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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ABORIGINAL AND TORRES STRAIT ISLANDER
LAND AND SEA FUTURE FUND
(CONSEQUENTIAL AMENDMENTS) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for
Indigenous Affairs, Senator the Hon Nigel Scullion)
Table of abbreviations and common terms
Abbreviation or
Description
common term
means the Future Fund Management Agency established by
Agency
section 74 of the Future Fund Act 2006
ATSI Act means the Aboriginal and Torres Strait Islander Act 2005
ATSILSFF means the Fund established by section 11 of the ATSILSFF Act
means the Aboriginal and Torres Strait Islander Land and Sea
ATSILSFF Act
Future Fund Act 2018
means the Aboriginal and Torres Strait Islander Land and Sea
ATSILSFF Special Account Future Fund Special Account established by section 12 of the
ATSILSFF Act
means the Building Australia Fund established by section 12 of
BAF
the Nation-building Funds Act
means the Building Australia Fund Special Account established
BAF Special Account
by section 13 of the Nation-building Funds Act
means the DisabilityCare Australia Fund established by
DCAF
section 10 of the DCAF Act
DCAF Act means the DisabilityCare Australia Fund Act 2013
means the DisabilityCare Australia Fund Special Account
DCAF Special Account
established by section 11 of the DCAF Act
means the Education Investment Fund established by
EIF
section 131 of the Nation-building Funds Act
means the Education Investment Fund Special Account
EIF Special Account
established by section 132 of the Nation-building Funds Act
Finance Minister has the same meaning as defined in the PGPA Act
means the Future Fund established by section 11 of the Future
Future Fund
Fund Act
Future Fund Act means the Future Fund Act 2006
means the Future Fund Board of Guardians established
Future Fund Board
by section 34 of the Future Fund Act
means the Future Fund Special Account established by
Future Fund Special Account
section 12 of the Future Fund Act
means the Indigenous Land Corporation established by
ILC
section 191A of the ATSI Act
Indigenous Affairs Minister means the Minister who administers Part 4A of the ATSI Act
means the Aboriginal and Torres Strait Islander Land Account,
Land Account continued in existence by repealed section 192W of the ATSI
Act, and repealed by the Item 3 to Schedule 1 of the Bill
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Abbreviation or
Description
common term
means the Medical Research Future Fund established by
MRFF
section 11 of the MRFF Act
MRFF Act means the Medical Research Future Fund Act 2015
means the Nation-building Funds established by sections 12 and
Nation-building Funds
131 of the Nation-building Funds Act
Nation-building Funds Act means the Nation-building Funds Act 2008
means the Minister nominated by the responsible Ministers under
Nominated Minister
section 83 of the Future Fund Act
means the Public Governance, Performance and Accountability
PGPA Act
Act 2013
means the following:
Responsible Ministers (a) the Treasurer; and
(b) the Finance Minister
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Aboriginal and Torres Strait Islander Land and Sea Future
Fund (Consequential Amendments) Bill 2018
Outline
1. The Bill makes a number of consequential amendments to other pieces of legislation
required to enable the effective operation of the ATSILSFF at commencement. It
accompanies the Aboriginal and Torres Strait Islander Future Fund Bill 2018 (the
substantive Bill that has prompted the necessity for this Bill). It also takes account of
the Aboriginal and Torres Strait Islander Amendment (Indigenous Land
Corporation) Bill 2018, which will extend the functions of the ILC to rights in
relation to water, and rename the ILC the 'Indigenous Land and Sea Corporation.'
Together, these Bills form a suite of reforms to support the ILC to assist Aboriginal
persons and Torres Strait Islanders acquire and benefit from land and waters.
2. The ATSILSFF Bill establishes the ATSILSFF as a dedicated financial asset to
enhance the Commonwealth's ability to continue to make annual and additional
payments to the ILC.
3. The ATSILSFF will be established as the ATSILSFF Special Account and the
investments of the ATSILSFF (made and managed by the Future Fund Board).
4. The consequential amendments made in the Bill support the establishment of the
ATSILSFF in that they:
a. extend the Future Fund Board's duties to manage the ATSILSFF; and
b. allow for amounts to be transferred between the ATSILSFF and the Future Fund
to allow for proper apportioning of common expenses incurred by the Future
Fund Board in managing the ATSILSFF, the Future Fund, MRFF, the
Nation-building Funds and the DCAF.
5. The Bill amends the ATSI Act, the Future Fund Act, the Nation-building Funds Act,
the DCAF Act and the MRFF Act.
6. The Bill closes the Land Account by repealing relevant sections of the ATSI Act.
The closure of the Land Account is a consequence of the decision to establish the
ATSILSFF with an initial balance (money and investments) equal to the balance of
the Land Account immediately before the time of establishment of the ATSILSFF.
7. The Bill also provides for amendments to the ATSILSFF Act that are contingent on
the repeal of the Nation-building Funds Act by the Nation-building Funds Repeal
(National Disability Insurance Scheme Funding) Bill 2017. If the Nation-building
Funds Repeal (National Disability Insurance Scheme Funding) Bill 2017 does not
commence, these contingent amendments will not take effect.
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8. The Bill further provides for amendments to the ATSILSFF Act that are contingent
on the enactment of the Aboriginal and Torres Strait Islander Amendment
(Indigenous Land Corporation) Act 2018. If this Act is not enacted, these contingent
amendments will not take effect.
9. Finally, the Bill makes three minor technical corrections to the MRFF Act.
10. Providing for a separate Bill for consequential amendments conforms to the
Commonwealth practice to reduce the complexity of principal Acts.
Financial Impact Statement
11. The Bill has no financial impact.
Statement of Compatibility with Human Rights
12. The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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Aboriginal and Torres Strait Islander Land and Sea Future Fund
(Consequential Amendments) Bill 2018
Notes on Clauses
Note: The clauses in the Bill will become sections of the Act on Royal Assent.
Clause 1 - Short Title
13. This clause provides for the Act to be cited as the Aboriginal and Torres Strait Islander
Land and Sea Future Fund (Consequential Amendments) Act 2018.
Clause 2 - Commencement
14. Clause 2 deals with commencement of the provisions in the Bill. This clause has the effect
of providing that:
a. Sections 1 to 3 and anything in the Act not elsewhere covered by this table is to
commence on the day the Act receives the Royal Assent.
b. Schedule 1 commences at the same time as the ATSILSFF Act. This is to ensure that
administrative arrangements for the ATSILSFF are in place from the establishment of
the fund. However, Schedule 1 does not commence at all if the ATSILSFF Act does not
commence.
c. Schedule 2 also commences at the same time as the ATSILSFF Act. Again, this is to
ensure that administrative arrangements for the ATSILSFF are in place from the
establishment of the fund.
However, Schedule 2 will not commence if Part 1 of Schedule 1 to the Nation-building
Funds Repeal (National Disability Insurance Scheme Funding) Act 2018 commences
before the commencement of the ATSILSFF Act. If this occurs, the amendments in
Schedule 2 will not be necessary.
Schedule 2 also does not commence at all if the ATSILSFF Act does not commence.
d. Schedule 3 commences on the later of:
i. Immediately after the commencement of the ATSILSFF Act; and
ii. The commencement of Part 1 of Schedule 1 to the Nation-building Funds Repeal
(National Disability Insurance Scheme Funding) Act 2018.
However, the provisions do not commence at all unless both of these events occur.
This is because the amendments in Schedule 3 are contingent on the repeal of the
Nation-building Funds Repeal (National Disability Insurance Scheme Funding) Act
2018.
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e. Schedule 4 commences on the later of:
i. Immediately after the commencement of the ATSILSFF Act; and
ii. The commencement of Schedule 2 to the Aboriginal and Torres Strait Islander
Amendment (Indigenous Land Corporation) Act 2018.
However, the provisions do not commence at all unless both of these events occur.
This is because the amendments in Schedule 4 are contingent on the enactment of
the Aboriginal and Torres Strait Islander Amendment (Indigenous Land
Corporation) Act 2018.
f. Schedule 5 commences on the day after the Act receives the Royal Assent.
Clause 3 - Schedules
19. This clause provides that each Act specified in a Schedule to this Act is amended or
repealed as set out in the Schedule concerned.
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Schedule 1 - General Amendments
Aboriginal and Torres Strait Islander Act 2005
20. Item 1 repeals the definition of Land Account from the definitions in subsection 4(1) of the
ATSI Act, as this Bill closes the Land Account.
21. Item 2 omits the reference to the Land Account in the heading for Part 4A of the ATSI Act.
22. Item 3 repeals Division 10 of Part 4A of the ATSI Act. This division continued the
Land Account in existence and provided for payments to the ILC.
DisabilityCare Australia Fund Act 2013
23. Item 4 inserts new paragraph 16(a)(v) in the DCAF Act. The effect of this amendment is to
provide that expenses incurred by the Future Fund Board in establishing and operating bank
accounts related to the DCAF can be met from the DCAF Special Account to the extent that
such expenses do not relate to any other Fund invested by the Future Fund Board, including
the ATSILSFF.
24. Item 5 inserts new paragraph 16(b)(v) in the DCAF Act. The effect of this amendment is to
provide that the cost of insurance incurred by the Future Fund Board in relation to the
DCAF can be met from the DCAF Special Account to the extent that such insurance
premiums do not relate to any other Fund invested by the Future Fund Board, including the
ATSILSFF.
25. Item 6 inserts new paragraph 16(c)(v) in the DCAF Act. The effect of this amendment is to
provide that expenses incurred by the Future Fund Board in relation to managing the DCAF
can be met from the DCAF Special Account to the extent that such expenses do not relate to
any other Fund invested by the Future Fund Board, including the ATSILSFF.
Future Fund Act 2006
26. Item 7 replaces the note to section 4 of the Future Fund Act. The substituted note confirms
that the Future Fund Board has additional functions under the ATSILSFF Act.
27. Item 8 inserts definitions of Aboriginal and Torres Strait Islander Land and Sea Future
Fund, and Aboriginal and Torres Strait Islander Land and Sea Future Fund Special
Account. These expressions are defined by reference to the ATSILSFF Act.
28. This item also inserts a definition of Indigenous Affairs Minister in the Future Fund Act.
This expression is defined as the Minister who administers Part 4A of the ATSI Act. Part 4A
of the ATSI Act establishes the ILC.
29. Item 9 replaces Note 2A to section 13 of the Future Fund Act. The substituted note explains
that Schedule 2A to the Future Fund Act is about transfers of amounts from the Future Fund
to the other Funds invested by the Future Fund Board, including the ATSILSFF.
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30. Item 10 inserts new paragraph 28(5)(bc) and Item 11 inserts new paragraphs 28(5)(i) in the
Future Fund Act. The effect of these amendments is to allow the same person to be engaged
as an investment manager for more than one Fund invested by the Future Fund Board,
including the ATSILSFF.
31. Item 12 replaces the note to section 33 of the Future Fund Act. The substituted note
explains that the Future Fund Board has additional functions under other legislation, including
the ATSILSFF Act .
32. Item 13 inserts new subparagraph 35(b)(v) in the Future Fund Act. This amendment
provides that the Future Fund Board has the functions conferred on the Future Fund Board
by the ATSILSFF Act.
33. Item 14 inserts new paragraph 55(3)(d) in the Future Fund Act. This amendment provides
that the Future Fund Board's reporting obligations in relation to the Future Fund do not
include its separate reporting obligation to the responsible Ministers under the
ATSILSFF Act.
34. Items 15 inserts the word 'or' at the end of paragraph 63(1)(d) of the Future Fund Act,
Item 16 inserts new paragraph 63(1)(e) in the Future Fund Act, and Item 17 inserts new
paragraph 63(2)(ad) in the Future Fund Act. These amendments ensure that neither a Future
Fund Board member nor the Chair of the Future Fund Board breaches civil or criminal
obligations under the Future Fund Act by performing an act that the Future Fund Board
member or Chair is required to perform under the ATSILSFF Act.
35. Item 18 inserts new subsection 81(1F) and Item 19 inserts new subsection 81(2F) in the
Future Fund Act. These amendments require that the annual report prepared by the Chair of
the Future Fund Board include a report on the performance of investments of the ATSILSFF
and the amounts debited from the ATSILSFF for purposes allowed under the
ATSILSFF Act. In addition, the annual report will also need to include benchmarks in
relation to the performance of the debits from the ATSILSFF. This is consistent with
arrangements for the other Funds invested by the Future Fund Board.
36. Item 20 inserts new paragraph 81(4)(da) in the Future Fund Act. The effect of this
amendment is to include the Indigenous Affairs Minister in the list of Ministers to whom
the nominated Minister must give a copy of the annual report given to the nominated
Minister under section 46 of the PGPA Act.
37. Item 21 inserts the word 'or' after paragraph 83B(1)(db) and Item 22 inserts new
paragraph 83B(1)(dc) in the Future Fund Act. The effect of these amendments is to allow
the Future Fund Board to delegate its power to engage investment managers for purposes in
connection with the ATSILSFF to the Chair of the Future Board or a SES Employee in the
Agency.
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38. Item 23 inserts new subparagraph 84(1)(b)(iic) and Item 25 inserts new
subparagraph 84(1)(b)(ix) in the Future Fund Act. The effect of these amendments is to
provide that any amount of money received by the Future Fund Board must be credited to
the Future Fund Special Account if none of the legislation for the other Funds invested by
the Future Fund Board requires the amount to be credited to these other Funds. Item 24
inserts the word 'or' at the end of subparagraph 84(1)(b)(viii) of the Future Fund Act.
39. Item 26 inserts new subsection 84(4C) in the Future Fund Act. The effect of this
amendment is to allow the nominated Minister to provide a written direction to the Future
Fund Board requiring an amount credited to the Future Fund Special Account under
subsection 84(1) of the Future Fund Act to be debited from the Future Fund Special
Account and credited to the ATSILSFF Special Account.
40. Item 27 replaces '(4B)' in paragraph 84(5)(b) of the Future Fund Act with '(4B) and '(4C).'
The effect of this amendment is to provide that if an amount is credited to the Future Fund
Special Account under subsection 84(1) of the Future Fund Act, the sum of one or more
amounts specified under new subsection 84(4C) must not exceed the amount of the credit.
41. Item 28 replaces '(4B)' in subsection 84(6) of the Future Fund Act with '(4B) or (4C)'. The
effect of this amendment is to declare that a written direction made under new
subsection 84(4C) is not a legislative instrument. This is consistent with the status of other
written directions that can be made by the nominated Minister under subsections 84(2),
84(3), 84(4) and 84(4A) for the transfer of amounts to other special accounts as provided for
under those subsections.
42. Items 29, 30 and 31 amend paragraphs 2(2)(a), 2(2)(b) and 2(2)(c) of Schedule 2 of the
Future Fund Act to make reference to certain provisions of the ATSILSFF Act. The effect
of these amendments is to provide that the purposes of the Future Fund Special Account
include debits by the Future Fund Board to pay bank account expenses, insurance premiums
and costs relating to the management of the ATSILSFF.
43. Item 32 substitutes reference to the MRFF in Clause 1 of Schedule 2A of the Future Fund
Act with reference to the MRFF and the ATSILSFF. Clause 1 of Schedule 2A provides a
simplified outline of the Schedule.
44. Item 33 adds new clause 7 at the end of Schedule 2A of the Future Fund Act. New clause 7
will allow the nominated Minister under the Future Fund Act to require, by writing, the
reversal of a debit from the ATSILSFF to meet bank account, insurance premium or other
costs relating to the ATSILSFF. This reversal is to be effected by debiting the Future Fund
Special Account and crediting the ATSILSFF Special Account. The reversal amount cannot
exceed the amount originally debited from the ATSILSFF Special Account. The nominated
Minister's written direction is declared not to be a legislative instrument.
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Medical Research Future Fund Act 2015
45. Item 34 inserts new subparagraph 19(a)(ia) in the MRFF Act. The effect of this amendment
is to provide that expenses incurred by the Future Fund Board in establishing and operating
bank accounts related to the MRFF can be met from the MRFF Special Account to the
extent that such expenses do not relate to any other Fund invested by the Future Fund
Board, including the ATSILSFF.
46. Item 35 inserts new subparagraph 19(b)(ia) in the MRFF Act. The effect of this amendment
is to provide that the cost of insurance incurred by the Future Fund Board in relation to the
MRFF can be met from the MRFF Special Account to the extent that such insurance
premiums do not relate to any other Fund invested by the Future Fund Board, including the
ATSILSFF.
47. Item 36 inserts new subparagraph 19(c)(ia) in the MRFF Act. The effect of this amendment
is to provide that expenses incurred by the Future Fund Board in relation to managing the
MRFF can be met from the MRFF Special Account to the extent that such expenses do not
relate to any other Fund invested by the Future Fund Board, including the ATSILSFF.
Part 2--Transitional provision
48. Item 37 is a transitional provision that maintains the existing arrangements for the
preparation and tabling of the annual report about the Land Account for the financial year
ending on 30 June 2018, despite the repeal of provisions of the ATSI Act dealing with the
Land Account by this Bill. This provision ensures that there is no gap in oversight and
reporting about the Land Account after its closure.
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Schedule 2 - Amendment of the Nation-building Funds Act 2008
Nation-building Funds Act 2008
49. Item 1 inserts new subparagraph 20(a)(viii) in the Nation-building Funds Act. The effect of
this amendment is to provide that expenses incurred by the Future Fund Board in
establishing and operating bank accounts related to the BAF can be met from the BAF
Special Account to the extent that such expenses do not relate to any other Fund invested by
the Future Fund Board, including the ATSILSFF.
50. Item 2 inserts new subparagraph 20(b)(viii) in the Nation-building Funds Act. The effect of
this amendment is to provide that the cost of insurance incurred by the Future Fund Board
in relation to the BAF can be met from the BAF Special Account to the extent that such
insurance does not relate to any other Fund invested by the Future Fund Board, including
the ATSILSFF.
51. Item 3 inserts new paragraph 20(c)(viii) in the Nation-building Funds Act. The effect of this
amendment is to provide that expenses incurred by the Future Fund Board in relation to
managing the BAF can be met from the BAF Special Account, to the extent that such
expenses do not relate to any other Fund invested by the Future Fund Board, including the
ATSILSFF.
52. Item 4 inserts new subparagraph 138(a)(viii) in the Nation-building Funds Act. The effect
of this amendment is to provide that expenses incurred by the Future Fund Board in
establishing and operating bank accounts related to the EIF can be met from the EIF Special
Account to the extent that such expenses do not relate to any other Fund invested by the
Future Fund Board, including the ATSILSFF.
53. Item 5 inserts new paragraph 138(b)(viii) in the Nation-building Funds Act. The effect of
this amendment is to provide that the cost of insurance incurred by the Future Fund Board
in relation to the EIF can be met from the EIF Special Account to the extent that such
insurance does not relate to any other Fund invested by the Future Fund Board, including
the ATSILSFF.
54. Item 6 inserts new subparagraph 138(c)(viii) in the Nation-building Funds Act. The effect
of this amendment is to provide that expenses incurred by the Future Fund Board in relation
to managing the EIF can be met from the EIF Special Account, to the extent that such
expenses do not relate to any other Fund invested by the Future Fund Board, including the
ATSILSFF.
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Schedule 3--Amendments contingent on the repeal of the
Nation-building Funds Act 2008
Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018
55. If the Nation-building Funds Repeal (National Disability Insurance Scheme Funding) Act
2017 repeals the Nation-building Funds Act, Item 1 will repeal subparagraphs 16(a)(iv),
(b)(iv) and (c)(iv) of the ATSILSFF Act. These provisions specify as additional purposes of
the ATSILSFF Special Account certain expenses incurred by the Future Fund Board for
which the account may be debited, to the extent that such expenses do not relate to the BAF
or the EIF.
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Schedule 4 - Amendments contingent on the enactment of the
Aboriginal and Torres Strait Islander Amendment (Indigenous
Land Corporation) Act 2018
Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018
56. If enacted, the Aboriginal and Torres Strait Islander Amendment (Indigenous Land
Corporation) Act 2018 will rename the 'Indigenous Land Corporation' continued in
existence by section 191A of the Aboriginal and Torres Strait Islander Act 2005 the
'Indigenous Land and Sea Corporation.' Items 1, 5 to 9, and 11 to 21 will update references
to the Indigenous Land Corporation in the ATSILSFF Act to reflect this change.
57. Items 2 to 4 will repeal definitions for 'Indigenous Land Corporation' and 'Indigenous
Land Corporation Funding Special Account' and replace these expressions with definitions
for Indigenous Land and Sea Corporation and Indigenous Land and Sea Corporation
Funding Special Account.
58. Item 10 will repeal subsection 20(1) of the ATSILSFF Act and substitute new
subsection 20(1) to continue in existence the special account established by section 20 of the
ATSILSFF Act under the name the 'Indigenous Land and Sea Corporation Funding Special
Account.' A note to new subsection 20(1) will explain that the special account established
by section 20 was originally named the 'Indigenous Land Corporation Funding Special
Account.'
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Schedule 5 - Amendment of the Medical Research Future Fund Act
2015
Medical Research Future Fund Act 2015
59. Items 1, 2 and 3 correct references in subparagraphs 19(a)(iv), 19(b)(iv) and 19(c)(iv) of the
MRFF to particular provisions of the DCAF Act. The effect of these amendments is to
correctly specify as additional purposes of the MRFF Special Account certain expenses
incurred by the Future Fund Board for which the account may be debited, to the extent that
such expenses do not relate to the DCAF.
15
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Aboriginal and Torres Strait Islander Land and Sea Future Fund
(Consequential Amendments) Bill 2018
60. The Aboriginal and Torres Strait Islander Land and Sea Future Fund (Consequential
Amendments) Bill 2018 (the Bill) is compatible with the human rights and freedoms
recognized or declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
61. The Bill deals with consequential matters arising from the enactment of the Aboriginal and
Torres Strait Islander Land and Sea Future Fund Act 2018. This includes the following
amendments:
a. amendments to the Future Fund Act to give the Future Fund Board functions in relation
to the ATSILSFF; and
b. amendments to the DCAF Act, the Future Fund Act, the MRFF Act and the
Nation-building Funds Act to allow amounts to be transferred between the ATSILSFF
and the Future Fund to allow for proper apportioning of common expenses incurred by
the Future Fund Board in managing the ATSILSFF, the DCAF, the Future Fund, the
MRFF, and the Nation-building Funds.
c. amendments to the ATSI Act to close the Land Account, as a consequence of the
decision to establish the ATSILSFF with an initial balance (money and investments)
equal to the balance of the Land Account immediately before the time of the
establishment of the ATSILSFF.
Human rights implications
62. The consequential amendments in the Bill are administrative or machinery in nature. None
of these amendments directly advances or limits a relevant human right or freedom.
63. To the extent these amendments facilitate the establishment of the ATSILSFF to replace the
Land Account, these amendments may indirectly engage the human rights or freedoms
engaged by the ATSILSFF Bill. The ATSILSFF Bill is compatible with human rights
because it indirectly advances the right to self-determination, and the right to enjoy and
benefit from culture, and indirectly facilitates the continuation of a special measures and
arrangements that constitute legitimate differential treatment.
Conclusion
64. This Bill is compatible with human rights.
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