Victorian Government Response to the Review: Aboriginal Lands Act 1970

The Victorian Government acknowledges and thanks the Framlingham Aboriginal Trust and Lake Tyers Aboriginal Trust communities (Trust Communities) for their leadership and contribution to the independent review of the Aboriginal Lands Act 1970 (the Review).

The Victorian Government thanks the two independent reviewers, Mr Jason Behrendt and Mr Timothy Goodwin, for their dedication to and principled engagement with the Review process. The government acknowledges the invaluable contributions of many First Peoples from the Trust Communities who have paved the way and fought for the rights of First Peoples, including the right to true self-determination.

From time immemorial, First Peoples in Victoria have practised their Law and Lore, customs and languages, and nurtured Country through their spiritual, cultural, material and economic connections to land, water and resources. The Victorian Government acknowledges the strength and resilience of First Peoples in the face of colonisation, dispossession and historic and ongoing injustices, and the survival of First Peoples living cultures, knowledge and traditions.

The Review recommendations seek to strengthen governance, facilitate economic activity and enable greater self-determination for the Trust Communities, now and into the future.

The Victorian Government is committed to amending the Aboriginal Lands Act 1970 (the Act) and will continue to engage with the Trust Communities to implement the Review recommendations. This includes delivering a series of workshops to ensure any amendments to the Act, including the implementation of non-legislative reform, continue to align with the aspirations of the Trust Communities.

More broadly, the Victorian Government is aware that it is only through self-determination that true progress can be made. This is why the Victorian Government has committed to actioning all elements of the Uluru Statement from the Heart: Truth, Treaty, Voice.

Victoria’s treaty process will provide a framework for the transfer of decision-making power and resources to support self-determining Aboriginal communities to take control of matters that affect their lives. The Victorian Government has committed to working proactively to support and negotiate Treaty, in line with the aspirations of Traditional Owners and Aboriginal Victorians.

I sincerely thank all shareholders, residents, Aboriginal Elders, Stolen Generations members and families who are part of the Trust Communities for their invaluable contributions and for sharing their knowledge and lived experiences. These contributions have been instrumental in the development of the Review recommendations and will benefit many generations to come.

Gabrielle Williams MP
Minister for Treaty and First Peoples
Minister for Ambulance Services
Minister for Mental Health

The Act granted freehold title over two former Victorian mission sites, Framlingham (in Southwest Victoria) and Lake Tyers (in Gippsland), to the residents of each community. People living at Framlingham and Lake Tyers on 1 January 1968 were gazetted as members of either the Framlingham or Lake Tyers Aboriginal Trusts and were then allocated shares. The Minister for Treaty and First Peoples and the Department of Premier and Cabinet are responsible for the administration of the Act.

Reviews of the Act were conducted in 2004 and 2013, resulting in minor amendments. However, the Act is now over 53 years old and has not kept pace with current laws, changes in attitudes, and policy developments in Victoria. Accordingly, in 2016 the Victorian Government committed to reviewing the Act with the objective of updating it to improve governance, enable greater self-determination, support community development practices, and provide the foundation towards self-sustainability for the Trust Communities.

In 2018, the Victorian Government appointed two Aboriginal independent reviewers, Mr Jason Behrendt and Mr Timothy Goodwin (the Reviewers), to lead the Review. Two rounds of consultations were held in 2018 and 2019 at the Trust Communities and surrounding locations. After the 2018 consultations, the Reviewers developed an Options Paper detailing possible amendments ranging from ‘no change’, ‘minor change’ to ‘major change’. Both Trust Communities were also supported to prepare a formal submission to the Review with legal assistance.

The Review concluded in September 2021. The Reviewers made 42 recommendations, including legislative amendments to the Act and non-legislative reforms. These recommendations and the Victorian Government’s responses are detailed below.

Terminology

Support in full — subject to minor or technical changes all elements of the recommendation are supported by the Victorian Government.

Support in principle — the Victorian Government generally supports the intent or merit of the policy underlining the recommendation but notes the relevant recommendation requires further policy and legal analysis, stakeholder engagement, and/or rectification of both Trusts share registers to be delivered.

Recommendation 1: Audit of share register at Lake Tyers Aboriginal Trust

First Peoples – State Relations should provide assistance to the Lake Tyers Aboriginal Trust to undertake an audit of the share register at Lake Tyers.

Recommendation 2: Improving awareness of the Act

First Peoples – State Relations should prepare plain English summaries of the Act in consultation with the Lake Tyers and Framlingham Aboriginal Trusts.

Recommendation 3: Materials advising shareholders of information about their shares

First Peoples – State Relations should provide assistance to the Framlingham Aboriginal Trust and Lake Tyers Aboriginal Trust to develop and disseminate materials advising shareholders of:

a. how to clarify the number of shares they own; and

b. how to transfer shares, and to who shares can be transferred.

Recommendation 4: Clarify power of the Committee of Management in relation to the transfer of shares

Amend the Act to provide that the Committee of Management has power to refuse to approve a transfer but that:

a. the Committee of Management cannot refuse a transfer if the transfer is made under a will, or by the executor of a deceased estate, and the transfer is made to a class of persons to who shares are capable of transfer under the Act; unless

b. the person to who shares are to be transferred is ineligible under s 15(6) of the Act to be a member at the time of transfer.

Recommendation 5: Instrument of Transfer

Amend the Act to provide for the existing form for the transfer of shares at Appendix A be a prescribed document and for the Act to prescribe the documents which are to be provided in support of the application for transfer.

Recommendation 6: Notice of Transfers

Amend the Act to:

a. require the person or body maintaining the share register to give notice of any change to the share register to the other shareholders; and

b. require that the Trusts, and the person or body maintaining the share register, ensure that the register is available for inspection by shareholders upon request.

Recommendation 7: Class of Transferee

Amend the Act to provide that the Committee of Management can refuse to register a transfer if the sale is to a person outside the class of people identified in s 14(2) of the Act, which includes:

a. the Trust

b. another member

c. the Crown; or

d. a person whom the Trust believes to be:

(i). the husband or wife, or a child or remoter issue, brother, sister or parent of the member;

(ii). a brother or sister of a parent of the member; or

(iii). a child of remoter issue of a parent of the member, or of a brother or sister of a parent of the member.

Recommendation 8: Confirmation that shares have not been sold contrary to the Act

Amend the Act to require that in requesting a transfer of shares, the Instrument of Transfer is to be accompanied by a statutory declaration from the person selling the shares and the purchaser, confirming that the transfer is not a sale or exchange for any other consideration.

Recommendation 9: Shares to only be held by Aboriginal people

Amend the Act to provide that shares are to only be held by Aboriginal persons, subject to an exception that a non-Aboriginal person may hold shares on trust for children until they turn 18 if it is approved by the Committee of Management.

Recommendation 10: Assistance to identify and notify families of deceased shareholders

First Peoples – State Relations (or an Independent Registrar) should provide assistance to the Lake Tyers Aboriginal Trust to identify and notify families of deceased shareholders, and to provide information to those families as to how those shares can be transferred and to who shares can be transferred.

Recommendation 11: Role of Committee of Management in relation to transfers in accordance with a Will

Amend the Act to provide that the Committee of Management is required to approve transfer of shares but is not to refuse a transfer to a person under the will or an intestacy of the deceased person if the transfer is to a person within the class of persons listed in s 14(2) of the Act.

1. Amend s 14(3)(a) of the Act to provide:

2. Nothing in this section shall be construed as preventing a transfer of shares –

a. by the personal representative of a deceased member to the persons entitled thereto under the will or on the intestacy of the deceased member provided the person is within the class of person listed in s 14(2) of this Act.

Recommendation 12: Powers of an executor in relation to transfers

Amend the Act to provide that, despite anything in any other Act or any obligation of an executor at common law or in equity, in the event that a will provides that shares are to be transferred to persons outside the class of people identified in s 14(2), and such a transfer is refused by the Committee of Management, the executor of the estate is nonetheless empowered to transfer the shares to a person within that class (including the Trust or the Crown) and that no claim can be made against the executor in that circumstance provided that:

a. the transfer is an even distribution of shares to the surviving children of the deceased; or, in the absence of any such children,

b. the transfer is to another person, provided the person is not the executor or a person who was on the Committee of Management at the time the decision to refuse the transfer in accordance with the will was made.

Recommendation 13: Distribution of shares on intestacy

1. Amend the Act to allow for a Trust to transfer shares held in a deceased estate in the absence of a will or grant of letters of administration in circumstances where:

a. a period of 3 years has elapsed;

b. the Committee of Management is satisfied that there is no will or letters of administration;

c. prior notice of the proposed transfer is given to other shareholders; and

d. the shares are only to be transferred evenly to:

(i). the children of the deceased person, and to their children if they are also deceased and

(ii). in the absence of any children, they are transferred evenly among the children of the deceased person’s siblings and

e. the shares may be transferred other than in accordance with (d) if the people referred to in that clause as being entitled to the shares agree in writing.

2. Amend the Act to provide that where the shares are transferred in the absence of a will and letters of administration it removes any claim or right to the shares by any other person.

3. Any such amendment should be drafted to make clear that the terms of the Act take priority over any other legislative and common law rules.

Recommendation 14: Definition of “personal representative”

Amend the Act to define “personal representative” to have the same meaning as in the Administration and Probate Act 1958 (Vic).

Recommendation 15: Maintenance of share register

Amend the Act to provide that the share registers are to be maintained by an independent person. The independent person would be responsible for recording transfers of shares but would only be authorised to make such a change where they are satisfied that:

a. there is a resolution of the Committee of Management authorising the transfer; and

b. the transfer is being made in accordance with the Act.

The Victorian Government is committed to amending the Aboriginal Lands Act 1970 (the Act) and will continue to engage with the Trust Communities in implementing Review recommendations. Part of this process involves holding workshops to ensure that any changes to the Act, including the implementation of non-legislative reform, continue to reflect the aspirations of the Trust Communities. The Review recommendations will be considered in two phases.

Phase one

Phase one will implement 28 (22 legislative and six non-legislative) recommendations as a priority, which will improve processes for share transfers; strengthen governance provisions; facilitate economic activity; modernise terminology in the Act; and increase understanding of the Act and its shareholding system.

Implementing phase one reform will provide the groundwork for future reform, including potential future implementation of the remaining 14 Review recommendations, subject to further analysis and community engagement.

The 22 legislative recommendations include:

• Recommendation 5: Instrument of Transfer
• Recommendation 6: Notice of transfers
• Recommendation 8: Shares not sold contrary to Act
• Recommendation 14: “Personal representative" definition
• Recommendation 16: Frequency of general meetings
• Recommendation 17: Quorum for general meetings
• Recommendation 18: Notice of general meetings
• Recommendation 19: Minutes of general meetings
• Recommendation 20: Election of Committee of Management
• Recommendation 21: Disqualification from Committee
• Recommendation 22: Quorum for Committee of Management
• Recommendation 23: Minutes of Committee meetings
• Recommendation 24: Casual vacancies for Committee
• Recommendation 26: Pecuniary interests
• Recommendation 27: Exemption from compliance
• Recommendation 29: Reporting to the Minister
• Recommendation 30: Copy of share register for Minister
• Recommendation 31: Investigations
• Recommendation 32: Definition of “resident”
• Recommendation 36: Powers of Trust
• Recommendation 37: Conducting business on Trust land
• Recommendation 40: Modernisation of the Act

The six non-legislative recommendations include:

• Recommendation 1: Audit of share register at Lake Tyers Aboriginal Trust
• Recommendation 2: Improving awareness of the Act
• Recommendation 3: Materials advising shareholders of information about their shares
• Recommendation 10: Assistance to identify and notify families of deceased shareholders
• Recommendation 41: Ongoing review and consultation
• Recommendation 42: Continuing engagement with Trust

Phase two

Phase two will consider implementation of the remaining 14 (13 legislative and one non-legislative) recommendations, subject to further analysis, community engagement and the implementation of interdependent recommendations in phase one.

The 13 legislative recommendations include:

• Recommendation 4: Clarify power of Committee in relation to transfer of shares
• Recommendation 7: Class of transferee
• Recommendation 9: Shares to only be held by Aboriginal people
• Recommendation 11: Role of Committee in relation to transfers in accordance with a Will
• Recommendation 12: Powers of an Executor in relation to transfers
• Recommendation 13: Distribution of shares on intestacy
• Recommendation 15: Maintenance of share register
• Recommendation 25: Model rules for Committee
• Recommendation 28: Independent Registrar
• Recommendation 33: Restriction on sale of land
• Recommendation 34: Using the land as a security
• Recommendation 35: Selling land other than former Reserve land
• Recommendation 39: Mining on Trust land

The one non-legislative recommendation includes:

• Recommendation 38: Finance

Implementing the Review recommendations will not restrict the Victorian Government from future major reform, including aligning with the aspiration of the Trust Communities.