March 28, 2018  |  

Advancing the Treaty Process with Aboriginal Victorians Bill 2018

Ms HUTCHINS (Minister for Aboriginal Affairs) tabled following statement in accordance with 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 Advancing the Treaty Process with Aboriginal Victorians Bill 2018.

In my opinion, the Advancing the Treaty Process with Aboriginal Victorians Bill 2018 (the Bill), as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the bill

The Bill provides the foundation for future treaty negotiations to take place between Aboriginal Victorians and the State. It enshrines the relationship between an Aboriginal Representative Body (yet to be established) and the State as working in partnership to establish elements that are necessary to support future treaty negotiations. These elements include a Treaty Authority, which will oversee and facilitate negotiations; a treaty negotiation framework, which will set out the parameters in which negotiations will be conducted; and a self-determination fund, which will help ensure Aboriginal Victorians can enter into negotiations on an equal footing with the State.

The Bill promotes the human rights of Aboriginal Victorians in several ways. In particular, the Bill’s preamble and guiding principles promote the human rights of Aboriginal Victorians, including equality before the law, freedom of expression, taking part in public life and cultural rights.

Human rights issues

The proposed Bill engages human rights provided for in the Charter, as follows:

Equality before the law (s.8)

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. Discrimination in relation to a person means discrimination within the meaning of the Equal Opportunity Act 2010 on the basis of an attribute protected by that act. This includes discrimination on the basis of race. Section 8 of that act provides that direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

The Bill promotes Aboriginal Victorians’ right to equality by enshrining a partnership approach between the Aboriginal Representative Body and the State. The parties must work together to establish elements necessary to support future treaty negotiations, including those set out under clause 26 (Treaty Authority), clause 29 (treaty negotiation framework) and clause 34 (self-determination fund).

Clause 22 of the Bill also promotes equality through enshrining the principle of fairness and equality as part of the treaty process, and specifically providing under clause 22(2) that the Aboriginal Representative Body and the State must make decisions that promote equality for Aboriginal Victorians.

The Aboriginal Representative Body will be made up of Aboriginal Victorians. This is reasonable and justified given the Bill’s role in a process which has overall purposes of advancing reconciliation and Aboriginal self-determination. The role of the Aboriginal Representative Body in working with the State is considered a special measure that does not constitute discrimination in accordance with section 8(4) of the Charter.

Freedom of expression (s.15)

Section 15 of the Charter provides for every person’s freedom of expression, including that every person has the right to hold an opinion without interference and the right to freedom of expression through seeking, receiving and imparting information and ideas of all kinds.

The Bill enhances Aboriginal Victorians’ right to freedom of expression by enshrining a partnership approach. Under this approach, Aboriginal Victorians will have an equal voice to the State in establishing elements to support future treaty negotiations, through the Aboriginal Representative Body.

Taking part in public life (s.18)

Section 18(1) of the Charter provides that every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs. Under section 18(2)(b) of the Charter every eligible person has the right, and is to have the opportunity, without discrimination, to have access, on general terms of equality, to the Victorian public service and public office.

Clause 23 of the Bill promotes the right of Aboriginal Victorians to take part in public life, through enshrining the principle of partnership and good faith. The Bill’s requirements for the Aboriginal Representative Body and the State to work together also promotes this right.

Cultural rights (s.19)

Section 19(2) of the Charter confirms the distinct cultural rights of Aboriginal persons including their right to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

The Bill promotes the cultural rights of Aboriginal Victorians. Through progress of the treaty process, which the Bill provides the foundations for, it is anticipated that Aboriginal and non-Aboriginal Victorians will benefit from the promotion, recognition and appreciation of Victorian Aboriginal cultures. The Bill also specifically acknowledges Aboriginal Victorians’ long-standing spiritual, cultural, material and economic connections to the lands now known as Victoria.

Hon. Natalie Hutchins, MP
Minister for Aboriginal Affairs