Reconciliation Implementation and
Framework Agreements Legislation

Discussion Paper

The aim of this discussion paper

This paper seeks your views on proposed legislation to assist in continuing the reconciliation process beyond the life of the Council for Aboriginal Reconciliation. You are encouraged to provide your views before Friday 11 August 2000 to:

Ms Mary Colreavy
Council for Aboriginal Reconciliation
Locked Bag 14
Kingston ACT 2604

You can also provide your views by e-mail to Mary.Colreavy@pmc.gov.au or by facsimile on 02-6271-5168. If you wish to discuss this paper, you can contact Ms Colreavy on 02-6271-5279.

The Council will consider your views as it prepares its final recommendations and report for the Commonwealth Parliament.

For additional copies of this discussion paper you can visit our website, www.reconciliation.org.au, or call 1800-807-071.

Overview of the proposed legislation

The Council for Aboriginal Reconciliation and its enabling legislation, the Council for Aboriginal Reconciliation Act 1991, expire on 1 January 2001. After nine years of operation, the Council will be making its final report to the Commonwealth Parliament in December 2000.

In its final report, the Council will tell the Parliament that there are many issues remaining to be resolved for reconciliation to be achieved. For a number of Australians these issues include: substantial improvements in health, education and employment statistics; reductions in Aboriginal and Torres Strait Islander deaths in custody; the place of traditional law; a national apology in respect of the stolen generations; and the recognition of Indigenous rights.

While there is broad national agreement on proceeding with some of these matters, with other matters there is a continuing debate and uncertainty about whether and how these issues should be resolved. Some people describe those matters where there is ongoing disagreement as the "unfinished business" of reconciliation.

The challenge for the Council is to recommend a process that will allow this unfinished reconciliation business to be identified fully, discussed widely and dealt with cooperatively in the spirit of reconciliation. Mindful of the outcome of the Aboriginal and Torres Strait Islander Commission’s (ATSIC) Focus 2000 and Beyond Forum in September 1999, the Council believes that some aspects of the reconciliation process will need a legislative basis if the whole process is to be sustainable and credible. The Council also recognises that many aspects of the ongoing reconciliation process, such as the people’s movement, do not need a legislative basis.

Consequently, the Council has decided that it will recommend new legislation to continue aspects of the reconciliation process in its final report to Parliament in December 2000. There are many things such legislation could do; for example, it could:

• recognise the status of Aboriginal and Torres Strait Islander peoples as Australia’s "First Peoples" and identify what this status means in legal and Constitutional terms;
• recognise the foundational work of the Council as outlined in the Council’s documents of reconciliation;
• provide a process for public audit of progress towards established goals such as specific health and education outcomes;
• empower the Human Rights and Equal Opportunity Commission (or another appropriate body) to prepare regular reports to the Federal Parliament on the nation’s progress towards reconciliation;
• urge the Prime Minister, Premiers, Chief Ministers, the President of the Australian Local Government Association and the Chairman of ATSIC to meet every five years to develop plans for progressing reconciliation;
• give specific roles and functions to Reconciliation Australia, a foundation which is being established to continue the work of reconciliation;
• recognise that, where appropriate, the unfinished business of reconciliation should be resolved through negotiated agreements at the national, regional and local levels;
• establish a convention to identify, and rank in priority, the items of unfinished reconciliation business; and
• establish a mechanism for Indigenous and non-Indigenous bodies, including governments and ATSIC, to enter into legally binding and enforceable framework agreements at the local, territory, state and federal levels.

These items are considered in more detail in the remainder of this paper.

Title

The Council considers that the legislation could be entitled the Australian Reconciliation Act 2001 or the Reconciliation (Implementation and Framework Agreements) Act 2001. The name should reflect the central issues covered by the legislation and that reconciliation is a matter for all Australians.

Preamble

The preamble to an Act of Parliament provides a context for the legislation. For example, the preamble to the Council for Aboriginal Reconciliation Act 1991 says:

"Because:

1. Australia was occupied by Aborigines and Torres Strait Islanders who had settled for thousands of years, before British settlement at Sydney Cove on 26 January 1788; and
2. many Aborigines and Torres Strait Islanders suffered dispossession and dispersal from their traditional lands by the British Crown; and
3. to date, there has been no formal process of reconciliation between Aborigines and Torres Strait Islanders and other Australians; and
4. by the year 2001, the centenary of Federation, it is most desirable that there be such a reconciliation; and
5. as a part of the reconciliation process, the Commonwealth will seek an ongoing national commitment from governments at all levels to co-operate and to co-ordinate with the Aboriginal and Torres Strait Islander Commission as appropriate to address progressively Aboriginal disadvantage and aspirations in relation to land, housing, law and justice, cultural heritage, education, employment, health, infrastructure, economic development and any other relevant matters in the decade leading to the centenary of Federation, 2001:

The Parliament of Australia therefore enacts: … "

The Council believes the preamble for the proposed legislation could:

• recognise the status of Aboriginal and Torres Strait Islander peoples as Australia’s "First Peoples" and that the full meaning of this status is not yet agreed among Aboriginal and Torres Strait Islander peoples and between Indigenous peoples and the wider community;
• recognise that reconciliation is an ongoing process;
• recognise the Council for Aboriginal Reconciliation Act 1991 and the final report of the Council to the Parliament;
• note the Council’s Declaration and the National Strategies, which are fundamental to achieving lasting reconciliation;
• recognise that appropriate solutions can only be effective if they are developed cooperatively and implemented in conjunction with the community generally and Aboriginal and Torres Strait Islander peoples;
• recognise that partnerships between Aboriginal and Torres Strait Islander peoples and the wider community are necessary to develop an Australian community in which Indigenous people are part of the social and economic fabric of the nation;
• promote the desirability of a whole-of-governments approach to addressing Aboriginal and Torres Strait Islander disadvantage; and
• note that not all actions have been listed or finalised in the Council’s Documents of Reconciliation and that processes and structures are necessary to identify other areas of unfinished business.

Objects

The objects of an Act of Parliament summarise what that Act is seeking to achieve. The Council suggests the objects of the proposed legislation could be to:

• advance the process of reconciliation; and
• establish processes to identify and resolve the areas of unfinished business between Indigenous and non-Indigenous Australia.

Regular meetings of government leaders to progress reconciliation

The Council for Australian Governments (COAG) agreed in 1992 to a National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders. Unfortunately, while many governments have acknowledged the importance of these issues, the broader framework for service delivery has not been discussed by COAG since 1992. Although the Ministerial Council for Aboriginal and Torres Strait Islander Affairs (MCATSIA) has responsibility for the National Commitment, this body sometimes lacks the necessary influence over relevant issues.

The Council proposes that the Heads of Government, together with the Chairman of ATSIC, could meet in a forum every three to five years to review progress in achieving reconciliation. The President of the Australian Local Government Association should also be invited to such forum meetings.

The forum should initiate a process for public audit of progress towards established goals such as specific health and education outcomes. The forum should also establish and agree whole-of-government plans and priorities for the future.

Ongoing review of reconciliation progress

Ongoing public reporting on the progress of the reconciliation process is important to maintain the momentum. Currently, one of the Commissioners in the Human Rights and Equal Opportunity Commission (HREOC) must submit a report to the Attorney-General and the Parliament each year regarding the enjoyment and exercise of human rights by Aboriginal and Torres Strait Islander peoples. The Council believes this function could be adapted to enable the compilation of a national progress report on reconciliation every five years. Reporting mechanisms may also be necessary for regional and local progress.

A legislative role for Reconciliation Australia

In its 1998 strategic plan, the Council identified the need to ensure the continuation of the reconciliation process. Since then, the Council has come to the firm view that an independent foundation would play an important role in sustaining the reconciliation process, through the continued provision of leadership, once the Council ceases to exist. The Council is, therefore, facilitating the establishment of a foundation, Reconciliation Australia, as part of its National Strategy to Sustain the Reconciliation Process. This foundation will:

• report on reconciliation issues;
• maintain and further develop community support for reconciliation by providing community education and promoting community discussion;
• provide a forum for parties, including non-Indigenous and Indigenous interests, to come together and exchange views in the interests of reconciliation; and
• build the capacity for Australian people to do the work of reconciliation and to identify and promote best practice in removing Indigenous disadvantage and promoting reconciliation.

Although the foundation has not been established under legislation, it could be given specific roles or functions under the proposed legislation. The legislation could also allow governments and ministers to request Reconciliation Australia to examine and report on specific issues.

Identifying the unfinished business of reconciliation

In September 1999, ATSIC convened a summit of more than 60 Indigenous leaders, The Focus 2000 and Beyond Forum. This summit recognised the need for direct negotiations and agreements on a range of substantial issues in the context of reconciliation. The Summit acknowledged specific items of unfinished business that it would like included in an Act of Parliament, but recognised that this was not a definitive list and there is a need for further Indigenous community consultations.

Other people have also written to the Council identifying matters that need to be resolved for reconciliation to be achieved. However, a consensus has not been reached on the issues that require negotiation and the order in which these issues should be addressed. The Council is of the view, therefore, that further processes are needed to better clarify the matters of unfinished business.

One option for identifying all the items of unfinished business is the establishment of a convention. This convention could meet initially in 2001 and then every three to five years. It may wish to produce interim lists of unfinished business as a basis for extensive community consultations. The convention could advise on the structural process for negotiating framework agreements and establish protocols for identifying the parties to framework agreements. The convention may need a ten or fifteen year deadline for producing the final list of unfinished business.

There remains a question about whether the convention should have an entirely Indigenous membership or include non-Indigenous representatives. The Council’s preliminary view is that, in the spirit of reconciliation, wider community involvement is preferable. These matters involve both Indigenous people and the wider community. Not including the wider community feeds the myth that reconciliation is only a matter for Indigenous people and not a responsibility for the whole community.

Delegates to the convention could include: ATSIC Commissioners; ATSIC Regional Councillors; state and territory Indigenous advisory bodies; land councils; Indigenous representative bodies; government, opposition and other party representatives of the federal, state and territory parliaments; and the Australian Local Government Association. The proposed legislation could, if necessary, also make provision for the election or appointment of community delegates.

The list of unfinished business produced by the convention would be a public acknowledgment of the matters that are still to be resolved between Indigenous and non-Indigenous Australians. The final list of unfinished business could also guide the types of framework agreements to be entered into (see the next section).

Negotiating framework agreements to advance reconciliation

The benefit of framework agreements lies in their ability to link many different elements: self-determination, social justice, economic development and environmental protection while simultaneously providing a legal framework and establishing procedures for the negotiation of different interests. They could be applied in local and regional contexts as well as nationally. They provide a real mechanism for resolving complex and wide-ranging differences and disagreements between Indigenous and non-Indigenous Australians.

One example of framework agreements is the Indigenous Land Use Agreements (ILUAs) established under the Native Title Act. These are customised voluntary agreements whose content and implementation are entirely at the discretion of the parties concerned. ILUAs, in the native title context, have been used to establish:

• land access, use and management agreements;
• wildlife and natural resource agreements;
• co-management or partnership agreements;
• regionally based agreements specifying relationships with key private or public sector agencies; and
• frameworks and alternative procedures for making other agreements.

However, Indigenous Land Use Agreements cannot be used by Indigenous people and organisations who are not native title holders. The legislative proposal for framework agreements would not have this restriction. Even so, there remain a number of implementation details that should be addressed before this proposal is finalised. Some of these details could necessitate significant costs or large bureaucracies to implement. The implementation details that will need to be considered include the following matters.

• Should framework agreements have the force of law, or just be legally enforceable?
• Should there be a registration process to validate agreements?
• Should there be voluntary or compulsory arbitration provisions if people cannot reach agreement in negotiations?
• What certainty should the parties to agreements enjoy?
• How should the parties to agreements be identified?
• Should ATSIC (or another body) be given formal status at the national level to represent all Indigenous people in any negotiations for a national framework agreement? Similarly, should ATSIC Regional Councils be given this status at the regional level?
• Should there be mediation and dispute resolution provisions?
• Should there be funding for Indigenous groups as they negotiate agreements, to ensure they are empowered to adequately represent their concerns?
• How should agreements be varied or revoked?
• Should there be penalties for failure to comply with the terms of a framework agreement?

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