Editors --- "Land Fund and Indigenous Land Corporation - (ATSIC Amendment) Act 1995 (Cth) - Digest" [1996] AUIndigLawRpr 18; (1996) 1(1) Australian Indigenous Law Reporter 44

Land Fund and Indigenous Land Corporation

(ATSIC Amendment) Act 1995 (Cth)

Assented to 29 March 1995

The Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cth) inserts an entire new Part into the legislation which set up ATSIC, the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth).

The new Part establishes the Indigenous Land Corporation (ILC) to assist Aboriginal persons and Torres Strait Islanders to acquire and manage land "so as to provide economic, environmental, social or cultural benefits for Aboriginal persons and Torres Strait Islanders". The new Part also establishes the Aboriginal and Torres Strait Islander Land Fund to secure the long term financing of the acquisition and management of land by indigenous Australians in pursuit of the benefits identified above.

The Government set aside $200 million for the Land Fund in 1994-95, and the Act commits a further $121 million per year (indexed to preserve real 1994-95 dollar values) for the following nine years. In 1994-95, the ILC will receive $25 million for land acquisition and land management activities and running costs. In the following two years, the ILC will receive $24 million (indexed), and ATSIC will receive $21 million (indexed) per year. For the duration of the initial nine year period, the ILC will receive $45 million (indexed) per year, however, ATSIC will no longer receive money from the Land Fund.

The remainder of each annual allocation will be invested so that when Government allocations cease after 2003-4, the income from these investments will fund the continuation of the ILC's core activities. This forecast is based on the assumption that the invested funds will yield a targeted return over the ten year period and beyond. In the event that the Land Fund fails to meet its expected investment returns at the end of ten years, the Land Fund will be topped up to its expected target.

The ILC is to be run by a Board of seven directors, appointed by the Minister for Aboriginal and Torres Strait Islander Affairs in consultation with ATSIC and the Minister for Finance. Five of the directors must be Aboriginal persons or Torres Strait Islanders. The current members of the board are: Mr David Ross (Chairperson), Mr Peter Yu (Deputy Chairperson), Commissioner Stephen Gordon, Ms Penny Morris, Ms Lois O'Donoghue CBE AM, Mr Noel Pearson and Mr Lawrie Willett.

The ILC is required to deal with indigenous communities as represented by corporate bodies but not with individuals or less publicly accountable legal entities such as trusts.

The ILC does not have powers of compulsory acquisition of land. It operates instead as a participant in the commercial market for land and is required to act "in accordance with sound business principles" in that capacity.

When carrying out its land acquisition function, the ILC is required to give priority to pursuing a policy of acquiring interests in land itself and granting those interests to Aboriginal and Torres Strait Islander corporations, rather than funding direct purchases by those corporations. In cases where the ILC does grant money to Aboriginal and Torres Strait Islander corporations to purchase land, it will need to consider acting as agent for those corporations. When the ILC acquires land, it should grant the land to a community corporation within a reasonable period of time.

Land granted by the ILC cannot be claimed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). However, land bought through ATSIC with Land Fund monies can be claimed under the Act. In addition, pastoral leases bought with monies from the Land Fund can be claimed under the Native Title Act 1993 (Cth), if the requirement to provide traditional attachment is met.

When carrying out its land management functions, the ILC must give priority to pursuing "sound land and environmental management practices", regardless of whether the ILC's activities relate to existing indigenous-held land or land acquired using the Land Fund monies.

The ILC is also required to develop, and revise regularly, a national indigenous land strategy. This strategy is to cover environmental issues as well as the acquisition, granting and management of land. Regional strategies must also be developed, covering the same issues as they affect particular regions (whose boundaries the ILC itself will define). The ILC will be required to have regard to its strategies when performing its primary functions.

For further details, the following documents are reproduced below:

1. Second Reading speech by The Hon. Paul Keating MP, Prime Minister, House of Representatives, 28 February 1995 (p. 45); and

2. Table of Provisions (p. 50).

House of Representatives

28 February 1995

I move that the Bill be now read a second time.

Mr Speaker, the House will recall that the Government's original legislation on this matter was debated at great length here during August and September last year.

It has since been the subject of one of the longest debates ever conducted on the floor of the Senate. In the course of that debate, an alliance of convenience between Coalition and Green senators produced so many changes that the Bill as adopted in that chamber bears no resemblance to the legislation which this house agreed upon.

The central premises of the Bill -- the policy foundation on which the indigenous Land Fund was to be established and administered -- were overturned in an unfortunate display of cynical Parliamentary opportunism.

The damage was inflicted on the Government's legislation despite an enormous effort on our part to find common ground, to reach a position that would allow this initiative of great national importance to proceed.

Some 121 amendments were proposed during the Senate debate, most of them by Coalition and Green senators trading support for each other's proposals.

At the end of the Senate's first consideration of the Bill it had agreed to 67 amendments and one request for an amendment.

The Government accepted 21 of those amendments on the floor of the Senate, despite having reservations about many of them. In the hope that bipartisan support for the Bill can still be achieved, we have since agreed to accept a number of other amendments. All of these changes are incorporated in the Bill now before the house.

The Government cannot agree to the remainder of the Senate's changes. Among them, there are a number which undermine the very purpose of the Bill, and would make the administration of the Land Fund a bureaucratic and legal nightmare.

Given that outcome, the Government was obliged to consider its options, in particular whether it could proceed at all with a Land Fund so crippled by the Senate.

Because the measure is of such fundamental importance to all Australians, we have decided to ask the Parliament to have a second look at it. I will briefly describe the basis upon which the Government will do that.

On 28 November 1994, at the end of its marathon debate on the original Bill, the Senate appointed a Select Committee to inquire into the acceptability of its own amendments among indigenous Australians.

In all the circumstances -- with the Senate declining to deal further with the amendments, and the request rejected and returned to it by the House of Representatives -- the Government considers that there has been a failure to pass the Bill within the meaning of section 57 of the Constitution.

The Bill I am now presenting differs from the version passed by this house last year to the extent only that it includes, verbatim, the Senate amendments to which the Government is prepared to agree. Otherwise, the clauses are in the form and wording previously approved by the House. Honourable members may have noticed that one of the amendments accepted by the Government was a Green proposal to change the title. The legislation now before us is called the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Bill.

When we have considered the Bill here, it will be returned in its new form to the Senate. I hope reason will prevail in that place on this occasion and that the Land Fund, which we had hoped and expected would be up and running by now, will be able to get started as soon as possible.

The Government is encouraged somewhat on this point by the comments of the Chairman of the Senate's Select Committee after its report was tabled on 9 January this year. He suggested that there was no longer any point in `forcing' the disputed amendments in the Senate. As Senator Campbell's views have not been contradicted it is to be hoped that his view will prevail and prevail soon -- among those opposite.

I will return to the amendments and the Parliamentary progress of the Bill in a moment. To assist honourable members in following the argument through the maze created by the Senate I table a document entitled "Senate Amendments to the Land Fund Bill" which categorises and describes the Senate's amendments and indicates the Government's position on them.

I want now to remind Honourable members of what the Government's original Bill was about, and where it fits in one of the most important series of related measures ever brought before the Australian Parliament.

The context for these measures is a pivotal part of this Government's longterm agenda. That is, the promotion of reconciliation between indigenous Australians and other Australians; the national pursuit of greater understanding, greater respect, for our indigenous heritage -- and a just accounting for the wrongs done to indigenous Australians since European occupation of this country; and a coordinated campaign across all tiers of Government to address the environmental and primary health problems faced by Aboriginals and Torres Strait Islanders.

The Government has been pursuing this great agenda consistently and methodically, confident of the continuing support of a country whose people share common aspirations and who embraces with pride the unique diversity of its people, culture and heritage.

Little more than two years ago, our progress towards reconciliation received an enormously important filip from the judiciary. The High Court of Australia, in its Mabo decision, created judicial history by putting an end to the legal fiction of terra nullius -- thus recognising the prior title to Australian land of its traditional, indigenous owners.

The High Court's decision caused a dramatic increase in public interest in the process of reconciliation -- in the way the rest of us are coming to terms with the damage we and our forebears have done to our indigenous fellow citizens.

It also created a strong -- and legitimate -- expectation among Aboriginal peoples and Torres Strait Islanders that the whole Australian society, through this Parliament, would reinforce the High Court's decision and carry its spirit through to some logical -- and just -- conclusions.

The Land Fund and Indigenous Land Corporation (ATSIC Amendment) Bill is the second major plank in the Government's response to Mabo and the challenges thrown up by that decision.

The first, of course, was the Native Title Act of 1993, which gave statutory protection to the indigenous rights identified by the court and set up an equitable system to determine where, and by whom, those rights could be enjoyed.

The Native Title Act added huge symbolic weight to the Mabo decision. It announced that the Australian people supported the great principles of justice inherent in the Court's decision, and were determined to see them applied.

It was not, however, of great practical benefit to the majority of Aboriginal peoples and Torres Strait Islanders. Most will not be able to prove the continuing association with their land necessary to claim native title. Many retain a strong attachment to their traditional country, but will be denied native title rights as a result of prior alienation of the land concerned. Many also remain on the margins of this country's economic, social and cultural life.

The third part of the Government's response to Mabo will be a set of social justice measures, designed to preserve and protect the cultural identity of our indigenous peoples while removing barriers which keep them at the margins of society as a whole.

In a very real sense the Bill now before the house is itself a key component of our social justice response. It deals exclusively, however, with land -- that critical part of the indigenous heritage which has been taken away from so many Aboriginal peoples and Torres Strait Islanders.

It is for that reason -- the essential importance of land in the resolution of outstanding issues between this nation and its indigenous peoples -- that this Bill was introduced as a separate and distinct element of the Government's response to Mabo.

Honourable members will know the content of the Bill as it was introduced and passed in this chamber last year.

It establishes a long-term scheme in which a Land Fund will be seeded from appropriations for ten years but will thereafter be sustained by its own investment income forever. The fund will be used for the acquisition and management of land for and by indigenous communities throughout Australia.

The Government committed $200 million to the Fund in the 1994-95 budget, and the Bill commits a further $121 million in each of the next nine years.

The annual amount available from the fund for land acquisition and management, at $45 million, is more than double the amount currently available to ATSIC for those purposes. An Indigenous Land Corporation, established by this legislation, will direct and administer all aspects of the distribution of the Land Fund monies.

The purpose of the Government's Bill is unambiguous. It is to enable indigenous people to acquire land and to manage and maintain it in a sustainable way, to provide economic, social and cultural benefits for themselves and for future generations of their peoples.

The Bill was drafted carefully to ensure that these basic objectives would and could be pursued uncompromisingly by the ILC. It was deliberately worded to give the ILC sufficient flexibility to operate effectively in the land market on one hand, and to meet the land needs of indigenous people on the other.

Mr Speaker, the Bill is not directed at anything else on the policy or program agenda in Aboriginal and Torres Strait Islander affairs. This Bill is for the single purpose of building and sustaining an adequate stock of land in the hands of indigenous owners currently dispossessed.

I hope that the integrity of its approach will remain intact after the Senate, in due course, has a second opportunity to consider it.

As I said earlier, the Government has accepted a number of amendments proposed by the Senate, but believes

some others would so seriously undermine the central principles of the legislation that the Government cannot accept them.

I won't detain the house with a discussion of each individual amendment. The Government does not believe that the amendments accepted by the Government in the Senate, with the exception of one sensible proposal put forward by the Democrats, do anything to really improve the Bill. Some actually will make the task of the ILC a little more complicated, but as I have said, we accepted them in the interests of obtaining broad support for the legislation.

We reached a point, however, beyond which any further accommodation by the Government would have jeopardised the viability of the Indigenous Land Corporation and the Land Fund.

Those amendments which the Government cannot accept are essentially those which we believe are wrong in principle or would make the legislation unworkable in practice, or both.

As an example of the first category, the Coalition and the Greens would jeopardise the very purpose of the legislation through the combined effect of two sets of amendments.

In one, (amendments numbered 6 to 17 in the document I have tabled) they would have the ILC allow individuals and trusts to own property acquired through the Land Fund. This Government, like previous Governments, believes holdings by indigenous corporations best reflect traditional forms of land ownership, and also provide more reliable guarantees of accountability.

In the other, (number 32) the Coalition and Green senators would allow grantees of Land Fund acquisitions to dispose of them at any time without the consent of the ILC. This proposition alone militates against the central aim of building up an indigenous land base and maintaining it for future generations. When combined with the relaxation of the requirement about the form of ownership, it has the real potential to undermine the very purpose of the legislation.

The combined amendments give individuals as well as community organisations the legal entitlement to sell off land acquired through the Fund. While it's unlikely that communities would sell out their own future generations, it's more likely that individuals, given the legal entitlement, would sell their land. Likely or not, it is possible, and the legislation surely should not open up the possibility of undermining its own purpose.

The original Bill provides adequately for special circumstances in which indigenous communities do have a case for disposing of land acquired through the Land Fund. Their corporations may sell or mortgage the land provided they have the ILC's consent (section 191S) or they may surrender the land to the ILC (section 191T).

The Senate's argument for individual tenure is that in their dealings with land, indigenous people should have the same rights, including the freedom to dispose of property, as all other Australians.

But this argument is spurious because indigenous people do have those same rights. As individuals they can go and buy land like anyone else. The acquisitions envisaged by the Bill are a commitment made by the Australian people over and above those individual rights, and for the specific purpose of restoring part of a lost heritage.

Another example of the Senate's unacceptable approach is amendment number 25. It would require the ILC to take into account, in a completely unspecified way, the educational, health and similar needs of indigenous communities when deciding where to acquire land.

This amendment would shift the focus of the ILC's operations from the fundamental objective of building an indigenous land base. They would require the corporation to pursue objectives which are clearly the function of other agencies in all tiers of Government. Inevitably, there would be confusion about the proper role of the ILC and about its responsibilities relative to those of agencies delivering services -- not land -- to indigenous communities.

Mr Speaker, the amendments seeking to confuse the real objective of the ILC with other questions like health and education are also in another category of amendment which the Government finds objectionable.

These are the amendments calculated to make the day-to-day operations of the ILC unworkable, at the same time as fostering disputation which would inevitably lead to many cases of administrative challenge and litigation.

A number of the Coalition-Green amendments fall into this category. Whereas the Government's Bill was drafted to give a reasonable degree of discretion and flexibility to the corporation, the amendments seek to tie its hands with prescriptive formulas to be applied to its decision-making at every turn.

An example of this approach is the Coalition's amendment number 4, which proposes that, when making decisions on land acquisition, the ILC should give priority to those communities who are `most severely dispossessed'.

The potential for conflict, for lengthy delays while disputes are settled, should have been obvious to the proponents of that criterion from the outset.

I notice that even the Coalition-Green majority on the Senate Select Committee was struck by the amount of criticism this proposal drew from indigenous organisations and individuals. The committee was told time and time again that all indigenous people were dispossessed, and that it was futile to try and draw distinctions between levels of dispossession.

The Committee's solution, however -- a form of words which would still seek to rank degrees of disadvantage in terms of access to land -- clearly fails to overcome the objection to the original amendment. Any statutory obligation to calculate and calibrate different degrees of disadvantage is bound to generate unproductive disputation.

Several other amendments would have a similar damaging effect on the workability of the Land Fund scheme. These include the requirement for the ILC to consult traditional owners before purchasing any land, more onerous provisions related to the development of national and regional strategies, and a separate financial allocation for the ILC's administrative expenses.

Government ministers explained in great detail in the Senate the difficulties that would be caused by these amendments, and these arguments still hold.

The amendments I have mentioned specifically, do not exhaust the list of those that cause the Government concern. There are in addition, for example, those relating to the composition of the ILC Board (amendments no. 33 and 35) and those imposing an obligation not to retain certain interests in land (amendment 27). Again, the Government's position on these matters was fully explained in the Senate debate.

As I mentioned earlier, the confused and contradictory outcomes of the Senate's deliberations grew out of the way in which the Bill was approached in that place.

We had the Coalition, clearly devoid of any policy of its own, bending to the various demands of groups -- any group it could find -- who were opposed to this or that detail of the Government's legislation.

Remember, Mr Speaker, the Bill had been on the table of this house since 30 June last year. Before that, the Bill had been drafted in consultation with a variety of indigenous organisations -- including some who disagreed with parts of our proposals and later briefed our opponents.

Yet by October/November our opponents had failed to produce a coherent response. Instead of putting thoughtful alternatives to our proposals we saw them looking for excuses to sabotage a major legislative achievement.

It's no wonder that after one of the longest debates ever held in the Senate, our opponents found it necessary to send a Select Committee off on a whistle stop tour of the country. The Select Committee's mission was to find out, after the event, whether the amendments proposed by the Senate were acceptable to any sort of cross-section of the indigenous community.

Not surprisingly, the Senate Select Committee found a great deal of opposition to a number of the amendments.

What is surprising -- astonishing -- is that having expressly acknowledged the strength of that opposition, the Select Committee recommended that the disputed amendments remain in place.

If nothing else, this episode reveals the double standards of the Coalition and Green senators who made up the majority of that Select Committee.

It was they who accused the Government of inadequate consultation, despite the fact that our consultation and negotiation process on the Land Fund began during the formulation of the Native Title Act. In relation to the specifics of this particular Bill, negotiations started in April last year -- and the Bill was not debated, even in this house, until the end of August.

The same people, having consulted hurriedly after they acted in the Parliament, then chose to ignore the outcome of their consultations.

The double standards are self-evident. As I have already indicated, if the Bill now before us is, like its predecessor, wrecked in the Senate, then those in that chamber who force that action will jeopardise the whole concept of a Land Fund. The Senate must take a more rational and reasonable approach to this Bill.

Mr Speaker, we are adopting this approach to the disagreement between the Houses because the Government wants this legislation. The majority of indigenous people want the legislation, and all of them deserve to have the legislation with the wholehearted support of the nation.

On that score, I want to make an appeal to the new Leader of the Opposition, the Honourable member for Bennelong.

We all know that the Coalition parties were in a state of total confusion in the area of Aboriginal and Torres Strait Islander affairs when this Bill was before the Parliament last year.

The then Leader Of The Opposition, winking and nodding at the reactionaries of his Western Australian branch, had suggested that a Coalition Government would `review' the Native Title Act itself.

He went straight from Perth to central Australia, where he revealed to Aboriginal communities that not only was he ambivalent in his support for native title, he also lacked a grasp of his own party's policies on indigenous affairs.

It may be that the climate of confusion and mistrust created by the then leader was a factor in what his colleagues subsequently did. Certainly, the damage done to the Bill by the Coalition, in league with the Western Australian Greens, is not consistent with a thought-out policy position.

The new Leader of the Opposition therefore has a real opportunity here. He can demonstrate leadership and a genuine belief in tolerance, he can defy the bigoted and myopic. He can show us that he does have a truly national outlook. I'm sure his spokesperson on these matters, the Honourable member for Hindmarsh, would appreciate an opportunity to re-visit the Bill with her leader and other colleagues in a calmer, saner atmosphere.

So, Mr Speaker, I appeal to the Honourable member for Bennelong to redirect his colleagues in the Senate and insist that they enable the national parliament to deliver to the indigenous people of Australia -- to all the people of Australia -- a momentous measure of social justice.

I commend the Bill to the House.

Section

1. Short title etc.

2. Commencement

3. Insertion of new Part:

191A. Indigenous Land Corporation

191B. Purposes of Indigenous Land Corporation

191C. Functions of Indigenous Land Corporation

191D. Land acquisition functions of Indigenous Land Corporation

191E. Land management functions of Indigenous Land Corporation

191F. Performance of functions of Indigenous Land Corporation-general

191G. Subsidiaries of Indigenous Land Corporation may perform functions corresponding to the Indigenous Land

Corporation's functions

191H. Powers of Indigenous Land Corporation

191I. Guidelines about certain land acquisition and land management functions

191J. Disposal of surplus land

191K. Commission may grant land to the Indigenous Land Corporation

191L. Powers of Minister

191M. Minister may ask for information

191N. National indigenous land strategy

191P. Regional indigenous land strategies

191Q. Indigenous Land Corporation to have regard to strategies

191R. Indigenous Land Corporation to make strategies available

191S. Restriction on right to dispose of, or charge, property

191T. Surrender of land to Indigenous Land Corporation

191U. Land granted by Indigenous Land Corporation must not be claimed under the Aboriginal Land Rights (Northern Territory) Act 1976

191V. Board of Directors of Indigenous Land Corporation

191W. Responsibilities of Indigenous Land Corporation Board

191X. Appointment of Indigenous Land Corporation Directors

191Y. Automatic re-appointment of incumbent pending appointment of successor

191Z. Period of appointment

192. Basis on which Indigenous Land Corporation Directors hold office

192A. Remuneration and allowances

192B. Outside employment--full-time Indigenous Land Corporation Chairperson

192C. Leave of absence--part-time Indigenous Land Corporation Directors

192D. Leave of absence--full-time Indigenous Land Corporation Chairperson

192E. Acting appointments

192F. Disclosure of interests

192G. Resignation

192H. Termination of appointment

192I. Other terms and conditions

192J. Meetings of Indigenous Land Corporation Board

192K. Indigenous Land Corporation General Manager

192L. Term of appointment

192M. Holding of office

192N. Remuneration and allowances of Indigenous Land Corporation General Manager

192P. Acting Indigenous Land Corporation General Manager

192Q. Resignation

192R. Other terms and conditions

192S. Staff

192T. Arrangements for Commission staff or Commercial Development Corporation staff to perform duties on behalf of

Indigenous Land Corporation

192U. Arrangements relating to staff

192V. Consultants

192W. Aboriginal and Torres Strait Islander Land Fund

192X. Purpose of Land Fund

192Y. Business day

192Z. Transfer of money etc. from the fund established under repealed Part 10 of the Native Title Act 1993

193. Credits to Land Fund in category A years

193AA. Credit to Land Fund in first category B year

193A. Payments out of Land Fund to Indigenous Land Corporation--category A years

193B. Payments out of Land Fund to Commission--second and third category A years

193C. Payments out of Land Fund to Indigenous Land Corporation--category B years

193D. Indexation factor

193E. Advances on account of payments

193F. Delegation of investment powers by Minister for Finance

193G. Consultative forum on investment policy of the Land Fund

193H. Accounts and financial statements

193I. Annual report about Land Fund

193J. Application of money held by Indigenous Land Corporation

193K. Application of the Audit Act 1901 to the Indigenous Land Corporation

193L. Borrowing

193M. Giving of security over assets

193N. Limit on guarantees

193P. Exemption from taxation

193Q. Foreign subsidiaries

193R. Exemption from stamp duty etc.

193S. Secrecy

193T. Delegation to Indigenous Land Corporation General Manager or member of staff

4. Title

5. Interpretation

6. Insertion of a new section:

4B. Indigenous-held land

7. Functions of Office

8. Examination of documents etc.

9. Board of Directors of Commercial Development Corporation

10. Re-numbering of sections 192 and 193 of the Principal Act

11. Regional Land Fund

12. Aboriginal and Torres Strait Islander Commercial Development Corporation

13. Commercial Development Corporation General Manager

14. Commercial Development Corporation Directors

15. Amendment of other Acts

A copy of the Act can be obtained from the Australian Government Publishing Service: Mail Order Sales, GPO Box 84, Canberra, ACT 2601. Orders may also be placed by telephone on +61 6 295 4411 or facsimile on +61 6 295 4888.