Wednesday, 29 May 2024

Aboriginal Land Legislation Amendment Bill 2024

Statement of compatibility

Natalie HUTCHINS (Sydenham – Minister for Jobs and Industry, Minister for Treaty and First Peoples, Minister for Women) (10:42): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Aboriginal Land Legislation Amendment Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Aboriginal Land Legislation Amendment Bill ‍2024 (the Bill).

In my opinion, the Bill as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Aboriginal Lands Act 1970 (1970 Act) and supports the implementation of the Victorian Government’s response to the recommendations of the independent review of the 1970 Act. Specifically, the Bill improves the processes for share transfers; strengthens governance provisions; and modernises terminology in the 1970 Act.

The Bill also amends the Aboriginal Lands Act 1991 (1991 Act) to remove the Transfer Restriction and Use Restriction for the Ebenezer Mission Cemetery and Ramahyuck Mission Cemetery in line with the aspirations of the titleholders and Traditional Owners for these two sites.

Human Rights Issues

The Bill engages the right to take part in public life (section 18), cultural rights (section 19) and property rights (section 20) under the Charter.

For the following reasons, having taken into account all relevant factors, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, the limitation is reasonable and justified in a free and democratic society based on human dignity, equality and freedom in accordance with section 7(2) of the Charter.

Right to take part in public life

Section 18(1) of the Charter provides that every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives. A person participates directly in the conduct of public affairs by, for example, by taking part in popular assemblies which have the power to make decisions about the affairs of a particular community.

The 1970 Act establishes a Committee of Management as the governance body for a Trust. Clause 10 of the Bill disqualifies a person from being a member of the Committee of Management of a Trust if the person is convicted or found guilty of an offence that involves dishonesty and is punishable by imprisonment for at least three months or is disqualified from managing corporations under the Corporations Act 2001 (Cth) (Corporations Act).

By potentially disqualifying a person from being a member of the Committee of Management of a Trust, the Bill may limit a person’s ability to make decisions about the affairs of the Trusts in certain circumstances, and therefore, a person’s right to take part in public life.

The purpose of this limitation is to ensure the proper governance and administration of the Trusts in accordance with standard governance practices, without unduly restricting who can become a member of the Committee of Management of a Trust.

The limitation is reasonable and justified in the circumstances. The legitimacy and integrity of decisions by the Committee of Management are dependent on these restrictions, noting that a person can only be disqualified in certain limited circumstances. Disqualifying a person from being a member of a Committee of Management Trust on these grounds is consistent with standard governance practices established under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and the Corporations Act. A Trust’s governance model should be consistent with the current provisional standards that are applied to all land rights and corporation legislation in relation to the disqualification of a person from decision-making bodies.

Accordingly, I consider the potential limitation reasonable, necessary, justified and proportionate in the circumstances. The Bill is consistent with the right to take part in section 18 of the Charter.

Cultural rights

Section 19(2) of the Charter prohibits the denial of Aboriginal persons to enjoy their identity and culture; maintain and use their language; maintain their kindship ties; and maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

The Preamble to the Charter provides that human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia’s first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.

The 1991 Act provides for a Transfer Restriction and a Use Restriction on title granted under the Act. Clause ‍33 of the Bill will remove the Transfer Restriction and Use Restriction for the Ebenezer Mission Cemetery to enable Traditional Owners to exercise their cultural and land rights over the site. These changes are in line with the aspirations of Goolum Aboriginal Co-Operative as the titleholder and Barengi Gadjin Land Council Aboriginal Corporation as the Traditional Owner Group Entity which represents the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples of the Wotjobaluk Nations (WJJWJ Peoples) as the Traditional Owners of the land encompassing Ebenezer Mission.

Clause 33 of the Bill will also remove the Transfer and Use Restriction for the Ramahyuck Mission Cemetery to enable Traditional Owners to exercise their cultural and land rights over the site, in line with the aspirations of Gippsland and East Gippsland Aboriginal Co-Operative as the titleholder.

For both Ramahyuck and Ebenezer Mission Cemeteries, the requirement that transfer be made to Traditional Owners will (as distinct from any third party) ensures that any rights that may be available in relation to those sites under s 47A of the Native Title Act 1993 (Cth) to native title holders in the area may continue to be available. This preserves the existing native title rights of relevant groups through the new legislation.

The Bill will retain the Transfer Restriction and Use Restriction for the Coranderrk Mission Cemetery, in accordance with the wishes of the Wurundjeri Woi Wurrung Cultural Heritage Aboriginal Corporation (Wurundjeri) as the titleholder and Traditional Owners of the land encompassing Coranderrk.

The three cemeteries protected under the 1991 Act are highly culturally significant for the respective local Aboriginal communities and Traditional Owners, who hold deep, longstanding connections to the land, and because many of their ancestors are buried at the sites.

The Transfer Restriction and Use Restriction on the land contained in the 1991 Act do not reflect current government policies which seek to promote Aboriginal self-determination, including in relation to property rights and interests.

During consultations on amendments to the 1991 Act, the titleholders and Traditional Owners of the Ebenezer and Ramahyuck Mission Cemeteries noted that the Transfer Restriction and Use Restriction represent a level of government intervention in Aboriginal decision-making that no longer appropriately serves their interests of self-determination. In this way, the titleholders and Traditional Owners of the Ebenezer and Ramahyuck Mission Cemetery asserted their cultural rights to determine the future use of their respective cemetery sites. Wurundjeri exercised their cultural rights by electing to retain the land Transfer Restriction and Use Restriction as the titleholder and Traditional Owners for the Coranderrk Mission Cemetery.

By rectifying the 1991 Act’s limitations on the cultural rights of Aboriginal Victorians, in accordance with the aspirations of the titleholders and Traditional Owners of the land, the Bill promotes the distinct cultural rights of Aboriginal Victorians as described under section 19(2) of the Charter.

Accordingly, the Bill is consistent with the distinct cultural rights of Aboriginal persons under section 19(2) of the Charter.

Right to property

Section 20 of the Charter states that a person must not be deprived of their property other than in accordance with law. Property is likely to include all real and personal property interests recognised under general law (including interests in land and shares) and may include some statutory rights, especially if the right includes traditional aspects of property rights, such as the rights to use, transfer, dispose and exclude. The right requires that a law (whether legislation or the common law) authorising the deprivation of property is clear and precise, accessible to the public, and does not operate arbitrarily.

The 1970 Act recognises shares as personal property of shareholders, with provisions for dividends, acquisition, and sale of shares. However, limitations on share transfers are imposed, restricting transfers to the Trust, other Trust members, the Crown, and limited family members. Despite these provisions, the 1970 Act lacks clarity regarding the definition of a “proper instrument of transfer” and the necessary information for such transfers.

Clause 3 of the Bill will empower the Governor in Council, upon recommendation of the Minister, to prescribe an instrument of transfer. This aims to ensure that transfers of shares are executed in accordance with the 1970 Act, thereby reinforcing the property rights of shareholders while promoting legal certainty and compliance with legislative requirements.

Furthermore, Clause 4 of the Bill mandates that the entity maintaining the share register provides written notice of any share transfers to all members listed in the register. Additionally, it ensures that the share register is accessible for inspection upon receiving a written request from a member of the Trust or the Minister. These measures enhance transparency and accountability in share transfers, safeguarding the property rights of shareholders and facilitating fair and equitable treatment.

The Bill does not extinguish shareholder rights under the 1970 Act and does not deprive a person of their property. The proposed amendments outlined in Clauses 3 and 4 of the Bill aim to strengthen property rights by enhancing the legitimacy, transparency, and procedural fairness of share transfers, thereby promoting the protection and proper handling of personal property.

The 1991 Act provides for Transfer Restriction and Use Restriction on title granted under the Act. Clause 33 of the Bill will remove the Use and Transfer restrictions for the Ebenezer Mission Cemetery and Ramahyuck Mission Cemetery to enable titleholders to exercise their land rights and transfer the sites to Traditional Owners. The requirement to transfer to Traditional Owners (as distinct from any third party) ensures that any rights that may be available under s 47A of the Native Title Act 1993 (Cth) to native title holders in the area may continue to be available. The Bill will retain the Transfer Restriction and Use Restriction for the Coranderrk Mission Cemetery, in accordance with the wishes of Wurundjeri as the titleholder and Traditional Owner for the land.

The 1991 Act does not reflect contemporary government policy which seeks to promote Aboriginal self-determination, including in relation to property rights and interests. The Bill promotes the right to property by enabling titleholders for the Ebenezer Mission Cemetery and Ramahyuck Mission Cemetery to freely exercise their land rights and return the sites to Traditional Owners.

The Bill does not remove the Transfer or Use restrictions for the Coranderrk Mission Cemetery, which limits the Wurundjeri’s property rights as titleholder. However, this limitation is reasonable and justified in the circumstances.

Wurundjeri expressly chose to retain these restrictions during submissions in 2021 and 2023 to the review of the 1991 Act. The retention of the Transfer and Use restrictions for the Coranderrk Mission Cemetery acknowledges and honours the wishes expressed by Wurundjeri and is for the purpose of promoting Aboriginal self-determination over their property rights. Additionally, the decision to retain the Transfer Restriction and Use Restrictions represents a deliberate decision to preserve the cultural significance and heritage of the site.

Importantly, consultation on the limitations imposed on the Coranderrk Mission Cemetery will remain ongoing. The Victorian Government remains open to revisiting and amending the 1991 Act in the future should the aspirations of Wurundjeri change over time. This underscores the government’s legal obligation to engage in meaningful consultation and accommodation of First Peoples’ rights.

Accordingly, I consider the potential limitation reasonable, necessary, justified and proportionate in the circumstances. The Bill is consistent with the right to property in section 20 of the Charter.

Hon Natalie Hutchins MP

Minister for Treaty and First Peoples

Minister for Jobs and Industry

Minister for Women

Second reading

Natalie HUTCHINS (Sydenham – Minister for Jobs and Industry, Minister for Treaty and First Peoples, Minister for Women) (10:42): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

I acknowledge the Traditional Owners and custodians of the land on which this Parliament stands, the Wurundjeri Woi Wurrung People of the Kulin Nations. I pay my respects to their Elders and ancestors; Elders from all Victorian First Peoples, and any Elders and other Aboriginal people who join us here today. Since time immemorial, First Peoples have practiced their laws, customs and languages, and nurtured Country through their spiritual, material and economic connections to land, water and resources. Victoria’s First Peoples maintain that their sovereignty has never been ceded.

The reality of colonisation involved the establishment of laws and policies with the specific intent of excluding First Peoples people and their customs, cultures and traditions. I acknowledge that the impact and structures of colonisation still exist today. For generations, First Peoples have called for treaty and land rights to secure structural change, and to ensure First Peoples have the freedom and power to make decisions that affect them, their communities and Country.

Amendments to the Aboriginal Lands Act 1970

The Aboriginal Lands Act 1970 (1970 Act) is a landmark piece of legislation created in direct response to the Framlingham and Lake Tyers Aboriginal communities’ advocacy for land rights. As former mission sites, Framlingham and Lake Tyers represent the State’s past racist, segregationist, and assimilationist laws which actively sought to deny First Peoples any form of self-determination.

On the 1st of January 1968, residents of the Framlingham and Lake Tyers communities were listed in the Victorian Government Gazette as members of the respective Framlingham or Lake Tyers Aboriginal Trusts and allocated shares in the Trusts, thereby granting them freehold title of the land. Under the scheme created by the 1970 Act, each member holds part of their Trust, and that Trust owns the land; in that way, the members indirectly own the land. When it was enacted, the 1970 Act was nation leading. It was the first time that the Victorian Parliament recognised Aboriginal land rights and the government’s first attempt to recognise the self-determination of First Peoples in Victoria, specifically the Trust communities’ right to own and make decisions about land.

While the 1970 Act was historic in returning land ownership to the Framlingham and Lake Trusts’ communities, it is now outdated and inadequate at promoting self-determination, enabling good governance and economic independence for the Trusts’ shareholders and non-shareholder residents. Not once in the 54 years that the 1970 Act has been in operation has government sought to introduce major reforms to the 1970 Act, nor create a review mechanism to ensure the 1970 Act keeps pace with our advancing work with First Peoples.

Periodic minor legislative amendments over the past five decades have failed to ensure the 1970 Act remains consistent with its original purpose of “giving back to the people of Framlingham and Lake Tyers the dignity which was theirs in their original ownership of [the land].”

Though the Victorian Government is proud of the progress made in Aboriginal Affairs, it is unacceptable that the 1970 Act has not kept pace with other legislation, shifting attitudes and policies concerning First Peoples in Victoria and other jurisdictions, including the Victorian Government’s evolved understanding of First Peoples’ self-determination.

In response to ongoing systemic issues, the Victorian Government publicly committed to reviewing the 1970 Act in July 2016, with the aim of improving governance and enabling greater self-determination for the Trusts’ communities. The Independent Review of the Aboriginal Lands Act 1970 (Independent Review) concluded in 2021. The Independent Review made a series of recommendations aimed at strengthening governance and share transfer mechanisms and increasing the Trust communities’ understanding of the 1970 Act’s requirements and its shareholding system.

In September 2023, the Victorian Government publicly committed to implementing all the recommendations of the Independent Review in two phases.

This Bill gives effect to phase one of the Victorian Government’s response to the Independent Review and will implement 22 legislative recommendations supported in full. Phase one reforms focus on the Trusts’ governance, easing unfair administrative requirements on the Trusts, which has, and continues to, impact their ability to comply with the legislation; resolving issues with the shareholding system and improve processes for share transfers; strengthen the accountability and transparency provisions in the governance arrangements of the Trusts; provide the Trusts with powers to carry out business on Trust land; and provisions to modernise terminology in the Act.

The Bill will also entrench improvements to the governance and composition arrangements of the board of administrators’ model under the 1970 Act, and remove the duplicative financial reporting requirements.

Government is concurrently progressing six non-legislative amendments. Together, these actions will acquit phase one of the Victorian Government’s response to the Independent Review.

Phase two will consider implementation of the remaining 14 (13 legislative and one non-legislative) recommendations, subject to further analysis, community engagement and the implementation of interdependent recommendations in phase one, including clarification of shareholdings at both Trusts.

Reforms to the 1970 Act will not end with implementing all the recommendations of the Independent Review. The path ahead must be one consistent with self-determination, where the State supports the Framlingham and Lake Tyers communities to be self-governing and use the Trust lands for the benefit of residents and shareholders alike.

The Victoria Government stands committed to proceeding apace with required short-term changes to the 1970 Act and a renewed effort to resolve longstanding issues. The amendments proposed in this Bill, in conjunction with the other phase one recommendations, will provide the groundwork for future reform to the 1970 Act.

Amendments to the Aboriginal Lands Act 1991

Efforts to redress some of the impacts of the Victorian Government’s past racist laws were also reflected in the enactment of the Aboriginal Lands Act 1991 (1991 Act). Under this Act, freehold title was granted over three Aboriginal burial sites at the former Coranderrk, Ebenezer and Ramahyuck Missions to Wurundjeri Woi Wurrung Cultural Heritage Aboriginal Corporation, Goolum Goolum Aboriginal Cooperative, and Gippsland and East Gippsland Aboriginal Cooperative respectively, these being the only Aboriginal-led community organisations in those regions at the time.

While the 1991 Act succeeded in transferring culturally significant land to Aboriginal organisations, it conversely restricted First Peoples’ self-determination by prohibiting them from transferring their respective interests in the land (Transfer Restriction) and restricting their use of the lands to Aboriginal cultural and burial purposes (Use Restriction).

This Bill will remove restrictions on the Ebenezer and Ramahyuck Mission Cemeteries and allow for the transfer of these cemeteries to the Traditional Owners, thereby preserving rights under section 47A of the Native Title Act 1993 (Cth), enabling for previous extinguishment of the sites to be set aside, should those groups decide. All references to the Coranderrk Mission Cemetery are to remain unchanged in line with the aspirations of the Wurundjeri Traditional Owners. These changes are in line with the respective wishes of the title holders and Traditional Owners – to empower Aboriginal organisations to freely exercise their land rights and return the Ebenezer and Ramahyuck Mission Cemeteries to Traditional Owners.

Importantly, these amendments to the 1991 Act will also fulfil the Victorian Government’s legal commitment in its Recognition and Settlement Agreement (RSA) under the Traditional Owner Settlement Act 2010 to use best endeavours to return the ownership of the Ebenezer Mission Cemetery to the Barengi Gadjin Land Council Aboriginal Corporation who is the Traditional Owner Group Entity which represents the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples of the Wotjobaluk Nations (WJJWJ Peoples) as the Traditional Owners of the land encompassing Ebenezer Mission.

These changes to the 1970 Act and the 1991 Act are emblematic of how the Victorian Government should work with First Peoples – listening, appreciating the uniqueness of different Aboriginal groups, and working to give these groups power and control over their affairs.

I see the work to reform the 1970 Act as a critical step on our pathway towards self-determination. Finding a way for the Trust communities to exist beyond the restrictions of the 1970 Act is critical to enable the Trust communities to govern their own affairs, with government support, not intervention.

I commend the Bill to the House.

James NEWBURY (Brighton) (10:43): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 12 June.