Ngarrariyal Aboriginal Corporation).

d)

Compatibility with the right to privacy

32. While the Bill limits the right to privacy if criminal, bankruptcy or insolvency records are obtained, the measures are reasonable, necessary and proportionate.

i.

The limitations on the right to privacy are in pursuit of a legitimate objective, that is, to ensure that service on the executive committee is reserved for fit and proper persons. The limitations to the right to privacy are rationally connected to the objective as people with recent serious criminal convictions or who are bankrupt would not be appropriate to serve on the executive committee.

ii.

The collection of the records, as a last resort, by the Registrar (at the request of the Minister, CEO or an executive member) is a proportionate means of achieving the objective. The Registrar can only collect the records with the consent of the person or if they are provided to the Registrar, although failure to do so without reasonable excuse will render them ineligible to be an executive member.

iii.

Providing the Registrar with the power to request, or obtain with consent, personal and sensitive information of this kind is necessary in order to ensure that service on the executive committee is reserved for fit and proper persons.

CONCLUSION

33. The Bill is compatible with human rights because it promotes the right to self-determination and the right to enjoy, practice and benefit from culture. The Bill also advances the rights of equality and non-discrimination by enhancing an existing special measure. The Bill limits the right to privacy only in defined circumstances, and in pursuit of the legitimate objective of ensuring that only those persons who are fit and proper serve on the executive committee.