Linda Burney (Barton, Australian Labor Party, Shadow Minister for Preventing Family Violence) Share this | Link to this | Hansard source

I want to say at the outset that Labor is going to support the Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018 in the House. The bill consists of something like six schedules. I won't go through all of those—

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Assistant Minister for External Territories) Share this | Link to this | Hansard source

Oh, go on.

Linda Burney (Barton, Australian Labor Party, Shadow Minister for Preventing Family Violence) Share this | Link to this | Hansard source

except to say—if you insist—that part 1 talks about what the bill's in relation to; part 2 is the Aboriginal and Torres Strait Islander Land and Sea Future Fund and a number of issues to do with that; part 3 is the Indigenous Land Corporation Funding Special Account; part 4 is investment of the Aboriginal and Torres Strait Islander Land and Sea Future Fund; part 5 is the reporting obligations, which are very important of course; and part 6 is the miscellaneous bits and pieces to the bill.

I want to begin, particularly when we are talking about these issues, by recognising country and paying our respects appropriately. I also want to pick up something that the member for Lingiari mentioned in relation to another piece of legislation, which this is connected to, when it was last debated in this parliament. It is in relation to the social justice package which was the third part of the Mabo High Court decision. I was personally involved in the consultations and the development of that social justice package under the leadership of Paul Keating. And the member for Lingiari is absolutely right: had there not been a change of government, we would not be seeing some of the social disadvantage and dislocation experienced by First Nations communities that we are still seeing today. One of the great tragedies in the last 20 years in the Indigenous affairs space is the lack of implementation of that social justice package. I think if people pulled out that social justice package today and had a look at it, it would be as relevant today as it was at the time of its development.

We need to remind ourselves that on 3 June 1992 the High Court of Australia delivered the Mabo judgement overturning the long-held assumption of Australia's settlement. Whether it was settlement is contested. Of course, it was taught to us at school as settlement. From an Aboriginal perspective, it was nothing of the sort. The land belonged to no-one. In recognising the continuing title of First Nations people to land. I think it's really significant that we pause and remind ourselves about 3 June 1992. It was one of those moments in our nation's history that defined us. I remember absolutely where I was and what I was doing. I was listening to the radio, driving down City Road towards Sydney city, when I heard the Mabo decision saying terra nullius had been overturned. To me, as a First Nations woman, that was a moment when tears sprang to our eyes because for 200 years in this country we had the idea that First Nations people didn't exist—because the way in which this land was usurped, of course, was using the doctrine of terra nullius.

Apart from the many things that have been highlighted already by both speakers on this side of the House, we must remind ourselves that the notion of terra nullius was overturned in the Mabo judgement. The judgement recognised in Australian common law that Aboriginal and Torres Strait Islander peoples' traditional title to land, native title, had survived the British settlement of the continent. Once again, we contest that notion of settlement—I certainly do. It also found that native title had been extinguished by many of the titles granted to other Australians by successive Australian governments. And that was also absolutely crucial. I know this incredibly well. Despite Rob Borbidge and Tim Fischer's disgusting campaign saying backyards were under threat and your Hills hoist was going to go, the truth of that decision was that native title only existed if all other title had been extinguished. That's a very important point to make in this debate as well.

As I said, that decision also found that native title had been extinguished by many other titles granted to other Australians by successive Australian governments. Shortly thereafter, the federal government, led by Prime Minister Keating, sought to codify native title in legislation through a process of negotiation with Indigenous leaders. We remember that time very, very well. Many of us in this debate were part of that history—certainly the member for Hasluck, the member for Lingiari and me. The first part of the settlement was the Native Title Act 1993, legislated in December 1993. The Native Title Act codified and defined native title and established a process for its negotiation—where there had been, as I have said, no extinguishment.

The land fund, now officially known as the land account, was the second part of that settlement and, as the member for Lingiari explained, the third part was supposed to be the social justice package. At the time, the government and Indigenous leaders were conscious that many Indigenous Australians had seen their traditional country overlaid by land titles by other Australians. It was a magnificent time in our history. There was the Cape York land agreement and many other things that I think would be very difficult to achieve in today's climate.

The land account provides a mechanism for some compensation for dispossession of Aboriginal and Torres Strait Islander peoples since 1788. The land account was established with legislated appropriations over 10 years to build a capital base, after which the account's own income would support the operations of a new statutory authority, created at the same time as the land account, the Indigenous Land Corporation—not too different to the philosophical background of the establishment of the New South Wales Land Rights Act and the New South Wales Aboriginal Land Council.

Since that time, the ILC has used the land account to purchase property for the use and enjoyment of Indigenous Australians whose native title has been extinguished. After 20 years, the ILC began to initiate a review into its functions. I think one of the shining examples in the city that I live in of the ILC's success in this is the purchase of the property in Redfern, the National Centre of Indigenous Excellence, which is something that all Australians can be absolutely proud of. It is a shining example of just how important this fund is.

From early July to the beginning of September 2017, the ILC undertook a series of consultations to gain community feedback on legislative changes to the Aboriginal and Torres Strait Islander Act 2005—firstly, the financial sustainability of the Aboriginal and Torres Strait Islander land account and, secondly, the extension of the ILC's remit to include fresh and saltwater based activities—and, culturally, that is extremely important. There were 16 consultations, with 11 undertaken in locations around Australia, involving more than 75 First Nations organisations. So it was a very comprehensive consultation—and, appropriately, right across this country.

According to the report produced, 75 per cent of the consultation sessions provided consensus support for both areas of proposed reform. That's quite fantastic. More than 85 per cent of the sessions provided consensus support to the reform of management and government arrangements of the land account. Unanimous support for reform to the investment mandate of the land account was expressed in the written submissions that dealt with this issue. Of the 17 submissions that addressed both issues, 77 per cent gave support to both, with only eight per cent indicating they did not support the reform relating to water. The reason that we are seeing in this House right now support for these initiatives is that those consultations provided the basis for consensus.

In terms of the legislation, on 28 March 2018, the government introduced two substantive pieces of legislation and one piece of consequential legislation to alter the functions and governance of the ILC and the ILA. The first bill amends the Aboriginal and Torres Strait Islander Act to give the ILC functions in relation to water-related rights. I cannot underscore just how important it is that water-related rights are included in this. We know that, in Aboriginal dreaming stories and in Aboriginal culture, the issue of water, both freshwater and saltwater, absolutely underpin the culture, the ownership and the occupation of lands and waters. Many of our stories originate in waters, and those rights to land are not extinguished at the shore line.

These additional functions to be consistent with the ILC's functions in relation to land include: the acquisition of water related rights and divestment to Aboriginal and Torres Strait Islander corporations; the provision of assistance grants loans and loan guarantees to Aboriginal or Torres Strait Islander corporations to acquire water based rights, which is also incredibly significant; the carrying on of management activities in relation to Indigenous waters; and the provision of assistance grants loans or loan guarantees for the purpose of carrying on management activities in relation to Indigenous waters.

I might just, for the edification of the House, explain a little bit. Among the many ways in which Aboriginal people describe ourselves, we are either a saltwater or a freshwater person. I and, I think, Ken are freshwater.

Ken Wyatt (Hasluck, Liberal Party, Minister for Indigenous Health) Share this | Link to this | Hansard source

Yes.

Linda Burney (Barton, Australian Labor Party, Shadow Minister for Preventing Family Violence) Share this | Link to this | Hansard source

My associations go back to the good old Murrumbidgee River. I am of the Murrumbidgee Wiradjuri.

The second bill gives effect to the government's decision to establish a dedicated financial asset fund—I won't go through the acronym for that; it's very long!—to support the making of annual and discretionary additional payments to the ILC. This fund will replace the Indigenous Land Account, and we spoke about that earlier, the closure of which will be effected by the Aboriginal and Torres Strait Islander Land and Sea Future Fund (Consequential Amendments) Bill 2018. The bill provides for the transfer of the moneys and financial assets currently allocated to the land account to the new fund, which will be managed by the Future Fund board. That all sounds very bureaucratic, and it probably is, but it's important to outline these arrangements in the House today.

The ATSILSFF will be credited with amounts equal to the balance of the land account special account and the value of the investments of the land account. This special account will then be debited to provide an annual payment to the ILC to be credited to and paid for from the ILC funding special account. The finance minister and the Indigenous Affairs minister may also determine once a financial year that an additional payment be made to the ILC after considering the advice of the Future Fund board about the impact of any additional payment on the sustainability of annual amounts to the ILC. That component is also very important—that there is the continuing discretion of the ministers involved to be able to undertake those discretionary payments.

The Future Fund board will be responsible for deciding how to invest the new fund to enhance the Commonwealth's ability to make annual payments for any additional payments to the ILC. The bill requires a responsible minister to issue an investment mandate to the Future Fund board, and that's very much about accountability regarding the investments of the new fund. The purpose of the investment mandate is to provide a mechanism for the government to provide strategic guidance to the Future Fund board on its expectations for the investment of the new fund. That also is incredibly important to the government of the day and to First Nations people. The Indigenous Land Account has achieved an average return over the past three years of approximately CPI plus 1.5 per cent per annum. Under the new arrangements, the government expects that account will achieve a return—and this is really important—of CPI plus 2.6 per cent after fees.

There are a few other points I'd like to make in closing. Expenses associated with the investment and administration of the fund incurred by the Future Fund board will be met by ATSILSFF. I want to put forward what the Labor position is. You can see that with me putting forward this position how much work has gone into making sure that this is for the benefit of those it has been designed for. Labor supports the intent of this legislation. We accept the need to improve the financial sustainability of the fund and we support the expansion of the remit of the fund to cover water. However, after consultation with stakeholders, we took the view that there were a number of ways in which the legislation could be strengthened—and I understand there's been discussion on this—in order to protect the land fund for future generations. We have requested a number of minor amendments to the bill which we believe will achieve that.

Firstly, we have requested of the government that they include provisions in the bill that the minister must have regard to the sustainability of the fund prior to making any additional transfers. I'm sure that minor amendment is something that the government could accommodate. This will help to ensure that these transfers are not used to deplete the fund over time. We also requested that the long-term sustainability be a necessary consideration where the minister sets out the investment mandate. I'm sure that the minister would be considering that as a matter of course. I am pleased that the government has now moved amendments to address both of those issues.

Our second concern is related to the removal of any oversight role of the ILC in relation to the fund. That's important because, when you've got the ILC as the board, they need to understand what's going on in terms of any investments. At present, the ILC board provides oversight of the account. This is not an active oversight role, but, rather, a way for the ILC board to maintain a clear line of sight as to how the account is being invested. Once again, that's a very sensible suggestion. The bill before us, in its original form, removed this. We did not support this. I'll say that again: the bill before us, in its original form, removed this and we did not support this. At a time when there were growing calls for a greater Indigenous say over issues that impact on Indigenous lives, we felt the removal of the oversight was inconsistent with the need to maintain as much Indigenous involvement as possible. We do welcome the government's decision to require the Future Fund brief of the ILC board on their investment decisions, restoring that important oversight of the ILC. We thank the government for that recognition.

We know that this will be a passive oversight role that is not designed to interfere with the functions of the Future Fund but, rather, to ensure that the fund, which is designed to assist Indigenous Australians, is never removed entirely from Indigenous involvement—once again, going very much forward with a philosophical view of the involvement of First Nations people. We also welcome the amendment that will require the minister to consult with the ILC in relation to the investment mandate. This, once again, provides an opportunity for important input from First Nations people into the management of the fund. We believe that these amendments strengthen the bill. We recognise the minister for working with us to achieve a bipartisan position. Having reached agreement on these matters, Labor is happy to support this bill.

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Assistant Minister for External Territories) Share this | Link to this | Hansard source

I want to thank the member for Barton for her contribution. She's very appropriately outlined, in very much detail, our support for the legislation, the features of the legislation and our concerns about some aspects of the legislation which have been picked up and addressed by the government, so we've now got a bill we're able to support. I want to make a couple of observations. One observation I want to make that is of particular importance is that the ILC board retains some oversight role of the account. Whilst the Future Fund, of course, is responsible for its investments et cetera, ultimately the ILC board is charged with the responsibility of making sure that the funds for which they have been made responsible are dealt with properly and appropriately, so they need to have a clear line of sight as to how the account is being invested.

I note the comments made by the member for Barton around those issues. We welcome, as she said, the government's decision to require that the Future Fund brief the ILC Board on their investment decisions, in a sense restoring the capacity of the ILC to oversee, as a part of its responsibilities, the investments which are being made. It's obviously a passive role. It's not a role which is designed to give them the capacity to interfere with the Future Fund's decisions, but it is important nevertheless. We're of the view, as the shadow minister said, that these proposals strengthen the bill.

I do want to go back to my friend's discussion around Mabo and just try to bring it into a current context. My memories of those days are really strong. The debates which took place in this parliament were enlivened not only by some great, great orators in the parliament itself but also, most particularly, by Aboriginal leaders outside the parliament. Current Senator Dodson was part of a group of people who spent a lot of time negotiating with the Prime Minister, Paul Keating, and a cabinet subcommittee of which I was a member around the content of the native title legislation and what should happen as a result.

I want to just say that we're going through a process external to this parliament in a sense, and there's a parliamentary committee of which I'm a member and the member for Barton is a member looking at the issues to do with constitutional recognition. When we're contemplating it, we're very far removed from the engagement that Aboriginal and Torres Strait Islander people had then with the processes of this parliament. Currently, they're largely not to be seen, and that is a shame. One of the reasons for that is that there's no national body. At the time of this discussion around Mabo and the legislation, ATSIC was alive. ATSIC was alive as a body which represented the voice of Aboriginal and Torres Strait Islander people and was very much part of and central to the discussions with government. There has been a call for a structure to be set up—a voice—which will give Aboriginal and Torres Strait Islander people the capacity to interface again with ministers, prime ministers and the parliament. If only it existed today.

We, I think, have a responsibility in this place to understand that there's a huge vacuum which is there as a result of the displacement, initially, of ATSIC. Sadly, because of the failure of the present government and its predecessor to recognise and fund the National Congress of Australia's First Peoples, we don't have a body which has been properly resourced and can be seen to be representative of the interests and views of Aboriginal and Torres Strait Islander people around this country. It's very important for us. In 1992, there was Mabo and the legislation subsequently, which was all the result of constant interaction with Aboriginal people on the ground and at a leadership level here in Canberra. We've now got different groups coming to see us, but there's no organised structure through which Aboriginal and Torres Strait Islander people can express their views, apart from the National Congress of Australia's First Peoples, which, as I said, has not been resourced properly and is finding it very difficult to carry out its remit.

We have a responsibility here to think about these things in the context of this legislation. This legislation was arrived at because of the activities that happened in the 1990s, not because of something that's happening today. This was set in place, set in stone, by former Prime Minister Keating and his government as a result of the Mabo decision and the native title legislation and the negotiations which took place with Aboriginal and Torres Strait Islander people through the leadership that was expressed through ATSIC and those other organisations that were at the table. They were seen to represent Aboriginal and Torres Strait Islander interests. They were legitimately representing those interests. As a result, we have the native title legislation, the land fund being set up through the ILC, and then the third tranche, as the member for Barton said—the social justice package—dropped off the edge when the Keating government got defeated at the 1996 election.

We've got a long way to go. We can retrace our steps. It won't help us much. What we've got to do is think about what is appropriate now and into the future to give Aboriginal and Torres Strait Islander people that place at the table they richly deserve, and which they currently do not have. This is despite the good work of the Minister for Indigenous Health, who is at the table, my friend here the member for Barton, Senator McCarthy and Senator Dodson, who are Aboriginal and Torres Strait Islander people in this place. They are strong voices and they are seen to be strong voices. But we do not have, external to the parliament, a structure which can be seen to be representing the interests of Aboriginal and Torres Strait Islander people and properly representing their views to us.

There have been a series of consultations undertaken to get to this point—I think 17 was the number I heard. That's terrific. I remember the days—this has got little to do with this piece of legislation, but you'll understand what I'm saying here—when the Howard government did a review of the Northern Territory land rights legislation. They employed to do that a person who was a friend of mine: John Reeves QC, now a Federal Court judge. He came down with a set of recommendations around changing the land rights act in the Northern Territory. Aboriginal people around the Northern Territory were consulted. They set up a process to consult themselves through their land councils. I went to regional meetings right around the Northern Territory and saw Aboriginal people burn the report because of their disgust with some of the recommendations within it. Of course, ultimately it went nowhere. It went nowhere because of the strength of their view. They could do that because they had structures to organise, to help them actually articulate their views. Currently we've got a disparate set of structures around the country and we need to be thinking very seriously and making sure this parliament comes to terms with its obligation. Not everyone agrees with what came out of the Statement from the Heart—I understand that—but it is just common sense. It is just smart to ensure that Aboriginal people have a voice—that they have a voice and are listened to, and are listened to in a way where they are seen to be engaged with properly and not disparaged and have their views disregarded.

This legislation is welcome. But we have a responsibility in this place to go a whole lot further. We'll get into discussions about regional agreements and treaties and the like, but we still need a structure. I'd implore particularly some of our colleagues on the other side of this chamber to be thinking positively about it and not see it as a threat. I'm pleased to be able to support this legislation.

Ken Wyatt (Hasluck, Liberal Party, Minister for Indigenous Health) Share this | Link to this | Hansard source

I would like to thank the honourable members for their contribution to the debate on the Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018. This bill represents a significant step forward in Australia's land rights journey.

The Indigenous Land Corporation was established as part of the government's response to the High Court's decision in Mabo No. 2, in recognition that many Indigenous peoples would be unable to benefit under the Native Title Act 1993. The Indigenous Land Corporation was established to assist Aboriginal and Torres Strait Islander organisations to acquire land and manage Indigenous held land so as to provide the economic, environmental, social and cultural benefits for Aboriginal and Torres Strait Islander people. The Indigenous Land Corporation is funded by indexed annual payments and sometimes by additional payments from the Aboriginal and Torres Strait Islander Land Account. The land account was established to provide an ongoing, sustainable source of funding for the Indigenous Land Corporation. As at 1 July 2018, the land account had a capital balance of $2 billion. However, a combination of the current investment environment, payment arrangements and the investment restrictions means that the land account is not financially sustainable. These arrangements make it all but impossible for the land account to sustain annual index payments to the Indigenous Land Corporation.

The Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018, along with the Aboriginal and Torres Strait Islander Land and Sea Future Fund (Consequential Amendments) Bill 2018, proposes a landmark change to the land account. These changes will mean the land account payment arrangements support the land account's sustainability. Land account funds will be invested in a wider range of investment products and managed by the Future Fund Board of Guardians.

These bills follow extensive consultation with Indigenous stakeholders. A clear majority of stakeholders support changes to improve the sustainability of the land account by allowing land account funds to be invested in broader range of investment products and managed by the Future Fund Board of Guardians. The government listened and took these views into account. Through securing sustainable funding arrangements for the Indigenous Land Corporation, these reforms will provide significant long-term benefits to Aboriginal and Torres Strait Islander people. Under this legislation, the land account, which is currently managed by the Department of the Prime Minister and Cabinet, will be closed, and the Aboriginal and Torres Strait Islander Land and Sea Future Fund will be established, to be managed by the Future Fund Board of Guardians. The government's reforms will allow the land account funds to be put into the same range of investment products as other funds managed by the Future Fund Board of Guardians, and thus have the opportunity to generate higher investment returns. A move from the current narrow range of investments to a broader range requires an experienced investment manager. The Future Fund Board of Guardians is an experienced, specialised and trusted investor of public money, and the government wants the Indigenous Land Corporation to benefit from the Future Fund Board of Guardians' experience over the last decade in managing other Commonwealth investment funds. The Future Fund Board of Guardians currently invests over $164 billion across five public asset funds with different purposes and different mandates. While this transfer will add some complexity to their role, it is consistent with their current operations.

As noted in the report of the Senate Finance and Public Administration Legislation Committee on this bill, these reforms preserve the independence of the Indigenous Land Corporation in making its own decisions on how and where to spend its funds. The investment mandate for the new fund will be set by the Treasurer and the finance minister as the responsible ministers, in consultation with the Future Fund Board of Guardians and the Minister for Indigenous Affairs. The Minister for Indigenous Affairs will, in turn, consult with the Indigenous Land Corporation Board prior to responding to the responsible ministers. Setting up of the investment mandate enables the responsible ministers to articulate the broad, strategic guidance to the Future Fund Board of Guardians regarding investment of the fund. As with the arrangement for other funds currently managed by the Future Fund Board of Guardians, the mandate will be set in a manner consistent with Commonwealth objectives for the new fund and with reasonable but not excessive risk. The Future Fund Board of Guardians will be responsible for deciding how to invest the assets of the new fund under the investments mandate. This is consistent with other funds invested by the Future Fund Board of Guardians and preserves the independence of the Future Fund Board of Guardians as a sovereign investor of public money.

Under the new arrangements, annual payments will be unchanged, but additional payments will be altered to support the long-term sustainability of the new fund. Amendments made to this bill strengthen this intent. Annual payments to the Indigenous Land Corporation will be made by the minister for indigenous affairs. The annual payment to the Indigenous Land Corporation will remain indexed by CPI based on an initial payment of $45 million in 2010-11, over $53 million in today's terms.

Additional payments will be reformed so that they support the sustainability of the new fund. Currently, additional payments are made automatically if the land account capital exceeds a CPI-indexed target, with any excess funds paid to the Indigenous Land Corporation. The government proposes that additional payments be made by the finance minister and the minister for indigenous affairs, having considered the advice from the Future Fund Board of Guardians and any other matters that those ministers consider relevant. This will allow the ministers to decide whether to make an additional payment, based on the impact it will have on the financial sustainability of the new fund.

The Senate Finance and Public Administration Legislation Committee expressed confidence that future additional payments will only occur in circumstances where the new fund's sustainability is not compromised. These new additional payment arrangements will not compromise the financial independence of the Indigenous Land Corporation.

As required under the Future Fund Act 2006, the Future Fund Board of Guardians will table an annual report in the parliament which will include information on the performance of the new fund, as is the case with all of the funds managed by the Future Fund Board of Guardians. The Future Fund Board of Guardians will also publish quarterly investment performance updates, including investment commentary, on the Future Fund website, consistent with arrangements for other funds.

The government considers that the arrangements for standard reporting requirements relating to the Aboriginal and Torres Strait Islander Land and Sea Future Fund should, as closely as possible, mirror those in place for existing funds for the purpose of consistency. Nonetheless, the government will move amendments to ensure that the Indigenous Land Corporation board has the opportunity to discuss the performance of the fund with Commonwealth officials if it so desires and following the publication of the quarterly updates.

The bill also allows the finance minister to request that the Future Fund Board of Guardians prepare reports or give information. The finance minister may provide these reports or information to a relevant minister if appropriate.

These reforms are crucial to support the Indigenous Land Corporation to continue to assist Aboriginal and Torres Strait Islander people to achieve their economic, environmental, social and cultural goals into the future. By taking these steps to put the Indigenous Land Corporation's funding arrangements on a sustainable footing, this government is realising its commitment to improving the lives of Aboriginal and Torres Strait Islander peoples. I commend the bill to the House.

Question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.