Thursday, 23 June 2022
Bills
Treaty Authority and Other Treaty Elements Bill 2022
Treaty Authority and Other Treaty Elements Bill 2022
Introduction and first reading
The PRESIDENT (17:30): I have a further message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to provide for various matters in relation to the Treaty Authority, to amend the Advancing the Treaty Process with Aboriginal Victorians Act 2018 and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Mr LEANE: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (17:31): I lay on the table this statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
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 Treaty Authority and Other Treaty Elements Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill supports the delivery of the key elements of Victoria’s treaty process, which must be established by agreement between the State and the First Peoples’ Assembly of Victoria (the Assembly) under the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Treaty Act). Specifically, the Bill: i) recognises the establishment of the Treaty Authority under the Treaty Authority Agreement; ii) facilitates the operations of the Treaty Authority by giving legal force to its activities; and iii) amends the Treaty Act to support the establishment of the treaty negotiation framework and the administration of the self determination fund.
The State is advancing the treaty process with Aboriginal Victorians to promote reconciliation between Aboriginal and non-Aboriginal Victorians, and to support recognition of Victoria’s First Peoples and their ongoing laws, customs, culture and rights, including the right to self-determination. In this way, the Bill promotes the distinct cultural rights of Aboriginal persons, recognised under section 19(2) of the Charter.
Human rights issues
Clause 17(2) of the Bill provides that a member of the Treaty Authority is not personally liable for any acts or omissions of the Treaty Authority in the performance of a function or the exercise of a power by the Treaty Authority.
Similarly, clause 18(1) of the Bill provides that Treaty Authority members or employees are not personally liable for their own acts or omissions, done in good faith, in the performance of a function or the exercise of a power under a delegation (or in the reasonable belief that the act or omission was in the performance of such a function, or the exercise of such a power). However, clause 18(2) provides that any liability that, but for clause 18(1), would attach to a member or employee of the Treaty Authority, attaches instead to the Treaty Authority.
These clauses may engage the Charter rights to property (s 20) and to a fair hearing in a civil proceeding (s 24(1)). For the reasons set out below, however, it is my opinion that neither Charter right is limited.
Property
Section 20 of the Charter states that a person must not be deprived of property otherwise than in accordance with law. The right will not be limited where the 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.
Insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, clauses 17(2) and 18(1) may engage the right. However, in my opinion, these clauses do not effect a deprivation of property, because they do not extinguish any cause of action which a person may have against a Treaty Authority member or employee. Rather, liability is transferred to the Treaty Authority.
Even if clauses 17(2) and 18(1) could be considered to deprive a person of property, any such deprivation will be ‘in accordance with law’ and will therefore not limit the Charter right to property. In particular, the clauses are drafted in clear and precise terms. In addition, any deprivation of property is reasonably necessary to achieve the important objective of ensuring that Treaty Authority members and employees may perform their functions in good faith without being impeded by the prospect of personal liability. Moreover, the scope of any deprivation is minimal, because a person may still sue the Treaty Authority directly.
Fair hearing in a civil proceeding
Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right is concerned with procedural, rather than substantive, fairness. Its precise content depends on the circumstances of any given case, including the nature of the decision being made and the significance to a party of an adverse decision.
Clauses 17(2) and 18(1) do not, in my opinion, limit the right to a fair hearing because persons who would otherwise have a cause of action against a member or employee of the Treaty Authority can still bring an action against the Treaty Authority (whether for its own acts or omissions, or those of members or employees). In other words, these clauses do not impose an absolute bar to bringing proceedings in relation to the acts or omissions of the persons who benefit from the statutory immunity, but simply shift liability to the Treaty Authority.
The Hon. Shaun Leane MP
Minister for Local Government
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Mr LEANE: I move:
That the bill be now read a second time.
Incorporated speech as follows:
With deep respect, I acknowledge the Traditional Owners and custodians of the land on which this Parliament stands, the Wurundjeri. I pay my respects to their Elders and ancestors—past, present and future; 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 Aboriginal 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 to secure structural change to improve the lives of First Peoples, and ensure have they have the freedom and power to make the decisions that affect them, their communities and Country.
Treaty is also a shared opportunity to create a better and fairer Victoria. Every Victorian has a part to play in reconciliation.
We stand together to advance Victoria’s treaty process, to address the unfinished business of this state and its relationship with its First Peoples. Through treaty we can formalise a better and fairer relationship between government, First Peoples and all Victorians.
In 2016, this government committed to advancing treaty with Victoria’s First Peoples as a necessary step in realising Aboriginal self-determination. This commitment was formalised in law through this Parliament, with the passage of the Advancing the Treaty Process with Aboriginal Victorians Act 2018—the first treaty legislation in Australia’s history. That Act set out a roadmap for the treaty process and ensured we listened to and were led by Aboriginal people and communities. The Act committed the State to work in partnership with the Aboriginal Representative Body to establish elements necessary to support future treaty negotiations.
Since its establishment in 2019, the government has been working in partnership with the First Peoples’ Assembly of Victoria, as the Aboriginal Representative Body and the first democratically elected representative body for Traditional Owners and Aboriginal Victorians in the state’s history. Today we take another step together on the historic journey towards treaty and to realising genuine self-determination for Aboriginal Victorians.
I am proud to introduce to Parliament the Treaty Authority and Other Treaty Elements Bill 2022.
This Bill will support the establishment and ongoing operation of the Treaty Authority, required by the Treaty Act as a necessary element of Victoria’s treaty process to support future treaty negotiations. The Bill will also amend the Advancing the Treaty Process with Aboriginal Victorians Act 2018, in relation to the treaty negotiation framework and self-determination fund.
This Bill continues the government’s strong commitment to treaty, truth, justice and self-determination for Victoria’s First Peoples.
Treaty Authority
The Treaty Authority has been established by agreement between the State and the First Peoples’ Assembly of Victoria. The Treaty Authority will support treaty negotiations to occur on an equal footing and ensure treaty can realise positive outcomes for every Victorian.
The State and Assembly have developed a unique Treaty Authority model as an independent unincorporated body, with the necessary powers and capacities to operate effectively. This novel legal form will provide independence from all parties to ensure public trust and integrity in the treaty process, while being publicly accountable to all Victorians and culturally accountable to First Peoples.
The Treaty Authority will be the first body of its kind in Australia. The Treaty Authority is modelled on best practice examples internationally, including Canada and New Zealand. Learnings from these processes have demonstrated the need and value of an independent body, such as a Treaty Authority, to facilitate and oversee treaty negotiations. Treaty processes underway in other Australian jurisdictions have also identified the need for independent bodies with similar functions, to ensure accountability in negotiations.
The Bill will facilitate the operation of the Treaty Authority and give legal force to its actions. In doing so, this Bill provides for a Treaty Authority that is truly independent and can fulfil its role in the treaty process in a way that is impartial, fair and culturally sound.
The Treaty Authority will oversee and facilitate treaty negotiations and administer the treaty negotiation framework, to ensure negotiations proceed in accordance with the guiding principles for the treaty process and the rules and processes set out in the framework.
It will be a facilitative body which is called on to perform its functions in a manner that can preserve, restore and build respectful relationships between First Peoples and the State as well as between First Peoples’ groups. In doing so, the Treaty Authority will support treaty negotiating parties to work together to reach agreements and enter treaties that observe and uphold the self-determination of First Peoples, and lead to strong ongoing relationships.
The Treaty Authority will provide for the resolution of disputes arising in the treaty process, including disputes between parties to negotiations as well as disputes incidental to or in connection with treaty negotiations. This will make available culturally-appropriate dispute resolution support to all parties engaged in the treaty process.
The Treaty Authority will also support the treaty process by undertaking research. The Treaty Authority’s research will support best practice approaches and continuous improvement in the treaty process and ensure treaty negotiations can lead to evidence-based outcomes.
The Treaty Authority will be called on to observe and uphold the unique Lore, Law and Cultural Authority of First Peoples in the treaty process to ensure it is genuinely bicultural. In this way, the treaty process will proceed in a manner that respects and is guided by the distinct cultural rights of First Peoples and is consistent with the principles articulated in the United Nations Declaration on the Rights of Indigenous Peoples.
This unique Treaty Authority model is reflective of the need to do things differently as we advance Victoria’s treaty process.
Treaty Act amendments
The Bill will also amend the Advancing the Treaty Process with Aboriginal Victorians Act 2018 to support the delivery of the other foundational elements of the treaty process: the treaty negotiation framework and the self-determination fund.
Firstly, the Act will be amended to specify that the Aboriginal Representative Body is not prevented from being a party to treaty negotiations.
The amendment will remove any legal barrier to the Aboriginal Representative Body participating in treaty negotiations, but will not prioritise any particular party. As with any other party seeking to negotiate a treaty, including the State, the Aboriginal Representative Body will itself need to meet minimum standards to enter treaty negotiations. The minimum standards will be set out in the treaty negotiation framework and must be met by any party before it can participate in treaty negotiations.
Secondly, the Act will be amended to provide greater flexibility in how the self-determination fund can be administered.
This will ensure the Aboriginal Representative Body has sufficient flexibility to administer the self-determination fund based on good financial practice and in a manner that most effectively satisfies its purposes and supports the self-determination of Aboriginal Victorians in the treaty process.
Closing remarks
This government has been working in partnership with Aboriginal Victorians to advance the treaty process, through the First Peoples’ Assembly of Victoria as the Aboriginal Representative Body.
This Bill represents an outcome of this partnership and will help lay the foundations for future treaty negotiations in Victoria, by supporting the establishment of necessary elements of the treaty process.
With this historic Bill we take a significant step towards the commencement of treaty negotiations. The establishment of the Treaty Authority is a ground-breaking milestone that will ensure a genuinely fair and bicultural treaty process that can deliver for every Victorian.
This important step on the journey to treaty brings us closer to addressing the unfinished business of our state, and realising treaties which can recognise historic wrongs and address ongoing injustices. It acknowledges and promotes First Peoples’ fundamental rights, including the right to self-determination. It will help heal the wounds of the past, support reconciliation, and pave the way for a better future rooted in truth, justice, equality and respect. It will bring pride and help create a fairer Victoria that we can all be proud of.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (17:31): I move, on behalf of my colleague Dr Bach:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.