Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INDIGENOUS AFFAIRS LEGISLATION AMENDMENT BILL (No. 2) 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 (No. 2) 2011
OUTLINE
This Bill makes several minor amendments to Indigenous affairs legislation,
as set out below.
Minor governance and business changes
The Bill amends the Aboriginal and Torres Strait Islander Act 2005 to:
· change the title of a number of office-holders from `General Manager'
to `Chief Executive Officer';
· ensure that information held by Indigenous Business Australia will be
appropriately protected but capable of being disclosed by that
organisation in carrying out its proper functions, consistent with similar
Commonwealth arrangements; and
· remove references to the availability of review under the Administrative
Decisions (Judicial Review) Act 1977 for two discontinued Aboriginal
Hostels Limited schemes.
Acting appointments
The Bill amends the Aboriginal Land Rights (Northern Territory) Act 1976 and
the Coordinator-General for Remote Indigenous Services Act 2009, allowing
the Minister to delegate the power to appoint a person to act as the Executive
Director of Township Leasing or the Coordinator-General for Remote
Indigenous Services.
Financial impact statement
There is no financial impact from this Bill.
INDIGENOUS AFFAIRS LEGISLATION AMENDMENT BILL (No. 2) 2011
NOTES ON CLAUSES
Clause 1 sets out how the new Act is to be cited, that is, as the Indigenous
Affairs Legislation Amendment Act (No. 2) 2011.
Clause 2 provides that the new Act commences on the day after the Act
receives the Royal Assent.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
1
Schedule 1 - Amendments relating to the Aboriginal and Torres Strait
Islander Act 2005
This Schedule amends the Aboriginal and Torres Strait Islander Act 2005 to:
· change the title of a number of office-holders from `General Manager'
to `Chief Executive Officer';
· ensure that information held by Indigenous Business Australia will be
appropriately protected but capable of being disclosed by that
organisation in carrying out its proper functions, consistent with similar
Commonwealth arrangements; and
· remove references to the availability of review under the Administrative
Decisions (Judicial Review) Act 1977 for two discontinued Aboriginal
Hostels Limited schemes.
Background
Chief Executive Officers
Presently, a number of statutory positions created by the Aboriginal and
Torres Strait Islander Act 2005 are referred to by the term `General Manager'.
This is so for the heads of Indigenous Business Australia, the Indigenous
Land Corporation, Aboriginal Hostels Limited and the Torres Strait Regional
Authority (TSRA).
However, since those positions were created, the nature of the roles
undertaken has changed. The term `General Manager' will be changed to
`Chief Executive Officer' to reflect better the responsibilities and expectations
of the respective agency head positions. This change will bring these
agencies into line with the majority of other Commonwealth statutory
authorities and companies, whose agency heads have the title of Chief
Executive Officer. This includes, for example, the Australia Council for the
Arts, Screen Australia, the Australian Film, Television and Radio School and
the Australian Sports Commission.
The title `Chief Executive Officer' is also appropriate for statutory authorities
and companies that have a board of Directors, with an expectation that a
Chief Executive Officer is usually more senior than a General Manager.
Accordingly, this change will help the Boards of these agencies attract a
higher calibre of candidate for agency head positions.
Secrecy provision
Section 191 relates to the handling of information by Indigenous Business
Australia.
2
In its current form, because of the possibility of criminal sanctions, section 191
prevents any present or former Indigenous Business Australia staff from
releasing any [emphasis added] information (see subsection 191(2)).
Defences are set out in subsection 191(2A), but they are limited in scope.
Section 191 has prevented the disclosure of information to agencies with
responsibility for overseeing Commonwealth administrative practices, such as
the Ombudsman and the Privacy Commissioner. It has also prevented
disclosure of information to Commonwealth agencies working in joint
initiatives with Indigenous Business Australia, and State and Territory
agencies seeking to work more closely with Indigenous Business Australia to
achieve better outcomes for Aboriginal and Torres Strait Islander people and
communities.
Amendments are now being made to section 191 to assist Indigenous
Business Australia in participating effectively in whole-of-government
objectives in Indigenous affairs. The amendments will also help align
Indigenous Business Australia's secrecy provisions with the Australian
Government's determination for greater access to, and transparency of,
information. However, transparency is balanced against the need to maintain
the confidentiality of information provided by Aboriginal and Torres Strait
Islander people, communities and businesses.
The amended provision will allow disclosure of information in limited
circumstances to the Secretary of the Department of Families, Housing,
Community Services and Indigenous Affairs, and in public interest cases
(such as in responding to the Ombudsman). Ministerial guidelines will include
appropriate safeguards to protect personal and other sensitive information,
consistent with legislative obligations such as in the Privacy Act 1988. The
changes are consistent with similar Commonwealth arrangements for
handling protected information, such as in the family assistance law and the
Paid Parental Leave Act 2010.
Aboriginal Hostels Limited
Section 200(6) provides that, if Aboriginal Hostels Limited makes a decision in
relation to certain schemes, the decision is taken to be a decision of an
administrative character made under an enactment for the purposes of the
Administrative Decisions (Judicial Review) Act 1977. Paragraphs (b) and (c)
refer to the Community Support Hostel Grant Scheme and the Student Rent
Subsidy Scheme respectively. These Schemes have not existed for a
number of years. Accordingly, these references are being removed.
3
Explanation of the changes
Part 1 - Chief Executive Officers
Aboriginal and Torres Strait Islander Act 2005
Items 1 to 6 insert into subsection 4(1) definitions of `Indigenous Business
Australia Chief Executive Officer', `Indigenous Land Corporation Chief
Executive Officer' and `TSRA Chief Executive Officer', and repeal the
definitions of General Manager of those organisations.
Items 7 to 16, items 18 to 19, and items 21 to 71 replace references to
`General Manager' with references to `Chief Executive Officer' in relation to
Indigenous Business Australia, the Indigenous Land Corporation and the
Torres Strait Regional Authority wherever they occur, and make minor
formatting changes, such as deleting subsection numbers when the section
no longer contains any subsections. For example, see items 34 and 63.
Item 17 amends subsection 144G(3). Following the change set out in
item 16, subsection 144(3) provides that the Minister must not appoint a
person as the TSRA Chief Executive Officer unless the person agrees.
Item 17 deletes words providing that this rule does not apply to the first TSRA
General Manager.
Item 20 amends subsection 144H(2). Presently, subsection (2) provides that
the term of office of the first TSRA General Manager is two years and, for
every other General Manager, is up to five years. In these items, the change
from `General Manager' to `Chief Executive Officer' is simply a change in
nomenclature. The first Chief Executive Officer will not have the responsibility
for establishing the Torres Strait Regional Authority as did the first General
Manager. The first TSRA Chief Executive Officer will be continuing the role of
the General Manager and not be a new position. Accordingly, it is not
appropriate for the same limitations to be placed on the first Chief Executive
Officer as were placed on the first General Manager. Section 25B of the
Acts Interpretation Act 1901 provides that the office continues in existence
under the new name so that its identity is not affected (this is also noted in
relation to items 15, 33 and 52).
Item 72 sets out transitional arrangements in relation to secrecy provisions in
the Aboriginal and Torres Strait Islander Act 2005. Each of the three secrecy
provisions in that Act (sections 191, 193S and 200A) are stated to apply to
people who are or have been the General Manager of Indigenous Business
Australia, the Indigenous Land Corporation or the Torres Strait Regional
Authority respectively. It is important that people who held the position of
General Manager of those agencies in the past continue to be bound by the
secrecy provisions, which will now apply to a Chief Executive Officer.
Accordingly, item 72 provides that, on and after the item commences, a
reference in the specified paragraphs of those sections to the Chief Executive
Officer included a reference to the General Manager.
4
Item 73 sets out a consequential amendment to the Aboriginal Land Rights
(Northern Territory) Act 1976. Paragraph 76(1A)(e) of that Act provides that
the Minister may delegate certain powers to the General Manager of
Indigenous Business Australia. Item 73 changes that reference to a
reference to the Chief Executive Officer of Indigenous Business Australia.
Part 2 - Secrecy provision
Aboriginal and Torres Strait Islander Act 2005
Items 74 to 77 amend section 191, the secrecy provision relating to
Indigenous Business Australia.
Item 74 inserts before subsection 191(2A) a new heading `Exception -
housing or business loans'. This is for consistency with the fact that the new
subsections inserted after subsection 191(2A) are framed as exceptions to
subsection 191(2).
Item 75 inserts a number of new subsections after subsection 191(2A).
New subsection 191(2B) provides that the Indigenous Business Australia
Chief Executive Officer may divulge or communicate information, or produce a
document, to the Secretary of the Department for the purposes of the
Department. Presently, the Indigenous Business Australia Board may release
information to the Minister, at the Minister's request (see section 154), but
there is no direct way for the Indigenous Business Australia Chief Executive
Officer to communicate with the Secretary of the Department.
The changes will allow greater sharing of information to improve program
delivery and facilitate greater transparency and accountability between
Indigenous Business Australia and the Department, leading to improved
policy and program outcomes.
To maintain appropriate protections over the release of information, the
Minister may make guidelines for the Chief Executive Officer's release of
information (see new section 191AA). The Chief Executive Officer must act in
accordance with any guidelines that have been made (see new
subsection 191(2C)).
New subsection 191(2D) provides that the Indigenous Business Australia
Chief Executive Officer may, if he or she determines in writing that it is
necessary in the public interest, divulge or communicate information, or
produce a document, to specified persons for specified purposes. This
formulation will not rule out decisions in relation to a class or classes of
persons because of subsection 46(3) of the Acts Interpretation Act 1901.
New subsection 191(2D) will allow Indigenous Business Australia to release
information in a wider range of situations than is currently the case. For
example, Indigenous Business Australia has generally been unable to
respond to requests from the Ombudsman.
5
New subsection 191(2F) provides that a determination under
subsection 191(2D) is not a legislative instrument. This subsection is merely
declaratory and is included to assist readers, as such a determination is not a
legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003. As with subsection 191(2B), for appropriate
protections over the release of information to be maintained, the Minister may
make guidelines to guide the Chief Executive Officer's release of information
(see new section 191AA). The Indigenous Business Australia Chief Executive
Officer must act in accordance with any guidelines in force (see new
subsection 191(2E)).
New subsection 191(2G) provides that a person to whom the section applies
may divulge or communicate information, or produce a document, to a person
authorised in writing by the person to whom the information relates to receive
the information. Subsection 191(2A) provides that it is a defence to provide
information to a person who is authorised in writing by the person to whom the
information relates. However, that defence is limited to situations where the
information relates to a housing or business loan made, or taken to have been
made, by Indigenous Business Australia. In recognition of the fact that
Indigenous Business Australia's business is wider than simply making loans,
new subsection 191(2G) allows for information and documents, where there is
consent, to be released in a wider range of situations than just those relating
to housing or business loans.
New subsection 191(2H) provides that a person to whom the section applies
may make a record of, divulge or communicate information or produce a
document to a person if the information is already publicly available. Some
information relating to Indigenous Business Australia is already publicly
available, such as information about the Indigenous Business Australia
Scholarships Program, the Indigenous Economic Development Trust and the
administration of public bequests. However, presently subsection 191(2)
makes disclosure of such public information an offence. On the basis that a
person requesting it could find the information elsewhere, new
subsection 191(2H) creates an exception to the offence set out in
subsection 191(2).
New subsection 191(2J) provides that, despite subsection 191(2), a person
may make a record of information in connection with the exercise of a power
under new subsection (2B), (2D) or (2G). Without this provision,
subsections (2B), (2D) and (2G) would only cover divulging or communicating
information, without also allowing the person to make a record of the
information. This will allow a person to whom section 191 applies to take
such steps as recording in a file when and to whom information was released.
6
In subsections 191(2B), (2G), (2H) and (2J), the burden of proof in criminal
proceedings is reversed to put the onus on the defendant. Subsection 13.3(3)
of the Criminal Code provides that a standard `evidential burden' defence is
created by expressing a matter to be a defence or expressing it as an
exception to the offence. The present cases are expressed as exceptions to
the general offence set out in subsection 191(2). However, this is justified
because the matters concerned are within the exclusive knowledge of the
defendant or it is significantly more difficult and costly for the prosecution to
disprove than for the defendant to establish. This reverse onus is also
justified given the relatively low level of the penalty for the offence set out in
subsection 191(2), of 50 penalty units.
Items 76 and 77 insert headings before subsections 191(3) and 191(4)
respectively. This is a style change only, for consistency with Commonwealth
drafting conventions.
Item 78 inserts at the end of Division 9 of Part 4 a new section 191AA. New
section 191AA provides that the Minister may, by legislative instrument, make
guidelines for the Indigenous Business Australia Chief Executive Officer's
power to divulge or communicate information, or produce a document, to the
Secretary (see subsection 191(2B)), or give public interest determinations
(see subsection 191(2D)). The Indigenous Business Australia Chief
Executive Officer must act in accordance with any guidelines in force (see
subsections 191(2C) and (2E)).
Part 3 - Aboriginal Hostels Limited
Aboriginal and Torres Strait Islander Act 2005
Item 79 repeals and substitutes subsection 200(6) of the Aboriginal and
Torres Strait Islander Act 2005. The effect of this change is to remove from
subsection 200(6) paragraphs (b) and (c). Those paragraphs provided that
certain decisions made by Aboriginal Hostels Limited in relation to an
application for a grant under the Community Support Hostel Grant Scheme, or
decisions made by Aboriginal Hostels Limited in relation an application for a
grant under the Student Rent Subsidy Scheme, were decisions of an
administrative character for the purposes of the Administrative Decisions
(Judicial Review) Act 1977.
Neither the Community Support Hostel Grant Scheme nor the Student Rent
Subsidy Scheme has existed for many years. Accordingly, it is appropriate
that references to them be removed from the Aboriginal and Torres Strait
Islander Act 2005. However, to preserve the rights of people who were
affected in the past by decisions made in relation to those schemes to seek
review under the Administrative Decisions (Judicial Review) Act 1977,
item 80 provides that the amendments made in Part 3 only apply to decisions
made after the commencement of Part 3.
7
Schedule 2 - Acting appointments
Summary
This Schedule amends the Aboriginal Land Rights (Northern Territory)
Act 1976 and the Coordinator-General for Remote Indigenous Services
Act 2009, allowing the Minister to delegate the power to appoint a person to
act as the Executive Director of Township Leasing or the Coordinator-General
for Remote Indigenous Services.
Background
Section 20J of the Aboriginal Land Rights (Northern Territory) Act 1976
provides that the Minister may appoint a person to act as the Executive
Director of Township Leasing in certain circumstances. Section 76 specifies
certain functions and powers contained in the Act that the Minister may
delegate. However, section 76 does not list the power contained in
section 20J as one which may be delegated.
Similarly, section 20 of the Coordinator-General for Remote Indigenous
Services Act 2009 provides that the Minister may appoint a person to act as
the Coordinator-General for Remote Indigenous Services in certain
circumstances. However, that Act does not include a specific provision
allowing the Minister to delegate this power.
This Schedule enables the Minister to delegate the power to appoint an acting
Executive Director of Township Leasing, or Coordinator-General for Remote
Indigenous Services, to the Secretary of the Department or a Deputy
Secretary of the Department.
Explanation of the changes
Aboriginal Land Rights (Northern Territory) Act 1976
Item 1 amends section 76 of the Aboriginal Land Rights (Northern Territory)
Act 1976 to enable the Minister to delegate, in writing, the Minister's power
under section 20J of the Act to the Secretary of the Department or a Deputy
Secretary of the Department.
Coordinator-General for Remote Indigenous Services Act 2009
Item 2 inserts section 28A into the Coordinator-General for Remote
Indigenous Services Act 2009 to enable the Minister to delegate, in writing,
the Minister's power under section 20 of the Act to the Secretary of the
Department or a Deputy Secretary of the Department.
8