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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
INDIGENOUS AFFAIRS LEGISLATION AMENDMENT BILL (No. 2) 2011
REVISED 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 amends the Aboriginal and Torres Strait Islander Act 2005 to make
several minor governance and business changes, as set out below:
. 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.
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or repealed as set out in that Schedule.
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.
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.
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.
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.
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.
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.
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