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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INDIGENOUS AFFAIRS LEGISLATION
AMENDMENT BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Housing, Community Services and
Indigenous Affairs, the Hon Jenny Macklin MP)
INDIGENOUS AFFAIRS LEGISLATION AMENDMENT BILL 2011
OUTLINE
The Bill contains three non-Budget measures, as described below.
Scheduling of land
The Bill adds further parcels of land to Schedule 1 to the Aboriginal Land
Rights (Northern Territory) Act 1976. This will enable the land to be granted
to relevant Aboriginal Land Trusts.
Indigenous Land Corporation
The Bill amends 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.
Torres Strait Regional Authority
The Bill amends the Aboriginal and Torres Strait Islander Act 2005 to remove
the connection between the election of members to the Torres Strait Regional
Authority and the Queensland Local Government elections, and to allow for a
wider range of options for the composition of the Torres Strait Regional
Authority.
Financial impact statement
The Bill has no financial impact.
INDIGENOUS AFFAIRS LEGISLATION AMENDMENT BILL 2011
NOTES ON CLAUSES
Clause 1 sets out how the Act is to be cited, that is, as the Indigenous Affairs
Legislation Amendment Act 2011.
Clause 2 provides a table that sets out the commencement dates of the
various sections in, and Schedules to, the Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
This explanatory memorandum uses the following abbreviation:
· `ATSI Act' means the Aboriginal and Torres Strait Islander Act 2005.
1
Schedule 1 - Scheduling of land
Summary
This Schedule adds further parcels of land to Schedule 1 to the Aboriginal
Land Rights (Northern Territory) Act 1976 (the Land Rights Act). This will
enable the land to be granted to relevant Aboriginal Land Trusts.
Background
This Schedule adds 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 under sections 10 and 12 of the Land Rights Act.
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 original recommendations in relation to this claim. 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.
This measure was originally introduced in the Families, Housing, Community
Services and Indigenous Affairs and Other Legislation Amendment (Budget
and Other Measures) Bill 2010, but was withdrawn during passage to allow
one of the land area measurements, drawn from the survey plan for the land
in question, to be clarified. That clarification is now reflected in this Schedule.
The amendments made by this Schedule commence on the day after
Royal Assent.
2
Explanation of the changes
Item 1 amends Part 4 of Schedule 1 to the Land Rights Act by inserting a
reference to 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
reference to a portion of land in the Northern Territory known as the Port
Patterson Islands as land to be granted as Aboriginal land.
3
Schedule 2 - Indigenous Land Corporation
Summary
This Schedule amends the ATSI Act 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.
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, including
employment, training and business opportunities.
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.
This measure was originally introduced in the Families, Housing, Community
Services and Indigenous Affairs and Other Legislation Amendment (Budget
and Other Measures) Bill 2010, but was withdrawn during passage to allow
time for the Senate Standing Committee on Legal and Constitutional Affairs to
inquire into the measure. The Committee reported on 9 February 2011. This
Schedule reflects the recommendation made by the Committee to clarify the
measure by rephrasing subsection 191F(2A) and adding a definition of the
term `native title settlements'.
4
The amendments made by this Schedule commence on the day after
Royal Assent.
Explanation of the changes
Item 1 inserts new subsection 191F(2A) into the ATSI Act. New
subsection 191F(2A) requires 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 for the purposes of new subsection 191F(2A). Any guidelines
made under this provision will be a legislative instrument.
Item 3 amends the heading to section 191I by omitting the word `Guidelines'
and substituting `Indigenous Land Corporation guidelines', to describe more
accurately the content of the section.
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.
Item 4 makes an amendment to subsection 191I(2) required as a
consequence of item 3.
5
Schedule 3 - Torres Strait Regional Authority
Summary
This Schedule amends the ATSI Act to remove the connection between the
election of members to the Torres Strait Regional Authority (the TSRA) and
the Queensland Local Government elections, and to allow for a wider range of
options for the composition of the TSRA.
Background
Section 142Y of the ATSI Act currently provides that elections for the TSRA
are to be held every three years. The timing of the election is linked to Local
Government elections under the `Queensland Act' (a defined term in the ATSI
Act). Under previous Queensland law, Local Government elections were held
every three years. However, under the present Queensland legislation, the
Local Government Act 2009 (Qld) (the Queensland Local Government Act),
Local Government elections are held every four years. As a result, the timing
set out in section 142Y is now inconsistent with the timing set out in the
Queensland Local Government Act. This Schedule amends section 142Y to
remove the connection between the two sets of elections.
This Schedule also amends section 142S of the ATSI Act. Under present
section 142S, the only power that the Minister has to determine the
constitution of the TSRA is to determine that it would best represent the
Torres Strait area if it included people elected under the Queensland Local
Government Act. This is another way in which the TSRA election process is
connected to Queensland Local Government processes.
Removing the connection between the ATSI Act and the Queensland Local
Government Act will reduce the potential for conflicts of interest between the
roles of people elected to both the TSRA and the Queensland Local
Government councils.
Subsection 142S(1) of the ATSI Act allows the Minister to appoint members to
the TSRA to represent `particular communities'. The TSRA has
commissioned a governance review of its structure and the method of
appointment of its members. Without pre-empting outcome of the review,
which may not be known before the amendments in this Schedule commence,
it is expected that some more flexible outcomes for the composition of the
TSRA will be considered. To allow this to happen, wording in the ATSI Act
referring to `particular communities' is amended by this Schedule.
6
The amendments made by this Schedule commence on a single day to be
fixed by Proclamation. However, as a default, if the provisions do not
commence within the period of 12 months beginning on the day this Bill
receives Royal Assent, they commence on the day after the end of that
period. A longer than usual default period has been included to ensure that
the amendments contained in this Schedule can be proclaimed to commence
at a time that will not interfere with the conduct of the next TSRA election
process. Providing for commencement by Proclamation, or after a period of
12 months, will allow the amendments to commence either before the next
election period or after that period (rather than part-way through the period).
Explanation of the changes
Item 1 repeals the definition of `Queensland Act' in subsection 4(1). Because
the connection between the ATSI Act and the Queensland Local Government
Act is removed by item 7 of this Schedule, this definition is no longer required.
Items 2, 4 and 5 omit the word `notice' and substitute `an instrument' in
subsections 142R(1) and 142TA(3) and paragraph 142TA(5)(b) respectively.
This is a consequential change required because of the changes to
section 142S made by item 3 of this Schedule. Similarly, item 8 omits the
words `a notice under paragraph 142S(2)(a) or (b)' and substitutes `an
instrument under section 142S' because of the changes to section 142S.
Item 3 repeals and replaces section 142S. Under new subsection 142S(1),
the Minister may make a legislative instrument providing for and in relation to
how the TSRA is to be constituted (rather than determining this by notice in
the Gazette, as is current practice). Since the commencement of the
Legislative Instruments Act 2003, a legislative instrument, rather than a notice
in the Gazette, is the required method for making subordinate legislation
which meets the definition of a `legislative instrument' under that Act.
Consequential to this change, current subsection (5), which provides that a
notice in the Gazette made under section 142S is a disallowable instrument,
is no longer required.
Under current subsection 142S(1), the Minister may determine that the TSRA
would best be able to represent the Torres Strait Islanders, and Aboriginal
persons, living in the Torres Strait area if it consisted of, or included, persons
elected to represent particular communities in that area under the Queensland
Act. In effect, people elected under Queensland Local Government elections
also become members of the TSRA. This may have potential for conflicts of
interest for people who hold positions both as councillors under Queensland
Local Government law and on the TSRA.
7
Because the connection between the ATSI Act and the Queensland Local
Government Act is being removed, new subsection 142S(1) does not refer to
the `Queensland Act'. This change reduces the potential for conflict of interest
of members elected to the TSRA, as they will be directly elected to the TSRA
rather than being appointed as a result of the Queensland Local Government
elections. A person may still be elected to both the Queensland Local
Government and the TSRA, if the person is successful in both elections.
New subsection 142S(1) allows the Minister greater flexibility in how the
TSRA is to be constituted than is available under current subsection (1).
A review of the structure of the TSRA and the method of appointment is about
to take place, and it is intended that the options available for the composition
of the TSRA following that review be as wide as possible.
Accordingly, new paragraph 142S(2)(a) provides that the Minister may make
an instrument for `some or all' of the TSRA members `to be elected under this
Act to be representatives of a specified kind'. This wording is intentionally
flexible and broad, and could encompass a wide range of outcomes,
depending on the outcome of the review.
New subsections (3), (4), (5) and (6) are similar in effect to the present
subsections (3), (3A), (3B) and (4). However, some changes of wording have
been made to simplify and clarify section 142S. For example,
new subsection (3) does not refer to an instrument making other provisions in
relation to the constitution of the TSRA, but only refers to provisions in relation
to the operation of the TSRA. This is because matters relating to how the
TSRA is constituted are now completely covered by subsection (1).
Item 6 omits from subsection 142Y(1) `Subject to this section, TSRA elections
must be held every 3 years' and substitutes `TSRA elections must be held
every 4 years'. As a practical matter, to maximise efficiency and save money,
TSRA elections will be held every four years, rather than every three years.
Subsection 142Y(1) has been amended to reflect this.
Item 7 repeals subsection 142Y(3). Presently, subsection 142Y(3) provides
that the polling day or days for each TSRA election must be not later than the
anniversary in the third calendar year, and each later third calendar year, of
the day in 1994 on which the triennial election for an Island Council is held
under the Queensland Act.
By repealing subsection 142Y(3), the connection requiring the TSRA elections
to be held at the same time as the Queensland Local Government elections is
removed. The repeal of this subsection, in conjunction with the changes to
subsection 142Y(1), provide that the date for TSRA elections is determined
solely by the provisions of the ATSI Act.
8