Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER
LEGISLATION AMENDMENT
(BUDGET AND OTHER MEASURES) BILL 2010
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Families, Housing, Community Services and Indigenous Affairs,
the Hon Jenny Macklin MP)
FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER
LEGISLATION AMENDMENT
(BUDGET AND OTHER MEASURES) BILL 2010
OUTLINE
Disability support pension
These amendments will delay, from 1 January 2011 to 1 July 2011, the
commencement of the existing measure in the Bill on residence required to
qualify for disability support pension. This delay will ensure there will
be no retrospective commencement, with adverse effect, for people affected
by the measure.
The amendments also insert into the Bill some amendments providing, from
1 July 2011, an extended portability period for a severely disabled
disability support pensioner, if the pensioner accompanies a supporting
family member who has been posted or seconded by their employer to work
overseas for a period.
Reinsertion of Schedules
The amendments also reinsert into the Bill the measures relating to the
scheduling of land and the Indigenous Land Corporation, which were removed
from the Bill in the House of Representatives for timing reasons.
Schedule 3 to the original Bill (on the scheduling of land) was removed
from the Bill to allow one of the land area measurements, drawn from the
survey plan for the land in question, to be clarified.
Schedule 4 to the original Bill (on the Indigenous Land Corporation) was
removed from the Bill to allow the inquiry into the measure by the Senate
Standing Committee on Legal and Constitutional Affairs (the Committee) to
proceed, for report by the start of the 2011 Autumn sittings.
It appeared at that time that retaining these two measures in the Bill
would prevent the Bill from being passed in the 2010 Spring sittings. That
passage was highly desirable for two important measures in the Bill to
commence, as intended at the time, on 1 January 2011. The two measures
were special disability trusts (Schedule 1) and residence required to
qualify for disability support pension (Schedule 2).
However, the Senate program for the 2010 Spring sittings did not, in the
end, allow the Bill to be considered and passed in those sittings. Given
the new timing for the Bill, it is now appropriate to reinsert the two
measures (noting that the land area measurement mentioned above has been
clarified and a new figure is shown, and also that some drafting
clarifications are made to the Indigenous Land Corporation measure as a
result of recommendations made by the Committee).
Scheduling of land
The amendments will reinsert Schedule 3 to the Bill. This will add further
parcels of land to Schedule 1 to the Aboriginal Land Rights (Northern
Territory) Act 1976 to enable the land to be granted to relevant Aboriginal
Land Trusts.
Indigenous Land Corporation
The amendments will reinsert Schedule 4 to the Bill. This will amend the
Aboriginal and Torres Strait Islander Act 2005 to include a power for the
Minister to make guidelines that the Indigenous Land Corporation must have
regard to in deciding whether to perform its functions in support of a
native title settlement, and - if it decides to perform its functions in
support of a native title settlement - in performing its functions in
support of that settlement.
Financial impact statement
Disability support pension
Residence required to qualify for disability support pension (as delayed to
1 July 2011)
Total change in resourcing (FaHCSIA and Centrelink)
|2010-11 |2011-12 |2012-13 |2013-14 |2014-15 |
|$1.6 m |- $2.4 m |- $2.8 m |- $3.1 m |- $3.4 m |
Extended portability period for a severely disabled disability support
pensioner
Total change in resourcing (FaHCSIA and Centrelink)
|2010-11 |2011-12 |2012-13 |2013-14 |2014-15 |
|$0.2 m |$0.1 m |$0.2 m |$0.4 m |$0.6 m |
Reinsertion of Schedules
There is no financial impact from the reinserted measures.
FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER
LEGISLATION AMENDMENT
(BUDGET AND OTHER MEASURES) BILL 2010
Government amendments
NOTES ON AMENDMENTS
Amendment 1 amends the long title of the Bill to restore the references to
the Aboriginal land rights (scheduling of land) and Indigenous Land
Corporation measures as purposes of the Bill.
Amendment 2 amends the commencement clause in the Bill. Firstly, it
provides for the delayed disability support pension residence measure, and
the new portability measure, to commence on 1 July 2011. The beneficial
special disability trusts measure in Schedule 1 will continue to commence
with effect from 1 January 2011.
Secondly, this amendment restores the references to the scheduling of land
and Indigenous Land Corporation measures to the commencement clause in the
Bill (providing for commencement on the day after Royal Assent).
Amendment 3 changes the title of Schedule 2 to reflect the inclusion in the
Schedule of the new disability support pension portability measure, along
with the original disability support pension residence measure.
Amendment 4 inserts ', 1218AB' into a table item substituted by item 7 of
Schedule 2. This is to make sure item 7 still operates correctly in view
of the insertion of the new section 1218AB, relating to the disability
support pension portability measure.
Amendment 5 inserts section 1218AB into the Social Security Act 1991.
Subsection 1218AB(1) provides that the Secretary may extend portability for
a disability support pensioner who accompanies a family member overseas,
provided that the qualifying circumstances set out in the section are met.
The disability support pensioner must be severely disabled, must be wholly
or substantially dependent on the family member, and must be living with
the family member during the proposed absence from Australia. The family
member must be working in Australia for an employer before working overseas
for that employer. If the Secretary extends portability in these
circumstances for a period, the disability support pensioner will continue
to be paid the pension during that period.
Subsection 1218AB(2) provides for the duration of the extended portability
period. Should any of the qualifying circumstances set out in subsection
(1) cease to exist (for example, should the family member cease employment
with the employer he or she was working for immediately before the period
of absence), the qualifying circumstance set out in paragraph 1218AB(1)(f)
would cease to exist, enabling the Secretary to revoke the determination.
Subsection 1218AB(3) provides that the Secretary may revoke a determination
to extend portability.
Subsection 1218AB(4) is for the benefit of readers. This subsection makes
clear that a determination under subsection (1) is not a legislative
instrument within the meaning of the Legislative Instruments Act 2003.
Amendment 5 restores Schedule 3 to the Bill, adding further parcels of land
to Schedule 1 to the Aboriginal Land Rights (Northern Territory) Act 1976
(the Land Rights Act) to enable the land to be granted to relevant
Aboriginal Land Trusts (noting that the land area measurement mentioned
above has been clarified and a new figure is shown).
Background
This Schedule will add further parcels of Northern Territory land near
Borroloola and also land comprising the Port Patterson Islands to Schedule
1 to the Land Rights Act. This will allow the land in question to be
granted to relevant Aboriginal Land Trusts pursuant to sections 10 and 12
of the Land Rights Act.
Government policy is that land should be added to Schedule 1 to the
Land Rights Act where agreement to do so has been reached between the
Northern Territory Government and the relevant Land Council. Agreement has
been reached between the Commonwealth, the Northern Territory Government
and the Northern Land Council that these parcels of land should be granted
to relevant Aboriginal Land Trusts as Aboriginal land under the Land Rights
Act.
The parcels of land near Borroloola are associated with the Borroloola Land
Claim, which was the first land claim made under the Land Rights Act. The
parcels of land include Batten Point, North Island and some small islands
off the coast of Vanderlin Island. North Island has been held as
Barranyi National Park and previously did not qualify to be granted as part
of the land claim. The small islands, called Rarranggilawunyara,
Niwawunala, Wanadjurara and Alolo, were part of the land claim, but were
inadvertently omitted from the Aboriginal Land Commissioner's
recommendations. Two related grants of land have previously been made to
the claimants, and, once these particular parcels of land are granted, this
land claim will be resolved.
The Port Patterson Islands also relate to a long-running land claim, the
Kenbi land claim over the Cox Peninsula near Darwin. After a long and
complex process, this land claim is also approaching resolution. The
addition of the Port Patterson Islands to Schedule 1 to the Land Rights Act
will enable this land to be included in a grant associated with the Kenbi
Land Claim in the near future.
The amendments made by this Schedule commence on the day after
Royal Assent.
Explanation of the changes
Item 1 amends Part 4 of Schedule 1 to the Land Rights Act by inserting
various portions of land near Borroloola in the Northern Territory as land
to be granted as Aboriginal land.
Item 2 also amends Part 4 of Schedule 1 to the Land Rights Act by inserting
a portion of land in the Northern Territory known as the Port Patterson
Islands to be granted as Aboriginal land.
Amendment 6 restores Schedule 4 to the Bill, making amendments to the
Aboriginal and Torres Strait Islander Act 2005 (the ATSI Act) to include a
power for the Minister to make guidelines that the Indigenous Land
Corporation must have regard to before deciding to perform its functions in
support of a native title settlement, as well as when it decides to perform
its functions in support of a native title settlement (noting that some
drafting clarifications are made as a result of recommendations made by the
Committee).
Background
The purpose of the Indigenous Land Corporation is to assist Aboriginal
people and Torres Strait Islanders to acquire and manage Indigenous-held
land so as to provide economic, environmental, social and cultural
benefits.
The Indigenous Land Corporation's functions are set out in sections 191C,
191D and 191E of the ATSI Act. Its main functions are land acquisition and
land management. These functions can be exercised in support of native
title settlements, whether or not the settlement includes a determination
of native title.
The Government promotes flexible native title settlements that can be
sustained over the long term, instead of litigation, wherever possible.
Settlements may provide for a range of practical benefits.
In introducing these amendments, the Government recognises that the
Indigenous Land Corporation can assist with the resolution of native title
settlements, particularly where connection to the land in question is at
issue and native title may not be established.
The amendments provide a power for the Minister to make guidelines that the
Indigenous Land Corporation must have regard to before deciding to perform
its functions in support of a native title settlement, as well as when it
decides to perform its functions in support of a native title settlement.
In these instances, the Indigenous Land Corporation will be required to
have regard to any guidelines made in the exercise of the Minister's power.
The amendments made by this Schedule commence on the day after Royal
Assent.
Explanation of the changes
Item 1 inserts new subsection 191F(2A), which will require the Indigenous
Land Corporation to have regard to guidelines made under new section 191HA
in deciding whether to perform its functions in support of a native title
settlement, and - if it decides to perform its functions in support of a
native title settlement - in performing its functions in support of that
settlement.
Item 1 also inserts a note to clarify that the Native Title Act 1993 deals
with making and resolving native title claims.
The Indigenous Land Corporation may perform its functions for any reason
covered in its enabling legislation. The Indigenous Land Corporation must
have regard to the guidelines before deciding to perform its functions in
support of a native title settlement, as well as when it decides to perform
its functions in support of a native title settlement. It will not be
required to have regard to the guidelines when performing its functions in
other contexts.
Item 2 inserts new section 191HA, which provides that the Minister may make
guidelines in the circumstances provided for in new subsection 191F(2A).
Any guidelines made under this provision will be a disallowable legislative
instrument.
Subsection 191I(1) applies if the Indigenous Land Corporation makes its own
guidelines about the performance of a function referred to in
paragraph 191D(1)(a), (c) or (d) or paragraph 191E(1)(d), (e) or (f) of the
ATSI Act.
New subsection 191I(1A), inserted by item 3, makes it clear that any
guidelines made by the Indigenous Land Corporation will have no effect, to
the extent of any inconsistency, if they are inconsistent with any
guidelines made by the Minister under new section 191HA.
The heading to section 191I is altered by omitting the word 'Guidelines'
and substituting 'Indigenous Land Corporation guidelines' to describe more
accurately the content of the section.
Item 4 makes an amendment to subsection 191I(2) required as a consequence
of item 3.
Index]
[Search]
[Download]
[Bill]
[Help]