Thursday, 8 October 2020
Native Title Amendment (Infrastructure and Public Facilities) Bill 2020; Second Reading
That this bill be now read a second time.
Improving the livelihoods of Indigenous Australians by unlocking job-creating infrastructure projects and the positive impact of critical public facilities for remote communities is needed over the coming years to respond to the COVID-19 pandemic.
To realise social and economic security, Indigenous Australians require the provision of housing and essential infrastructure. Timely access to safe and suitable public housing and education and health facilities on Indigenous land is fundamental to the goal.
In recognition of the work the Attorney-General and I are progressing on native title reform, I introduce the Native Title Amendment (Infrastructure and Public Facilities) Bill 2020 to extend the operation of section 24JAA for a further 10 years. This will help secure approvals for public housing and infrastructure on Indigenous held lands where alternative approval processes have stalled. This will deliver public health, housing, education, policing and emergency services infrastructure to meet the current and emerging needs of Indigenous Australians.
The bill ensures that section 24JAA will continue to operate as originally passed by the Parliament of Australia in 2010. To date, due to different land tenure and legislation requirements across jurisdictions, section 24JAA has only been used in Queensland and Western Australia.
In Western Australia and Queensland, the provision's extension is particularly important. It will afford state and local governments, such as the Aboriginal and Torres Strait Islander councils of North Queensland, access to Indigenous held land to build critical infrastructure for the benefit of local Indigenous communities when expediency is needed and when alternative pathways are not available. Without section 24JAA, provision of infrastructure may not be possible in some situations.
The provision is a streamlined mechanism to facilitate Indigenous land access by state and local governments in the limited circumstances. Section 24JAA is part of the Native Title Act's future acts regime, which specifies how acts that affect native title can be validly done on land where native title exists. Section 24JAA requires native title holders and claimants to be notified about the proposed public works and provides them with the opportunity to be consulted about the impact of the proposed future act on their native title rights and interests.
In accordance with the established non-extinguishment principle in the Native Title Act, the bill continues to ensure that native title is not extinguished by the production of public housing and infrastructure, and the provision provides for compensation.
Section 24JAA operates as an important mechanism between an ILUA, or indigenous land use agreement, and compulsory acquisition, to enable future acts to be validly done to progress critical Indigenous housing and infrastructure in a timely and effective manner, while safeguarding native title rights and the interests for the future. This reflects the reality that land dealings may be complex and sometimes involve lengthy negotiations and time frames given the different parties, processes, regulations and interests involved.
All other state and local government planning and building requirements will still need to be followed. This includes protection such as cultural and heritage legislation. Through the consultation process, section 24JAA provides an additional opportunity for native title holders to advise the state authority about planning needs and cultural heritage sites.
Forty-two per cent of Indigenous Australians living in remote communities reside in overcrowded or severely overcrowded housing.
Although states and territories are responsible for public housing, the Australian government has invested over $5.4 billion since 2008 to support the states and territories to address remote overcrowding. This investment reduced overcrowding from 52.1 per cent in 2008 to 41.3 per cent in 2014-15 and was projected to fall to 37.4 per cent in 2018.
Since 2018 the government has paid $121 million to Western Australia and $37.5 million to South Australia and this year is investing $105 million in Queensland through the Aboriginal and Torres Strait Islander Councils to assist the states to continue to meet their obligations to provide remote housing for Indigenous Australians. This funding, coupled with each state's own remote housing commitments, represents a pipeline of capital works to continue to address remote overcrowding and unlock land and economic opportunities for the benefit of Indigenous Australians into the future.
As recently agreed by all Australian governments and the Coalition of Peaks, the new National Agreement on Closing the Gap sets ambitious targets, including housing, for states to meet by 2031. Section 24JAA will help to facilitate the timely delivery of public housing infrastructure to meet these targets, particularly in Queensland and Western Australia, given their land tenure arrangements and unmet Indigenous housing need. High-need communities on Indigenous land stand to benefit the most from the timely delivery of assets and infrastructure to help reduce overcrowding.
ILUAs are the standard and preferred mechanism for negotiating acts on land subject to native title rights and interests. However, there is no time frame for completing negotiations and entering into an ILUA. The Queensland and Western Australia governments have advised that negotiating an ILUA for the type of infrastructure covered by 24JAA can take between 18 months and three years to complete. However, where there are intractable blockages, section 24JAA facilitates investment in Indigenous communities that can be made, including compensation for communities.
This is why since 2011 section 24JAA has been used sparingly, approximately 126 times on 961—almost 1,000—residential lots. The provision has been used in Queensland 52 times and in Western Australia 74 times. This includes 778 public houses and other facilities in Queensland, 312 public houses and 73 other facilities in Western Australia.
While section 24JAA has been used mainly for public housing, the provision has also been used for emergency facilities, such as women's shelters, fire brigades, police stations and child safety housing; public education and health facilities; and staff housing for public school teachers and public health employees.
The Australian government and the native title sector recognise that ILUAs are the preferred mechanism for all parties negotiating acts on land that is subject to native title. This is why I am only proposing a temporary extension. Section 24JAA is a pragmatic tool to be used when an ILUA is facing intractable negotiations or cannot be reached. Retaining section 24JAA provides an alternative that facilitates the critical infrastructure and safeguards the native title rights and interests for the long term.
Section 24JAA has allowed infrastructure to be delivered that would otherwise not be possible. For example, Queensland Health entered into an ILUA to construct a wellbeing centre and staff accommodation in a remote community in Queensland. The ILUA was unresolved after 18 months of negotiation due to contested claims to country on other native title matters. Queensland Health used section 24JAA for the grant of the lease to deliver new health facilities. As a result, the whole community continues to benefit from health services instead of being disadvantaged by a broader dispute between groups.
Throughout the targeted consultations on the operation of section 24JAA in 2017, 2019 and this year that were undertaken by the Attorney-General's Department and the National Indigenous Australians Agency, views were expressed for and against the extension of the provision.
These views, and the stakeholder experiences that were shared, reinforced the importance that, when dealing with Indigenous land and native title holders, the needs of the community, whether it be housing, health or education are paramount, and safeguarding native title rights and interests over the long term are essential.
I am conscious of the need to balance the rights and interests of native title holders and meet the needs of Indigenous Australians. For these reasons, the bill retains the temporary status of the provision. This serves to appropriately address unmet remote housing and critical infrastructure needs while maintaining a long-term commitment to safeguarding the rights and interests of native title holders. Extending the provision for a further 10 years provides the opportunity to reassess the need for the provision at a later time.
The bill provides for native title holders and claimants to retain a mechanism for raising concerns about land use while ensuring government investment in Indigenous communities can be made in a timely and effective manner.The extension of section 24JAA will ensure relevant state governments can continue to invest in Indigenous and remote communities, respond to emerging needs and ensure better outcomes for Aboriginal and Torres Strait Islander Australians. Investment in housing and infrastructure construction will support economic recovery and stimulate industry and employment, particularly as we emerge from the COVID-19 pandemic.
Finally, I would like to thank my colleague, the Attorney-General, for our joint work on native title reform in recognition of our mutual interest in advancing the interests of Indigenous Australians.