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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Aboriginal Land Rights Amendment
Bill 2009
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42 3
Schedule 2 Amendment of other Acts and instruments 28
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2009
New South Wales
Aboriginal Land Rights Amendment
Bill 2009
Act No , 2009
An Act to amend the Aboriginal Land Rights Act 1983 with respect to land dealings
by Aboriginal Land Councils and community development levies; and for other
purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Aboriginal Land Rights Amendment Bill 2009
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Aboriginal Land Rights Amendment Act 2009.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
Page 2
Aboriginal Land Rights Amendment Bill 2009
Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
Schedule 1 Amendment of Aboriginal Land Rights
Act 1983 No 42
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
community development levy means the levy payable under
Division 4A of Part 2.
[2] Section 4 (1), definition of "land"
Omit the definition. Insert instead:
land includes any estate or interest in land, whether legal or
equitable.
[3] Part 2, Divisions 4 and 4A
Omit Division 4. Insert instead:
Division 4 Land dealings by Aboriginal Land Councils
40 Interpretation
(1) In this Division and Division 4A:
agreement includes an arrangement.
deal with land means:
(a) sell, exchange, lease, mortgage, dispose of, or otherwise
create or pass a legal or equitable interest in, land, or
(b) grant an easement or covenant over land or release an
easement or covenant benefiting land, or
(c) enter into a biobanking agreement relating to land under
the Threatened Species Conservation Act 1995 or a
conservation agreement under the NPW Act, or
(d) enter into a wilderness protection agreement relating to
land under the Wilderness Act 1987, or
(e) enter into a property vegetation plan under the Native
Vegetation Act 2003, or
(f) subdivide or consolidate land so as to affect, or consent to
a plan of subdivision or consolidation of land that affects,
the interests of an Aboriginal Land Council in that land, or
(g) make a development application in relation to land, or
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Aboriginal Land Rights Amendment Bill 2009
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
(h) any other action (including executing an instrument)
relating to land that is prescribed by the regulations.
Note. In this Act, a reference to land includes any estate or interest in
land, whether legal or equitable (see section 4 (1)).
dealing approval certificate--see section 41.
development application means:
(a) a development application within the meaning of the
Environmental Planning and Assessment Act 1979, or
(b) an application for approval of a project under Part 3A of
the Environmental Planning and Assessment Act 1979.
General Register of Deeds means the General Register of Deeds
maintained under the Conveyancing Act 1919.
land dealing means an action in relation to land of a kind referred
to in paragraphs (a)(h) of the definition of deal with land.
land dealing approval agreement means an agreement entered
into under a condition imposed under section 42G (6) (b).
Register means the Register maintained under the Real Property
Act 1900.
registrable instrument means:
(a) an instrument (other than a caveat or registration
prohibition notice) giving effect to or forming part of a
land dealing (within the meaning of this Division) that is
registrable or capable of being made registrable under the
Real Property Act 1900 or in respect of which a recording
is required or permitted (under that or any other Act or
Commonwealth Act) to be made in the Register
maintained under that Act, or
(b) a plan that is required or permitted to be registered under
Division 3 of Part 23 of the Conveyancing Act 1919 and
that is or gives effect to or forms part of a land dealing
(within the meaning of this Division), or
(c) an instrument (other than a registration prohibition notice)
giving effect to or forming part of a land dealing (within
the meaning of this Division) that is registrable or in
respect of which a recording is required or permitted to be
made in the General Register of Deeds.
registration approval certificate--see section 41.
registration prohibition notice--see section 42O.
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Aboriginal Land Rights Amendment Bill 2009
Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
(2) For the purposes of this Division, land is vested in an Aboriginal
Land Council if:
(a) the Council has a legal interest in the land, or
(b) the land is the whole or part of land the subject of a claim
under section 36 and:
(i) the Crown Lands Minister is satisfied that the land
is claimable Crown land under section 36, or
(ii) the Court has ordered under section 36 (7) that the
land be transferred to the Council,
and the land has not been transferred to the Council.
(3) In this Division, an Aboriginal Land Council is taken to make a
development application for land vested in the Council if the
Council consents to such an application by another person.
(4) For the purposes of this Division, land is of cultural and heritage
significance to Aborigines if the land is significant in terms of
the traditions, observances, customs, beliefs or history of
Aborigines.
41 Certificates--land vested in Aboriginal Land Councils
(1) A dealing approval certificate:
(a) for a land dealing relating to land vested in the New South
Wales Aboriginal Land Council, is a certificate in the
prescribed form signed by the Chief Executive Officer of
the New South Wales Aboriginal Land Council that the
dealing complies with section 42D, or
(b) for a land dealing relating to land vested in a Local
Aboriginal Land Council, is a certificate in the prescribed
form signed by the Chief Executive Officer of the New
South Wales Aboriginal Land Council that the dealing has
been approved by the New South Wales Aboriginal Land
Council.
(2) A registration approval certificate for a registrable instrument
relating to land vested in an Aboriginal Land Council is a
certificate in the prescribed form signed by the Chief Executive
Officer of the New South Wales Aboriginal Land Council that:
(a) the registration, under the Real Property Act 1900, of the
instrument is authorised under this Act, or
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Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
(b) the registration, under Division 3 of Part 23 of the
Conveyancing Act 1919, of the instrument is authorised
under this Act, or
(c) the making of a recording in respect of the instrument in
the Register or the General Register of Deeds is authorised
under this Act.
(3) A dealing approval certificate signed by the Chief Executive
Officer of the New South Wales Aboriginal Land Council is
conclusive evidence of the matters certified in the certificate in
favour of any person.
(4) Subsection (3) does not operate in favour of any person who had
knowledge that any of the matters certified in the certificate was
incorrect before the land dealing was completed (whether or not
any subsequent registration was required or has taken place).
(5) A dealing approval certificate must set out any conditions of the
relevant approval.
42 Restrictions on dealing with land subject to native title
(1) An Aboriginal Land Council must not deal with land vested in it
subject to native title rights and interests under section 36 (9)
or (9A) unless the land is the subject of an approved
determination of native title (within the meaning of the
Commonwealth Native Title Act).
(2) This section does not apply to or in respect of:
(a) the lease of land by the New South Wales Aboriginal Land
Council or one or more Local Aboriginal Land Councils to
the Minister administering the NPW Act under Part 4A of
that Act in accordance with a condition imposed under
section 36A (2), or
(b) a transfer of land to another Aboriginal Land Council, or
(c) a lease of land referred to in section 37 (3) (b).
42A Restrictions on dealing with land reserved or dedicated under the
NPW Act
(1) An Aboriginal Land Council must not deal with land that is
vested in it and that is reserved or dedicated under Part 4A of the
NPW Act except in accordance with that Act.
(2) This Division and Division 4A (other than sections 40, 42B and
this section) do not apply to land referred to in subsection (1).
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Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
42B Appropriation or resumption of Aboriginal land
Despite anything in any Act, land vested in an Aboriginal Land
Council must not be appropriated or resumed except by an Act of
Parliament.
42C Land dealings by Aboriginal Land Councils generally
(1) A land dealing by an Aboriginal Land Council in contravention
of section 42D or 42E is void.
(2) This Division is in addition to any requirements of or under any
other Act in relation to a land dealing.
(3) This section has effect despite any other Act or law.
42D Land dealings by New South Wales Aboriginal Land Council
(1) The New South Wales Aboriginal Land Council must not deal
with land vested in it unless:
(a) it has notified the Local Aboriginal Land Council (if any)
for the area in which the land is situated in writing of the
land affected and the type of proposed dealing, and
(b) it has considered any comments made by that Council
within 28 days of that notice being given, and
(c) in the case of a land dealing with land transferred to the
New South Wales Aboriginal Land Council under
section 36, both the Crown Lands Minister referred to in
that section and the Minister have been notified of the
proposed dealing, and
(d) it has had regard to its community, land and business plan
and any of its policies that are applicable, and
(e) if it is appropriate to do so in the circumstances, it has
considered the cultural and heritage significance of the
land to Aborigines in determining whether to deal with the
land, and
(f) the land dealing complies with a resolution of the New
South Wales Aboriginal Land Council approving the
dealing.
(2) The Chief Executive Officer of the New South Wales Aboriginal
Land Council must give a dealing approval certificate for a land
dealing by the Council if the Chief Executive Officer is satisfied
that the Council has complied with this Division in relation to the
dealing.
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Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
(3) The Chief Executive Officer of the New South Wales Aboriginal
Land Council must give a registration approval certificate for an
instrument if the Chief Executive Officer is satisfied that the
instrument is a registrable instrument relating to a land dealing by
the Council that complies with this Division.
(4) This section does not apply to or in respect of the following land
dealings by the New South Wales Aboriginal Land Council:
(a) a lease for a period of less than 3 years (including any
option to renew the lease),
(b) a land dealing prescribed by the regulations for the
purposes of this section.
42E Approval required for land dealings by Local Aboriginal Land
Councils
(1) A Local Aboriginal Land Council must not deal with land vested
in it except in accordance with an approval of the New South
Wales Aboriginal Land Council under section 42G.
(2) However, the approval of the New South Wales Aboriginal Land
Council is not required for the following land dealings by a Local
Aboriginal Land Council:
(a) a lease for a period of less than 3 years (including any
option to renew the lease), other than a social housing
management lease,
(b) a land dealing prescribed by the regulations
for the purposes of this section.
(3) A Local Aboriginal Land Council must not deal with land vested
in it that is land transferred to the Council under section 36 unless
both the Crown Lands Minister referred to in that section and the
Minister have been notified of the proposed dealing.
(4) An agreement to deal with land vested in a Local Aboriginal
Land Council that is made by the Council is, if the land dealing
is not approved by the New South Wales Aboriginal Land
Council and an approval is required, unenforceable against the
Local Aboriginal Land Council.
(5) A person is not entitled to damages, or any other remedy, against
a Local Aboriginal Land Council in respect of a warranty or other
promise relating to an unenforceable agreement referred to in
subsection (4).
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Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
(6) In this section:
social housing management lease means a lease entered into for
the purposes of the provision of or management of a social
housing scheme (other than a residential tenancy agreement).
(7) This section has effect despite any other Act or law.
Note. Approval of a land dealing by a Local Aboriginal Land Council
must be by resolution of the voting members (see section 52G (e)).
42F Applications for approval of LALC land dealings by NSWALC and
assessment fees
(1) A Local Aboriginal Land Council may apply to the New South
Wales Aboriginal Land Council for the approval of a land dealing
relating to land vested in the Local Aboriginal Land Council.
(2) An application by a Local Aboriginal Land Council to the New
South Wales Aboriginal Land Council for approval of a dealing
with land is:
(a) to be made in accordance with the regulations, and
(b) to contain the matters prescribed by the regulations, and
(c) to be accompanied by any application fee, and any
documents, prescribed by the regulations.
(3) An application may also be accompanied by such additional
documents and other information as the Local Aboriginal Land
Council thinks fit.
(4) The New South Wales Aboriginal Land Council may require the
Local Aboriginal Land Council to provide additional documents
and other information in relation to an application.
(5) Regulations may be made for or with respect to the following:
(a) the fees that may be charged by the New South Wales
Aboriginal Land Council for assessing and determining
applications for approval of land dealings,
(b) without limiting paragraph (a), the fees that may be
charged by the New South Wales Aboriginal Land Council
with respect to the costs of appointing an expert advisory
panel to assess an application for approval of a land
dealing,
(c) waiver of assessment fees,
(d) provision of securities in respect of the payment of
assessment fees,
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Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
(e) notice by the New South Wales Aboriginal Land Council
to applicants for approval of proposed assessment fees or
security arrangements and other matters relating to
determination of the application,
(f) the circumstances in which the New South Wales
Aboriginal Land Council may refuse to assess or
determine an application.
42G Approval of LALC land dealings by NSWALC
(1) Approval requirements
The New South Wales Aboriginal Land Council must (subject to
subsection (2) and any requirements of the regulations), on an
application for approval of a land dealing being made by a Local
Aboriginal Land Council in accordance with this Act, approve
(with or without conditions) the land dealing if the New South
Wales Aboriginal Land Council is satisfied that:
(a) the application is in accordance with this Act, and
(b) the members of the Local Aboriginal Land Council have
passed a resolution in accordance with subsection (5) and
that the dealing is in accordance with that resolution.
(2) Refusal if contrary to LALC members' interests
The New South Wales Aboriginal Land Council may refuse to
approve a land dealing if it considers that the dealing is, or is
likely to be, contrary to the interests of the members of the Local
Aboriginal Land Council or other Aboriginal persons within the
area of that Council.
(3) In considering whether a land dealing is contrary to any such
interests, the New South Wales Aboriginal Land Council may
consider (and is not limited to considering) the following:
(a) the community, land and business plan of the Local
Aboriginal Land Council and whether, and to what extent,
the land dealing is consistent with that plan,
(b) the terms of the land dealing and whether those terms are
fair and equitable to the Local Aboriginal Land Council in
all the circumstances,
(c) whether the Local Aboriginal Land Council, in passing the
resolution, had proper regard to the cultural and heritage
significance of the land to Aborigines,
(d) any assessment of the application for approval of the land
dealing by an expert advisory panel under this Division,
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Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
(e) whether it is likely that the proceeds of the land dealing
will be managed and applied in the interests of the
members of the Local Aboriginal Land Council or other
Aboriginal persons within the area of the Council,
(f) any applicable policy of the New South Wales Aboriginal
Land Council in relation to land dealings by Local
Aboriginal Land Councils.
(4) The New South Wales Aboriginal Land Council is not required
to consider any additional information or other material provided
by a person other than the Local Aboriginal Land Council in
considering whether a land dealing is, or is likely to be, contrary
to the interests of the members of the Local Aboriginal Land
Council or other Aboriginal persons within the area of that
Council.
(5) Requirements for approval resolutions
A Local Aboriginal Land Council resolution approving a land
dealing must:
(a) be passed at a meeting of which prior notice was given, in
accordance with the regulations, and at which a quorum
was present, and
(b) be passed by not less than 80 per cent of the voting
members of the Council present at the meeting, and
(c) contain the following matters:
(i) the identity of the land,
(ii) a statement that the impact of the land dealing on the
cultural and heritage significance of the land to
Aborigines has been considered in determining
whether to approve the dealing,
(iii) the manner in which the land is to be dealt with,
(iv) any conditions to which the approval of the dealing
is subject.
(6) Conditions of approval
The New South Wales Aboriginal Land Council may only
impose the following kinds of conditions on an approval of a land
dealing:
(a) a condition that is to be satisfied before completion of the
land dealing,
(b) a condition that requires the Local Aboriginal Land
Council or one or more parties to the land dealing to enter
into an agreement with the New South Wales Aboriginal
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Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
Land Council as to specified matters to be carried out
before or after the dealing is completed.
Note. Section 119 enables conditions to be imposed on approvals and
also enables approvals to be revoked.
(7) Without limiting any other action that may be taken, failure by a
Local Aboriginal Land Council to comply with a provision of a
land dealing approval agreement is taken to be a breach by the
Council of this Act.
(8) Approval may relate to more than one dealing
An approval under this section may relate to one or more land
dealings.
42H Reasons for refusal or conditions
If the New South Wales Aboriginal Land Council refuses an
application for approval of a land dealing, or approves a land
dealing subject to conditions, it must give the Local Aboriginal
Land Council concerned a written statement of the reasons for the
decision within 28 days after a request by that Local Aboriginal
Land Council for the statement.
42I Assessment of dealings by expert advisory panels
(1) The New South Wales Aboriginal Land Council may constitute
expert advisory panels to assess applications for approval of land
dealings by Local Aboriginal Land Councils.
(2) An expert advisory panel is to be constituted in accordance with
the regulations.
(3) Regulations may be made for or with respect to the following:
(a) a register of persons eligible to be appointed to expert
advisory panels,
(b) the addition of persons to, or removal of persons from, the
register,
(c) qualifications for inclusion on the register,
(d) the appointment and removal of members of panels,
(e) the remuneration of members of panels,
(f) the circumstances in which an assessment by a panel is
required or may be requested,
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Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
(g) reports by panels,
(h) regulating the assessment of matters by panels in respect of
conflicts of interest and prohibiting persons from assessing
matters if there is a conflict of interest or a pecuniary
interest in a matter.
42J Amendment and revocation of land dealing approvals
(1) The New South Wales Aboriginal Land Council must not amend
or revoke an approval of a land dealing if the land dealing has
been completed or a registrable instrument has been registered in
reliance on that approval.
Note. This provision limits the power of the New South Wales Aboriginal
Land Council to amend or revoke an approval (see section 119 (4)).
(2) If an approval of a land dealing under this Division is revoked by
the New South Wales Aboriginal Land Council, any dealing
approval certificate or registration approval certificate relating to
the land dealing ceases to have effect.
(3) A Local Aboriginal Land Council must return any dealing
approval certificate or registration approval certificate given to it
that is revoked to the New South Wales Aboriginal Land Council
within 14 days of notice of the revocation being given.
42K Certificates for dealings by Local Aboriginal Land Councils
(1) Dealing approval certificate
If the New South Wales Aboriginal Land Council approves a
land dealing by a Local Aboriginal Land Council under this
Division, the Chief Executive Officer of the New South Wales
Aboriginal Land Council must give a dealing approval certificate
for the land dealing to the Local Aboriginal Land Council within
14 days of approval being given.
(2) Registration approval certificates
The Chief Executive Officer of the New South Wales Aboriginal
Land Council must give a registration approval certificate for an
instrument relating to a land dealing by a Local Aboriginal Land
Council if the Chief Executive Officer is satisfied as to the
following:
(a) that the instrument is a registrable instrument giving effect
to or forming part of a land dealing approved by the New
South Wales Aboriginal Land Council under this Division,
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Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
(b) that any conditions of the approval by the New South
Wales Aboriginal Land Council of the land dealing to
which the instrument relates have been met,
(c) that any community development levy payable in respect
of that land dealing has been paid.
(3) The Chief Executive Officer may refuse to give a dealing
approval certificate or a registration approval certificate under
this section if any assessment fee payable in relation to the
application for approval of the land dealing to which the
certificate relates has not been paid or is not subject to
arrangements for payment that are satisfactory to the New South
Wales Aboriginal Land Council.
(4) For the purposes of any other Act or law, a dealing approval
certificate for a land dealing by a Local Aboriginal Land Council
land is taken to be a written consent by the New South Wales
Aboriginal Land Council to the dealing.
42L Review of approval decisions
(1) Despite any other Act or law, the only person who has standing
to bring proceedings:
(a) under the Land and Environment Court Act 1979, or
(b) for judicial review in any other court,
in relation to a decision to approve or not to approve of a land
dealing, or an act or omission of the New South Wales Aboriginal
Land Council in connection with any such decision, is the Local
Aboriginal Land Council concerned.
(2) This section does not confer any standing on a Local Aboriginal
Land Council in respect of class 3 proceedings under the Land
and Environment Court Act 1979 in connection with any such
decision.
42M Registration of dealings and instruments
(1) The Registrar-General must, if an Aboriginal Land Council is the
registered proprietor of an estate in fee simple in land, make a
recording in the Register to the following effect:
(a) that the land is subject to this Division,
(b) that a registrable instrument may not be registered, or a
recording in respect of a registrable instrument may not be
made, unless the Registrar-General is satisfied that a
registration approval certificate has been obtained or is not
required.
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(2) The Registrar-General must not register a registrable instrument
in relation to land referred to in subsection (1) if the registered
proprietor of the land is an Aboriginal Land Council, unless the
registrable instrument is accompanied by:
(a) a registration approval certificate, or
(b) a statement signed by the Chief Executive Officer of the
New South Wales Aboriginal Land Council that the
instrument gives effect to or forms part of a land dealing
for which a registration approval certificate is not required
under this Division.
Note. If the registered proprietor of land is an Aboriginal Land Council,
an instrument or plan affecting the land that is accompanied by a
registration approval certificate or the signed statement referred to
above has on registration or recording all the protections afforded under
the Real Property Act 1900.
(3) Despite section 42 of the Real Property Act 1900 or any other
Act, the registration of a registrable instrument, or the making of
a recording, that is prohibited by this section has no effect and
does not create or pass or otherwise affect any estate or interest
in the land of any registered proprietor of the land, as otherwise
recorded under the Real Property Act 1900.
(4) In this section, register a registrable instrument means:
(a) register the instrument in the Register or under the
Conveyancing Act 1919, or
(b) make a recording in the Register in respect of any such
instrument, or
(c) register a plan under Division 3 of Part 23 of the
Conveyancing Act 1919.
(5) This section does not affect the operation of any other prohibition
or restriction relating to transfers or other dealings with land
under this or any other Act.
42N Certain land dealing approval agreements to run with land
(1) This section applies to a land dealing approval agreement if it
imposes obligations as to the use, development or management
of, or dealings with, land vested in, or formerly vested in, an
Aboriginal Land Council.
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(2) A land dealing approval agreement may be registered under this
section if the following persons agree to its registration:
(a) the New South Wales Aboriginal Land Council,
(b) if the agreement relates to land under the Real Property Act
1900, each person who is the registered proprietor of an
estate or interest in the land,
(c) if the agreement relates to land not under the Real Property
Act 1900, each person who is a party to the agreement.
(3) On lodgment by an Aboriginal Land Council of an application for
registration in a form approved by the Registrar-General, the
Registrar-General is to register the land dealing approval
agreement:
(a) by making an entry in the relevant folio of the Register if
the agreement relates to land under the Real Property Act
1900, or
(b) by registering the agreement in the General Register of
Deeds if the agreement relates to land not under the Real
Property Act 1900.
(4) A land dealing approval agreement that has been registered by
the Registrar-General under this section is binding on, and is
enforceable by and against, the successors in title to the owner
who entered into the agreement and those successors in title are
taken to have notice of the agreement.
(5) The Registrar-General may, on the request in writing of the Chief
Executive Officer of the New South Wales Aboriginal Land
Council, cancel the registration of a land dealing approval
agreement.
(6) A reference in this section to a land dealing approval agreement
includes a reference to any agreement amending a land dealing
approval agreement.
(7) In this section:
successors in title includes a mortgagee, chargee, covenant
chargee or other person in possession of land pursuant to a
mortgage, charge, positive covenant or other encumbrance
entered into before or after the registration of the land dealing
approval agreement.
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42O Enforcement of land dealing approval agreements--registration
prohibition notices
(1) This section applies to land under the Real Property Act 1900 if:
(a) a land dealing approval agreement has been registered
under section 42N, or
(b) a current registered proprietor of an estate or interest in the
land is a party to a land dealing approval agreement in
respect of the land.
(2) The New South Wales Aboriginal Land Council may lodge with
the Registrar-General a notice in writing prohibiting, except with
the consent of that Council, the registration or recording of any
dealing affecting an estate or interest in land to which this section
applies (a registration prohibition notice).
(3) A registration prohibition notice is to be in the form approved by
the Registrar-General and must contain the following:
(a) the name and address of the person who is the registered
proprietor of an estate or interest in the land affected by the
notice,
(b) if the registration notice relates only to part of the land
described in a folio of the Register, a description of that
part,
(c) a statement that the prohibition notice relates to the land
(or part of the land) in respect of which a dealing approval
agreement has been entered into under this Division.
(4) On the lodgment of a registration prohibition notice, the
Registrar-General must give notice in writing of the lodgment to
any registered proprietor of an estate or interest in land affected
by the notice, at the address specified in the notice.
(5) Notice of lodgment is not required to be given to a registered
proprietor under subsection (4) if the consent of the registered
proprietor to the lodgment is endorsed on the registration
prohibition notice.
(6) The Registrar-General must, if satisfied that the notice complies
with any requirements made in respect of it under this Division
or the Real Property Act 1900, record in the Register such
particulars of the notice as the Registrar-General thinks
appropriate.
(7) A caveat does not prevent the recording of a registration
prohibition notice under this section.
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(8) A registration prohibition notice lodged under this section has
effect when particulars of the notice are recorded in the Register
under this section.
(9) A registration prohibition notice may be withdrawn by the New
South Wales Aboriginal Land Council, by notice in writing in the
form approved by the Registrar-General and on payment of the
fee (if any) prescribed by the regulations, and on being
withdrawn, ceases to be in force.
42P Effect of registration prohibition notices
(1) The Registrar-General must not, except with the consent in
writing of the New South Wales Aboriginal Land Council
notified in writing by the Chief Executive Officer of the Council,
record or register in the Register any dealing if it appears to the
Registrar-General that the registration or recording of the dealing
is prohibited by a registration prohibition notice that has effect
under this Division.
(2) The New South Wales Aboriginal Land Council must not refuse
to give consent under this section if:
(a) the dealing or the registration or recording of the dealing is
permitted by the applicable land dealing approval
agreement, or
(b) the dealing or the registration or recording does not
materially affect the performance or enforcement of that
agreement.
(3) The regulations may provide that a registration prohibition notice
does not prevent the Registrar-General from registering or
recording a dealing of a class prescribed by the regulations.
(4) If in any legal proceedings a question arises as to the validity of
a registration prohibition notice, the court is to disregard any
failure to comply strictly with the requirements of this Division
as to the form of the notice.
(5) This section:
(a) has effect despite the Real Property Act 1900 or any other
Act or law, and
(b) does not affect the operation of any other prohibition or
restriction relating to transfers or other dealings with land.
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Aboriginal Land Rights Amendment Bill 2009
Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
Division 4A Community development levy
42Q Interpretation
Words and expressions used in this Division, and in any
regulations made under this Division, have the same meaning as
they have in the Duties Act 1997.
42R Community development levy payable for certain transactions
(1) A Local Aboriginal Land Council is liable to pay the community
development levy for any dutiable transaction to which the levy
applies that occurs in relation to a dealing with land vested in the
Council (whether or not the Council is liable to pay duty in
respect of the transaction under the Duties Act 1997).
(2) The community development levy applies to the following
dutiable transactions:
(a) a transfer of land,
(b) an agreement for the sale or transfer of land,
(c) a declaration of trust over land,
(d) a lease of land in respect of which a premium is paid or
agreed to be paid,
(e) any other transaction prescribed by the regulations.
(3) Except as provided by subsection (4), the community
development levy does not apply to the following dutiable
transactions:
(a) except as provided by the regulations, transactions that are
exempt from duty under the Duties Act 1997,
(b) transactions under a community benefit scheme providing
home ownership for Aboriginal persons,
(c) transactions prescribed by the regulations.
(4) The community development levy is payable in respect of a
dutiable transaction even though duty is not chargeable on the
transaction because of section 280 of the Duties Act 1997.
(5) The regulations may provide that the community development
levy is payable for other transactions in relation to dealings with
land vested in a Local Aboriginal Land Council and may also
provide for the amount of the levy for those transactions.
(6) For the purposes of this Division, a dutiable transaction occurs
when it is taken to occur for the purposes of the Duties Act 1997.
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Aboriginal Land Rights Amendment Bill 2009
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
42S Community development levy not payable on transactions
between Councils
The community development levy is not payable in respect of a
dutiable transaction between a Local Aboriginal Land Council
and another Aboriginal Land Council.
42T Amount of community development levy
The amount of the community development levy payable for a
dutiable transaction is the prescribed percentage (if any) of the
amount of duty payable for the dutiable transaction.
42U Payment of community development levy amounts
(1) Amounts of community development levy collected by the Chief
Commissioner of State Revenue are to be paid to the New South
Wales Aboriginal Land Council by the Chief Commissioner as
agreed between the Council and the Chief Commissioner.
Note. The Taxation Administration Act 1996 (other than Part 4 of that
Act), which includes provisions relating to the collection, payment and
non-payment of tax, applies to the community development levy. The
Chief Commissioner of State Revenue will be responsible for the
collection of the community development levy.
(2) The Chief Commissioner of State Revenue may retain from the
community development levy collected by the Chief
Commissioner amounts for payment of the Chief
Commissioner's costs in relation to the Chief Commissioner's
functions relating to the levy.
(3) Any such costs are to be in accordance with an agreement
between the Chief Commissioner of State Revenue and the New
South Wales Aboriginal Land Council.
(4) The New South Wales Aboriginal Land Council must pay to the
New South Wales Aboriginal Land Council Community Fund
established under section 149A amounts of community
development levy received from the Chief Commissioner.
(5) The New South Wales Aboriginal Land Council must also pay to
that Fund an additional amount equal to the amount of
community development levy paid by the Chief Commissioner of
State Revenue to the Council under this section.
(6) The additional amount payable by the New South Wales
Aboriginal Land Council under subsection (5) must be paid not
later than 28 days after receipt by the Council of a payment of
levy under this section.
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Aboriginal Land Rights Amendment Bill 2009
Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
(7) Amounts of community development levy are to be paid in
accordance with this section, despite any provision of the
Taxation Administration Act 1996.
42V NSWALC payments may be waived
The Minister may waive payment of the whole or any part of an
amount payable by the New South Wales Aboriginal Land
Council under section 42U (5), if the Minister is of the opinion
that it is appropriate to do so, having regard to the financial
circumstances of the Council, its obligations under this Act and
any other matters the Minister considers relevant.
42W Regulations
The regulations may make provision for or with respect to the
following:
(a) the application of provisions of the Duties Act 1997 in
respect of the community development levy,
(b) the period within which the community development levy
is payable,
(c) interim assessments of community development levy,
(d) without limiting paragraph (a), the stamping of
instruments.
42X Relationship with Taxation Administration Act 1996
This Division, and any regulations made under this Division, are
to be read together with the Taxation Administration Act 1996
(other than Part 4 of that Act).
[4] Section 52 Functions of Local Aboriginal Land Councils
Insert at the end of the section:
Note. Under section 50 of the Interpretation Act 1987, a Local Aboriginal
Land Council has certain functions as a statutory corporation, including
the power to purchase, exchange, take on lease, hold, dispose of and
otherwise deal with property. This provision is subject to the provisions
of this Act.
Page 21
Aboriginal Land Rights Amendment Bill 2009
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
[5] Section 52AA
Insert after section 52A:
52AA Powers of Local Aboriginal Land Councils with respect to property
(1) A Local Aboriginal Land Council may do or suffer in relation to
its property any act or thing that it could lawfully do or suffer if
it were a natural person having, in the case of land, the same
estate or interest in the property as the Council.
(2) In particular, without limiting the generality of subsection (1), a
Local Aboriginal Land Council may do or suffer any such act or
thing to enable it to:
(a) improve, or cause to be improved, any land vested in it, or
(b) explore for and exploit, or cause to be explored for or
exploited, mineral resources or other natural resources
vested in it.
(3) This section is subject to this Act.
[6] Section 52B Social housing schemes
Omit section 52B (4).
[7] Section 52G Functions to be exercised by Council resolution
Insert "and land dealing approval agreements (within the meaning of
Division 4 of Part 2)" after "land" in section 52G (e).
[8] Sections 83 (2) (c) and 137B (2) (c)
Omit "section 40AA" wherever occurring. Insert instead "section 42".
[9] Section 106 Functions of New South Wales Aboriginal Land Council
Insert after section 106 (3) (g):
(h) to approve land dealings by Local Aboriginal Land
Councils.
[10] Section 106 (5)
Insert ", the New South Wales Aboriginal Land Council Community Fund"
after "New South Wales Aboriginal Land Council Account".
Page 22
Aboriginal Land Rights Amendment Bill 2009
Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
[11] Section 106, note
Insert at the end of the section:
Note. Under section 50 of the Interpretation Act 1987, the New South
Wales Aboriginal Land Council has certain functions as a statutory
corporation, including the power to purchase, exchange, take on lease,
hold, dispose of and otherwise deal with property. That provision is
subject to the provisions of this Act.
[12] Section 106A
Insert after section 106:
106A Powers of New South Wales Aboriginal Land Council with respect
to property
(1) The New South Wales Aboriginal Land Council may do or suffer
in relation to its property any act or thing that it could lawfully do
or suffer if it were a natural person having, in the case of land, the
same estate or interest in the property as the Council.
(2) In particular, without limiting the generality of subsection (1), the
Council may do or suffer any such act or thing to enable it to:
(a) improve, or cause to be improved, any land vested in it, or
(b) explore for and exploit, or cause to be explored for or
exploited, mineral resources or other natural resources
vested in it.
(3) This section is subject to this Act.
[13] Section 113 Policies relating to Aboriginal Land Council functions
Omit section 113 (1) (b). Insert instead:
(b) land dealings by Aboriginal Land Councils, including the
assessment and approval by the New South Wales
Aboriginal Land Council of land dealings by Local
Aboriginal Land Councils,
(b1) the provision of amounts from the New South Wales
Aboriginal Land Council Community Fund to Local
Aboriginal Land Councils on the basis of need so as to
increase resources and assets available for less advantaged
Local Aboriginal Land Councils,
[14] Section 116 Delegation by New South Wales Aboriginal Land Council
Insert ", the New South Wales Aboriginal Land Council Community Fund"
after "Account" in section 116 (1) (a).
Page 23
Aboriginal Land Rights Amendment Bill 2009
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
[15] Section 116 (1) (f1)
Insert after section 116 (1) (f):
(f1) approval under Division 4 of Part 2 of land dealings by
Local Aboriginal Land Councils,
[16] Section 149A
Insert after section 149:
149A NSW Aboriginal Land Council Community Fund
(1) The New South Wales Aboriginal Land Council is to establish in
an authorised deposit-taking institution an account named the
"New South Wales Aboriginal Land Council Community Fund"
into which is to be paid:
(a) amounts of community development levy, and
(b) additional amounts payable by the New South Wales
Aboriginal Land Council under section 42U, and
(c) any money paid to the New South Wales Aboriginal Land
Council for the purposes of the Fund, and
(d) any interest received in respect of the investment of money
belonging to the Fund, and
(e) any money directed to be paid into the Fund by or under
this or any other Act.
(2) There is payable from the Fund:
(a) money for grants to a Local Aboriginal Land Council for
the purpose of the management and acquisition of land,
and
(b) money for community benefit schemes for persons within
the area of a Local Aboriginal Land Council, and
(c) amounts of repayments of excess community development
levy paid by Local Aboriginal Land Councils, and
(d) amounts of excess payments made by the New South
Wales Aboriginal Land Council under section 42U, and
(e) any other payments authorised by or under this or any
other Act.
(3) In determining amounts to be paid from the Fund, the New South
Wales Aboriginal Land Council must have regard to any
applicable policy of the Council.
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Aboriginal Land Rights Amendment Bill 2009
Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
(4) Money to the credit of the account may be invested in any manner
in which the New South Wales Aboriginal Land Council Account
may be invested.
[17] Section 150 Preservation of money in NSW Aboriginal Land Council
Account
Insert after section 150 (2):
(3) For the purposes of subsection (1), any amount to the credit of the
New South Wales Aboriginal Land Council Community Fund is
to be taken into account for the purposes of determining the
capital value of the New South Wales Aboriginal Land Council
Account.
[18] Section 239A
Insert after section 239:
239A Compulsory mediation of land dealing application disputes
(1) This section applies to a dispute relating to a decision by the New
South Wales Aboriginal Land Council under Division 4 of Part 2
to approve or not to approve a land dealing.
(2) A Local Aboriginal Land Council must, if the Council proposes
to commence legal proceedings in relation to the dispute, refer
the dispute to the Registrar.
(3) The Registrar may, with the parties consent:
(a) attempt to resolve the dispute by mediation, conciliation or
arbitration, or
(b) refer the dispute to mediation, conciliation or arbitration
by an independent person.
[19] Section 242 Exclusion of personal liability
Insert after section 242 (1) (d):
(e) a person who is a member of an expert advisory panel
constituted under section 42I,
[20] Schedule 4 Savings, transitional and other provisions
Insert at the end of clause 1A (1):
Aboriginal Land Rights Amendment Act 2009
Page 25
Aboriginal Land Rights Amendment Bill 2009
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
[21] Schedule 4, Part 9
Insert after Part 8:
Part 9 Aboriginal Land Rights Amendment Act
2009
50 Definitions
(1) In this Part:
amending Act means the Aboriginal Land Rights Amendment
Act 2009.
existing land dealing means a land dealing that was approved by
the New South Wales Aboriginal Land Council before the
commencement of the new land dealing provisions.
existing registrable instrument means a registrable instrument
giving effect to or forming part of an existing land dealing.
former land dealing provisions means Division 4 of Part 2 of this
Act, as in force immediately before its substitution by the
amending Act.
new land dealing provisions means Division 4 of Part 2 of this
Act, as substituted by the amending Act.
(2) Words and expressions used in this Part have the same meaning
as they have in Divisions 4 and 4A of Part 2 of this Act, as
substituted by the amending Act.
51 Existing land dealings
(1) Except as provided by this Part, the new land dealing provisions
do not apply to or in respect of an existing registrable instrument
or to an existing land dealing.
(2) Except as provided by this clause and clause 52, the former land
dealing provisions continue to apply to an existing land dealing
and an existing registrable instrument.
(3) If the requirements of the former land dealing provisions were
not complied with in relation to a land dealing entered into before
the commencement of the new land dealing provisions, the new
land dealing provisions apply to that land dealing.
52 Registration approval provisions to apply to existing dealings
(1) This clause applies to an existing land dealing, other than a
dealing for which an existing registrable instrument was lodged
with the Registrar-General for registration or recording before
the commencement of the new land dealing provisions.
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Aboriginal Land Rights Amendment Bill 2009
Amendment of Aboriginal Land Rights Act 1983 No 42 Schedule 1
(2) Section 42M applies to a registrable instrument giving effect to
an existing land dealing.
(3) The Chief Executive Officer of the New South Wales Aboriginal
Land Council must give a registration approval certificate in
respect of an existing registrable instrument if the Chief
Executive Officer is satisfied that any conditions of the approval
by the New South Wales Aboriginal Land Council of the existing
land dealing have been met.
(4) A registration approval certificate given under subclause (3) is
taken to be a registration approval certificate for the purposes of
section 42M (2) (a).
(5) The regulations may make provision for or with respect to
applications for registration approval certificates under this
clause and the fees for the making of such applications.
53 Application of community development levy provisions to existing
land dealings
Division 4A of Part 2 does not apply to dutiable transactions for
existing land dealings.
Page 27
Aboriginal Land Rights Amendment Bill 2009
Schedule 2 Amendment of other Acts and instruments
Schedule 2 Amendment of other Acts and
instruments
2.1 Aboriginal Land Rights Regulation 2002
[1] Clause 6 Certificate relating to disposal of land
Omit the clause.
[2] Part 10
Insert after Part 9:
Part 10 Land dealings
Division 1 Approval of land dealings
101 Interpretation
(1) In this Part:
land dealing approval application means an application under
section 42F of the Act by a Local Aboriginal Land Council for
approval by the New South Wales Aboriginal Land Council of a
land dealing.
(2) Words and expressions in this Part have the same meaning as
they have in Divisions 4 and 4A of Part 2 of the Act.
102 Form of certificates
(1) For the purposes of sections 42D (2) and 42K (1) of the Act, the
prescribed form of a dealing approval certificate is Form 1 in
Schedule 6.
(2) For the purposes of sections 42D (3) and 42K (2) of the Act, the
prescribed form of a registration approval certificate is Form 2 in
Schedule 6.
103 Notice of meetings of LALCs
(1) For the purposes of section 42G (5) (a) of the Act, notice of a
meeting to approve a land dealing must be given not less than
7 clear days before the meeting.
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Aboriginal Land Rights Amendment Bill 2009
Amendment of other Acts and instruments Schedule 2
(2) The notice must:
(a) clearly identify the land subject to the dealing, and
(b) state the manner in which the land is to be dealt with, and
(c) state that at the meeting it is proposed to decide whether or
not to approve of the land dealing.
104 Applications for approval of land dealings
(1) A land dealing approval application is to be made in the form
approved by the New South Wales Aboriginal Land Council.
(2) An application must:
(a) identify the land affected by the proposed land dealing, and
(b) specify the manner in which the land is to be dealt with,
and
(c) set out any terms or conditions of the proposed dealing,
and
(d) be accompanied by a copy of the resolution of the Local
Aboriginal Land Council approving the dealing, and
(e) be accompanied by information and other material
establishing that the Local Aboriginal Land Council has
complied with the requirements of section 42G (5) of the
Act, and
(f) be accompanied by a valuation of the land prepared by a
registered valuer within the preceding 12 months, and
(g) be accompanied by the application fee.
105 Approval application fees
(1) For the purposes of section 42F (2) (c) of the Act, the fee for
making an application to the New South Wales Aboriginal Land
Council for approval of a land dealing is $250.
(2) No application fee is payable if the land dealing consists of a
development application.
106 Application assessment fees
(1) A Local Aboriginal Land Council must pay to the New South
Wales Aboriginal Land Council the assessment fee (if any)
determined by the New South Wales Aboriginal Land Council
for assessment of a land dealing approval application.
(2) The assessment fee is to be an amount that reflects the reasonable
costs incurred by the New South Wales Aboriginal Land Council
in assessing the land dealing approval application concerned,
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Aboriginal Land Rights Amendment Bill 2009
Schedule 2 Amendment of other Acts and instruments
including (but not limited to), the costs of any expert advisory
panel constituted for the purposes of assessing the application for
approval.
(3) The assessment fee must be paid:
(a) on or before the date, or on or after the occurrence of an
event, as required by the New South Wales Aboriginal
Land Council, or
(b) in accordance with arrangements agreed between the
Local Aboriginal Land Council and the New South Wales
Aboriginal Land Council.
(4) The New South Wales Aboriginal Land Council may, after an
application is made, require a Local Aboriginal Land Council to
give security (whether by way of deposit of money or otherwise)
for the payment of the assessment fee for an approval.
Note. A security in the form of a mortgage is a land dealing for which
compliance with the Act will be required.
(5) The New South Wales Aboriginal Land Council may waive the
payment by a Local Aboriginal Land Council of the whole or any
part of an assessment fee.
107 Application procedures
(1) The New South Wales Aboriginal Land Council must, as soon as
practicable after receiving a land dealing approval application,
notify the Local Aboriginal Land Council, in writing, of the
following:
(a) the manner in which it intends to assess the application and
whether or not the application, or any part of it, is to be
referred to an expert advisory panel,
(b) the assessment fee for the application, or the manner in
which the assessment fee is to be determined and an
estimate of the amount of the fee,
(c) the time within which, or the event on the occurrence of
which, the assessment fee is to be paid and any security for
payment required to be provided,
(d) the estimated time for determining the application,
(e) that the New South Wales Aboriginal Land Council is not
required to determine the application unless the Local
Aboriginal Land Council agrees to the proposed manner of
determination, fees and any security.
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Aboriginal Land Rights Amendment Bill 2009
Amendment of other Acts and instruments Schedule 2
(2) The New South Wales Aboriginal Land Council is not required
to assess a land dealing approval application, if notice has been
given in accordance with this clause in relation to the application,
unless:
(a) the application complies with section 42F (2) of the Act,
and
(b) the Local Aboriginal Land Council notifies the New South
Wales Aboriginal Land Council that it agrees to the
proposed manner of determination, fees and any security,
and
(c) any security required by the notice under subclause (1) has
been provided, and
(d) any assessment fee is paid in accordance with that notice
or it is satisfied that the fee will be paid in accordance with
that notice.
108 Register of members for expert advisory panels
(1) The New South Wales Aboriginal Land Council is to establish a
register of persons who may be appointed to expert advisory
panels.
(2) A person may be listed on the register if the person has expertise
in one or more of land valuation, property development,
planning, business, finance, corporate governance or aboriginal
heritage or culture or any other expertise that the New South
Wales Aboriginal Land Council considers relevant.
(3) The register is to be in the form determined by the New South
Wales Aboriginal Land Council.
(4) The register is to contain the following particulars:
(a) the name and contact address of each person on the
register,
(b) the area of expertise of each such person,
(c) any other particulars determined by the New South Wales
Aboriginal Land Council.
(5) The New South Wales Aboriginal Land Council may at any time
add the name of a person to or remove the name of a person from
the register.
(6) The New South Wales Aboriginal Land Council must, not less
than once every 12 months, forward a copy of the register to the
Minister.
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Aboriginal Land Rights Amendment Bill 2009
Schedule 2 Amendment of other Acts and instruments
(7) The New South Wales Aboriginal Land Council must, if the
name of a person is added to or removed from the register,
forward a copy of the revised register to the Minister.
(8) The New South Wales Aboriginal Land Council must ensure that
the register is made publicly available.
109 Expert advisory panels
(1) The New South Wales Aboriginal Land Council may constitute
an expert advisory panel to assess a land dealing approval
application, or any part or aspect of an application, if:
(a) it is of the opinion that it is appropriate to do so and
clause 107 has been complied with, or
(b) at the request of the Local Aboriginal Land Council
seeking approval of the land dealing concerned.
(2) A panel may consider one or more land dealing approval
applications.
(3) A panel is to determine the procedure for the calling of any
meetings held by it and for the conduct of business at those
meetings.
(4) A panel is to consist of one or more members selected from the
persons listed on the register established under this Division, as
determined by the New South Wales Aboriginal Land Council.
(5) A member of an expert advisory panel is entitled to be paid such
remuneration (including travelling and subsistence allowances)
as the New South Wales Aboriginal Land Council may from time
to time determine in respect of the member.
(6) The New South Wales Aboriginal Land Council may at any time
and for any or no reason remove a member of an expert advisory
panel from office.
110 Assessments and reports by expert advisory panels
(1) For the purposes of an assessment, an expert advisory panel must
review any material provided to the New South Wales Aboriginal
Land Council by the Local Aboriginal Land Council relating to
the relevant land dealing approval application and any other
material provided to the panel by the New South Wales
Aboriginal Land Council.
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Aboriginal Land Rights Amendment Bill 2009
Amendment of other Acts and instruments Schedule 2
(2) A panel may, at the request of the New South Wales Aboriginal
Land Council, consider whether the proposed land dealing is, or
is likely to be, contrary to the interests of the members of the
Local Aboriginal Land Council concerned or other Aboriginal
persons within the area of the Council.
(3) An expert advisory panel may, if requested to do so by the New
South Wales Aboriginal Land Council, include in a report to the
Council a recommendation as to whether the proposed land
dealing approval application should be approved and a
recommendation as to conditions that may be imposed on any
approval.
(4) A panel must submit a report to the New South Wales Aboriginal
Land Council within the time required by the Council.
111 Pecuniary interests in land dealings
(1) A member of an expert advisory panel who has a pecuniary
interest in a matter being assessed by the panel must disclose the
nature of the interest to the New South Wales Aboriginal Land
Council as soon as practicable.
(2) A person who has, or who discloses, a pecuniary interest in a
matter is not eligible to be appointed to, or to remain as a member
of, an expert advisory panel assessing the matter.
(3) Words and expressions used in this clause have the same
meaning as they have in Part 10 of the Act.
112 Effect of other Acts on appointment to panel
(1) Chapter 2 of the Public Sector Employment and Management
Act 2002 does not apply to or in respect of the appointment of a
member of an expert advisory panel.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that
office, or
(b) prohibiting the person from engaging in employment
outside the duties of that office,
the provision does not operate to disqualify the person from
holding that office and also the office of a member of an expert
advisory panel or from accepting and retaining any remuneration
payable to the person under this Regulation as such a member.
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Aboriginal Land Rights Amendment Bill 2009
Schedule 2 Amendment of other Acts and instruments
Division 2 Community development levy and New
South Wales Aboriginal Land Council
Community Development Fund
113 Amount of community development levy
(1) For the purposes of determining the amount of the community
development levy, the prescribed percentage (if any) of the duty
payable under the Duties Act 1997 for a dutiable transaction is the
percentage set out in Schedule 6A.
Note. The general rate of duty for dutiable transactions is set out in
section 32 of the Duties Act 1997 and the premium rates for other land
and property are set out in sections 32A32C of that Act.
(2) The community development levy is not payable for a dutiable
transaction if the dutiable value of the land concerned is $80,000
or less.
114 Periods within which community development levy payable
(1) A tax default does not occur for the purposes of the Taxation
Administration Act 1996 if the community development levy is
paid within the lodgment period for the levy.
(2) The lodgment period for the community development levy is:
(a) in the case of an agreement for sale or transfer of land for
consideration, and any transfer in completion of such an
agreement, the period commencing when the liability for
community development levy first arises and ending on the
settlement of the agreement or transfer, and
(b) in any other case, the period commencing when a liability
for the community development levy first arises and
ending 3 months after the liability for the levy first arises.
115 Application of Duties Act 1997
(1) Sections 1518, 25 and 31 of the Duties Act 1997 apply, with any
necessary modifications, in respect of the community
development levy for a dutiable transaction in the same way as
they apply in respect of duty under that Act for a dutiable
transaction.
(2) Part 1 of Chapter 12 of the Duties Act 1997 applies, with any
necessary modifications, in respect of the payment of the
community development levy and instruments associated with
dutiable transactions for which the levy is payable, in the same
way as it applies to the payment of duty and instruments
associated with dutiable transactions.
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Aboriginal Land Rights Amendment Bill 2009
Amendment of other Acts and instruments Schedule 2
116 Interim payment of duty
(1) If the full dutiable value of land subject to an agreement for sale
or transfer cannot, in the Chief Commissioner's opinion, be
immediately ascertained, the Chief Commissioner may make an
assessment by way of estimate under section 11 (2) of the
Taxation Administration Act 1996.
(2) A written instrument effecting or evidencing the sale or transfer
may be stamped "interim stamp" only.
[3] Part 10 Miscellaneous
Renumber existing Part 10 as Part 11 and renumber clauses 101103 as
clauses 117120, respectively, with cross references in the Regulation
renumbered accordingly.
[4] Schedules 6 and 6A
Insert after Schedule 5:
Schedule 6 Forms
(Clause 102)
Form 1 Dealing Approval Certificate
(Sections 42D (2) and 42K (1) of the Aboriginal Land Rights Act 1983)
I [name] Chief Executive Officer of the New South Wales Aboriginal Land Council
certify that this Dealing Approval Certificate is given on [date] and:
(a) authorises a land dealing being [type of land dealing] by [name the Aboriginal
Land Council] with [name other parties] relating to land being [enter title
reference] as approved by a resolution of the New South Wales Aboriginal
Land Council at [meeting number] held on [insert date], and
(b) is given subject to the land dealing complying with the following conditions
[specify any conditions].
[signature]
....................
Signed on behalf of the New South Wales
Aboriginal Land Council by the Chief
Executive Officer of the New South Wales
Aboriginal Land Council pursuant to the
Aboriginal Land Rights Act 1983
[witness]
....................
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Aboriginal Land Rights Amendment Bill 2009
Schedule 2 Amendment of other Acts and instruments
[name of witness]
....................
[address of witness]
....................
Form 2 Registration Approval Certificate
(Sections 42D (3) and 42K (2) of the Aboriginal Land Rights Act 1983)
I [name] Chief Executive Officer of the New South Wales Aboriginal Land Council
certify that this Registration Approval Certificate is given on [date] and authorises the
registration of dealing type [Transfer, mortgage, easement, Deposited Plan etc] by
[name the Aboriginal Land Council] to [name other parties] relating to land being
[enter title details] and that the [dealing type] does not contravene the Aboriginal Land
Rights Act 1983.
[signature]
....................
Signed on behalf of the New South Wales
Aboriginal Land Council by the Chief
Executive Officer of the New South Wales
Aboriginal Land Council pursuant to the
Aboriginal Land Rights Act 1983
[witness]
....................
[name of witness]
....................
[address of witness]
....................
Schedule 6A Community development levy
(Clause 113)
Amount of community development levy payable in respect of dutiable
transactions
Dutiable value of land Amount of community
development levy
More than $80,000 but not more 100% of amount of duty
than $1,000,000
More than $1,000,000 150% of amount of duty
Page 36
Aboriginal Land Rights Amendment Bill 2009
Amendment of other Acts and instruments Schedule 2
2.2 Environmental Planning and Assessment Act 1979 No 203
[1] Section 75Z Regulations for purposes of Part
Insert at the end of section 75Z (d):
, and
(e) requiring the New South Wales Aboriginal Land Council
to consent to applications for approvals under this Part on
land owned by Local Aboriginal Land Councils, if the
consent of the Local Aboriginal Land Council concerned
is required as owner of the land.
[2] Section 105 Regulations--Part 4
Insert after section 105 (1) (c):
(c1) requiring the New South Wales Aboriginal Land Council
to consent to applications for the modification of
development consents relating to land owned by Local
Aboriginal Land Councils,
[3] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Aboriginal Land Rights Amendment Act 2009
2.3 Environmental Planning and Assessment Regulation 2000
[1] Clause 8F Owner's consent or notification
Insert after clause 8F (1):
(1A) The consent of the New South Wales Aboriginal Land Council is
required for a project application relating to land owned by a
Local Aboriginal Land Council if the consent of the Local
Aboriginal Land Council is required as owner of the land to the
project application.
[2] Clause 49 Who can make a development application?
Insert after clause 49 (3):
(3A) Despite subclause (1), a development application made in respect
of land owned by a Local Aboriginal Land Council may be made
by a person referred to in that subclause only with the consent of
the New South Wales Aboriginal Land Council.
Page 37
Aboriginal Land Rights Amendment Bill 2009
Schedule 2 Amendment of other Acts and instruments
[3] Clause 100 Notice of determination
Insert after clause 100 (6):
(7) For the purposes of section 81 (1) of the Act, a notice of the
determination of a development application relating to land
owned by a Local Aboriginal Land Council must also be given to
the New South Wales Aboriginal Land Council.
[4] Clause 115 What are the requirements for an application for modification
of a development consent?
Insert after clause 115 (1D):
(1E) An application for modification of a development consent under
section 96 (1), (1A) or (2) or 96AA (1) of the Act relating to land
owned by a Local Aboriginal Land Council may be made only
with the consent of the New South Wales Aboriginal Land
Council.
[5] Clause 122 Notice of determination of application to modify
development consent
Insert after clause 122 (2):
(3) If an application for the modification of a development consent
applies to land owned by a Local Aboriginal Land Council,
notice under subclause (1) must also be given to the New South
Wales Aboriginal Land Council.
2.4 National Parks and Wildlife Act 1974 No 80
Section 69B Conservation agreements
Insert after section 69B (3):
(4) The Minister must not enter into a conservation agreement for
land owned by a Local Aboriginal Land Council except with the
consent of the New South Wales Aboriginal Land Council.
Page 38
Aboriginal Land Rights Amendment Bill 2009
Amendment of other Acts and instruments Schedule 2
2.5 Taxation Administration Act 1996 No 97
[1] Section 5A
Insert after section 5:
5A Application of Act to community development levy
(1) For the purpose of the administration and enforcement of the
scheme for the levying and payment of the community
development levy under the Aboriginal Land Rights Act 1983,
Division 4A of Part 2 of that Act and any regulations made under
that Division, are taken to be a taxation law.
(2) To avoid doubt, amounts payable for the community
development levy under that Act are taxes for the purposes of this
Act (other than Part 4).
[2] Schedule 1 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Aboriginal Land Rights Amendment Act 2009
2.6 Threatened Species Conservation Act 1995 No 101
[1] Section 127F General provisions relating to biobanking agreements
Insert at the end of section 127F (1) (f):
, and
(g) where the land is owned by a Local Aboriginal Land
Council, the New South Wales Aboriginal Land Council
has consented in writing to the agreement.
[2] Section 127O Transfer of land to Minister
Insert after section 127O (2):
(2A) Notice of the application must also be served on the New South
Wales Aboriginal Land Council if the owner of the land is a Local
Aboriginal Land Council.
Page 39
Aboriginal Land Rights Amendment Bill 2009
Schedule 2 Amendment of other Acts and instruments
2.7 Wilderness Act 1987 No 196
Section 10 Wilderness protection agreements
Insert after section 10 (2):
(2A) The Minister must not enter into a wilderness protection
agreement relating to land owned by a Local Aboriginal Land
Council unless the New South Wales Aboriginal Land Council
has consented in writing to the agreement.
Page 40
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