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INDIGENOUS AFFAIRS LEGISLATION AMENDMENT BILL 2011 Explanatory Memorandum

INDIGENOUS AFFAIRS LEGISLATION AMENDMENT BILL 2011


                                  2010-2011





               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA





                                   SENATE










                       INDIGENOUS AFFAIRS LEGISLATION
                             AMENDMENT BILL 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 2011



OUTLINE


The Bill contains two 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.

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or repealed as set out in that Schedule.

                       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.

                         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.

                Schedule 3 - Torres Strait Regional Authority


                                   Summary

This Schedule amends the Aboriginal  and  Torres  Strait  Islander  Act 2005
(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.

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.
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.