Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Aboriginal Land Rights Act 1983 (the
Principal Act) as follows:

(a) to require all dealings with land (other than acquisition of land) by the New
South Wales Aboriginal Land Council (the NSWALC) to be consistent with
its community, land and business plan and any applicable policies of the
NSWALC,

(b) to require all dealings with land (other than acquisition of land) by a Local
Aboriginal Land Council (a LALC) to be approved by the NSWALC,

(c) to specify procedures and requirements for approvals by the NSWALC of land
dealings and to provide for assessment of land dealings by expert advisory
panels,

(d) to prohibit registration of land dealings by Aboriginal Land Councils under the
Real Property Act 1900 unless the registration application is accompanied by
a registration approval certificate,

(e) to provide for a system of registration prohibition notices to enforce
agreements implementing conditions of approvals of land dealings,

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Aboriginal Land Rights Amendment Bill 2009
Explanatory note

(f) to provide for a community development levy to be paid by LALCs on
dealings with land and for the collection, use and payment of the proceeds of
that levy and to provide for matching payments to be made by the NSWALC,

(g) to re-enact certain provisions relating to land dealings,

(h) to prohibit the NSWALC from delegating its land dealing approval functions,
        (i) to make other minor and consequential amendments,

(j) to enable regulations to be made as a consequence of the enactment of the
proposed Act and to insert a transitional provision.

The proposed Act also makes related amendments to other Acts and regulations.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
proclaimed.

Schedule 1 Amendment of Aboriginal Land Rights
Act 1983 No 42
Schedule 1 [3] repeals Division 4 of Part 2 of the Principal Act and inserts proposed
Divisions 4 (proposed sections 40–42P) and 4A (proposed sections 42Q–42X).

Proposed Division 4
Proposed section 40 defines words and expressions used in the proposed Divisions.

Deal with land means sell, exchange, lease, mortgage, dispose of or otherwise create
or pass a legal or equitable interest in land, grant or release an easement or covenant
over land, enter into agreements under certain Acts, subdivide or consolidate land,
make a development application and do any other action relating to land that is
prescribed by the regulations.

Proposed section 41 defines dealing approval certificate and registration approval
certificate and makes a dealing approval certificate conclusive evidence of the
matters specified in it. A dealing approval certificate is a certificate by the Chief
Executive Officer of the NSWALC that a land dealing by the NSWALC complies
with the proposed Division or that a land dealing by a LALC has been approved by
the NSWALC. A registration approval certificate is a certificate by the Chief
Executive Officer that a registrable instrument (relating to a land dealing by the
NSWALC or a LALC) can be registered or recorded under the Real Property
Act 1900 or that a plan or other instrument can be registered under the Conveyancing
Act 1919.

Proposed sections 42–42B re-enact, with minor variations, sections 40AA, 40AB
and 42 of the Principal Act.

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Aboriginal Land Rights Amendment Bill 2009
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Proposed section 42C provides that a dealing with land by an Aboriginal Land
Council that contravenes proposed section 42D or 42E is void. The provision is in
addition to the requirements of or under any other Act or law in relation to a land
dealing.

Proposed section 42D prohibits the NSWALC from dealing with land unless it has
notified the LALC for the area in which the land is situated of the proposed dealing
and considered any comments by the LALC. It also requires the NSWALC not to
deal with land unless it has had regard to its community, land and business plan and
any applicable policies. The Chief Executive Officer of the NSWALC must give a
dealing approval certificate if satisfied that the NSWALC has complied with the
proposed Division in relation to a land dealing and must also give a registration
approval certificate for a registrable instrument if satisfied that the instrument is a
registrable instrument relating to such a dealing. Leases for periods of less than
3 years will not be subject to the proposed section.

Proposed section 42E prohibits a LALC from dealing with land except in accordance
with an approval by the NSWALC. Leases for periods of less than 3 years (other than
certain social housing management leases) will not be subject to the proposed
section. The proposed section also provides that an agreement by a LALC to deal
with land is, if the land dealing has not been approved (if required), unenforceable
against the LALC.

Proposed section 42F sets out requirements for applications for approval of LALC
land dealings by the NSWALC and also contains the power to make regulations
about assessment fees and other related matters.

Proposed section 42G sets out requirements for approval of LALC land dealings by
the NSWALC. The NSWALC must approve the dealing if it is approved at a meeting
of the LALC that complies with the proposed section and the application is in
accordance with the proposed Act. However, the NSWALC may refuse to approve a
land dealing if it is of the opinion that the land dealing is, or is likely to be, contrary
to the interests of LALC members or other Aboriginal persons within the area of the
LALC. The proposed section requires any conditions of approval to be able to be
satisfied before completion of the land dealing but also enables a condition requiring
an agreement relating to ongoing obligations to be entered into.

Proposed section 42H requires the NSWALC to give a LALC a written statement of
reasons for a decision to refuse approval of a land dealing or to impose conditions on
a land dealing within 28 days after the LALC requests such a statement.

Proposed section 42I enables the NSWALC to constitute expert advisory panels to
assess applications for approvals of dealings with land.

Proposed section 42J prohibits the NSWALC from revoking a land dealing approval
if the land dealing has been completed (whether or not it is required to be, or has
been, registered). It also provides that the relevant approval certificates cease to have
effect on revocation of the approval.

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Aboriginal Land Rights Amendment Bill 2009
Explanatory note
Proposed section 42K requires the Chief Executive Officer of the NSWALC to give
a dealing approval certificate for a LALC land dealing within 14 days after it is
approved by the NSWALC. It also requires a registration approval certificate to be
given for a LALC land dealing if the Chief Executive Officer is satisfied that the
instrument concerned is a registrable instrument, that any conditions of the
NSWALC approval have been met and that any community development levy has
been paid.

Proposed section 42L limits the right to bring proceedings in relation to a decision to
approve or not to approve a land dealing, under the Land and Environment Court
Act 1979 or for judicial review in any other court, to the LALC concerned.

Proposed section 42M prohibits the Registrar-General from registering or recording
a transfer or other dealing relating to land of an Aboriginal Land Council unless the
transfer or dealing is accompanied by a registration approval certificate relating to
the transfer or dealing or is not required to have such a certificate. A registration or
recording prohibited by the proposed section will have no effect.

Proposed section 42N provides for agreements entered into in accordance with a
condition imposed by an approval by the NSWALC of a land dealing (a land dealing
approval agreement) to be registered on the title of land under the Real Property
Act 1900 or in the General Register of Deeds (in the case of old system title land).

The effect of registration of an agreement will be to make the agreement binding on
the successors in title to the owner who entered the agreement.

Proposed sections 42O and 42P establish a system of registration prohibition notices
for land subject to a land dealing approval agreement. The NSWALC may lodge a
registration prohibition notice with the Registrar-General for recording on the title of
land that is subject to a land dealing approval agreement. Notice must be given to the
registered proprietors of estates or interests in the land. The Registrar-General is
prohibited from registering or recording a land dealing that is prohibited by a
registration prohibition notice, except with the consent of the NSWALC. The
NSWALC must not refuse consent if the dealing is permitted by the agreement or
does not materially affect its performance or enforcement.

Proposed Division 4A
Proposed section 42Q provides that words and expressions used in the proposed
Division have the same meaning as they have in the Duties Act 1997.

Proposed section 42R requires a LALC to pay a community development levy on
specified dealings with land and enables related regulations to be made.

Proposed section 42S provides that the community development levy is not payable
for transactions between Aboriginal Land Councils.

Proposed section 42T provides that the amount of the community development levy
for a transaction is to be the prescribed percentage (if any) of the amount of duty
payable for the transaction.

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Proposed section 42U provides for the payment to the NSWALC of the amounts of
community development levy collected by the Chief Commissioner of State
Revenue, as agreed with the Chief Commissioner, and also requires the NSWALC to
match the payments of community development levy made by LALCs.

Proposed section 42V enables the Minister to waive matching payments by the
NSWALC in appropriate circumstances.

Proposed section 42W enables regulations to be made with respect to the application
of provisions of the Duties Act 1997 in respect of the community development levy
and other matters related to the levy.

Proposed section 42X provides that the proposed Division is to be read together with
the Taxation Administration Act 1996 (other than Part 4 of that Act).

Schedule 1 [1], [2], [6] and [8] make amendments consequential on the amendment
made by Schedule 1 [3].

Schedule 1 [4] and [11] amend sections 52 and 106 of the Principal Act to insert
notes relating to the powers of LALCs and the NSWALC as statutory corporations.

Schedule 1 [5] inserts proposed section 52AA into the Principal Act. The proposed
section re-enacts existing section 41 in relation to LALCs.

Schedule 1 [7] amends section 52G of the Principal Act to require a LALC to
exercise its function of approving a land dealing by resolution of its voting members.

Schedule 1 [9] amends section 106 of the Principal Act to include the function of
approving land dealings by LALCs in the list of functions of the NSWALC.

Schedule 1 [12] inserts proposed section 106A into the Principal Act. The proposed
section re-enacts existing section 41 in relation to the NSWALC.

Schedule 1 [13] amends section 113 of the Principal Act to enable policies to be
made by the NSWALC in relation to land dealings by LALCs and in relation to the
distribution of amounts from the New South Wales Aboriginal Land Council
Community Fund.

Schedule 1 [14] amends section 116 of the Principal Act to prevent the NSWALC
from delegating functions relating to the administration of the New South Wales
Aboriginal Land Council Community Fund established under proposed section 149A
(see Schedule 1 [16]).

Schedule 1 [15] amends section 116 of the Principal Act to add approval of land
dealings by LALCs to the list of functions that may not be delegated by the
NSWALC.

Schedule 1 [16] inserts proposed section 149A into the Principal Act. The proposed
section establishes the New South Wales Aboriginal Land Council Community
Fund, into which payments of community development levy are to be paid. The Fund
is to be used for the management and acquisition of land by LALCs and for

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community benefit schemes by LALCs and other purposes. Schedule 1 [10] makes
a consequential amendment.

Schedule 1 [17] amends section 150 of the Principal Act to enable amounts in the
New South Wales Aboriginal Land Council Community Fund to be taken into
account when determining the capital value of the New South Wales Aboriginal
Land Council Account.

Schedule 1 [18] inserts proposed section 239A into the Principal Act. The proposed
section requires a dispute relating to a decision to approve or not to approve a land
dealing to be referred to the Registrar for mediation, conciliation or arbitration if an
Aboriginal Land Council proposes to commence legal proceedings.

Schedule 1 [19] amends section 242 of the Principal Act to add members of expert
advisory panels to the persons who are protected under that section from personal
liability for acts or omissions done in good faith for the purpose of executing that Act
or any other Act.

Schedule 1 [20] amends Schedule 4 to the Principal Act to enable regulations
containing provisions of a savings or transitional nature to be made as a consequence
of the enactment of the proposed Act.

Schedule 1 [21] inserts savings and transitional provisions into Schedule 4 to the
Principal Act.

Schedule 2 Amendment of other Acts and
instruments
Schedule 2.1 amends the Aboriginal Land Rights Regulation 2002 to insert proposed
Part 10 (Land Dealings) and to make other consequential amendments. The proposed
Part:

(a) prescribes the forms for dealing approval certificates and registration approval
certificates, and

(b) prescribes requirements for land dealing approval applications and the fees for
applications and assessment of applications, and

(c) prescribes the procedures for dealing with applications, including the
circumstances when the NSWALC is not required to assess a land dealing
approval application, and

(d) contains provisions relating to expert advisory panels, and

(e) contains provisions relating to the community development levy, including the
amount of the levy and periods for payment, as well as making provision for
the application of specified provisions of the Duties Act 1997 and interim
assessments of liability.

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Aboriginal Land Rights Amendment Bill 2009
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Schedule 2.2 amends the Environmental Planning and Assessment Act 1979 to
enable regulations to be made:

(a) requiring the NSWALC to consent to applications for approval of Part 3A
projects relating to LALC land if LALC approval is required as the owner of
land, and

(b) requiring the NSWALC to consent to applications for the modification of
development consents relating to such land, and

(c) enables regulations containing savings and transitional provisions to be made.

Schedule 2.3 amends the Environmental Planning and Assessment Regulation 2000
to:

(a) require the consent of the NSWALC to a Part 3A project relating to LALC
land if the consent of the LALC is required, and

(b) require the consent of the NSWALC to a development application made in
respect of such land, and

(c) require notice of determination of a development application, or an application
to modify a development consent, for such land to be given to the NSWALC,
and

(d) require the consent of the NSWALC to an application for the modification of
development consents relating to such land.

Schedule 2.4 amends the National Parks and Wildlife Act 1974 to require the consent
of the NSWALC to a conservation agreement under that Act relating to LALC land.

Schedule 2.5 amends the Taxation Administration Act 1996 to provide for the
provisions of that Act (which apply to the collection of taxes) to apply to the
community development levy.

Schedule 2.6 amends the Threatened Species Conservation Act 1995 to require the
consent of the NSWALC to a biobanking agreement under that Act relating to LALC
land and for notice to be served on the NSWALC of any application to transfer LALC
land to the Minister on the ground of a contravention of a biobanking agreement.

Schedule 2.7 amends the Wilderness Act 1987 to require the consent of the
NSWALC to a wilderness protection agreement under that Act relating to LALC
land.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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