UK: The UK’s new NSI regime: What do you need to know?
The UK Government has published a new National Security and Investment Bill.
This article was prepared by our Reconciliation Action Plan Working Group and co-authored with Bevan Mailman (Principal, Jaramer Legal).
Unlike other Commonwealth nations like Canada and New Zealand, Australia does not have a treaty with its first peoples. Many First Nations Australians have been demanding recognition of their rights, and calling for settlements or treaties for many generations.1
In 2019, the QLD Government announced it was commencing its journey towards treaties with the First Nations of QLD. In July 2019, the QLD Government launched Tracks to Treaty – Reframing the relationship with Aboriginal and Torres Strait Islander Queenslanders and signed a Statement of Commitment.
The Statement of Commitment was developed to affirm the joint commitment to a reframed relationship that acknowledges, embraces and celebrates the humanity of Indigenous Australians, in response to recommendation seven of the Reparations Taskforce Report, Reconciling Past Injustice. The Statement of Commitment provides a framework for how the QLD Government will work together with the Aboriginal and Torres Strait Islander peoples of QLD, identifies accountability, outcomes sought and next steps.
Shortly after the Statement of Commitment was signed, an Eminent Panel of high profile Aboriginal, Torres Strait Islander and non-Indigenous Queenslanders, supported by a Treaty Working Group, was appointed. The purpose of the Eminent Panel is to guide genuine, respectful, and meaningful conversations between all Queenslanders about what a treaty might mean to them and how we can co-exist into the future on the land we now share.
From October to December 2019, more than 1700 people shared their views and voices through consultations with the Treaty Working group. The consultations included 24 face-to-face community sessions, 331 online surveys and 38 written submissions.
Significant support was expressed for a treaty-making process, with truth-telling and honesty about our shared history to be at the heart of the treaty process. Participants said that treaty-making would be a significant and long overdue milestone for QLD.
In February 2020, the Eminent Panel officially presented its advice and recommendations, supported by the findings of the Treaty Working Group report, to the QLD Government for consideration. Based on community sentiment and extensive support for agreement-making with First Nations Queenslanders, the Eminent Panel outlined its principal recommendations to advance a treaty process in QLD.
As the title suggests, the Treaty Statement of Commitment and response to recommendations of the Eminent Panel contains both the Eminent Panel’s recommendations and the QLD Government’s response to these recommendations. The table below is a summary of the recommendations and response.
Pink highlight identifies those recommendations accepted by the QLD Government. Green highlight shows where the recommendations have been accepted in principle. Where the QLD Government has accepted a recommendation in principle, it means that the Government will support the intent or merit of the policy underlining the recommendation, but further policy consideration, including assessment of resourcing, is required. The QLD Government identifies the COVID-19 global pandemic as impacting on the Government’s ability to action a number of the recommendations in the short term.
|1||Path to Treaty Overview||
The QLD Government will proceed on a Path to Treaty with the ultimate aim of reaching a treaty or treaties with the First Nations of QLD. The Path to Treaty is to be conducted using a rights based approach consistent with the Human Rights Act 2019 (Qld) (HRA) and the United Nations Declaration on the Rights of Indigenous Peoples (Declaration).
In order to progress the Path to Treaty the QLD Government will make a Treaty Statement of Commitment to express the Government’s intention to further lasting reconciliation with First Nations through:
|2||The First Nations Treaty Institute||
The establishment of the First Nations Treaty Institute as an independent statutory body to lead the Path to Treaty process with a list of specific functions (identified) and detailed governance, accountability and representation.
That the FNTI will operate independently of the Queensland Government with reporting to Queensland Parliament and that funding for the FNTI be drawn from the Fund.
|3||Truth Telling and Healing||
The facilitation and resourcing of a comprehensive process of Truth Telling to chronicle the history of First Nations Peoples (both pre and post British colonisation) in relation to QLD which will support the process of healing and reconciliation.
The FNTI to be commissioned and empowered (as a first priority) to conduct the process of Truth Telling and support participants and witnesses.
That First Nations people be supported, by the relevant service providers, to recover from their lived experiences and the impact of intergenerational trauma.That the resources gained from the processes be used to inform popular and academic understanding of First Nations and the history of colonisation and be used as source material for the development of mandatory educational curricula.
First Nations Peoples will be supported to engage and participate in the Path to Treaty with the aim that future discussions and negotiations on a possible treaty or treaties might occur with the State of QLD on an equitable basis.
That the FNTI develop and administer programs to assist First Nations and their communities to become treaty-ready and support First Nations to develop governance models.That partnerships with universities and other bodies be fostered to build resources and expertise that can be called upon by First Nations for treaty discussions and ongoing governance.
|The Premier, supported by the Minister for Aboriginal and Torres Strait Islander Partnerships, will coordinate preparations within government for the Path to Treaty process.|
|5||Community Understanding and Engagement||The QLD Government, in conjunction with the establishment of the FNTI, will undertake a community engagement program to promote understanding of the history of First Nations Peoples and the Path to Treaty process to the wider QLD community.|
|6||Implementation – The Path to Treaty Act||
The QLD Government will place before Parliament a bill to further the Path to Treaty and establish the FNTI and the Fund. The proposed legislation will acknowledge:
The legislation will (among other things):
|7||Implementation – Resourcing and creation of the Fund||
The QLD Government will provide a sustainable and guaranteed financial basis for the Path to Treaty process to proceed, and, the Fund will be established and credited annual appropriations for a minimum of 10 years commencing at the earliest practical opportunity. The Fund will be applied to:
|8||Transparency||The Report of the Treaty Working Group and the advice to Government of the Eminent Panel will be published and made freely available to the public.|
The next stage will be establishing a Treaty Advancement Committee to partner with the QLD Government on implementing the Eminent Panel recommendations.
The UK Government has published a new National Security and Investment Bill.
On 16 July 2021 the UK Supreme Court handed down a judgment in Triple Point Technology Inc v PTT Public Company Ltd that will provide welcome clarity in relation to the drafting and interpretation of liquidated damages clauses in construction, commercial and technology contracts. The judgment also deals with the relationship between liquidated damages clauses and caps on liability. In this briefing we summarise the decision and suggest some approaches to drafting liquidated damages clauses (and related caps on liability) with a view to avoiding the kind of dispute that arose in the case.
© Norton Rose Fulbright LLP 2021