Treaty Commissioner Act 2020 (Northern Territory)

Mechanically, the Treaty Commissioner Act 2020 creates a permanent statutory office , the Office of the Treaty Commissioner (the Treaty Commission) , and sets out the appointment, tenure, functions, powers, staff arrangements, reporting duties and administrative rules for that office. The Office is established by s 5, consisting of a Treaty Commissioner and the Treaty Commissioner’s staff. The Act makes the Barunga Agreement - Memorandum of Understanding (the MOU) the statutory purpose of the Act (s 4) by including the MOU as an Appendix.

Key mechanical changes and arrangements in the Act:

Appointment and status: the Administrator appoints an Aboriginal person as Treaty Commissioner by Gazette notice (s 7(1)), subject to eligibility rules (s 8) and endorsement by the Chairperson of each Territory Aboriginal Land Council (s 7(2)). An Acting Treaty Commissioner may be appointed under s 17 when the office is vacant, subject to similar eligibility and endorsement requirements (s 17(2)).
Tenure and conditions: the statutory term is three years (s 9(1)), with reappointment possible subject to ongoing eligibility and the same endorsements (s 9(2)). Conditions, including remuneration and allowances, are determined by the Administrator (s 10(1)), but cannot be performance-contingent or varied during the term (s 10(2)).
Functions and powers: the Act lists discrete functions (s 11(1)) such as gauging support for a treaty, considering treaty form and outcomes, researching best practice negotiation processes, advising, and promoting awareness. It grants broad powers to consult, establish protocols and reporting systems, facilitate communications, engage consultants, and take anything necessary or convenient to perform functions (s 11(2)).
Reporting and timelines: the Treaty Commissioner must give an interim report (s 12(1)) and a final report within the specified interval tied to the Minister’s timing (s 12(2)). The Minister must publicly release and table reports within specified windows after receipt (ss 12(3)-(4)).

NORTHERN TERRITORY OF AUSTRALIA TREATY COMMISSIONER ACT 2020 As in force at 11 July 2020 Table of provisions Part 1 Preliminary matters 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Definitions ........................................................................................ 1 4 Purpose of Act ................................................................................. 2 Part 2 Office of the Treaty Commissioner 5 Establishment of Office of the Treaty Commissioner ....................... 2 6 Impartiality and independence ......................................................... 2 7 Appointment of Treaty Commissioner ............................................. 2 8 Eligibility for appointment ................................................................. 3 9 Term of appointment ....................................................................... 4 10 Conditions of appointment ............................................................... 4 11 Functions and powers ..................................................................... 4 12 Reporting ......................................................................................... 6 Part 3 Administrative matters 13 Vacancy in office ............................................................................. 6 14 Resignation...................................................................................... 7 15 Suspension and termination of appointment.................................... 7 16 Leave of absence ............................................................................ 7 17 Acting Treaty Commissioner............................................................ 8 18 Treaty Commissioner's staff ............................................................ 8 19 Oath before taking office ................................................................. 9 20 Confidentiality of information ........................................................... 9 21 Protection from liability .................................................................... 9 Part 4 Transitional and savings matters 22 Definition.......................................................................................... 9 23 Prior Treaty Commissioner .............................................................. 9 24 Validation ....................................................................................... 10 Appendix Barunga Agreement – Memorandum of Understanding ENDNOTES

NORTHERN TERRITORY OF AUSTRALIA

As in force at 11 July 2020

TREATY COMMISSIONER ACT 2020 An Act to establish the Office of the Treaty Commissioner Part 1 Preliminary matters 1 Short title This Act may be cited as the Treaty Commissioner Act 2020. 2 Commencement This Act commences on the day after the day on which the Administrator's assent to this Act is declared. 3 Definitions In this Act: Acting Treaty Commissioner, means the person appointed under section 17. Office of the Treaty Commissioner means the Office established by section 5. Territory Aboriginal Land Council means any of the following: (a) the Anindilyakwa Land Council; (b) the Central Land Council; (c) the Northern Land Council; (d) the Tiwi Land Council. Treaty Commissioner means the Treaty Commissioner appointed under section 7.

Part 2 Office of the Treaty Commissioner Treaty Commissioner Act 2020 2 Treaty Commissioner's staff means the staff engaged or employed under section 18. Note for section 3 The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act. 4 Purpose of Act The purpose of this Act is to implement the Barunga Agreement – Memorandum of Understanding, which is set out in the Appendix to this Act. Part 2 Office of the Treaty Commissioner 5 Establishment of Office of the Treaty Commissioner (1) The Office of the Treaty Commissioner is established, consisting of the Treaty Commissioner and the Treaty Commissioner's staff. (2) The Office of the Treaty Commissioner may be known as the "Treaty Commission". 6 Impartiality and independence (1) The Treaty Commissioner and the Treaty Commissioner's staff must perform their functions and exercise their powers impartially and independently. (2) The Treaty Commissioner is not subject to direction by any person about the way in which the Treaty Commissioner performs the functions or exercises the powers of office. (3) In performing functions or exercising powers under this Act, a member of the Treaty Commissioner's staff is subject only to the direction of: (a) the Treaty Commissioner; or (b) another member of the Treaty Commissioner's staff acting with the authority of the Treaty Commissioner. 7 Appointment of Treaty Commissioner (1) The Administrator may, by Gazette notice, appoint an Aboriginal person to be the Treaty Commissioner. (2) To be appointed as the Treaty Commissioner, a person must be: (a) eligible under section 8; and

Part 2 Office of the Treaty Commissioner Treaty Commissioner Act 2020 3 (b) endorsed by the Chairperson of each Territory Aboriginal Land Council. Note for section 7 Section 23 provides that the person acting in the position of Treaty Commissioner before the commencement of this Act is taken to be appointed under section 7. 8 Eligibility for appointment (1) A person is eligible for appointment as the Treaty Commissioner under section 7 if: (a) the person has suitable qualifications or experience relating to the Treaty Commissioner's functions; and (b) the person is committed to the purposes of this Act and its underlying principles; and (c) the person is not any of the following: (i) a judicial officer; (ii) a member of an Australian parliament; (iii) a member of a local government council or of an equivalent body in a State or another Territory; (iv) a member of a political party; (v) an officer of a Territory controlled entity; and (d) the person does not have a recent political affiliation. (2) For subsection (1)(d), a person has a recent political affiliation if, at any time during the previous 5 years, the person: (a) was a member of the Legislative Assembly or a local government council; or (b) was an office holder or elected representative of a political party in the Territory or elsewhere in Australia; or (c) was a member of staff of a minister; or (d) made a reportable donation to a political party, or an associated entity of a political party, in the Territory or elsewhere in Australia.

Part 2 Office of the Treaty Commissioner Treaty Commissioner Act 2020 4 (3) For subsection (2)(d), a person made a reportable donation if it was made by the person or by a body corporate of which the person was an office holder or majority shareholder at the time the donation was made. (4) In this section: associated entity, see section 176 of the Electoral Act 2004. reportable donation means a gift or loan that is required to be disclosed or reported under Part 10 of the Electoral Act 2004 or under a similar law in force in the Commonwealth or in a State or another Territory. Territory controlled entity, see section 3(1) of the Audit Act 1995. 9 Term of appointment (1) The appointment of a person as the Treaty Commissioner is for a period of 3 years. (2) A person who is the Treaty Commissioner may be reappointed if the person is: (a) still eligible under section 8; and (b) endorsed by the Chairperson of each Territory Aboriginal Land Council. 10 Conditions of appointment (1) The Treaty Commissioner holds office on the conditions, including conditions about remuneration, expenses and allowances, determined by the Administrator. (2) The Treaty Commissioner's conditions of office: (a) cannot provide any conditions that are contingent on the Treaty Commissioner's performance in office; and (b) cannot be varied during the Treaty Commissioner's term in office. 11 Functions and powers (1) The Treaty Commissioner has the following functions: (a) to gauge support in the Territory for a treaty between the Territory and Aboriginal peoples of the Territory;

Part 2 Office of the Treaty Commissioner Treaty Commissioner Act 2020 5 (b) to consider what a treaty in the Territory should seek to achieve; (c) to consider whether there should be one or multiple treaties in the Territory; (d) to consider what form a treaty should take; (e) to consider what outcomes are possible for Aboriginal peoples of the Territory under a treaty; (f) to research best practice processes to treaty negotiations and consider which process should be used; (g) to provide advice on matters related to a treaty between the Territory and Aboriginal peoples of the Territory; (h) to promote awareness of the Treaty Commission's activities among Territorians; (i) to perform other functions conferred on the Treaty Commissioner by the Minister. (2) The Treaty Commissioner has the following powers: (a) to consult with the Territory Aboriginal Land Councils, the Aboriginal peoples of the Territory and areas adjacent to the Territory and Territorians in general; (b) to establish procedures and protocols, including reporting systems, to ensure information gathered by the Treaty Commissioner is shared with the Territory, Territory Aboriginal Land Councils and the Aboriginal peoples of the Territory; (c) to facilitate communications between the Territory, Territory Aboriginal Land Councils and the Aboriginal peoples of the Territory in relation to the development of a framework for future treaty negotiations; (d) to engage consultants as the Treaty Commissioner considers necessary to assist the Treaty Commissioner in performing functions under this Act; (e) to do anything necessary or convenient to be done for, or in relation to, the performance of the Treaty Commissioner's functions.

Part 3 Administrative matters Treaty Commissioner Act 2020 6 12 Reporting (1) The Treaty Commissioner must give the Minister an interim report on the performance of the Treaty Commissioner's functions. (2) The Treaty Commissioner must give the Minister a final report on the performance of the Treaty Commissioner's functions within: (a) 18 months after the Minister tables the interim report referred to in subsection (1) in the Legislative Assembly; or (b) a longer period determined by the Minister with the endorsement of the Chairperson of each Territory Aboriginal Land Council. (3) The Minister must publicly release a copy of a report under subsection (1) or (2) within 21 days after receiving it. (4) The Minister must table in the Legislative Assembly a copy of a report under subsection (1) or (2) within 21 days after receiving it or at the next earliest opportunity. Part 3 Administrative matters 13 Vacancy in office (1) The office of Treaty Commissioner becomes vacant if: (a) the Treaty Commissioner resigns under section 14; or (b) the Treaty Commissioner's appointment is terminated under section 15(5); or (c) the Treaty Commissioner is found guilty of an indictable offence, whether in the Territory or elsewhere, for which the maximum penalty is imprisonment for a term of at least 12 months, with or without a fine; or (d) the Treaty Commissioner becomes bankrupt, applies to take the benefit of the law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit. (2) The office of Treaty Commissioner must not remain vacant for more than 6 months.

Part 3 Administrative matters Treaty Commissioner Act 2020 7 14 Resignation The Treaty Commissioner may resign office by written notice given to the Administrator. 15 Suspension and termination of appointment (1) The Administrator may suspend the Treaty Commissioner from duty if: (a) the Treaty Commissioner becomes physically or mentally incapable of satisfactorily performing official duties; or (b) the Treaty Commissioner engages in corrupt conduct as defined in section 10 of the Independent Commissioner Against Corruption Act 2017. (2) The Minister must immediately give the Treaty Commissioner a statement of reasons for the suspension. (3) The Minister must table in the Legislative Assembly the written statement within 6 sitting days after the suspension was imposed. (4) The Minister must table in the Legislative Assembly any written response by the Treaty Commissioner within 6 sitting days after the response is made. (5) The Administrator must terminate the Treaty Commissioner's appointment if a resolution requiring the termination is passed by a two-thirds majority of the members of the Legislative Assembly. (6) The suspension of the Treaty Commissioner is lifted if: (a) the Minister does not table the statement in accordance with subsection (3); or (b) the Legislative Assembly does not pass a resolution in accordance with subsection (5) within 6 sitting days after the statement is tabled. (7) The Treaty Commissioner is entitled to be paid remuneration and allowances during the period of suspension. 16 Leave of absence The Minister may grant the Treaty Commissioner leave of absence on the conditions decided by the Minister.

Part 3 Administrative matters Treaty Commissioner Act 2020 8 17 Acting Treaty Commissioner (1) The Administrator may appoint a person to act as the Treaty Commissioner during a vacancy in the office. (2) A person may be appointed as an Acting Treaty Commissioner if the person is: (a) eligible under section 8; and (b) endorsed by the Chairperson of each Territory Aboriginal Land Council. (3) An appointment of an Acting Treaty Commissioner during a vacancy in the office may only be for a period or periods not exceeding in aggregate 6 months in any 12 month period. (4) If the office of the Treaty Commissioner is vacant for a period of 18 months, no further appointment of an Acting Treaty Commissioner during the vacancy can be made. (5) An Acting Treaty Commissioner holds office on the conditions, including conditions about remuneration, expenses and allowances, determined by the Administrator. 18 Treaty Commissioner's staff (1) The Treaty Commissioner's staff consists of the following: (a) a Deputy Treaty Commissioner; (b) public sector employees employed for the purposes of the Office of the Treaty Commissioner; (c) persons employed in an Agency made available by the Chief Executive Officer of the Agency under an arrangement with the Treaty Commissioner. (2) Subject to subsection (3), the Treaty Commissioner may engage the services of a suitable person to be the Deputy Treaty Commissioner without the requirement to invite tenders under the Procurement Act 1995. (3) The process for engaging the services of a suitable Deputy Treaty Commissioner must be endorsed by the Chairperson of each Territory Aboriginal Land Council. (4) The Treaty Commissioner's staff must assist the Treaty Commissioner to perform the Treaty Commissioner's functions and exercise the Treaty Commissioner's powers.

Part 4 Transitional and savings matters Treaty Commissioner Act 2020 9 19 Oath before taking office (1) Before performing any functions as Treaty Commissioner, the Treaty Commissioner must take an oath or make an affirmation that the Treaty Commissioner will faithfully, impartially and truly perform the functions of the Treaty Commissioner according to law. (2) Before performing any functions as Acting Treaty Commissioner, an Acting Treaty Commissioner must take an oath or make an affirmation that the Treaty Commissioner will faithfully, impartially and truly perform the functions of the Acting Treaty Commissioner according to law. (3) The oath must be administered by the Administrator. 20 Confidentiality of information A member of the Treaty Commissioner's staff must not disclose confidential information, obtained in the course of performing a function or exercising a power under this Act, without the authority of the Treaty Commissioner. 21 Protection from liability (1) A person who is performing functions under this Act is not civilly liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this or any other Act. (2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission. Part 4 Transitional and savings matters 22 Definition In this Part: commencement means the commencement of section 7 of this Act. 23 Prior Treaty Commissioner (1) Michael James Dodson, who was performing the functions of the non-statutory position of Treaty Commissioner immediately before the commencement, is taken to be the Treaty Commissioner appointed under this Act on the commencement until 3 March 2022.

Part 4 Transitional and savings matters Treaty Commissioner Act 2020 10 (2) For subsection (1), Michael James Dodson is taken to hold office on the same conditions, including conditions about remuneration, expenses and allowances, on which he performed those functions immediately before the commencement. 24 Validation (1) Any act performed or purported to have been performed by Michael James Dodson while he was performing the functions of the non-statutory position of Treaty Commissioner immediately before the commencement is taken to be an act performed or purported to have been performed under this Act. (2) To avoid doubt, any interim report given by Michael James Dodson to the Minister before the commencement is taken to be the interim report referred to in section 12(1).

Appendix Barunga Agreement – Memorandum of Understanding Treaty Commissioner Act 2020 11 Appendix Barunga Agreement – Memorandum of Understanding section 4 THE BARUNGA AGREEMENT A MEMORANDUM OF UNDERSTANDING TO PROVIDE FOR THE DEVELOPMENT OF A FRAMEWORK FOR NEGOTIATING A TREATY WITH THE FIRST NATIONS OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN THE NORTHERN LAND COUNCIL (NLC), THE CENTRAL LAND COUNCIL (CLC), THE ANINDILYAKWA LAND COUNCIL (ALC) AND THE TIWI LAND COUNCIL (TLC) (THE ABORIGINAL LAND COUNCILS) and THE NORTHERN TERRITORY GOVERNMENT (THE NTG) The Aboriginal Land Councils are independent statutory authorities established under the Aboriginal Land Rights (Northern Territory) Act 1976 to express the wishes and protect the interests of traditional owners throughout the Northern Territory. The members of the Land Councils are elected by Aboriginal people living in their areas. The NLC and CLC are also Native Title Representative Bodies recognised under the Native Title Act 1993 to promote the interests of native title holders across the Territory (‘Traditional owners’ include native title holders). The NTG is the democratic, representative and executive arm of the Northern Territory. Its functions and powers derive from the Northern Territory Self Government Act 1978, which established the Northern Territory of Australia as a body politic under the Crown. BACKGROUND TO THE MEMORANDUM OF UNDERSTANDING: This Memorandum of Understanding (MOU) represents the first significant step in advancing a Treaty in the Northern Territory since the call for a national treaty in the historic Barunga Statement by the Northern and Central Land Councils. The Barunga Statement was presented to former Prime Minister, RJ Hawke AC, by Mr Galarrwuy Yunupingu AM and Mr Wenten Rubuntja at the annual Barunga Cultural and Sporting Festival on 12 June 1988.

Appendix Barunga Agreement – Memorandum of Understanding Treaty Commissioner Act 2020 12 The text of the Barunga Statement is as follows: We, the Indigenous owners and occupiers of Australia, call on the Australian Government and people to recognise our rights: • to self-determination and self-management, including the freedom to pursue our own economic, social, religious and cultural development; • to permanent control and enjoyment of our ancestral lands; • to compensation for the loss of use of our lands, there having been no extinction of original title; • to protection of and control of access to our sacred sites, sacred objects, artefacts, designs, knowledge and works of art; • to the return of the remains of our ancestors for burial in accordance with our traditions; • to respect for and promotion of our Aboriginal identity, including the cultural, linguistic, religious and historical aspects, and including the right to be educated in our own languages and in our own culture and history; • in accordance with the universal declaration of human rights, the international covenant on economic, social and cultural rights, the international covenant on civil and political rights, and the international convention on the elimination of all forms of racial discrimination, rights to life, liberty, security of person, food, clothing, housing, medical care, education and employment opportunities, necessary social services and other basic rights. We call on the Commonwealth to pass laws providing: • A national elected Aboriginal and Islander organisation to oversee Aboriginal and Islander affairs; • A national system of land rights; • A police and justice system which recognises our customary laws and frees us from discrimination and any activity which may threaten our identity or security, interfere with our freedom of expression or association, or otherwise prevent our full enjoyment and exercise of universally recognised human rights and fundamental freedoms. We call on the Australian Government to support Aborigines in the development of an international declaration of principles for indigenous rights, leading to an international covenant. And we call on the Commonwealth Parliament to negotiate with us a Treaty recognising our prior ownership, continued occupation and sovereignty and affirming our human rights and freedom.

Appendix Barunga Agreement – Memorandum of Understanding Treaty Commissioner Act 2020 13 The call for the Commonwealth Parliament to negotiate a national treaty has yet to be realised. However, thirty years later, the Aboriginal Land Councils remain fully committed to the goals and aspirations articulated in the Barunga Statement. The NTG, for the first time in its history, is also committed to commencing discussions on developing a Treaty (or Treaties) in the Northern Territory with Aboriginal Territorians. It has established an Aboriginal Affairs Sub- Committee of the Northern Territory Cabinet to advance a number of Aboriginal Affairs priorities including a Treaty. The Aboriginal Land Councils wrote to the Chief Minister of the Northern Territory on 2 March 2018 proposing to reach an MOU with the NTG outlining a consultation process for a Treaty with Aboriginal people that is led by Aboriginal people. At an historic meeting between the Aboriginal Land Councils and the NTG on 23 March 2018 in Alice Springs it was agreed to establish a Treaty Working Group to develop the MOU. It is intended that this MOU provides the opportunity, building on the significance of the 30th anniversary of the Barunga Statement, to facilitate consultation with all Aboriginal people in the Northern Territory to allow for a framework to be agreed for negotiating a Treaty. Subject to the Northern Territory (Self-Government) Act 1978, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General to make laws for the peace, order and good government of the Territory. It is acknowledged that there is a range of Aboriginal interests in the Northern Territory and that all Aboriginal people and their representative bodies must have the opportunity to engage fully in the process agreed to in this MOU. It is further acknowledged that non-Aboriginal Territorians need to be brought along with this process. It is understood that the use of the word Treaty in this MOU also includes the plural “Treaties” should the proposed framework include provision for negotiating multiple treaties.

Appendix Barunga Agreement – Memorandum of Understanding Treaty Commissioner Act 2020 14 IT IS AGREED BY THE NORTHERN LAND COUNCIL, THE CENTRAL LAND COUNCIL, THE ANINDILYAKWA LAND COUNCIL AND THE TIWI LAND COUNCIL and THE NORTHERN TERRITORY GOVERNMENT as follows: PRINCIPLES GUIDING THE TREATY CONSULTATION PROCESS

It is envisaged that should a Treaty ultimately be negotiated, it will be the foundation of lasting reconciliation between the First Nations of the Territory and other citizens with the object of achieving a united Northern Territory.
All Aboriginal people of the Northern Territory need to be heard and the consultation process agreed to in this MOU needs to be inclusive, accessible and transparent to all.
Traditional owners, as the original owners and occupiers of the Northern Territory, and represented by the Aboriginal Land Councils, are integral to consultation concerning a Treaty.
All Territorians should ultimately benefit from any Treaty that is agreed in the Northern Territory.
The NTG must not exclude from discussions any legitimate issue raised by the Parties or other Aboriginal people for inclusion in a Treaty while the consultation process agreed to in this MOU is underway.
It is agreed that: a) Aboriginal people, the First Nations, were the prior owners and occupiers of the land, seas and waters that are now called the Northern Territory of Australia. b) The First Nations of the Northern Territory were self-governing in accordance with their traditional laws and customs; and that c) First Nations peoples of the Northern Territory never ceded sovereignty of their lands, seas and waters.
It is also agreed there has been deep injustice done to the Aboriginal people of the Northern Territory, including violent dispossession, the repression of their languages and cultures, and the forcible removal of children from their families, which have left a legacy of trauma, and loss that needs to be addressed and healed.
The Treaty must provide for substantive outcomes and honour the Articles of the United Nations Declaration on the Rights of Indigenous Peoples.
Recognising that a treaty is of much wider significance than a normal agreement between the State and Indigenous peoples, it is also recognised that Treaty making involves the acceptance of responsibilities and obligations by all parties;
The Treaty should aim to achieve successful co-existence between all Territorians that starts with ‘truth telling’ which involves hearing about, acknowledging and understanding the consequences of the Northern Territory’s history.

Appendix Barunga Agreement – Memorandum of Understanding Treaty Commissioner Act 2020 15 OBJECTIVES OF THE MEMORANDUM OF UNDERSTANDING: The objective of this MOU is to agree about and to implement a consultation process to be led by an independent Treaty Commissioner, which will inform the development of an agreed framework to negotiate a Northern Territory Treaty. This framework may focus on, but not be limited to, the following areas: • Agreement as to what a treaty is and its potential contents; • What a Northern Territory treaty will seek to achieve; • Whether there should be one or multiple treaties; • What outcomes are possible under a Treaty for Aboriginal people that encompass recognition as First Nations, rights, obligations and opportunities; and • What the best process is for negotiating a Treaty. The key objective of any Treaty in the Northern Territory must be to achieve real change and substantive, long term, benefits for Aboriginal people. A Treaty needs to address structural barriers to the wellbeing of Aboriginal people in the Northern Territory and provide for economic, social and cultural benefits. APPOINTMENT OF AN INDEPENDENT TREATY COMMISSIONER The NTG will appoint an independent Aboriginal person as Treaty Commissioner. The appointment, role and functions of the Treaty Commissioner will be enacted in legislation, the contents of which shall be agreed by the parties. In the interim the Chief Minister shall appoint the Treaty Commissioner to consult, inquire, report and make recommendations in accordance with Terms of Reference agreed by the parties. The Terms of Reference shall outline, in accordance with this MOU, the role, responsibilities, outputs, reporting requirements, term of appointment and qualifications of the Treaty Commissioner. The role and functions are to include:

Consultation with all Aboriginal people and their representative bodies in the Northern Territory about their support for a Treaty and on a suitable framework to further Treaty negotiations with the NTG;
Providing a public report to the Chief Minister on the outcomes of the consultation process and a proposed framework for Treaty negotiations; and
Facilitating conversations for a possible Treaty framework process between the NTG, Aboriginal Land Councils and other Aboriginal representative bodies, and community groups.

Appendix Barunga Agreement – Memorandum of Understanding Treaty Commissioner Act 2020 16 The Treaty Commissioner will be independent of the NTG and Aboriginal Land Councils. The reasonable costs of a Treaty Commissioner to perform the roles and functions and achieve the objectives listed in this agreement, will be paid for by the NTG. CONSULTATION PROCESS The Treaty Commissioner will devise and implement an Aboriginal-led consultation program after discussions with the Treaty Working Group. That program will have two stages and include: • In the first stage (to take no more than 12 months), advising and sharing information and ideas about different experiences nationally and internationally and models of what a Treaty could be with Aboriginal Territorians; • Explanations of the legal context of a Northern Territory Treaty; • Initial consultations to determine the level of interest in a Treaty amongst Aboriginal Territorians and the provision of an interim report by the Treaty Commissioner to the Chief Minister to be tabled in the Legislative Assembly; • At the start of the second stage, release of a public Discussion Paper to help facilitate informed discussions among Aboriginal people that are focussed on reaching a consensus on particular positions with respect to a Treaty; • Translating the Discussion Paper into the major Aboriginal languages in the Northern Territory (including audio translations) by the Northern Territory Aboriginal Interpreter Service; • Multiple methods for Aboriginal Territorians to give feedback; • Consultations will follow a structured and principled process utilising an identical agenda for consistency across locations; • Land councils will provide advice to the Treaty Commissioner on locations for regional and remote consultations taking into account small, medium and large communities and homelands; and • A final report on outcomes of consultations about a possible Treaty and proposing a framework for a Treaty to proceed. The report is to be provided to the Chief Minister within 18 months of the conclusion of the first stage, tabled in the Northern Territory Legislative Assembly and shall be publicly released by the Chief Minister within 21 days of its receipt. Coordination and Support The NTG and the Land Councils will cooperate to support the consultation process to be undertaken by the Treaty Commissioner in regional and remote locations.

Appendix Barunga Agreement – Memorandum of Understanding Treaty Commissioner Act 2020 17 The Parties will work together with the Treaty Commissioner to establish consultation protocols for Treaty matters. This will include ensuring the ongoing cooperation of all Parties in consultations across the Northern Territory and the provision of consistent information. Respective parties will also keep the Treaty Commissioner informed of any discussions concerning a Treaty to enable all Aboriginal voices to be heard by the Commissioner. TREATY WORKING GROUP The Northern Territory Treaty Working Group membership will continue to comprise senior representatives of the NTG and Aboriginal Land Councils. However, by agreement, after the signing of the MOU, its membership will be reviewed and opened up to other Aboriginal representative bodies and community groups in the Northern Territory to also participate. After the appointment of the Treaty Commissioner the continuation and terms of reference for the Treaty Working Group will be further reviewed. RELATED MATTERS Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples At the time this MOU is being signed, the Commonwealth Parliament has established a Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples 2018. This follows a constitutional convention on 23-26 May 2017 that brought together over 250 Aboriginal and Torres Strait Islander leaders at the foot of Uluru in the Northern Territory on the lands of the Aṉangu people. The majority resolved, in the ‘Uluru Statement from the Heart’, to call for the establishment of a ‘First Nations Voice’ in the Australian Constitution and a ‘Makarrata Commission’ to supervise a process of ‘agreement-making’ and ‘truth-telling’ between governments and Aboriginal and Torres Strait Islander peoples. The NTG and Aboriginal Land Councils agree to contribute to the deliberations of the Joint Select Committee and hope that it will be possible to achieve constitutional recognition that also includes a Commonwealth treaty making process. Negotiating a Northern Territory Treaty does not remove the need for a Treaty at a national level, accompanied by ‘truth telling’ or a voice to the Parliament. A Northern Territory Treaty cannot address all the consequences of the British taking control of the land, seas and waters of the Northern Territory and its legacy of injustice. A Federal treaty process is a crucial next step in our journey as a nation.

Appendix Barunga Agreement – Memorandum of Understanding Treaty Commissioner Act 2020 18 STATUS OF THE MEMORANDUM OF UNDERSTANDING The Parties do not intend any of the provisions of this Agreement to be legally enforceable. However, that does not lessen the commitment of the Parties to fully implementing the Agreement in a transparent, consultative and accountable manner. To facilitate this, it is agreed by the Parties that the Agreement will be published immediately on the websites of the Parties once it is signed and tabled in the Legislative Assembly as soon as possible and that quarterly updates will be made publicly available by the Treaty Commissioner. TIMEFRAME, MODIFICATION AND TERMINATION The term of this MOU is for a period of three years, starting on 8 June 2018, unless otherwise extended or terminated. Any modification or extension of this Memorandum must be in writing and signed by all parties. It is not intended that any party will seek to withdraw from this Memorandum. However, should they contemplate doing so, it is agreed that this should be a last resort because one or more parties are unable to resolve their concerns and only after consulting with all other parties and doing their utmost to settle differences in the interests of all Territorians. EXECUTED AS A MEMORANDUM on this eighth (8th) day of June 2018 at Barunga, Northern Territory.

The Honourable Michael Gunner MLA Chief Minister of the Northern Territory for and on behalf of the Northern Territory of Australia

Chair of Northern Land Council

Chair of Central Land Council

Chair of Anindilyakwa Land Council

Chair of Tiwi Land Council

ENDNOTES Treaty Commissioner Act 2020 19 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Treaty Commissioner Act 2020 (Act No. 24, 2020) Assent date 10 July 2020 Commenced 11 July 2020 (s 2)

1 Treaty Commissioner Act 2020

NORTHERN TERRITORY OF AUSTRALIA

As in force at 11 July 2020

The Act organises around a small set of legal and administrative concepts that determine decision‑rights, incentives and procedural constraints. Those concepts are: independence and impartiality, endorsement by representative bodies, eligibility restrictions, fixed-term tenure and non-contingent conditions, a discrete set of functions and enabling powers, staff and procurement exceptions, and reporting timelines tied to Ministerial action.

Independence and impartiality: the Act declares that the Commissioner and staff must perform their functions impartially and independently (s 6(1)), and that the Treaty Commissioner is not subject to direction by any person about how the functions or powers are performed (s 6(2)). Staff are subject only to the direction of the Commissioner or a delegate with the Commissioner’s authority (s 6(3)).

Endorsement and representative consent: appointment requires endorsement by the Chairperson of each Territory Aboriginal Land Council , the Northern, Central, Tiwi and Anindilyakwa Land Councils , (s 7(2)). The same endorsement is required for Acting appointments (s 17(2)) and reappointment (s 9(2)). For certain internal processes, for example the engagement of a Deputy without tender, the process must be endorsed by those same Chairpersons (s 18(3)).

Eligibility constraints: s 8 sets positive criteria (suitable qualifications or experience and commitment to the Act’s purposes) and negative criteria. The negatives exclude judicial officers, members of parliaments, local government councillors, political parties’ members, officers of Territory controlled entities (s 8(1)(c)), and persons with a recent political affiliation as defined in s 8(2) , a five‑year lookback covering elected office, party office, ministerial staff and reportable donations (ss 8(2)-(3)). Definitions rely on other Acts, for example associated entity under the Electoral Act 2004 (s 8(4)) and Territory controlled entity under the Audit Act 1995.

Tenure and conditions: the appointment is for a fixed three-year term (s 9(1)) with a statutory prohibition on performance‑contingent conditions and on variation of conditions during the term (s 10(2)). Conditions are set by the Administrator (s 10(1)).

Functions and powers: s 11(1) enumerates functions that are primarily consultative, research and advisory in nature (gauge support, consider content and form, research processes, advise, promote awareness, and perform other functions conferred by the Minister). The powers in s 11(2) are broad and pragmatic: consult, set procedures and protocols including reporting systems, facilitate communications between parties, engage consultants, and do anything necessary or convenient for performance of functions.

Reporting and Ministerial interface: the Commissioner must provide an interim report (s 12(1)) and a final report within 18 months after the Minister tables the interim report in the Legislative Assembly, subject to extension by the Minister with endorsement of the Chairpersons (s 12(2)). The Minister must publicly release reports within 21 days of receipt and table them in the Legislative Assembly within 21 days or at the next earliest opportunity (ss 12(3)-(4)).

Administrative remedies and limits: the Act provides for resignation (s 14), suspension for incapacity or corrupt conduct (s 15(1)), required public notification of suspension reasons and the Commissioner’s response (ss 15(2)-(4)), termination by two-thirds Assembly resolution (s 15(5)), entitlement to remuneration during suspension (s 15(7)), leave of absence at Ministerial discretion (s 16), and limits on acting appointments (s 17(3)-(4)). Vacancy rules and a maximum vacancy duration of six months are set out (s 13(2)).

Transitional validation: the Act takes the prior non-statutory Treaty Commissioner, Michael James Dodson, to be appointed under the Act until 3 March 2022 and validates acts and interim reports performed before commencement (ss 23-24).

Appendix content and status: the text of the Barunga Agreement MOU is appended. The MOU sets out principles, an Aboriginal-led two-stage consultation process (first stage no more than 12 months, interim report, second stage discussion paper and translations), and the parties’ expectation that reasonable costs of a Treaty Commissioner will be borne by the NT Government. The MOU records that its provisions are not intended to be legally enforceable but records commitments to transparency and quarterly updates; the Act, however, makes implementing the MOU the statutory purpose (s 4 and Appendix).

These concepts define the allocation of authority, the procedural steps to be taken, the limits on contractual incentives, the inputs required from Land Councils, and the reporting cadence. They therefore determine who decides (Administrator, Minister, Chairpersons of Land Councils, the Commissioner), who pays (the Administrator/NTG under the MOU), and what procedural safeguards and constraints apply to the Commissioner and staff.

The Act creates effects across several discrete groups and institutions; effects differ in concentration and measurability.

Primary persons and bodies directly affected:

The Treaty Commissioner: the appointee gains a statutory office with enumerated functions, protections, and constraints. The Commissioner must take an oath (s 19(1)), perform functions impartially (s 6(1)), and observe confidentiality rules (s 20). The Commissioner’s remuneration and conditions are set by the Administrator (s 10(1)), but those conditions cannot be performance-related or varied during the term (s 10(2)).
Treaty Commission staff: persons employed or engaged under s 18 (including a Deputy, public sector employees seconded for the Office, and agency-provided personnel) will be directly governed by the Act’s staff rules, confidentiality obligation (s 20) and direction regime (s 6(3)).
Territory Aboriginal Land Councils: the four Land Councils (Northern, Central, Anindilyakwa, Tiwi) have concrete statutory leverage. The Chairperson of each must endorse the Commissioner’s appointment and reappointment (s 7(2), s 9(2)), the appointment of an Acting Commissioner where relevant (s 17(2)), and the process for engaging a Deputy without procurement tender (s 18(3)). Those Chairpersons therefore hold effective veto points in key personnel decisions.
The Minister and Administrator: the Administrator appoints and sets conditions (ss 7, 10); the Minister receives reports and controls timing elements relevant to the final report (s 12(2)), can grant leave (s 16), and is required to table and release reports within specified timeframes (ss 12(3)-(4)). The Minister also plays a role in suspensions and must table suspension statements (s 15).
The Legislative Assembly: plays a termination role because termination of appointment requires a two-thirds majority resolution (s 15(5)). The Assembly serves as the statutory forum for receiving tabled reports and suspension statements (ss 12(4), 15(3)-(4)).

Secondary and consequentially affected groups:

Aboriginal Territorians: the Act’s core function is to “gauge support” for treaties and to engage Aboriginal peoples in consultation (s 11(1)(a); s 11(2)(a)). The MOU Appendix details an Aboriginal-led consultation process, translated materials and multiple accessible channels to give feedback. Aboriginal representative bodies beyond the four Land Councils, and individual communities and traditional owners, are the intended consultative audience under the Act and Appendix.
Territory agencies and public sector employees: the Treaty Commissioner’s staff may include public sector employees and agency staff made available by agency Chief Executives under arrangements (s 18(1)(b)-(c)); those agencies will experience operational impacts when staff are made available or when protocols and reporting systems are established.
Consultants and service providers: the Commissioner has power to engage consultants (s 11(2)(d)); the Act contains a specific procurement exception for engaging a Deputy without tenders under the Procurement Act 1995, subject to Land Council Chairperson endorsement (s 18(2)-(3)). This affects procurement processes and how consultancy work is commissioned.
The Territory’s budget and taxpayers: the Appendix MOU records that the NTG will pay the reasonable costs of a Treaty Commissioner. The Act itself empowers the Administrator to set remuneration and conditions (s 10(1)). Funding and resource allocation therefore fall to the Territory’s fiscal decision-makers.

Entities referenced (legal interaction):

Electoral Act 2004 and Audit Act 1995 are invoked for definitions and concepts related to eligibility (s 8(4)).
Independent Commissioner Against Corruption Act 2017 is referenced for “corrupt conduct” as suspension ground (s 15(1)(b)).
Procurement Act 1995 is expressly disapplied for the specific engagement of the Deputy under s 18(2), subject to endorsement rules.

Who decides and who pays:

The Administrator is the appointing authority and sets office conditions, effectively deciding remuneration and other contract terms subject to statutory limits (ss 7, 10).
The Minister controls some procedural timing for the final report (s 12(2)), tables and releases reports (ss 12(3)-(4)), and initiates public statements on suspensions (s 15).
The Chairpersons of the four Territory Aboriginal Land Councils hold endorsement power that is necessary for appointment, reappointment, acting appointment and the Deputy engagement process (ss 7(2), 9(2), 17(2), 18(3)).
The NTG, per the MOU, bears the financial cost of the Commissioner’s reasonable expenses; operationally, funding flows and staff secondments will be managed by Territory agencies and the Administrator.

Behavioural changes expected by the Act:

A centralised, statutory consultation process will be carried out by the Treaty Commissioner, with obligations to consult and to provide public reports (ss 11, 12).
The endorsement mechanism forces negotiation and agreement with Land Council leadership prior to personnel appointments.
Administrative reporting and transparency duties push the Minister and the Commissioner to publish and table reports within statutory windows (s 12).
The non-invitation-to-tender option for a Deputy, coupled with a required endorsement process, creates an alternative hiring pathway for senior staff (s 18).

Taken together, the Act reallocates decision-making rights among the Administrator, Minister, Commissioner and the four Land Council Chairpersons, imposes procedural reporting tasks on the Commissioner and Minister, creates staff and procurement arrangements that alter normal public sector procurement in defined circumstances, and grounds the Office’s mandate in the Barunga Agreement MOU.

The Act creates duties and rights distributed across the Commissioner, Treaty Commission staff, the Administrator, the Minister and Territory Aboriginal Land Councils. Below are the operative duties and statutory rights, with the relevant sections cited.

Duties of the Treaty Commissioner:

Perform functions impartially and independently (s 6(1)); the Commissioner is explicitly immune from direction about how the functions are performed (s 6(2)).
Carry out the functions enumerated in s 11(1), including to gauge support for a treaty (s 11(1)(a)), consider content, form and number of treaties (s 11(1)(b)-(d)), consider possible outcomes for Aboriginal peoples (s 11(1)(e)), research negotiation processes (s 11(1)(f)), provide advice (s 11(1)(g)), and promote awareness among Territorians (s 11(1)(h)). The Commissioner may also perform other functions conferred by the Minister (s 11(1)(i)).
Provide an interim report to the Minister (s 12(1)) and, within a statutory timing structure, a final report (s 12(2)).
Ensure that Treaty Commission staff do not disclose confidential information obtained under the Act, through internal oversight (s 20).

Rights of the Treaty Commissioner:

Power to consult with Land Councils, Aboriginal peoples and Territorians (s 11(2)(a)).
Power to establish procedures and reporting systems to share information with the Territory, Land Councils and Aboriginal peoples (s 11(2)(b)).
Power to facilitate communications between the Territory and Land Councils and Aboriginal peoples (s 11(2)(c)).
Power to engage consultants and do anything necessary or convenient for performance of the functions (ss 11(2)(d)-(e)).
Right to be paid remuneration and allowances as determined (s 10(1)) and to be paid remuneration and allowances during suspension (s 15(7)).
Immunity from civil liability for acts done in good faith while performing functions under the Act (s 21(1)).

Duties and rights of Treaty Commission staff:

Duty to perform their functions impartially and independently (s 6(1)).
Duty to follow the Commissioner’s directions, or a delegate authorised by the Commissioner (s 6(3)).
Duty not to disclose confidential information obtained while performing a function under the Act, unless authorised by the Commissioner (s 20).

Administrative duties and rights:

Administrator: right to appoint (s 7(1)), to determine conditions including remuneration and allowances for the Commissioner and Acting Commissioner (ss 7, 10, 17(5)), and power to suspend or terminate in accordance with the Act (s 15, which gives suspension power to the Administrator but requires Ministerial steps to be taken).
Minister: duty to receive interim and final reports, to table reports in the Legislative Assembly (s 12(4)), to publicly release reports within 21 days (s 12(3)), to provide a statement of reasons for suspension immediately to the Commissioner (s 15(2)), and to table that statement and any response within six sitting days (ss 15(3)-(4)). The Minister can also grant leave of absence (s 16).
Chairpersons of Territory Aboriginal Land Councils: a statutory right to endorse the appointment or reappointment of the Commissioner and the appointment of an Acting Commissioner (ss 7(2), 9(2), 17(2)). The Chairpersons must also endorse the process for engaging a Deputy without procurement tender (s 18(3)). The Minister may not unilaterally appoint a Commissioner without this endorsement requirement.

Procedural duties and constraints:

Conditions of appointment cannot be performance-contingent and cannot be varied during the term (s 10(2)). This limits the use of incentive-linked remuneration packages or mid-term changes to an appointee’s terms.
Vacancy must not remain for more than six months (s 13(2)). Acting appointments during a vacancy are limited to aggregate periods not exceeding six months in any 12 month period (s 17(3)), and no further acting appointment can be made if the office is vacant for 18 months (s 17(4)). Together these provisions set time limits on who can exercise the functions if the substantive officeholder is absent.
Suspension for incapacity or corrupt conduct (as defined in the Independent Commissioner Against Corruption Act 2017 s 10) is allowable, and termination requires a two-thirds Legislative Assembly resolution (s 15(1), (5)).

Reporting obligations and timing:

The interim report must be given to the Minister (s 12(1)). The final report is required within 18 months after the Minister tables the interim report in the Legislative Assembly, or a longer period determined by the Minister with endorsement of each Land Council Chairperson (s 12(2)). The Minister must publicly release and table reports within specified windows after receiving them (ss 12(3)-(4)). These timing clauses create duties for both the Commissioner and the Minister, and vest a timing discretion in the Minister subject to endorsement on extensions.

Confidentiality and liability:

Staff confidentiality obligation: s 20 prohibits disclosure of confidential information obtained in the course of performing functions without the Commissioner’s authority.
Civil liability protection: s 21(1) immunises persons performing functions under the Act from civil liability for acts or omissions done in good faith in the exercise of a power or performance of a function. Subsection (2) preserves any liability the Territory would have.

Other rights and entitlements:

The Treaty Commissioner must take an oath or affirmation before beginning functions (s 19(1)-(2)). That is a condition precedent to exercising powers under the Act.
Transitional right provided to Michael James Dodson: s 23 takes him to be appointed under the Act until 3 March 2022, and s 24 validates his prior acts and interim report.

In short, the Act structures duties that are primarily consultative, advisory and procedural, attaches statutory supports to independence and confidentiality, sets political eligibility constraints for the officeholder, and places timing and reporting obligations on both the Commissioner and the Minister. Administrative safeguards such as suspension and termination procedures are specified, and civil liability protection for good faith acts is provided.

The Act predominantly relies on administrative controls and political remedies rather than criminal sanctions. It sets out enforcement mechanisms for appointment, suspension and termination, specifies disclosure and confidentiality rules, and provides civil liability protection. It does not, however, create express criminal penalties or prescribed civil fines for breaches of most duties; enforcement is mainly administrative and political.

Administrative and political enforcement mechanisms:

Suspension: the Administrator may suspend the Treaty Commissioner from duty if the Commissioner becomes physically or mentally incapable of satisfactorily performing duties, or engages in corrupt conduct as defined in the Independent Commissioner Against Corruption Act 2017, s 10 (s 15(1)). The Minister must immediately give the Commissioner a statement of reasons for the suspension (s 15(2)), and must table the statement in the Legislative Assembly within six sitting days (s 15(3)). Any response by the Commissioner must be tabled within six sitting days of the response (s 15(4)). Suspension is lifted if the Minister fails to table the statement in accordance with s 15(3) or if the Legislative Assembly does not pass a two-thirds termination resolution within six sitting days after the statement is tabled (s 15(6)). These provisions create a parliamentary clock and public reporting obligations as enforcement levers.
Termination: termination of appointment must be effected by the Administrator if a two-thirds majority resolution of the Legislative Assembly requiring termination is passed (s 15(5)). That makes termination a political act requiring substantial Assembly support.
Vacancy management: the Act requires the office not to remain vacant for more than six months (s 13(2)). Acting appointments are limited to aggregate six-month periods in any 12 months (s 17(3)), and appointments as Acting Commissioner during a vacancy cannot be made beyond a vacancy duration of 18 months (s 17(4)). These provisions enforce continuity by imposing time limits and restricting acting tenures.

Confidentiality and disclosure:

Section 20 imposes a duty on Treaty Commission staff not to disclose confidential information obtained in the course of functions under the Act without the Commissioner’s authority. The Act does not specify a penal or civil remedy in the text of s 20 for unauthorised disclosure. The lack of an express penalty in s 20 means enforcement of confidentiality will most likely be internal (disciplinary action under public sector employment rules), civil actions under general law for wrongful disclosure, or other statutory mechanisms not contained in this Act. The Act does not create a specific statutory fine or offence for breaches of s 20.

Corrupt conduct:

Suspension may be triggered by corrupt conduct defined by the Independent Commissioner Against Corruption Act 2017, s 10 (s 15(1)(b)). The ICAC Act provides the substantive definition and investigative powers; the Treaty Commissioner Act ties suspension power to that definition. The Act does not itself prescribe criminal liability for corrupt conduct, but where corrupt conduct is identified, relevant criminal or ICAC procedures under other statutes will apply.

Liability protection:

The Act immunises persons performing functions under the Act from civil liability for acts done or omitted in good faith while exercising powers or performing functions under this or any other Act (s 21(1)). This is a defensive protection against civil suits. Subsection (2) preserves any liability the Territory would otherwise have, so the immunity is personal and does not transfer liability away from the Territory for actions of its officials.

Enforcement gaps and institutional levers:

The Act relies on existing general administrative law, employment law and corruption frameworks for enforcement beyond the specified administrative and political remedies. For example, the ICAC Act handles corrupt conduct, the Procurement Act remains relevant except where the Act provides a specific exception for the Deputy appointment (s 18(2)). The Act leaves route‑to‑redress for many kinds of misconduct or breaches to these external systems.
The requirement for public tabling of suspension reasons and Commissioner responses within six sitting days (s 15(3)-(4)) creates an enforcement-by-transparency mechanism; reputational and parliamentary pressure are explicit enforcement levers.

No criminal penalties in text:

The Act does not create a set of criminal offences for breaches of its substantive duties, and does not specify monetary penalties for, for example, breach of confidentiality by Treaty Commission staff. Enforcement therefore rests on administrative action, parliamentary action (termination by two-thirds resolution), ICAC processes for corrupt conduct, general civil law and internal disciplinary processes.

Practical enforcement consequences:

Suspension and termination are administratively potent. Suspension gives immediate relief from official duties with continued remuneration during suspension (s 15(7)), while termination requires a supermajority Assembly resolution (s 15(5)). The interplay of immediate suspension with a required parliamentary resolution for termination creates a two-step mechanism: short-term removal from functions, then a political decision for permanent removal.
The immunity for good faith acts (s 21(1)) reduces litigation risk for officials performing statutory functions, while preserving the Territory’s potential liability (s 21(2)).

In summary, the Act establishes administrative, parliamentary and procedural enforcement mechanisms but generally delegates investigation, sanctions and remedial detail to existing regimes (ICAC, employment law, civil law). The Act focuses on institutional design rather than a catalogue of criminal or pecuniary penalties.

The Treaty Commissioner Act 2020 cross-references and interfaces with several Territory and Commonwealth statutes, operational regimes and the appended MOU. The Act depends on, and deliberately defers to, external definitions, corruption frameworks, procurement rules (with a discrete exception), and existing public sector employment mechanisms.

Statutory references and dependencies:

Interpretation Act 1978: the Act’s preliminary note (s 3 Note) points readers to definitions and provisions in the Interpretation Act 1978 that may be relevant for construing terms, consistent with standard statutory drafting practice.
Electoral Act 2004: s 8(4) refers to the Electoral Act for the definition of associated entity, and uses the Electoral Act’s concept of a reportable donation to determine recent political affiliation disqualifications (ss 8(2)-(3)). That connects eligibility for the Commissioner to the Territory’s elective disclosure regime.
Audit Act 1995: s 8(4) draws the definition of Territory controlled entity from the Audit Act, which disqualifies certain prospective Commissioners from holding office if they are officers of Territory controlled entities.
Independent Commissioner Against Corruption Act 2017: s 15(1)(b) uses “corrupt conduct” as defined in s 10 of the ICAC Act as a ground for suspension. That brings ICAC’s investigatory and definitional machinery into play when corrupt conduct is alleged.
Procurement Act 1995: s 18(2) creates a specific procurement exemption allowing the Commissioner to engage a Deputy without inviting tenders under the Procurement Act; however, s 18(3) requires the process to be endorsed by Land Council Chairpersons. The exemption is narrow, for a specified personnel role.
Public sector employment and agency arrangements: the Treaty Commission staff can include public sector employees and persons made available by agencies under arrangements (s 18(1)(b)-(c)). Those personnel remain subject to public sector employment law and agency operational rules, which interact with the Commissioner’s direction authority (s 6(3)).

Appendix MOU and non‑enforceability:

The Act makes the Barunga Agreement MOU its statutory purpose (s 4) and reproduces the MOU as an Appendix. The Appendix itself contains a clause stating that the Parties do not intend the MOU to be legally enforceable. The Act therefore elevates an agreed consultation framework and non-binding MOU to the statutory purpose, while leaving the MOU’s own disclaimer in place in the Appendix text. The Act thereby embeds the MOU’s objectives, timelines and procedural commitments into the statutory architecture without turning the MOU’s internal “non-enforceability” clause into a substantive legal bar against statutory obligations. That dual status creates an interaction where the MOU both informs the Commissioner’s functions and remains an explicit non‑contractual political commitment among the parties.
MOU references to Commonwealth law: the Appendix engages with national instruments in its background and related matters sections, for example the Native Title Act 1993 and the Northern Territory (Self-Government) Act 1978. These references frame the MOU’s objectives and the scope of what a Territory treaty might achieve, but the Appendix does not alter Commonwealth legislative competence. The Act remains a Territory statute operating within Territory legislative power, and any treaty-making outcomes that implicate Commonwealth powers or constitutional matters would engage federal law and constitutional constraints beyond the Act itself.

Administrative law and judicial review:

The Act establishes administrative decision points (appointments, suspensions, disciplinary measures, endorsements) that will sit within the general administrative law framework. Although the Act does not itself set out an internal merits review process, administrative decisions taken under the Act remain subject to the common law and statutory administrative law remedies available in the Territory, for example judicial review for legality, procedural fairness and jurisdictional error. The Act’s own procedural constraints, such as public tabling requirements and endorsement rules, will influence judicial review arguments about reasonableness and procedural fairness where relevant.

Financial and staffing interface:

The MOU records that the NTG will pay the reasonable costs of a Treaty Commissioner. Operationally, the Commissioner’s staff may include public sector employees and agency staff made available by agencies under arrangements (s 18(1)(b)-(c)). This creates a practical interaction with the Territory’s budgetary and human resources management systems. Remuneration and conditions are determined by the Administrator (s 10(1)), which links the office to Territory executive budgeting and employment processes.

Corruption and ethics regime:

By importing the ICAC definition of corrupt conduct for suspension (s 15(1)(b)), the Act ties significant disciplinary authority to the Territory’s anticorruption framework. Investigations and outcomes under ICAC may therefore trigger immediate suspension under this Act.

Procurement rule exception and transparency:

The procurement exception for the Deputy appointment (s 18(2)) alters normal procurement norms, but is constrained by the endorsement requirement (s 18(3)). That creates an interaction where procurement law is selectively disapplied for a senior appointment, while Land Council Chairpersons exercise a check on that disapplication.

In summary, the Act interacts with a constellation of Territory statutes and administrative regimes to define eligibility, investigation and suspension standards, procurement exceptions, staffing arrangements and the legal context for treaty-related consultation. The Appendix MOU provides a political and procedural blueprint that the Act makes its statutory purpose, while the Act itself embeds administrative and reporting obligations that link the Commissioner to the Territory’s executive, parliamentary and anticorruption institutions.

The Act as reproduced contains a concise amendment history in the endnotes. The key legislative metadata present in the text is:

Act number and dates: Treaty Commissioner Act 2020 (Act No. 24 of 2020), assent date 10 July 2020 and commencement on 11 July 2020 (s 2 and Endnotes). The Act is “as in force at 11 July 2020,” and the Endnotes record those dates.
No subsequent amending provisions or later inserted material are shown in the reproduced text. The Table of provisions indicates the Act in its original parts and sections, with the Appendix included. The Endnotes list the Act and commencement particulars only; there are no entries indicating amendments, substitutions or repeals having been made at the time the text was prepared.
Transitional modifications: the Act includes internal transitional provisions that operate as temporary amendments or savings for the pre-commencement non-statutory arrangements. Specifically, s 23 takes Michael James Dodson, who performed the non-statutory position immediately before commencement, to be the Treaty Commissioner appointed under the Act until 3 March 2022. Section 24 validates acts and interim reports performed by Mr Dodson prior to commencement. Those transitional clauses function as time-limited statutory modifications to the appointment regime, and they are the only “amendment-style” provisions contained within the Act’s text.
Appendix and MOU: the MOU appended to the Act contains an intended term of three years from 8 June 2018 unless extended or terminated. That contractual timetable is separate from the statutory appointment term set out in s 9(1) (three years). The Appendix also records that any modification or extension of the MOU must be in writing and signed by all parties, which is a contractual requirement rather than an amendment to the Act itself.

Implications for readers advising on amendment:

The Act contains no express delegated power for the Minister or Administrator to amend the Act; amendments to the statutory text require legislative action by the Legislative Assembly. The Appendix’s procedural commitments can be modified by the parties in the MOU as provided therein, but any change to the statutory duties or appointment criteria in the Act itself requires amendment by legislation.
The Act’s explicit cross-references to other Territory statutes (for definitions and corruption provisions) mean that changes in those external statutes will affect the operation of eligibility and suspension provisions here without amendment to this Act. For example, amendments to the Electoral Act’s disclosure thresholds or the ICAC Act’s definition of corrupt conduct will alter the meaning of s 8(4) and s 15(1)(b) respectively.

Record of amendments (none listed):

The Endnotes offer a single legislative record entry, indicating the Act’s original enactment and commencement. No later amendment history is provided in the reproduced text. Practitioners should consult the Territory statute database or Gazette for any post-commencement amendments beyond the date shown here.

In short, the Act entered into force in July 2020 with transitional validation for an incumbent non-statutory Commissioner. The textual record supplied contains no subsequent amendment entries; any material change to the Act’s statutory architecture would require a formal legislative amendment by the Legislative Assembly.

The Act’s text does not record any judicial determinations, and no case law or litigation history is cited or included in the reproduced document. The only named individual is Michael James Dodson, who is given transitional status as the prior non‑statutory Treaty Commissioner and is validated as the statutory appointee until 3 March 2022 (s 23). The Act itself does not list, reference or summarise any court decisions.

What the Act creates that could lead to litigation:

Administrative decisions susceptible to judicial review: the Administrator’s appointment power (s 7), suspension decisions and required procedural steps (s 15), and the Legislative Assembly’s termination resolution (s 15(5)) are all administrative or political acts amenable to judicial review on legality, jurisdictional error, procedural fairness or other public law bases. The Act imposes specific procedural steps, such as immediate provision of the statement of reasons and tabling timelines, which could form the basis of procedural fairness challenges if not followed.
Eligibility and endorsement disputes: the statutory requirement for endorsement by each Territory Aboriginal Land Council Chairperson for appointment and reappointment (ss 7(2), 9(2), 17(2)) could, in practice, give rise to disputes about whether endorsement was properly obtained, whether the Chairpersons’ endorsement was unreasonably withheld, and whether procedural constraints applied. Such disputes could be the subject of administrative review or contractual and statutory remedies, although none are recorded in the Act text.
Confidentiality and disclosure: s 20 prohibits disclosure of confidential information by staff. The Act does not set out express statutory penalties for a breach. Claims may, in practice, arise under general law (breach of confidence, negligence, defamation) or under employment law, but no litigation history is provided.
Corruption investigations overlap: the reference to ICAC’s definition of corrupt conduct (s 15(1)(b)) brings in an investigative route that itself generates public inquiries and potential appeals or proceedings; however, the Act does not itself describe those processes nor report any litigation outcomes.

Absence of recorded litigation:

As the reproduced Act is current as at 11 July 2020 and contains no litigation references, there is no litigation history included in the text. Practitioners should search Territory and federal court databases, as well as ICAC records, for any subsequent proceedings involving the Treaty Commissioner or matters arising under the Act.

Advisory note for practitioners:

Because the Act creates administrative decision points and public tabling and reporting obligations, potential disputes arising under the Act would most likely be litigated within the Territory’s administrative law framework or as employment and public law matters. The Act’s silence on internal appeals or review mechanisms means external judicial review may be the primary remedy in contentious cases.

In summary, the Act contains no litigation history in the provided text; it does, however, create administrative structures and decision points that could be the subject of judicial review or other legal proceedings, depending on future events and conduct.

This section highlights specific provisions and interaction points in the Act that carry non-obvious operational consequences, compliance traps or institutional trade-offs. Each “gotcha” is tied to the statutory text.

Endorsement by all four Land Council Chairpersons as a gatekeeper (ss 7(2), 9(2), 17(2), 18(3)):

Appointment, reappointment, acting appointments and the Deputy appointment process each require endorsement by the Chairperson of each Territory Aboriginal Land Council (Northern, Central, Tiwi, Anindilyakwa). A single Chairperson withholding endorsement can block an appointment or reappointment. This concentrates bargaining power in the Chairpersons and makes personnel selection a negotiated political process rather than a purely executive appointment. The practical implication is that candidates and the Administrator must secure consensus among four independent Chairpersons before formal appointment can occur.

Ministerial control of timing for the final report (s 12(2)):

The final report’s deadline is tied to the Minister tabling the interim report in the Legislative Assembly; the Commissioner’s final report is due within 18 months after that tabling, or a longer period determined by the Minister with endorsement of the Chairpersons. This gives the Minister procedural control over when the final report’s countdown begins, which can delay the statutorily framed timeline. The Minister can also extend the deadline if endorsed by the Chairpersons, creating another procedural lever.

Independence protections versus appointment and condition controls (ss 6, 7, 10):

The Act asserts the Commissioner’s independence and immunity from direction (s 6(1)-(2)), yet the Administrator determines conditions of appointment (s 10(1)), and the Minister may confer additional functions (s 11(1)(i)). Conditions cannot be performance-contingent or varied while in office (s 10(2)), which protects incumbents from changing terms, but the Administrator’s control over initial conditions and the Minister’s power to confer functions can be sources of tension. Practically, the Commissioner has operational independence but relies on the executive for appointment, remittance and the conferral of supplementary functions.

Procurement exception with endorsement constraint (s 18(2)-(3)):

The Treaty Commissioner may engage a Deputy without tender under the Procurement Act 1995, but the process must be endorsed by the Chairpersons of each Land Council (s 18(3)). The exemption reduces procurement formalities for a senior appointment, but the endorsement requirement imports representative oversight. Practically, this is an unusual procurement hybrid and could raise transparency questions if the endorsement process is not well documented.

Acting appointment and vacancy timing traps (ss 13(2), 17(3)-(4)):

The office must not remain vacant for more than six months (s 13(2)). Acting appointments during a vacancy are limited to a total of six months in any 12-month period (s 17(3)), and if the office is vacant for 18 months, no further Acting appointment during the vacancy can be made (s 17(4)). These overlapping limits create a narrow margin for continuity planning, and a protracted recruitment process or a political impasse over endorsement could lead to operational gaps. Practically, if the office becomes vacant and endorsements are delayed or withheld, the regulatory framework imposes hard limits on acting arrangements, potentially leaving the functions unperformed if deadlines are not managed.

Confidentiality rule without explicit sanction (s 20):

Treaty Commission staff are prohibited from disclosing confidential information obtained under the Act without the Commissioner’s authority (s 20). The Act does not prescribe statutory penalties for unauthorised disclosure, leaving enforcement to internal disciplinary mechanisms, general civil remedies or other statutory provisions. Practitioners should therefore ensure confidentiality protocols are supported by employment contracts and agency policies to create enforceable remedies.

Immunity clause scope and limits (s 21):

Section 21(1) immunises persons performing functions under the Act from civil liability for acts done in good faith, but subsection (2) preserves any liability the Territory would otherwise have. This protects individuals from civil suits in performing statutory acts in good faith, but it does not eliminate institutional liability. Advisers should ensure proper documentation evidencing “good faith” decision‑making to preserve the benefit of the immunity.

MOU appended but labelled non‑enforceable within the same Appendix:

The Appendix reproduces the Barunga Agreement MOU and includes the Parties’ express statement that they do not intend the MOU provisions to be legally enforceable. At the same time, s 4 states the purpose of the Act is to implement the MOU. That creates a potential mismatch between a statutory purpose anchored to the MOU and the MOU’s internal disclaimer of legal enforceability. Practitioners should note that the MOU’s procedural commitments, such as consultation timelines and translation requirements, are politically binding and inform the Commissioner’s statutory functions, but the MOU’s internal clause limits contractual enforcement among the signatories.

Eligibility disqualification complexity (s 8):

The “recent political affiliation” prohibition uses a five-year lookback and includes hybrid events such as staff of a minister and reportable donations by the person or bodies where the person was an office holder or majority shareholder (ss 8(2)-(3)). Determining whether a person has a “recent political affiliation” may require searches of electoral donation records, ministerial staff lists and corporate office holder histories. The associated entity concept imports the Electoral Act definition, which can be complex.

Ministerial discretion on leave and additional functions (ss 11(1)(i), 16):

The Minister may confer additional functions beyond those listed (s 11(1)(i)) and may grant leave of absence on conditions decided by the Minister (s 16). These provisions create discretion that, while limited by the independence clause (s 6(2)), can affect the Commissioner’s workload and operational availability.

Transitional validation and fixed interim period for a named individual (ss 23-24):

The Act validates the prior non-statutory Commissioner, Michael James Dodson, as statutory Commissioner until 3 March 2022 (s 23), and validates prior acts and interim reports (s 24). This fixes continuity and validates prior work, but creates a fixed date after which a fresh statutory appointment or reappointment must be addressed.

Practical implication summary:

Securing endorsement from all four Chairpersons is essential and can be a chokepoint.
The Minister’s control over report‑timing and the Administrator’s control over appointment conditions are structural levers that can delay or accelerate the process.
Procurement and staffing exceptions must be managed carefully to avoid transparency and governance issues.
Confidentiality and immunity provisions require supporting employment and contractual systems to be operationally enforceable.

These are internal mechanics, not normative judgements. They identify the specific statutory provisions likely to require careful operational design and legal advice during implementation.

This section gives a practical, source-grounded checklist for compliance for the main actors: the Treaty Commissioner and staff, the Administrator and Minister, Territory Aboriginal Land Council Chairpersons, agencies providing staff, and advisers to prospective appointees. Each step ties back to the Act’s provisions.

For prospective Treaty Commissioners and advisers:

Verify eligibility under s 8:
- Confirm suitable qualifications or experience relevant to treaty functions (s 8(1)(a)).
- Confirm commitment to the Act’s purposes and MOU principles (s 8(1)(b); s 4 and Appendix).
- Check the negative criteria in s 8(1)(c): not a judicial officer, not a member of a parliament, not a local government councillor, not a political party member, not an officer of a Territory controlled entity.
- Conduct a five-year lookback for “recent political affiliation” under s 8(2). This requires checking whether, in the previous five years, the person held elected office, was an office holder of a political party, was a ministerial staffer, or made a reportable donation (s 8(2)(a)-(d)); also check corporate registers for office holder or majority shareholder status in donating bodies (s 8(3)).
- Determine whether any associated entity definitions under the Electoral Act 2004 apply (s 8(4)).
Obtain endorsement from each Land Council Chairperson:
- Coordinate with the Chairpersons of the Northern, Central, Tiwi and Anindilyakwa Land Councils to secure formal endorsement required by s 7(2).
- Document the endorsements clearly in writing to satisfy appointment formalities.
Prepare for the oath/affirmation:
- Be ready to take the oath or affirmation before the Administrator prior to performing functions (s 19(1)). Ensure the dates and formalities are arranged.

For the Treaty Commissioner and Treaty Commission staff:

Observe independence and non‑direction rules:
- Ensure operations and decisions are insulated from external direction in line with s 6(1)-(2). Staff should follow only the Commissioner’s directions or authorised delegates (s 6(3)).
Implement confidentiality systems:
- Put in place secure information handling policies and employment contract terms reflecting s 20’s prohibition on unauthorised disclosure. Because s 20 contains no statutory penalty, disciplinary, contractual and civil law remedies should be used to enforce confidentiality in practice.
Deliver reports on statutory timelines and coordinate with the Minister:
- Provide the interim report to the Minister as required (s 12(1)). Be aware that the final report deadline is tied to the Minister tabling the interim report in the Legislative Assembly; the final report will be due within 18 months after that tabling (s 12(2)(a)), unless the Minister with Land Council Chairpersons’ endorsement extends the period (s 12(2)(b)). Maintain records of report delivery and any extension agreements.
Prepare for public release and tabling:
- Anticipate public release within 21 days of the Minister receiving reports (s 12(3)) and tabling obligations (s 12(4)). Coordinate with the Minister’s office to manage release schedules and ensure translation and accessibility commitments from the Appendix are operationalised where relevant.
Use powers to establish protocols and consult:
- Implement procedures and reporting systems as permitted by s 11(2)(b); document how information is shared with Land Councils and communities, consistent with the MOU’s expectations in the Appendix.
Engage consultants and staff lawfully:
- When engaging consultants under s 11(2)(d), ensure procurement processes comply with the Procurement Act except where the Act provides a specific exception (s 18(2) - Deputy appointment). Keep transparent records of consultant engagements, terms, outputs and costs.
Plan for acting arrangements and vacancy rules:
- If absent, follow s 17 to ensure Acting Commissioner appointments comply with eligibility and endorsement requirements (s 17(2)) and observe the aggregate time limits for acting appointments (s 17(3)). Keep the Administrator informed to avoid office vacancy exceeding six months (s 13(2)).

For the Administrator and Minister:

Follow statutory appointment steps:
- Ensure the Administrator issues a Gazette notice for the appointment (s 7(1)) and confirms the appointee is eligible and endorsed (s 7(2)).
- Set conditions of appointment consistent with s 10: do not make them performance-contingent and do not vary them during the term (s 10(2)).
Manage reporting and tabling obligations:
- Upon receipt of interim and final reports, release them publicly within 21 days (s 12(3)) and table them in the Legislative Assembly within 21 days or at the next earliest opportunity (s 12(4)). If planning to extend the final report timeframe, secure Chairpersons’ endorsement to comply with s 12(2)(b).
Follow suspension and termination rules exactly:
- If suspension is contemplated, document immediate provision of the statement of reasons to the Commissioner (s 15(2)), and table that statement in the Legislative Assembly within six sitting days (s 15(3)). Table any Commissioner response within six sitting days after it is made (s 15(4)). If termination is sought, secure a two-thirds majority resolution in the Legislative Assembly (s 15(5)).
Ensure remuneration and funding arrangements are settled:
- Set and document remuneration and allowances under s 10(1). Arrange for funding lines to meet the MOU’s commitment that the NTG will pay reasonable costs of the Commissioner’s activities; ensure agency budgets and staff secondments are arranged to support the Office.

For Territory Aboriginal Land Council Chairpersons:

Process endorsement requests carefully:
- The Act requires endorsement by each Chairperson for appointments and key internal hiring processes (ss 7(2), 9(2), 17(2), 18(3)). Establish an internal decision process and clear timelines to provide endorsements so that appointments are not delayed and the office does not lapse into prohibited vacancy durations (s 13(2)).
Coordinate with the Commissioner and Minister on consultation protocols:
- Engage proactively in the establishment of consultation locations and translation requirements as envisaged in the MOU Appendix. Chairpersons’ endorsement is also required for time extensions of final report deadlines under s 12(2)(b).

For agencies supplying staff:

Document secondments and authorisations:
- When making public sector employees available under s 18(1)(b) or agency staff under s 18(1)(c), enter formal written arrangements clarifying lines of direction under s 6(3), confidentiality obligations under s 20, remuneration and reimbursement arrangements, and employment law consequences.

General compliance documentation and governance:

Contractual and policy support for confidentiality and conduct:
- Because s 20 lacks specified statutory penalties, ensure confidentiality obligations are enforceable via employment contracts, confidentiality agreements and clear disciplinary policies.
Recordkeeping for good faith defence:
- Maintain contemporaneous records of decision-making, advice, consultations and steps taken to demonstrate “good faith” should civil liability issues arise; s 21(1) provides immunity for good faith acts, and robust records support the application of that immunity.
Procurement records and transparency:
- For Deputy appointments made without tender under s 18(2), document the endorsed process required by s 18(3) and keep records of selection rationale to mitigate transparency concerns.
Translation and accessibility commitments from the Appendix:
- If delivering consultation materials as per the MOU Appendix, ensure translations into major Aboriginal languages are obtained and that multiple methods for feedback are established; document costs for budget and audit purposes.

Checklist summary:

Eligibility verification and endorsements secured before appointment.
Oath or affirmation completed before functions commence.
Confidentiality and recordkeeping policies established and reflected in contracts.
Reporting timeline coordination with the Minister, and mechanisms to meet tabling and public release deadlines.
Procurements and consultant engagements documented; Deputy appointment process endorsed and recorded.
Suspension and termination procedures followed precisely if invoked, including immediate statements and tabling deadlines.
Budget lines and agency secondments arranged in line with the MOU’s cost commitments.

Complying with the Act requires attention to a mix of statutory conditions, endorsement processes, public transparency obligations and inter-agency procurement and staffing arrangements. Documentation and clear governance protocols are the practical means to reduce legal and political risk under the statutory framework.

Treaty Commissioner Act 2020

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