Commonwealth of Australia Explanatory Memoranda

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TREASURY LAWS AMENDMENT (2017 MEASURES NO. 5) BILL 2017

                        2016-2017-2018



 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                            SENATE




TREASURY LAWS AMENDMENT (2017 MEASURES NO. 5) BILL 2017




      SUPPLEMENTARY EXPLANATORY MEMORANDUM



       Amendments to be moved on behalf of the Government



                  (Circulated by authority of the
              Treasurer, the Hon Scott Morrison MP)
Amendment to the Treasury Laws
Amendment (2017 Measures No. 5)
Bill 2017

Amendments to the Treasury Laws Amendment
(2017 Measures No. 5) Bill 2017
        The amendments to the Treasury Laws Amendment (2017 Measures
        No. 5) Bill 2017 removes the definition of Indigenous person from
        Schedule 2 - Indigenous policy and program evaluation.

        Proposal announced: The amendments have not previously been
        announced.

        Financial impact: The amendments do not alter the financial impact
        outlined in the explanatory memorandum to the Bill.

        Compliance cost impact: Nil.



Detailed explanation of new law
        1.1       Amendment 1 removes the statutory definition of Indigenous
        person. [Amendment 1, Schedule 2, item 1]

        1.2       In the absence of a statutory definition, the expression
        'Indigenous person' is intended as a composite expression to encompass
        Aboriginal persons and Torres Strait Islanders. The intention is that this
        expression, as it encompasses Aboriginal persons and Torres Strait
        Islanders, takes its ordinary meaning.

        1.3       The ordinary meaning of Indigeneity as understood and applied
        by the courts originated in the judgment of Deane J in Commonwealth v
        Tasmania (1983) 158 CLR 1 at 274, and has been applied in subsequent
        decisions including Gibbs v Capewell (1995) 54 FCR 503 and Shaw v
        Wolf (1998) 83 FCR 113.




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    1.4       Those cases adopted a three-part test for the ordinary meaning of
    'Aboriginal person' based on descent, identity and recognition. Based on
    those cases, the ordinary meaning of an Indigenous person is understood
    as:

        i.   a person who is of Aboriginal or Torres Strait Islander descent,
       ii.   who identifies as being of Aboriginal or Torres Strait Islander
             descent, and
      iii.   who is accepted as such by the Aboriginal or Torres Strait
             Islander community with which the person identifies.

    1.5        For administrative purposes, the Australian Government requires
    agencies to apply this test flexibly and without requiring archival or
    historical records.




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