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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
WATER AMENDMENT (INDIGENOUS AUTHORITY MEMBER) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Water Resources, Drought, Rural Finance, Natural
Disaster and Emergency Management,
the Hon. David Littleproud MP)
WATER AMENDMENT (INDIGENOUS AUTHORITY MEMBER) BILL 2019
GENERAL OUTLINE
The Water Amendment (Indigenous Authority Member) Bill 2019 (the Bill) will amend the
Water Act 2007 (the Water Act) to provide for a standing Indigenous member position on the
Murray-Darling Basin Authority (the Authority).
The commitment to appoint a standing Indigenous Authority member, through this Bill,
recognises that Aboriginal people are the traditional custodians of the Murray-Darling Basin
and have a role in management of water within the Basin.
The Indigenous Authority member will be appointed to the position on the basis of their high
level of expertise regarding Indigenous matters relevant to Basin water resources, rather than
as a representative of a particular region. The establishment of the Indigenous Authority
member position will increase the Authority's membership from six to seven members.
The Bill will provide that to be eligible for appointment to the Indigenous Authority member
position a person will:
Meet the definition of Indigenous person contained in subsection 4(1) of the Water
Act. Subsection 4(1) defines Indigenous person as a person who is a member of the
Aboriginal race of Australia or a descendent of an Indigenous inhabitant of the Torres
Strait Islands.
Possess a high level of expertise regarding Indigenous matters relevant to Basin water
resources.
The standing Indigenous Authority member will be subject to the same appointment process
and have the same terms and conditions as the four other part-time members of the Authority,
which are set out in Part 9, Division 2, Subdivisions B and C of the Water Act.
The appointment of a standing Indigenous Authority member, through this Bill, does not
preclude other Authority members being appointed who are Indigenous or who have
expertise in Indigenous matters relevant to Basin water resources.
There are different preferences for terminology, with some people preferring Aboriginal or
Torres Strait Islander, and others preferring Indigenous, or First Nations peoples. The term
"Indigenous" is used in the Bill to refer to this broad demographic group. The term
"Indigenous" is used firstly for consistency with the Water Act and Basin Plan 2012, and
secondly because the Bill establishes a new Indigenous Authority member position, and
individuals who identify as members of the Aboriginal race of Australia, or a descendant of
an Indigenous inhabitant of the Torres Strait Islands, will be eligible for the position if they
meet all the eligibility criteria.
CONSULTATION
The Bill gives effect to the decision made by the Murray-Darling Basin Ministerial Council,
at its meeting held on 14 December 2018, where it was agreed that a standing Indigenous
Authority member position should be established. The Murray-Darling Basin Ministerial
Council consists of members from all Basin States (Queensland, New South Wales, Victoria,
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South Australia and the Australian Capital Territory) and the Commonwealth. This Bill will
give effect to this agreement.
The Authority was also consulted during the development of this Bill.
FINANCIAL IMPACT STATEMENT
Part-time members of the Authority are currently paid $70,110 in annual fees (as per the
Remuneration Tribunal (Remuneration and Allowances for Holders of Part-time Public
Office) Determination 2018) plus Tier 1 travel fees.
The Bill will have no financial impact on the Australian Government's Budget as the costs
will be met within the Authority's existing budget.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
The full statement of compatibility with human rights is attached to this explanatory
memorandum.
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ACRONYMS, ABBREVIATIONS AND COMMONLY USED TERMS
the Authority Murray-Darling Basin Authority
the Department the Department administered by the Minister
administering the Water Act 2007
the Minister the Minister administering the Water Act 2007
the Water Act the Water Act 2007
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NOTES ON AMENDMENTS
Preliminary
Clause 1 Short Title
Clause 1 provides for the short title of the Act to be the Water Amendment (Indigenous
Authority Member) Act 2019.
Clause 2 Commencement
Clause 2 provides for the commencement of each provision in the Bill, as set out in the table.
Item 1 in the table provides that the whole of the Bill will commence on the day after the Bill
receives the Royal Assent.
Subclause 2(2) provides that any information in column 3 of the table is not part of the Bill.
Information may be inserted in column 3 of the table, or information in it may be edited, in
any published version of the Bill.
Clause 3 Schedules
Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item in a
Schedule to the Bill has effect according to its terms.
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Schedule 1--Amendments
Part 1--Main amendments
Water Act 2007
Item 1 Paragraph 177(b)
This item repeals paragraph 177(b) and substitutes new paragraphs 177(b) and (c) in the
Water Act. The effect of this item is to provide for a standing Indigenous Authority member
position. The standing Indigenous Authority member will be required to satisfy different
eligibility criteria from the other members of the Authority as provided for in Item 5.
This item does not preclude other members of the Authority from being Indigenous persons,
as long as the members of the Authority satisfy the eligibility criteria as set out in subsection
178(2).
Item 2 Section 177 (note)
This item omits the current reference to "Note" and substitutes "Note 1". This amendment is
consequential to Item 3.
Item 3 At the end of section 177
This item adds a new Note 2 to clarify that Indigenous person is defined in subsection 4(1).
Item 4 Subsection 178(2)
This item inserts a reference to the Indigenous Authority member position to exclude the
Indigenous Authority member from the eligibility criteria specified in subsection 178(2),
which apply to all other member positions of the Authority. The effect of this item is to
clarify that the Indigenous Authority member instead needs to satisfy the eligibility criteria as
detailed in Item 5.
Item 5 After subsection 178(2)
This item inserts a new subsection 178(2A) in the Water Act. Under new subsection 178(2A)
in order to be eligible for appointment to the standing Indigenous Authority member position,
an individual must be an Indigenous person. Indigenous person is a defined term in
subsection 4(1).
Under new paragraph 178(2A)(a) in order to be eligible for appointment to the standing
Indigenous Authority member position, an Indigenous person must also have a high level of
expertise in Indigenous matters relevant to Basin water resources.
"Indigenous matters relevant to Basin water resources" is not a defined term in the Water
Act. However, it is intended that such matters may include experience with the development
of cultural flows policy, working with the Commonwealth Environmental Water Holder on
using environmental water flows to address cultural needs, working with the Authority on
cultural heritage issues in the Murray-Darling Basin, expertise on engaging or consulting
with Indigenous people or other social, spiritual and cultural matters relevant to Indigenous
people in the Murray-Darling Basin.
In addition, under new paragraph 178(2A)(b) an Indigenous person must not be a member of
the governing body of a relevant interest group at the time of their appointment to the
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standing Indigenous Authority member position. The obligation not to be a member of the
governing body of a relevant interest group while serving as a member of the Authority is an
obligation imposed on all Authority members.
Subsection 178(4) sets out what constitutes a member of the governing body of a relevant
interest group.
Item 6 Subsection 180(3)
This item inserts wording to clarify that the eligibility criteria for appointment to act in the
other Authority member positions (apart from the Authority Chair) which are set out in
subsection 178(2) do not apply to acting appointments to the standing Indigenous Authority
member position. To be appointed to act in the Indigenous Authority member position, a
person will have to meet the eligibility criteria in new subsection 180(3A) of the Water Act as
inserted by Item 8.
Item 7 Subsection 180(3) (note 2)
This item inserts references to the new subsections 178(2A) and 180(3A) to note 2 which
appears after subsection 180(3). Note 2 generally clarifies that to act in the Authority Chair
position the person does not need to be subject to the eligibility criteria in subsection 180(3)
because they must already be an Authority member. The effect of this amendment in Item 7
is to clarify that any Authority member, including the standing Indigenous Authority
member, whether they are substantively appointed or acting, may be appointed to act as Chair
of the Authority.
Item 8 After subsection 180(3)
This item inserts a new subsection 180(3A). Under subsection 180(3A) in order to be eligible
for appointment to act in the standing Indigenous Authority member position, an individual
must be an Indigenous person who has a high level of expertise in Indigenous matters
relevant to Basin water resources. The effect of this item is to ensure that the individual who
is to act in the standing Indigenous Authority member position meets the same eligibility
requirements that would apply to a person appointed to the Indigenous Authority member
position.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Water Amendment (Indigenous Member) Bill 2019
This Water Amendment (Indigenous Authority Member) Bill 2019 (the Bill) is compatible
with the human rights and freedoms recognised or declared in the international instruments
listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Water Amendment (Indigenous Authority Member) Bill 2019 (the Bill) will amend the
Water Act 2007 (the Water Act) to provide for a standing Indigenous member position on the
Murray-Darling Basin Authority (the Authority).
The commitment to appoint a standing Indigenous Authority member, through this Bill,
recognises that Aboriginal people are the traditional custodians of the Murray-Darling Basin
and have a role in management of water within the Basin.
The Indigenous Authority member will be appointed to the position on the basis of their high
level of expertise regarding Indigenous matters relevant to Basin water resources, rather than
as a representative of a particular region. The establishment of the Indigenous Authority
member position will increase the Authority's membership from six to seven members.
The Bill will provide that to be eligible for appointment to the Indigenous Authority member
position a person will:
Meet the definition of Indigenous person contained in subsection 4(1) of the Water
Act. Subsection 4(1) defines Indigenous person as a person who is a member of the
Aboriginal race of Australia or a descendent of an Indigenous inhabitant of the Torres
Strait Islands.
Possess a high level of expertise regarding Indigenous matters relevant to Basin water
resources.
The standing Indigenous Authority member will be subject to the same appointment process
and have the same terms and conditions as the four other part-time members of the Authority,
which are set out in Part 9, Division 2, Subdivisions B and C of the Water Act.
The appointment of a standing Indigenous Authority member, through this Bill, does not
preclude other Authority members being appointed who are Indigenous or who have
expertise in Indigenous matters relevant to Basin water resources.
There are different preferences for terminology, with some people preferring Aboriginal or
Torres Strait Islander, and others preferring Indigenous, or First Nations peoples. The term
"Indigenous" is used in the Bill to refer to this broad demographic group. The term
"Indigenous" is used firstly for consistency with the Water Act and Basin Plan 2012, and
secondly because the Bill establishes a new Indigenous Authority member position, and
individuals who identify as members of the Aboriginal race of Australia, or a descendant of
an Indigenous inhabitant of the Torres Strait Islands, will be eligible for the position if they
meet all the eligibility criteria.
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Human rights implications
The Bill does not directly limit any relevant human rights or freedom. Instead, the
amendments to establish a standing Indigenous Authority member position indirectly engages
the right to self-determination, rights to equality and non-discrimination, and the right to
enjoy and benefit from culture by recognising that Indigenous people have an important role
in management of water within the Basin and should have a representative voice on the
Authority.
Right to self-determination
This amendment engages the right to self-determination in Article 1 of the International
Covenant on Economic, Social and Cultural Rights (the ICESCR) and Article 1 of the
International Covenant on Civil and Political Rights (ICCPR). The right is also contained in
Article 3 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP
does not create legally binding obligations, but informs the way governments engage with
and protect the rights of Indigenous people.
The Committee on Economic, Social and Cultural Rights, established to oversee the
implementation of the ICESCR, has noted that Article 1, paragraph 2 states that people may
not "be deprived of its means of subsistence" (ICESCR, General Comment 15, The Right to
Water (art 11, para 1), UN Doc E/C.12/2002/11 (20 January 2003, [7]) which necessitates
Parties to ensure adequate access to water for subsistence farming and securing the
livelihoods of Indigenous peoples. For Indigenous people, water is important for survival and
sustainability of everyday life as well as culture. Special knowledge of water sites and
protecting water sites is integral to survival, a means of subsistence as well as connection to
country.
The UN Committee on the Elimination of Racial Discrimination has stated that the right to
self-determination involves "the rights of all peoples to pursue freely their economic, social
and cultural development without outside interference" (CERD, General Recommendation
21, The right to self-determination (Forty-eighth session, 1996), UN Doc A/51/18, annex VIII
(1996), [125]). The right is understood widely to be exercisable in a manner that preserves
territorial integrity. Appointing a standing Indigenous member to the board of the Authority
is a vehicle for facilitating the achievement of this objective, by allowing Indigenous peoples
to have a voice in self-management and self-sufficiency of country and water sites.
Appointing an Indigenous person as a standing member on the Authority goes towards
realising economic, environmental, social and cultural benefits from waters as well as land.
The Bill allows Indigenous people to have a representative voice regarding the development
and implementation of policies and programs that impact communities more broadly.
Right to enjoy and benefit from culture
The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and
article 15 of the ICESCR.
Article 27 of the ICCPR protects the rights of individuals belonging to ethnic, religious and
linguistic minorities in a country to enjoy their own culture, practice their own religion and
use their own language. The UN Human Rights Committee has noted that one or other aspect
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of the rights of individuals protected under Article 27 may consist in a way of life that is
closely associated with territory (land and water) and use of its resources (HRC, General
Comment 23, Article 27, UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994), [3.2]). The
Committee has also stated that "the enjoyment of those rights may require positive legal
measures of protection and measures to ensure the effective participation of members of
minority communities in decisions which affect them."
Appointing a standing member of the Indigenous community on the Authority is one such
positive measure to ensure effective participation of the Indigenous community and
contribute on the Authority's decisions that may affect them. The Bill allows Indigenous
people impacted by decisions of the Authority to be directly involved in the development and
implementation of policies and programs that impact on them through a representative voice.
Article 15 of the ICESCR protects the right of all persons to take part in cultural life and to
enjoy the benefits of scientific progress and its applications. The UN Committee on
Economic Social and Cultural Rights has interpreted this right to include a right to traditional
land, territories and resources, as it relates to Indigenous Peoples.
The Bill advances this right by enabling the Authority to engage constantly and directly with
an Indigenous person who can inform best practice and most appropriate ways of taking part
in cultural life as it relates to water in the Murray-Darling Basin.
Right to equality and non-discrimination
This legislation engages the rights to equality and non-discrimination which are contained in
Articles 2, 16, 26 and 27 of the ICCPR and Article 2(2) of the ICESCR. These rights
recognise that all human beings have the right to be treated equally and to not be
discriminated against.
The Bill may be characterised as a component of a broader "special measure" as it
specifically designates a particular member of a group to occupy a position on the Authority.
'Special measures' are provided for in Article 1(4) of the Convention on the Elimination of
All Forms of Racial Discrimination (CERD) and subsection 8(1) of the Racial Discrimination
Act 1975. They are an exception to the general prohibition on racial discrimination, and are
designed to "secure to disadvantaged groups the full and equal enjoyment of human rights
and fundamental freedoms". For a measure to be characterised as a "special measure" it must:
be for a particular group or individuals;
be taken for the sole purpose of securing the adequate advancement of that group or
those individuals;
be "necessary"; and
not continue after its objectives have been achieved.
The main purpose for the Bill is evident in the continuing levels of disadvantage confronting
Indigenous peoples compared to non-Indigenous Australians, including in relation to health,
economic self-sufficiency, positive cultural identity, and social and emotional well-being.
The measures in the Bill are necessary to provide greater engagement by the Authority with
10
Indigenous peoples and in doing so, address disadvantage as it relates to decisions made that
impact Indigenous Basin communities.
The measure in this Bill is appropriate, adapted and proportionate, as it promotes greater
engagement with Indigenous peoples with no negative impact on the broader community.
The appointment of a standing Indigenous Authority member is regarded as legitimate
differential treatment.
Conclusion
The amendments in this Bill to establish a standing Indigenous Authority member position
are compatible with human rights because they do not limit any right. The Bill advances the
right to self-determination, the right to enjoy and benefit from culture and the rights to
equality and non-discrimination. The measures in the Bill are compatible with the human
rights and freedoms recognised or declared in the international instruments listed in section 3
of the Human Rights (Parliamentary Scrutiny) Act 2011.
(Circulated by authority of the Minister for Water Resources, Drought, Rural Finance,
Natural Disaster and Emergency Management,
the Hon. David Littleproud MP)
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