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1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
THE
SENATE
Reconciliation Bill
2001
Explanatory
Memorandum
The long title explains the purpose of the Act. It is used an interpretive
tool to assist in understanding what other sections of the Act mean. Here, the
long title identifies the overall purpose of the legislation, in building on the
work of the Council for Aboriginal Reconciliation to further advance
reconciliation, as well as identifying that a process will be necessary to reach
agreement on unresolved issues.
The Preamble sets out the background to the Act and provides the context and
principles that led to its enactment. It can be used as an aid to interpretation
for other sections of the Act. The Council for Aboriginal Reconciliation
identified the following matters for inclusion in a Preamble:
• the
status of Aboriginal and Torres Strait Islander peoples as Australia’s
first peoples
• that reconciliation is an on-going process and that
there are issues that are unresolved
• reference to the work of the
Council for Aboriginal Reconciliation, including its strategies and final report
to Parliament
• the importance of developing partnerships between
Aboriginal and Torres Strait Islander peoples and the wider community
• the desirability of a whole-of-government approach to ongoing
reconciliation
The proposed Preamble integrates the Preamble of the
Council for Aboriginal Reconciliation Act 1991 with these principles
identified by the Council, and draws upon the proposed preamble to the
Aboriginal and Torres Strait Islander Commission Bill and the preamble to
the Native Title Act 1993.
The short title sets out the name the Act will be known by. A number of names were canvassed in the consultations by the Council, including this one: The Reconciliation Act. Others referred to the processes or outcomes included in the Act.
The Commencement section identifies when the Act will become law. Federal
legislation usually becomes law 28 days after it receives the
Governor-General’s assent. In this Act we have suggested that
commencement be brought forward to the date of the Governor General’s
Royal Assent. This will bring forward the date for the first Convention under
Part 3 and the negotiations under Part 4.
This section defines terms within the legislation that may cause confusion.
There are a number of items that will be included in the list of definitions
when the Act is being finalised.
The definition of human rights used here is a reflection of the definition
used by the 1986 Human Rights and Equal Opportunity Commission Act.
Reconciliation:
A definition of reconciliation, is inherently
difficult, and indeed, is not defined in the Council for Aboriginal
Reconciliation Act. In the proposed legislation the Council’s vision
has been used as the basis for a definition.
Unresolved issues for
reconciliation:
The definition of unresolved issues for reconciliation
was also difficult. While the definition could have contained a list of issues,
similar to that contained in the Council’s document Recognising
Aboriginal and Torres Strait Islander Rights, it has been left deliberately
general to avoid pre-empting the matters that will be identified by the
processes contained in this Act. The definition refers to the fact that many of
these issues have already been identified, including through the work of the
Council. They may include, but are not limited to:
• a comprehensive
agreements process for the settlement of native title and other land claims;
• compensation and reparation with respect to loss of legal rights
over land and waters;
• protection of Aboriginal and Torres Strait
Islander culture, heritage and intellectual property;
• the achievement
of substantive equality;
• the effective implementation of relevant
recommendations of the Royal Commission into Aboriginal Deaths in Custody, the
Human Rights and Equal Opportunity Commission’s Bringing them Home
Report and other reports;
• recognition of Aboriginal
and Torres Strait Islander customary law;
• Aboriginal and Torres
Strait Islander self-government and regional autonomy;
• economic
development;
• constitutional reform to enable the recognition of
Aboriginal and Torres Strait Islander peoples and the protection of their
rights;
• effective political participation;
• a bill of
rights that specifically protects the rights of Aboriginal and Torres Strait
Islander peoples; and
• principles for negotiated outcomes at other
levels.
The objects of the Act set out the intention of the Act. This section is also
used as an interpretive tool when other parts of the Act may be unclear. For
this reason, it sets out the Council for Aboriginal Reconciliation’s
objectives in proposing the implementation of this legislation. The objects are
based on the overall purposes of the Act, as reflected in the long title, and
the objectives of each part of the Act.
This part of the legislation seeks to recognise the unique status of
Aboriginal and Torres Strait Islander peoples and incorporates the Australian
Declaration Towards Reconciliation.
This section recognises the status of Aboriginal and Torres Strait Islander
peoples and incorporates the Australian Declaration Towards
Reconciliation into the Act via Schedule 1. A Schedule to an Act forms part
of the Act and as such, carries greater interpretive weight than it otherwise
would as an external document or even as part of the preamble. The
Declaration provides a starting point for the recognition of the place of
Aboriginal and Torres Strait Islander peoples in Australian society.
This part of the Act provides for the holding of National Reconciliation
Conventions to identify and prioritise issues for discussion, and to debate and
develop strategies to overcome those matters that constitute the unresolved
issues for reconciliation. The Conventions are the centrepiece of the
legislation. They provide a forum for vigorous debate with a view to achieving
outcomes in relation to unresolved issues.
It is envisaged that these
Conventions will provide a model for State, regional and even local conventions
that will address issues at those levels. In this legislation, the National
Conventions are established in a way that will allow any other complementary
mechanisms to feed into the cycle of consultation, preparation and follow-up.
Also, the Conventions have been proposed every three years for a period of 12
years to allow sufficient time for a network of these events to be held in the
lead up to each National Reconciliation Convention.
This section provides for the establishment of National Reconciliation
Conventions to deal with unresolved issues for reconciliation. It is necessary
that some body take responsibility for the organisation of the Conventions,
whether it be ATSIC or another government department. However, it is imperative
that the Conventions not be seen to be focused solely on one agenda. It is
hoped that the Conventions would be attended by delegates from diverse
backgrounds who contribute to a debate about reconciliation. They are an
opportunity for debate with the aim of bringing together a variety of views in
order to reach achievable plans for action that will be adopted and followed
through.
The model put forward here places responsibility for the
organisation of the National Reconciliation Conventions on ATSIC and ensures
that there is input into the attendance and agenda by the government,
representatives of the Aboriginal and Torres Strait Islander peoples, and
representatives of the wider community. While it is not possible to provide for
resourcing of the Conventions in this legislation, it is essential that
sufficient funds be allocated to the organising body to ensure that the
Conventions adequately fulfil their aims.
This section identifies the functions of the National Reconciliation
Conventions and the kind of issues that National Reconciliation Conventions
should address. The functions that have been set down reflect the need for
extensive consultation prior to the Conventions, the need to allocate
responsibility and make recommendations, and to take follow up action and report
back to the next Convention.
This part of the legislation establishes a process that allows Aboriginal and
Torres Strait Islander peoples and government to reach agreement on a framework
for negotiation of unresolved issues for reconciliation as these issues relate
to outcomes at a national level. It is acknowledged that many of the
ideas surrounding the negotiations at this national level are complex and may
require further development and analysis before outcomes can be identified.
However, it is timely to capture the sense of urgency and goodwill engendered by
the reconciliation process to begin the process of negotiation. It is also
imperative that there is a linkage in the legislation between these formal
negotiations and the development of priorities and initiatives in the wider
community, including the National Reconciliation Conventions.
This section provides a mechanism to initiate negotiations between the
government and the Aboriginal and Torres Strait Islander Commission on a process
to reach agreement on unresolved issues for reconciliation. It also sets a
timeframe to ensure the expedient development of the process, conveying the
sense of urgency for these issues to be dealt with immediately.
This section sets out principles to guide the negotiation of unresolved
issues for reconciliation. It seeks to ensure that negotiations both at the
initial stages of developing the process for which this legislation provides,
and also in the negotiations that follow, take place in the spirit of good
faith, that Government and Aboriginal and Torres Strait Islander protocols are
in place and that negotiations are adequately resourced to ensure equitable
participation by the parties. The protocols in the proposed legislation are
informed by the reports on the Social Justice package, in particular the report
of the Aboriginal and Torres Strait Islander Commission, Rights Recognition
and Reform, as well as the findings of the Canadian Royal Commission on
Aboriginal peoples which directly addressed this issue. However, the provision
also provides scope for the inclusion of other protocols, as agreed between the
parties, to guide the negotiations. It is intended that this provision will be
a model for negotiations at other levels.
This part of the Act establishes a reporting procedure to monitor the
progress of reconciliation. It comprises three elements: the monitoring
incorporates a yearly report on the general progress towards reconciliation in
the context of Aboriginal and Torres Strait Islander peoples’ enjoyment of
human rights, a three yearly detailed report on progress, including an
assessment of key indices, and an ongoing monitoring process by the Commonwealth
Parliament. This comprehensive reporting structure on the progress of
reconciliation ensures that there are regular monitoring mechanisms and that
there is monitoring and assessment at a Commonwealth Government level. However,
in deciding on this model care has been taken not to overburden the process with
reports. Where possible, existing reporting structures have been augmented
rather than new reporting structures created.
This section provides for a Three Yearly National Report on the Progress
Towards Reconciliation and identifies the subject matter to be included as part
of the Three Yearly Report. This report is the primary reporting mechanism
under the proposed legislation. As well as undertaking qualitative assessments
of the progress towards reconciliation, the report will examine a variety of
socioeconomic and other indicators relevant to the assessment of the progress
towards reconciliation.
A number of bodies were considered as possibly
fulfilling the functions under this section. The Auditor-General may have the
requisite independence from the activities being reported on, and may be able to
give a comprehensive assessment of the effective implementation of policy in
this area. However, the Auditor-General cannot adequately inquire into State
and regional activity, which is a necessary requirement of this more
comprehensive reporting. In the Overcoming Disadvantage document, the
Council nominated the Human Rights and Equal Opportunity Commission and the
Aboriginal and Torres Strait Islander Commission to prepare a five yearly report
of a similar nature. Those two bodies together have the expertise in this area,
although there may be concerns about the role of ATSIC reporting on programs for
which it has responsibility.
It may be that in order to secure the
requisite independence and expertise a special task force may be drawn together.
With this in mind, the Council has recommended that the report be undertaken by
an independent body or task force appointed by the Minister. The Council
recognises that which ever body is chosen to carry out this reporting function,
additional resources and expertise will be required.
This section directs the Minister to table the Three Yearly Report on the
Progress Towards Reconciliation. This ensures Parliamentary scrutiny of the
findings of the report.
This section establishes an ongoing mechanism to monitor the reconciliation
process that places reconciliation at the forefront of Parliament’s
deliberations. It gives responsibility to a Parliamentary Joint Committee to
report on the implementation of the reconciliation processes established under
this Act. This ensures that the Commonwealth Parliament takes responsibility
for, and has an appropriate mechanism to assess, the progress of reconciliation.
The establishment of a Parliamentary Committee by legislation is
somewhat unusual but there are precedents, for example in the Australian
Security Intelligence Organization Act and most notably, in the Native
Title Act 1993. It is acknowledged that existing parliamentary committees
could be charged with this responsibility, for example, the Parliamentary Joint
Committee on Native Title and the Indigenous Land Fund could have its powers and
duties extended, through legislation, to cover the monitoring of the progress of
reconciliation. However, this committee has a focus on land that may limit the
perspective with respect to the much broader scope of reconciliation. The House
of Representatives Standing Committee on Aboriginal and Torres Strait Islander
Affairs could also fulfil a role here, although the Council is strongly
committed to the process of reconciliation being considered more broadly than as
a singularly Indigenous issue. It is an issue for all Australians. An
additional benefit of the proposed Parliamentary Joint Committee is the
multi-party representation and involvement that has been crucial to the
reconciliation process.
This section, then, draws on the Native
Title Act example and describes the membership of the Parliamentary Joint
Committee and provides that the powers and procedures of the Committee are to be
determined by the resolution of both houses of parliament, ensuring consensus
and agreement on those issues. It lists the duties of the Parliamentary Joint
Committee which include consultation with Aboriginal and Torres Strait Islander
peoples and organisations, all levels of government, and other appropriate
bodies, which may include the foundation Reconciliation Australia. The
Parliamentary Joint Committee will also, as part of its duties, review the
reports on the progress towards reconciliation. To allay concerns of
over-reporting, the Parliamentary Joint Committee has not been charged with a
regular report, but may report from time to time.