LOCAL GOVERNMENT AND OTHER LEGISLATION (INDIGENOUS REGIONAL COUNCILS) AMENDMENT BILL 2007 Explanatory Notes
LOCAL GOVERNMENT AND OTHER LEGISLATION (INDIGENOUS REGIONAL COUNCILS) AMENDMENT BILL 2007
1
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Local Government and Other Legislation
(Indigenous Regional Councils)
Amendment Bill 2007
Explanatory Notes
Introduction
The Local Government and Other Legislation (Indigenous Regional
Councils) Amendment Bill 2007 (the Bill) will ensure governance in the
Torres Strait and Northern Peninsula areas is conducted in an effective,
efficient and accountable manner. It will bring the new Torres Strait Island
Regional Council (TSIRC) and the Northern Peninsula Area Regional
Council (NPARC) in line, as far as practicable, with other councils already
operating fully under the Local Government Act 1993 (LGA) while
providing specific provisions to recognise the unique Torres Strait Island
customs and Aboriginal traditions and practices of the two areas.
In October 2005, a Green Paper titled Torres Strait Community
Government Review (the Green Paper) was released to seek input from
stakeholders on the review of governance arrangements for the Torres Strait
Islands. A key focus was how to transition the Torres Strait Island
arrangements from the Community Services (Torres Strait) Act 1984
(Torres Strait Act) to the LGA.
In April 2007, a White Paper titled Community Government in the Torres
Strait: the way forward (the White Paper) was released, which proposed
both governance and structural changes needed to ensure the sustainability
of Torres Strait Island governance. The White Paper acknowledged that a
number of reviews had been undertaken and had revealed concerns about:
council workload and capacity to meet community needs; deficiencies in
corporate governance and accountability; and a perceived lack of alignment
between current arrangements and the unique challenges facing Torres
Strait communities.
On 27 July 2007, the Report of the Local Government Reform Commission
(the Report) was released. The Report endorsed a governance structure
tailored for TSIRC and NPARC, based on the proposals in the White Paper.
The Report also made eight recommendations specific to Aboriginal and
2
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Torres Strait Island local government, including the establishment of
TSIRC and NPARC.
The Local Government Reform Implementation Act 2007 (the Reform Act)
gave effect to the Report's recommendation for the establishment of TSIRC
and NPARC, which will be formed on the changeover day after the local
government elections.
This Bill will provide the governance framework for TSIRC and NPARC in
a new part in the LGA for indigenous regional councils. The LGA will
apply to TSIRC and NPARC, except to the extent provided in the new part,
in recognition of the unique circumstances of these two new indigenous
regional councils.
TSIRC will be comprised of 15 divisions and a mayor (replacing 15 of the
existing 17 Torres Strait Island councils), and NPARC will be comprised of
five divisions and a mayor (replacing two mainland Torres Strait Island
Councils - namely Bamaga and Seisia - and the three Aboriginal Councils
of Injinoo, New Mapoon and Umagico).
The Bill will also move the three Aboriginal Councils that will form part of
NPARC from the auspices of the Local Government (Community
Government Areas) Act 2004 (Community Government Areas Act) to full
operation under the LGA; repeal the Torres Strait Act, as the municipal
components will be largely redundant; and abolish the Island Court
existing under the Torres Strait Act, as it has been replaced with Justices of
the Peace (Magistrates Courts).
Additionally, the Bill will transfer the remaining provisions of the Torres
Strait Act, which concern community justice groups, alcohol management,
community policing and entry upon public areas, to the Aboriginal
Communities (Justice and Land) Matters Act 1984, which will be renamed
the Aboriginal and Torres Strait Island Communities (Justice, Land and
Other Matters) Act 1984. The Bill will also make consequential
amendments to other statutes resulting from the Reform Act, and
remaining amendments required to give effect to the recommendations of
the Commission.
The Bill will also make amendments to the Bail Act 1980, Criminal Code,
Penalties and Sentences Act 1992 and Juvenile Justice Act 1992 to ensure
appropriate protections and obligations exist for members of community
justice groups who make submissions about the bail and sentencing of
Indigenous offenders in their community. These amendments implement
3
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
the Government's response to the recommendations made in the Report on
the Review of the Murri Court (December 2006).
Amendments are included to section 35 of the Justice of the Peace and
Commissioners for Declarations Act 1991 to clarify that a daily sitting fee
may be paid to Justices of the Peace (Magistrates Courts) when they
constitute Magistrates Courts in remote Indigenous communities.
Short title of the Bill
The short title of the Bill is the Local Government and Other Legislation
(Indigenous Regional Councils) Amendment Bill 2007.
Objectives of the Bill
The policy objectives of the Bill are to provide the governance framework
for the new regional councils - TSIRC and NPARC (indigenous regional
councils) as established under the Reform Act. This legislation, which
commenced on 10 August 2007, followed the July 2007 release of the
Report.
The Reform Act did not provide for the new indigenous regional council's
governance framework, due to the need for new land tenure and trusteeship
arrangements to be developed to accommodate the new structure and the
need for consultation to occur in the development of these arrangements.
This Bill will apply the LGA to the new indigenous regional councils,
except to the extent provided for in a specific new part, in recognition of
the unique circumstances of these two new regional councils.
The Bill also makes consequential amendments to other statutes resulting
from the Reform Act, as well as further amendments to facilitate the
operation of the Reform Act.
Policy rationale
The Bill is essential to the successful conduct of the March 2008 local
government elections and to provide the governance framework for TSIRC
and NPARC to ensure that after the local government elections, systems
and procedures will be in place to ensure a smooth transition to a more
accountable, transparent and efficient system of regional local government
for the Torres Strait Island and Northern Peninsula areas.
4
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
How objectives are achieved
The objectives of providing the governance framework for TSIRC and
NPARC will be achieved by the following:
1. Providing for the membership of TSIRC and NPARC.
Each indigenous regional council will be headed by an elected mayor and
an appointed chief executive. The other members of the indigenous
regional council will be representatives of each community or division as
defined by the Reform Act.
2. Outlining the capacity of TSIRC and NPARC
The new regional councils will have the same capacity as other councils
under the LGA to establish community boards and standing committees but
not local service committees as provided for under the Community
Government Areas Act.
3. Providing requirements for candidates for election to TSIRC and
NPARC
The requirements of a candidate for election to TSIRC to be an Aborigine
or Torres Strait Islander and having resided in the area for two years will be
retained in accordance with community wishes expressed during
consultation.
In recognition of the unique cultural composition of NPARC, the LGA
requirements that already apply to the three Aboriginal councils within
NPARC will apply to the whole of NPARC (i.e. no requirement to be an
Aborigine or Torres Strait Islander, but to have resided in the area for at
least one month, the period required under the Electoral Act 1993). One
set of criteria for each indigenous regional council is necessary for the
successful conduct of elections.
4. Providing for the appointment of financial controllers
The provisions of the LGA for the appointment of financial controllers and
administrators will apply to TSIRC and NPARC. However, the additional
provisions giving the power for a financial controller to revoke, suspend or
end a council resolution will continue for TSIRC and NPARC for
operational convenience.
5. Establishing regional council meeting practices and procedures
TSIRC and NPARC will be required to meet monthly and notice of these
meetings will be required to be given at least four days before the meeting
5
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
in recognition of the remoteness of the Torres Strait region and to
accommodate the transportation challenges of the region.
6. Discontinuing loans to individuals
In recognition that the findings of successive reports of the Auditor-
General have highlighted that the repayment of loans continues to be an
issue, the current practice of council providing loans to individuals will
cease. This provision will apply to all councils.
7. Maintaining the status quo for land access
The current provisions for rights of access to, and residence on, land for
Torres Strait Islanders and Aborigines will be preserved.
8. Facilitating a new land tenure model
TSIRC and NPARC will be appointed as trustees of any land held as a deed
of grant in trust (DOGIT) and some contiguous land. It should be noted
that these are separate trusts (i.e. TSIRC will have responsibility for
fourteen separate DOGITS, noting the Reserve is held in trust to the
Department of Communities for Mer Island). They will effectively manage
these lands and any assets upon the land. The regional councils will hold
separate, public meetings, in their role as trustees, when making decisions
about these lands.
9. Establishing community forums
To recognise and protect the unique Torres Strait Island customs and
Aboriginal culture and traditions, it will be a requirement for each
community/division to have a community forum. The community forum
will be comprised of the councillor, three to seven elected community
members, and a convenor. The community forums will perform distinct
advisory roles to TSIRC or NPARC in the capacity of a community forum
and a land panel. The community forums will hold meetings to consider
general community or cultural matters and separate meetings to consider
land trustee matters.
Community forum function - non land matters
The role of the community forums in matters not relating to land will be to
provide advice to TSIRC and NPARC on matters relating to Torres Strait
Islander customs and Aboriginal culture and traditions and on local service
delivery, planning and performance.
6
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Land panel function of the community forum
The role of the community forums in their capacity as a land panels will be
to provide advice to TSIRC and NPARC on land matters. The indigenous
regional councils will be required to consider this advice and if the council
decision on a land matter is not consistent with the advice of the land panel,
the reason(s) must be provided to the land panel.
10. Facilitating the transfer of enterprises and services
All existing enterprises and services will be transferred to TSIRC and
NPARC on a transitional basis and revenue will be quarantined for the use
by respective divisions/communities but be managed centrally by TSIRC
and NPARC.
11. Facilitating the transfer of social housing
TSIRC and NPARC will assume responsibility for social housing within
the communities on the same basis as enterprises and services.
12. Ensuring the transfer of assets and liabilities
The assets and liabilities of the abolished councils will be transferred to
TSIRC and NPARC, effectively creating two regional bodies responsible
for the financial management of each regional council's assets under the
Local Government Finance Standard 2005.
13. Abolishing the Island Coordinating Council
The Island Coordinating Council is currently the peak body for the
seventeen Island Councils and it will be abolished after TSIRC and
NPARC are established. Its assets will be allocated accordingly as provided
for in a regulation.
Alternative method of achieving the policy objectives
There are no alternatives to the proposed legislation that will achieve the
desired policy objectives.
Estimated cost for Government implementation
To assist in transitioning from existing arrangements, TSIRC has been
allocated $720,000 in pre-election funding and $675,000 in post-election
funding. NPARC has been allocated $320,000 in pre-election funding and
$675,000 in post-election funding.
7
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Consistency with Fundamental Legislative Principles
The Bill has been drafted with regard to fundamental legislative principles
as defined in section 4 of the Legislative Standards Act 1992.
Consultation
The Green Paper - Torres Strait Community Government Review, released
in October 2005, was used as the basis for extensive community
consultation throughout 2005 and 2006 on the legislative framework under
which Torres Strait Island councils operate. This process was conducted in
collaboration with a reference group nominated by the Island Coordinating
Council.
The White Paper - Community Government in the Torres Strait: the way
forward, which was released in early 2007, formed the basis of the
Commission's consultation with the affected communities.
In August 2007, the former Minister for Local Government, Planning and
Sport visited the Torres Strait region to discuss key policy considerations of
the reform process and made a commitment to further consultation.
On 5-7 September 2007, representatives of the existing Torres Strait Island
and Northern Peninsula Aboriginal councils were consulted on the
proposed legislative model, land tenure model and the proposal for
Community Boards.
In June 2007, the Torres Strait Governance Review Steering Committee
(Steering Committee) was established by the Department and has met six
times (24/07/07, 16/08/07, 04/09/07, 25/09/07, 10/10/07, 16/10/07). It
comprises representatives of the key Government departments that have a
strategic role in the reform of local government in the Torres Strait and
Northern Peninsula areas including:
· The Department of the Premier and Cabinet;
· The Department of Natural Resources and Water;
· The Department of Justice and the Attorney-General;
· The Department of Communities; and
· The Department of Housing.
The Local Government Reform Taskforce (LGRT), State Transition
Committee (STC) and Indigenous Sub Committee (ISC), which were
8
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
established as part of the local government reform process, were consulted
on the key policy issues.
The CEO Committee - A Modern Federation has also been consulted on
the policy proposals.
On 23 September 2007, the Honourable Warren Pitt, Minister for Main
Roads and Local Government visited the Torres Strait to consult with local
communities about the legislative proposals.
· The following government entities were supportive of the proposals:
· The Department of the Premier and Cabinet;
· The Department of Justice and the Attorney-General;
· The Department of Natural Resources and Water;
· The Department of Communities;
· The Department of Housing;
· The Queensland Police Service;
· The Department of Tourism, Fair Trading and Wine Industry
Development;
· The Auditor-General from the Queensland Audit Office; and
· Queensland Treasury.
Part 1 Preliminary
Clause 1 Short title
Clause 1 provides that the short title of this Act is the Local Government
and Other Legislation (Indigenous Regional Councils) Amendment Bill
2007.
9
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 2 Commencement
Clause 2 provides that the Bill will commence on proclamation, except for
part 11 amendments to the LGA, which will commence on assent (but with
some exceptions). In addition, those amendments to the Judicial Review
Act 1991 and the Local Government (Chinatown and the Valley Malls) Act
1984 will commence on assent.
Those clauses in part 11 which are not commencing on assent, but on
proclamation are sections 93, 95 to 97, 108, 109, 113, 114, 120 and 122 to
125.
Those clauses in part 11 which are commencing on assent concern the
establishment of the two new indigenous regional councils, the creation of
community forums, land panels and the role of trustee. Whilst they are
commencing on assent, they will not have any effect until after changeover
day when the indigenous regional councils are formed. In addition, some
minor amendments for the remuneration tribunal and adjustments to some
local government boundaries will also commence on assent.
Part 2 Amendment of Aboriginal
Communities (Justice and Land
Matters) Act 1984
Clause 3 Act amended in pt 2
Clause 3 provides that this part amends the Aboriginal Communities
(Justice and Land Matters) Act 1984.
The Aboriginal Communities (Justice and Land Matters) Act 1984 will
largely retain all the provisions relating to community justice groups,
alcohol management, community policing and entry upon public areas with
some minor amendments to improve the workability of sections relating to
community justice groups and community policing.
That Act will now relate to Aboriginal and also Torres Strait Island and
Northern Peninsula communities.
10
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 4 Amendment of long title
Clause 4 amends the long title of the Act to change the reference from
`community government areas' to `community areas' to encompass the
new indigenous regional councils under this Act.
Clause 5 Amendment of s 1 (Short title)
Clause 5 provides for section 1 to be amended so that the Aboriginal
Communities (Justice and Land Matters) Act 1984 will be renamed and
cited as the Aboriginal and Torres Strait Islander Communities (Justice,
Land and Other Matters) Act 1984 (Aboriginal and Torres Strait Act).
The title of the Act is to reflect the inclusion of provisions for Torres Strait
Islands from the Community Services (Torres Strait) Act 1984 (Torres Strait
Act), which is to be repealed, and Northern Peninsula Area communities
from the Local Government (Community Government Areas) Act 2004
(Community Government Areas Act).
Clause 6 Amendment of s 4 (Definitions)
Clause 6 deletes some definitions that are no longer relevant and inserts
some definitions of words and acronyms that will now be used in the
Aboriginal and Torres Strait Act as a result of these amendments.
The definition for Aboriginal police officer is substituted with community
police officer as Torres Strait Island police officers will now be provided
for under the Aboriginal and Torres Strait Act along with Aboriginal police
officers and both will be known as community police officers.
Clause 7 Amendment of s 8 (Delegation by
Minister or chief executive)
Clause 7 deletes a definition that was defined just for section 8. The
definition is now used elsewhere in the Act and has been re-inserted in the
definitions section by clause 5(2) of this Bill.
11
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 8 Amendment of pt 3, hdg and pt 3, div
1, hdg
Clause 8 provides for the insertion of the reference to indigenous regional
council areas as the law and order provisions under the Aboriginal and
Torres Strait Act will now apply to the new indigenous regional council
areas along with the Aboriginal community government areas.
Clause 9 Insertion of new s 8A
Clause 8 inserts a definition that is used in division 1 as a result of these
amendments.
Clause 10 Amendment of s 9 (Jurisdiction and
powers of police)
Clause 10 amends section 9 to add references to indigenous regional
council areas and change the term Aboriginal police officer to community
police officer to reflect the application of the Aboriginal and Torres Strait
Act to the Torres Strait Island and Northern Peninsula area communities.
The jurisdiction and powers of Island police officers will remain
unchanged but be provided for in the Aboriginal and Torres Strait Act as
community police officers.
Clause 11 Amendment of s 10 (Entry upon
community government areas etc.)
Clause 11 amends section 10 to add references to indigenous regional
council areas to reflect the application of the Aboriginal and Torres Strait
Act to the Torres Strait Island and Northern Peninsula Area communities.
The reason a police officer is permitted to enter a council area will remain
unchanged but be provided for in the Aboriginal and Torres Strait Act.
12
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 12 Amendment of s 11 (Application to
community government areas of laws
relating to public places)
Clause 12 amends section 11 to add references to indigenous regional
council areas to reflect the application of the Aboriginal and Torres Strait
Act to the Torres Strait Island and Northern Peninsula Area communities.
The application to indigenous regional council areas of laws relating to
public places remains unchanged but is to be provided for in the Aboriginal
and Torres Strait Act.
Clause 13 Amendment of s 12 (Aboriginal
police)
Clause 13 amends section 12 to add references to indigenous regional
council areas and change the term Aboriginal police officer to community
police officer to reflect the application of the Aboriginal and Torres Strait
Act to the Torres Strait Island and Northern Peninsula Area communities.
The functions and appointment of Island police officers remains
unchanged, but are to be provided for in the Aboriginal and Torres Strait
Act under name of community police officers.
Clause 14 Amendment of s 13 (Discharge of
Aboriginal police officers' functions
etc.)
Clause 14 amends section 13 to add references to indigenous regional
council areas and change the term Aboriginal police officer to community
police officer to reflect the application of the Aboriginal and Torres Strait
Act to the Torres Strait Island and Northern Peninsula Area communities.
The way a community police officer exercises their functions, performs
their duties and uses their powers, remains unchanged but is to be provided
for in the Aboriginal and Torres Strait Act.
13
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 15 Amendment of s 14 (Other functions
of Aboriginal police officers)
Clause 15 amends section 14 to add references to indigenous regional
council areas and change the term Aboriginal police officer to community
police officer to reflect the application of the Aboriginal and Torres Strait
Act to the Torres Strait Island and Northern Peninsula Area communities.
The matters for which an indigenous regional council may make local laws
regarding the functions of a community police officer remains the same,
but are to be provided for in the Aboriginal and Torres Strait Act.
Clause 16 Amendment of s 15 (Indemnification
of Aboriginal police officer for liability
for tort)
Clause 16 amends section 15 to change the term Aboriginal police officer
to community police officer to reflect the application of the Aboriginal and
Torres Strait Act to the Torres Strait Island and Northern Peninsula Area
communities.
A community police officer will have the same level of indemnity when
honestly performing their duties and functions, but the indemnification is to
be provided for in the Aboriginal and Torres Strait Act.
Clause 17 Amendment of s 16 (Authorised
officers)
Clause 17 amends section 16 to add references to indigenous regional
councils and Islander land and custom to reflect the application of the
Aboriginal and Torres Strait Act to the Torres Strait Island and Northern
Peninsula Area communities.
An indigenous regional council may still appoint authorised persons to
protect natural and cultural resources in the same manner, but this power is
to be provided for in the Aboriginal and Torres Strait Act.
14
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 18 Amendment of s 17 (General powers
of authorised officers)
Clause 18 amends section 17 to encompass the indigenous regional council
areas under this provision to reflect the application of the Aboriginal and
Torres Strait Act to the Torres Strait Island and Northern Peninsula Area
communities. It also changes the term Aboriginal police officer to
community police officer to include Torres Strait police officers under the
provision under their new name community police officers.
The powers of authorised persons remain unchanged but are to be provided
for under the Aboriginal and Torres Strait Act.
Clause 19 Amendment of s 19 (Functions and
powers)
Clause 19 amends section 19 which sets out the functions of a community
justice group for a community area. This amendment will omit the current
function of community justice groups in section 19(1)(b) to carry out local
strategies to address justice issues affecting members of the community in
the area. This will be replaced with a description of functions that better
reflects the broad range of work in the criminal justice system that
community justice groups are funded to perform, namely to:
(i) participate in court hearings and sentencing and bail processes in
accordance with the Penalties and Sentences Act 1992, Bail Act 1980
and Juvenile Justice Act 1992;
(ii) develop networks with agencies to ensure that crime prevention,
justice, community corrections and related issues impacting on
Indigenous communities are addressed; and
(iii) support Indigenous victims and offenders at all stages of the legal
process.
The amendment in clause 43 of the Bill will ensure that a community
government or an indigenous regional council can also make local laws
conferring additional functions on community justice groups for an area.
15
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 20 Amendment of s 20 (Membership)
Clause 20 amends section 20 to clarify the existing appointment process for
members of community justice groups whereby members are appointed by
the Minister by gazette notice and appointments are revoked in the same
manner.
Clause 20 also amends section 20 to provide that a community justice
group must include at least one representative of each of the main
Indigenous social groupings in the area to the greatest extent practicable.
While community justice groups make every effort to ensure that there is a
representative of each of the main Indigenous social groupings, there have
been some rare instances where community justice groups have
experienced difficulties in meeting this requirement.
Clause 21 Replacement of s 21 (Criminal history
checks)
Clause 21 amends section 21 to substitute it with a new section.
The amendment amends section 21 consistent with similar legislative
provisions dealing with assessment of a person's suitability for
appointment to a position. The new section 21 will allow the chief
executive to make inquiries to decide whether a person is suitable for
appointment as, or to continue as, a member of a community justice group.
Under the existing section, a regulation may provide for the disclosure by
the commissioner of the police service to a stated entity of a person's
criminal history for deciding whether the person is suitable to be
nominated as a member.
The Aboriginal Communities (Justice and Land Matters) Regulation 1998
provides that for section 21 of the Act, the chief executive may ask the
commissioner of the police service to give the chief executive a written
report about a person's criminal history and that the commissioner must
comply with the request.
The new section 21 will allow the chief executive, with a person's consent,
to ask the commissioner of the police service for a person's criminal
history for the purpose of assessing whether they are suitable for
appointment as a member of a community justice group and also whether
16
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
they are suitable to continue as a member once they have been appointed.
It will also ensure that:
· the chief executive can seek information to clarify information
pertaining to a person's criminal history;
· the person to whom the information relates, is provided with a copy of
the information; and
· the information gained under this section is destroyed as soon as
practicable after it is no longer needed.
A power has also been included to allow the chief executive to delegate
their powers. The definitions of criminal history and spent conviction in
the new section have not been amended.
New section 63A of the Act, to be inserted by clause 42 of this Bill, will
ensure the confidentiality of information obtained by the chief executive
under this section.
To ensure natural justice, fairness and consistency, clause 21 also inserts a
new section 21A into the Act. This section provides for the chief executive
to make guidelines regarding the handling of information obtained under
the new section 21.
Clause 22 Amendment of s 22 (Coordinator)
Clause 22 amends section 22 by clarifying the appointment procedure for
the community justice group, where an incorporated entity administers
funding arrangements for the community justice group. The community
justice group retains the power to appoint the coordinator if funding is not
administered by an incorporated entity. The amendments will require that
the incorporated entity consult with the community justice group about the
proposed appointment.
Clause 23 Amendment of s 23 (Authentication of
documents)
Clause 23 amends the requirement that for a document to be taken to be
sufficiently made by a community justice group, the document needs to be
signed by the coordinator and also another member of the group. This will
17
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
increase accountability and the likelihood that a document properly reflects
the views of the community justice group.
Clause 24 Amendment of s 27 (Definitions for pt
5)
Clause 24 amends section 27 to add references to indigenous regional
councils and Islander custom to reflect the application of the Aboriginal
and Torres Strait Act to the Torres Strait Island and Northern Peninsula
Area communities.
Clause 25 Amendment of s 28 (Declaration)
Clause 25 amends section 28 to add references to indigenous regional
councils and Islander custom to reflect the application of the Aboriginal
and Torres Strait Act to the Torres Strait Island and Northern Peninsula
Area communities.
Torres Strait community justice groups may still declare dry places in the
same manner with the same requirements and conditions, but the
declaration is to be made under the Aboriginal and Torres Strait Act.
Clause 26 Amendment of s 30 (Objections and
supporting submissions)
Clause 26 amends section 30 to add references to Islander custom to reflect
the application of the Aboriginal and Torres Strait Act to the Torres Strait
Island and Northern Peninsula Area communities.
Objections to the declaration of a dry place may still be made to the
person(s) who controls access to that place under Island custom, but the
objection is to be made under the Aboriginal and Torres Act.
18
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 27 Amendment of s 48 (Definitions for
pt 6)
Clause 27 amends section 48 to add references to indigenous regional
councils and Torres Strait Islanders to reflect the application of the
Aboriginal and Torres Strait Act to the Torres Strait Island and Northern
Peninsula Area communities.
Clause 28 Amendment of s 50 (Entry on trust
area etc. by non-residents)
Clause 28 amends section 50 to add references to indigenous regional
councils and Torres Strait Islander land to reflect the application of the
Aboriginal and Torres Strait Act to the Torres Strait Island and Northern
Peninsula Area communities.
Non-residents of trust land may still have access to that land if an
indigenous regional council has resolved for the access to be permitted, but
the resolution is to be made under the Aboriginal and Torres Strait Act.
Clause 29 Amendment of s 51 (Notice about
resolution)
Clause 29 amends section 51 to add references to indigenous regional
councils to reflect the application of the Aboriginal and Torres Strait Act to
the Torres Strait Island and Northern Peninsula Area communities.
Clause 30 Amendment of s 52 (Community
government may impose restrictions
on entry etc.)
Clause 30 amends section 52 to add references to indigenous regional
councils to reflect the application of the Aboriginal and Torres Strait Act to
the Torres Strait Island and Northern Peninsula Area communities.
19
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 31 Amendment of s 53 (General authority
to enter etc. trust area)
Clause 31 amends section 53 to add references to indigenous regional
councils and Torres Strait Islanders to reflect the application of the
Aboriginal and Torres Strait Act to the Torres Strait Island and Northern
Peninsula Area communities.
Clause 32 Amendment of s 55 (Removal from
trust area)
Clause 32 amends section 55 to change the term Aboriginal police officer
to community police officer to include Torres Strait police officers under
the provision.
Clause 33 Amendment of pt 7 hdg (Assistance
sought by Aborigines)
Clause 33 amends the heading for part 7 to include reference to Torres
Strait Islanders, in addition to the references to Aborigines. The
arrangements for assistance to Torres Strait Islanders are to continue and
remain unchanged, but be provided for under the Aboriginal and Torres
Strait Act.
Clause 34 Amendment of s 56 (Grant of aid)
Clause 34 amends section 56 to include reference to Torres Strait Islanders,
in addition to the references to Aborigines to reflect the application of the
Aboriginal and Torres Strait Act to the Torres Strait Island and Northern
Peninsula Area communities.
The chief executive can grant aid to a Torres Strait Islander on the same
conditions but this is to be provided for in the Aboriginal and Torres Strait
Act.
20
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 35 Amendment of s 57 (Deposit of
savings with banker)
Clause 35 amends section 57 to include reference to Torres Strait Islanders,
in addition to the references to Aborigines to reflect the application of the
Aboriginal and Torres Strait Act to the Torres Strait Island and Northern
Peninsula Area communities.
Clause 35 also adds a subsection to authorise the Island Industries Board
(IIB), as well as the chief executive, to establish new facilities for the
deposit of Aboriginal, and also Torres Strait Islander savings.
Clause 36 Amendment of s 58 (Continuation of
management of money)
Clause 36 amends section 58 to include reference to Torres Strait Islanders
and the repealed Torres Strait Act, to allow for the continuation of the
management of Torres Strait Islanders money under the Aboriginal and
Torres Strait Act.
Clause 37 Amendment of s 60 (Administration of
Aborigines' estates)
Clause 37 amends section 60 to include reference to Torres Strait Islanders
to reflect the application of the Aboriginal and Torres Strait Act to the
Torres Strait Island and Northern Peninsula Area communities.
The chief executive may administer a Torres Strait Islander's estate in the
same manner and with the same conditions and requirements, but this is to
be provided for under the Aboriginal and Torres Strait Act.
Clause 38 Insertion of new pt 7A
The IIB trades as the Islander Board of Industry and Service (IBIS). It
operates retail outlets to meet the needs of local residents. Thursday Island
21
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
has a supermarket, petrol station and stores at Rosehill and Tamwoy. Torres
Strait Travel Centre is an agent for Sunstate Airlines and also provides sea
and land travel between Thursday Island and Horn Island. There are 14
stores on the outer Torres Strait Islands. On the mainland, a supermarket is
operated in Bamaga.
Clause 38 provides for part 7A (Island Industries Board) to be inserted after
section 60. The IIB is to continue in operation under the Aboriginal and
Torres Strait Act.
The inserted part transfers the provisions relating to the detail for the
administrative arrangements, functions and powers of the IIB from the
Torres Strait Act which will be repealed. The provisions remain largely the
same with updated references to TSIRC and relevant Bamaga and Seisia
areas. Some provisions have been redrafted to conform with current
drafting practice and for simplicity, but retain their original meaning.
The fundamental difference as a result of this Bill for the IIB is that the
provisions relating to the proposal of a panel for nomination to membership
of the IIB have been redrafted to take into account the new structure for
Torres Strait government. For example, the panel should consist of:
· at least five qualified persons proposed by TSIRC; and
· at least two qualified persons proposed by the Torres Shire Council;
and
· one qualified person proposed by the councillor for what will be the
division for Bamaga in NPARC; and
· one qualified person proposed by the councillor for what will be the
division for Seisia in NPARC.
Clause 39 Amendment of s 61 (Aborigines' right
to certain natural resources)
The rights and obligations about certain natural resources which apply to
Torres Strait Islander people under the repealed Torres Strait Act are to
continue in the Aboriginal and Torres Strait Act. Therefore, clause 39
amends section 61 to include reference to Torres Strait Islanders, in
addition to the references to Aborigines, to reflect the application of the
Aboriginal and Torres Strait Act to the Torres Strait Island and Northern
Peninsula Area communities.
22
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
This will continue Torres Strait Islanders' rights to certain natural resources
taken by traditional means for consumption by members of the community.
Clause 40 Amendment of s 62 (Aborigines' right
to certain forest products and quarry
material - Aboriginal land)
The rights and obligations about certain forest products and quarry material
which apply to Torres Strait Islander people under the repealed Torres
Strait Act are to continue under the Aboriginal and Torres Strait Act.
Therefore, clause 40 amends section 62 to include references to Torres
Strait Islanders and indigenous regional councils to reflect the application
of the Aboriginal and Torres Strait Act to the Torres Strait Island and
Northern Peninsula Area communities.
This will continue Torres Strait Islanders' rights to certain forest products
and quarry material on their land for use in their local government area
under certain circumstances.
Clause 41 Amendment of s 63 (Aborigines' right
to certain forest products and quarry
material - non-Aboriginal land)
The rights and obligations about certain forest products and quarry
material, which apply to Torres Strait Islander people under the repealed
Torres Strait Act, are to continue under the Aboriginal and Torres Strait
Act. Therefore, clause 41 amends section 63 to include references to Torres
Strait Islanders and indigenous regional councils to reflect the application
of the Aboriginal and Torres Strait Act to the Torres Strait Island and
Northern Peninsula Area communities.
This will continue Torres Strait Islanders' rights to certain forest products
and quarry material on non-Islander land for use in their local government
area under certain circumstances.
23
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 42 Insertion of new s 63A
Clause 42 inserts a new section 63A (Confidentiality) that applies to
anyone involved with the administration of the Aboriginal and Torres Strait
Act and who has gained, or has access to, protected information obtained
by the chief executive under the new section 21 of the Act (as inserted by
clause 19 of the Bill). Protected information specifically relates to the
suitability of a person for appointment as, or to continue as, a member of a
community justice group.
The new section sets out the requirements for the recording, use and
disclosure of that information and creates an offence for misuse of
protected information for which the maximum penalty is 100 penalty units
or two years imprisonment.
This new section incorporates the current restriction on the use of criminal
history information in section 21 of the Act, and is consistent with
confidentiality of information requirements under similar legislation.
Clause 43 Amendment of s 66 (Making local
laws about particular matters)
Clause 43 amends section 66 to include references to indigenous regional
councils and their areas to reflect the application of the Aboriginal and
Torres Strait Act to the Torres Strait Island and Northern Peninsula Area
communities in relation to the power to make local laws regarding
consumption of alcohol.
Section 66 will now specify that a community government or an
indigenous regional council can also make local laws regarding conferring
functions on their community justice groups for any community area or
division within its community government area.
Clause 44 Amendment of s 67 (Evidentiary aids)
Clause 44 amends section 67 to include references to indigenous regional
councils and their areas to reflect the application of the Aboriginal and
Torres Strait Act to the Torres Strait Island and Northern Peninsula Area
24
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
communities in relation to evidence in a proceeding against the Aboriginal
and Torres Strait Act.
Clause 45 Amendment of s 71 (Regulation-
making power)
Clause 45 amends section 71 to outline the certain matters for which a
regulation may be made, in addition to those currently in existence for the
Island Councils and the Aboriginal community governments
It changes references from Aboriginal police forces to community police
forces to encompass the Torres Strait Island police. It adds references to
Torres Strait Islanders where Aborigines are mentioned and adds
references to indigenous regional councils where community government
is mentioned.
Provisions specific to the Torres Strait and IIBs are inserted to allow
regulations to be made regarding the IIB's proceedings and functions.
Clause 46 Replacement of pt 10 (Validating
provisions)
Clause 46 replaces the current part 10, which is now redundant. The new
part 10 provides for transitional provisions for the dissolution of the Island
Coordinating Council (ICC) upon the commencement of the Bill.
A regulation may be used to provide for any matters necessary to allow for
the dissolution of the ICC, for example: matters regarding references to the
dissolved ICC and agreements, proceedings, assets and liabilities of the
ICC at the time of dissolution.
The new part 10 also provides the transitional provisions for the name
change for Aboriginal police officers and Island police officers to
community police officers under the Aboriginal and Torres Strait Act.
Community police officers hold their appointment in the same area with
the same responsibilities as they did before the commencement of this Bill.
Transitional provisions for the IIB and its members are provided for in the
new part 10 to ensure that despite the repeal of the Torres Strait Act, each
member and chairperson will continue to hold membership for the term for
25
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
which they were appointed and be subject to the disqualification and
vacation of office requirements as inserted by this Bill for that duration.
The deputy chairperson continues to hold membership until the IIB
otherwise decides. All matters under the repealed Torres Strait Act relating
to the IIB are not affected by the repeal of that Act, or insertion of new
provisions regarding IIBs into the Aboriginal and Torres Strait Act.
Transitional arrangements for the Aboriginal community justice groups of
Injinoo, New Mapoon and Umagico as well as the Torres Strait community
justice groups of Bamaga and Seisia (the five areas that will comprise
NPARC) are provided for in the new part 10.
The transitional arrangements ensure that anyone who was a member of a
community justice group when the Torres Strait Act is repealed will
continue as a member of the new community justice group under the
Aboriginal and Torres Strait Act until the end of their term of appointment,
the Minister revokes the appointment, or the office is otherwise vacated.
The person who held the appointment of coordinator of a community
justice group when the Torres Strait Act is repealed, will also continue to
be appointed as a coordinator under the Aboriginal and Torres Strait Act.
Subject to part 4 of the Aboriginal and Torres Strait Act, all other matters
relating to any existing community justice groups for those areas making
up NPARC are not affected by the repeal of the Torres Strait Act and
transition to the renamed Aboriginal and Torres Strait Act.
No transitional arrangements were necessary for TSIRC as no community
justice groups have been established under the Torres Strait Act for the
areas within this new indigenous regional council.
Part 3 Amendment of Aboriginal and
Torres Strait Islanders (Land
Holding) Act 1985
Clause 47 Act amended pt 3
Clause 47 provides that this part amends the Aborigines and Torres Strait
Islanders (Land Holding) Act 1985.
26
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 48 Amendment of s 4 (Interpretation)
Clause 48 amends definitions as a consequence of the new local
government arrangements for the Torres Strait.
The definition Island council has been substituted to update the new
reference to those councils as indigenous regional councils. A definition
has also been inserted for these councils' areas.
The definition visiting justices has been substituted as the references within
the previous definition are redundant to council areas are removed and
instead have been replaced with reference to trust areas. There is a new
provision about visiting justices inserted by clause 61.
A number of definitions are amended to update references to the renamed
Aboriginal and Torres Strait Act.
As there will be specific land trustee provisions within the Aboriginal and
Torres Strait Act relating to the new indigenous regional councils, the
definition trustee council has been amended to remove references to Island
councils and Aboriginal councils.
Clause 49 Amendment of s 10 (Divesting and
vesting of title to land)
Clause 49 amends section 10 by inserting references to Torres Strait
Islander council areas to clarify that subsection's application to Island
councils as defined under the Aborigines and Torres Strait Islanders (Land
Holding) Act 1985.
The provision outlines the process and procedures of land divested from
councils becoming unallocated State land.
Clause 49 also amends a reference to the renamed Aboriginal and Torres
Strait Act.
27
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 50 Amendment of s 16 (Assessment of
rent)
Clause 50 amends section 16 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
This amendment will ensure an indigenous regional council or Aboriginal
council is still provided for under this provision regarding the assessment
of rent payable to it after the changeover day.
Clause 51 Amendment of s 17 (Payment of rent)
Clause 51 amends section 17 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
This amendment will ensure an indigenous regional council or Aboriginal
council is still provided for under this provision regarding the advance
payment of rent to it after the changeover day.
Clause 52 Amendment of s 18 (Dealings with
leases)
Clause 52 amends section 18 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
This amendment will ensure an indigenous regional council or Aboriginal
council is still provided for under this provision so that a person who is not
qualified can not hold land, or an interest in land, for which that indigenous
regional council is charged with the functions of local government.
28
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 53 Amendment of s 21 (Forfeiture upon
default in rent)
Clause 53 amends section 21 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
This amendment will ensure an indigenous regional council or Aboriginal
council is still provided for under this provision regarding the process and
procedure for default in rent payments owing to it.
Clause 54 Amendment of s 22 (Action upon
nonoccupation)
Clause 54 amends section 22 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
This amendment will ensure an indigenous regional council or Aboriginal
council is still provided for under this provision regarding the process and
procedure for giving a show cause notice to a lessee if the council believes
the relevant land is unoccupied.
Clause 55 Amendment of s 23 (Action upon
nonutilisation)
Clause 55 amends section 23 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
This amendment will ensure an indigenous regional council or Aboriginal
council is still provided for under this provision regarding the process and
procedure for giving a show cause notice to a commercial lessee if the
council believes the relevant land is not being utilised or developed.
29
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 56 Amendment of s 25 (Procedure upon
forfeiture)
Clause 56 amends section 25 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
This amendment will ensure an indigenous regional council or Aboriginal
council is still provided for under this provision regarding the process and
procedure for giving a show cause notice to a lessee to appear before a
visiting justice if the council believes there is reason for the land to be
forfeited.
Clause 57 Amendment of s 27 (Consequences
of forfeiture)
Clause 57 amends section 27 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
This amendment will ensure an indigenous regional council or Aboriginal
council is still provided for under this provision regarding forfeited land.
That is, land forfeited under the Aborigines and Torres Strait Islanders
(Land Holding) Act 1985 shall revert to, and vest in, an indigenous regional
council or Aboriginal council.
Clause 58 Amendment of s 28 (Appeal against
classification as nonqualified person)
Clause 58 amends section 28 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
30
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 59 Amendment of s 29 (Nomination of
panels)
Clause 59 amends section 29 by updating references to TSIRC and the
renamed Aboriginal and Torres Strait Act.
Clause 60 Amendment of s 30 (Constitution of
appeal tribunals)
Clause 60 amends section 30 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
Clause 61 Amendment of s 31 (Representations
to council or appeals tribunal)
Clause 61 amends section 31 to update references to `Aboriginal council'
and `Island council' to `indigenous council' as defined under the LGA (for
TSIRC and NPARC) and provided for under the Community Government
Areas Act (for Aboriginal councils).
Clause 62 Amendment of s 32 (Land deemed
part of trust area for certain
purposes)
Clause 62 amends section 32 by inserting references to Torres Strait
Islander council area to clarify that subsection's application to `Island
councils' as defined under the Aborigines and Torres Strait Islanders (Land
Holding) Act 1985. Clause 62 also amends a reference to the renamed
Aboriginal and Torres Strait Act.
31
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 63 Insertion of new s 32A
Clause 63 inserts a new section 32A (Visiting justices) to specifically
provide for the appointment of visiting justices for land granted in trust by
the Governor in Council for the benefit of Aboriginals and Torres Strait
Islanders.
The visiting justice is to be appointed if a lessee is called, by an indigenous
regional council, to appear before the visiting justice regarding the
forfeiture of a lease. The visiting justice is also appointed when required to
sit on an appeal tribunal.
Clause 64 Amendment of s 33B (Transitional)
Clause 64 amends section 33B to update a reference to `Aboriginal council
or Island council' to `Indigenous council' to create consistency in the use
of this term.
Part 4 Amendment of Bail Act 1980
Clause 65 Act amended in pt 4
Clause 65 provides that this part amends the Bail Act 1980.
Clause 66 Amendment of s 6 (Definitions)
Clause 66 amends section 66 to update references to the renamed
Aboriginal and Torres Strait Act in the definition community justice group
in section 6 of the Bail Act 1980.
32
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 67 Insertion of new ss 34C - 34E
Clause 67 inserts new sections 34C, 34D and 34E into the Bail Act 1980.
These new sections ensure that representatives of a community justice
group have access to information relevant to making submissions under
that Act, and members of community justice groups are subject to
appropriate obligations and protections in performing this role under the
Act.
The new section 34C allows the court to direct, whether or not upon
application, that a representative of a community justice group in an
Aboriginal or Torres Strait Islander offender's community may inspect, or
obtain a copy of, a court file or a document in a court file that may be
relevant to making a submission about the offender under section 15(1)(f)
or 16(2)(e) of the Act.
New section 34D ensures that members of community justice groups are
subject to obligations in relation to ensuring the confidentiality of
information gained through performing a function under the Act.
New section 34E also provides protection to members of community
justice groups from civil liability for acts done and omissions made
honestly and without negligence, in making submissions about a defendant
to a court or police officer under the Act.
Part 5 Amendment of Criminal Code
Clause 68 Act amended in pt 5
Clause 68 provides that this part amends the Criminal Code.
33
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 69 Amendment of s 119B (Retaliation
against judicial officer, juror, witness
or family)
Clause 69 amends section 119B of the Criminal Code to include references
to a `member of a community justice group'. Recognising the important
role community justice groups have in the criminal justice system, this
amendment ensures that it is an offence to retaliate against a member of a
community justice group for which a representative makes a submission
under the Bail Act 1980, Juvenile Justice Act 1992 or the Penalties and
Sentences Act 1992, or against a member of their family for anything
lawfully done by the member.
The amendment will apply where submissions are made by a representative
of a community justice group to a court or police officer under the Bail Act
1980, Juvenile Justice Act 1992 or the Penalties and Sentences Act 1992
about a defendant, child or offender who is an Aboriginal or Torres Strait
Islander person.
Clause 70 Amendment of s 552C (Constitution
of Magistrates Court)
Clause 70 amends section 552C(5)(a) of the Criminal Code to replace a
reference to a council area under the Torres Strait Act with a reference to a
local government area of an indigenous regional council under the LGA as
a consequence of the repeal of the Torres Strait Act and to be consistent
with other amendments in this Bill.
Under section 552C(5) the Attorney-General may specify, by gazette
notice, a place appointed for holding a Magistrates Court that can
summarily deal with an indictable offence under chapter 58A of the
Criminal Code.
34
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Part 6 Amendment of Indigenous
Communities Liquor Licences
Act 2002
Clause 71 Act amended in pt 6
Clause 71 provides that this part amends the Indigenous Communities
Liquor Licences Act 2002.
Clause 72 Amendment of schedule (Dictionary)
Clause 72 replaces the definition community justice group to update
references to the renamed Aboriginal and Torres Strait Act, and bring
TSIRC and NPARC community justice groups under the scope of the
Indigenous Communities Liquor Licences Act 2002 for liquor licensing. It
also replaces the definition Indigenous council to add references to TSIRC
and NPARC to recognise these new councils in the Indigenous
Communities Liquor Licences Act 2002.
Part 7 Amendment of Justice of the
Peace and Commissioners for
Declarations Act 1991
Clause 73 Act amended in pt 7
Clause 73 states that this part amends the Justices of the Peace and
Commissioners for Declarations Act 1991.
35
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 74 Amendment of s 35 (Prohibition on
reward)
Clause 74 amends section 35 to provide that `reward' does not include, for
a justice of the peace (magistrates court), a daily sitting fee paid to the
person for constituting a court at a place at which a Magistrates Court may
be constituted if the place is within a community area as defined in the
Aboriginal and Torres Strait Act.
A justice of the peace (magistrates court) qualification allows a justice to
constitute a Magistrates Court and hear, for example, bail applications and
domestic violence order applications.
Elders and respected persons from remote communities are often appointed
as justices of the peace (magistrates court). The amendment to section 35
of the Act will clarify that a daily sitting fee of a specified amount may be
paid to justices of the peace (magistrates court) when constituting courts in
remote Indigenous communities. Under section 35, a justice of the peace or
commissioner for declarations is not otherwise entitled to receive, directly
or indirectly, any reward in connection with performing the functions of the
office.
Part 8 Amendment of Juvenile Justice
Act 1992
Clause 75 Act amended in pt 8
Clause 75 states that this part amends the Juvenile Justice Act 1992.
36
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 76 Amendment of s 285 (When does
someone gain information through
involvement in the administration of
this Act)
Clause 76 amends section 285(1) of the Act to add reference to a member
of a community justice group in a child's community. Section 288 of the
Act provides that a person who has gained, gains, or has access to,
confidential information relating to a child through involvement in the
administration of the Act must preserve the confidentiality of information.
Section 285(1) of the Act defines when someone is taken to have been, or
to be, involved in the administration of the Act. This amendment will
ensure that members of community justice groups are subject to the
confidentiality requirements in section 288 of the Act.
Clause 77 Amendment of s 289 (Recording, use
or disclosure for authorised purpose)
Section 289 of the Act specifies certain circumstances where a person is
authorised to record, use or disclose confidential information which would
otherwise be prohibited under section 288 of the Act.
Clause 77 amends section 289 to insert a new paragraph which allows the
recording, use or disclosure of confidential information by members of the
community justice group in the child's community as part of making
submissions about the child under the Act.
Clause 78 Insertion of new s 289A
Clause 78 inserts a new section 289A. This new section will authorise a
person who is a member of a community justice group in the child's
community, to disclose information to another member of the community
justice group.
This amendment will ensure the community justice group can effectively
make submissions about the child as provided for in section 48(3)(da) and
section 150(1)(g) of the Act.
37
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 79 Insertion of new s 301A
Clause 79 inserts a new section 301A in relation to the protection of
members of community justice groups from liability. This new section will
protect a representative of a community justice group in a child's
community who makes a submission, personally or otherwise, to a court or
a police officer under the Act, and members of the community justice
group who are involved in making the submission, from civil liability for
any act done, or omission made, honestly and without negligence in
relation to the making of the submission.
Clause 80 Amendment of sch 4 (Dictionary)
Clause 80 amends schedule 4 to update the reference to the renamed
Aboriginal and Torres Strait Act in the definition community justice group
in schedule 4 of the Act.
Part 9 Amendment of Liquor Act 1992
Clause 81 Act amended in pt 9
Clause 81 states that this part amends the Liquor Act 1992.
Clause 82 Amendment of s 4 (Definitions)
Clause 82 replaces the definitions Aboriginal police officer and Island
police officer with community police officer as those police officers will
now be provided for under the Aboriginal and Torres Strait Act and will be
known as community police officers. The definition of community police
officer retains provision for Aboriginal police officers under the Local
Government (Aboriginal Lands) Act 1978.
38
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 82 also:
· replaces the definition of community area to reflect the definition of
community area contained in the Aboriginal and Torres Strait Islander
Communities (Justice, Land and Other Matters Act) 1984;
· updates the definitions in section 4 to reflect the renamed Aboriginal
and Torres Strait Act;
· updates the references to the renamed police officers; and
· inserts definitions used as a result of this Bill and its amendments.
Clause 83 Amendment of s 174A (Powers of
Aboriginal and Island police officers)
Clause 83 amends definitions in section 174A to reflect the renamed
Aboriginal and Torres Strait Act and change references to the renamed
Aboriginal and Island police officers to community police officers.
This amendment will ensure, despite the name change, Aboriginal and
Torres Strait Islander police officers continue to hold the same powers
under the Liquor Act 1992.
Clause 84 Amendment of s 176 (Entry and
search - monitoring compliance)
Clause 84 amends definitions in section 176 to reflect the renamed
Aboriginal and Torres Strait Act.
Clause 85 Amendment of s 187EB (Forfeiture of
seized property to prevent
commission of particular offences -
chief executive)
Clause 85 amends section 187EB to add a reference to the division areas of
the new indigenous regional councils (previously the Island councils) for
the display of notice of particular seized property.
39
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Part 10 Amendment of Local
Government (Aboriginal Lands)
Act 1978
Clause 86 Act amended in pt 10
Clause 86 states that this part amends the Local Government (Aboriginal
Lands) Act 1978.
Clause 87 Amendment of s 2 (Definitions)
Clause 87 amends a reference in section 2, definition liquor provisions, to
the renamed Aboriginal and Torres Strait Act.
Clause 88 Amendment of s 14 (Composition of
committees)
Clause 88 amends a reference in section 14 to the renamed Aboriginal and
Torres Strait Act.
Clause 89 Amendment of s 17 (Functions of
committee)
Clause 89 amends a reference in section 17 to the renamed Aboriginal and
Torres Strait Act.
Clause 90 Insertion of new s 18A
Clause 90 inserts a new section 18A (Application of pt 5) to specify that
part 5 (except for section 32) of the Act does not apply to the newly
incorporated areas of Sweers Island and the Bountiful Islands.
40
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 91 Replacement of sch 1 hdg
Clause 91 replaces the schedule 1 heading to conform to current drafting
practice and styles.
Part 11 Amendment of Local
Government Act 1993
Clause 92 Act amended in pt 11
Clause 92 provides that this part amends the Local Government Act 1993.
Clause 93 Omission of ch 1, pt 6 (Application of
Act to Torres Strait Islander local
governments)
Clause 93 omits chapter 1, part 6 relating to the specific application of the
LGA to Torres Strait Islander local governments. The LGA is to apply in
full to TSIRC and NPARC, except where provided for in a specific part.
Clause 94 Amendment of s 18 (Declaration of
classes of local government areas)
Clause 94 amends section 18 to remove reference to certain classes of local
government made redundant as a consequence of the Reform Act.
41
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 95 Omission of s 40 (Application of part
to Torres Strait Islander local
governments
Clause 95 omits section 40. The LGA is to apply in full to TSIRC and
NPARC, except where provided for in a specific part.
Clause 96 Omission of s 56 (Application of part
to Torres Strait Islander local
governments)
Clause 96 omits section 56. The LGA is to apply in full to TSIRC and
NPARC, except where provided for in a specific part.
Clause 97 Omission of ch 2A (Townsville-
Thuringowa water supply joint board)
Clause 97 omits chapter 2A to provide for the abolition of the Townsville-
Thuringowa water supply joint board as a consequence of the
amalgamation of Townsville and Thuringowa City Councils on the
changeover day.
Clause 98 Amendment of s 159YA (Application
of pt 1B)
Clause 98 amends section 159YA to provide that the requirements of pt 1B
do not apply to joint local governments.
However, a reform implementation regulation may make provision for joint
local governments to provide for:
· the transition of regulatory and administrative systems from joint local
governments to new and adjusted local governments where joint local
governments are abolished; and
42
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
· the transfer of employees, assets, liabilities and equity from joint local
governments to new and adjusted local governments.
Clause 99 Amendment of s 159YD (Definitions
for pt 1B)
Clause 99 amends section 159YD, definition transferring area C, to update
a reference to a revised map for transferring area C.
Clause 100 Amendment of s 159YE (Changeover
day)
Clause 100 amends section 159YE to correct a minor error and clarify the
intention to refer to a local government area.
Clause 101 Insertion of new s 159YHA
Clause 101 inserts a new s 159YHA (Particular entities go out of existence)
to clarify that a local government whose area is fully abolished by the
amalgamations goes out of existence when the abolition is complete.
Clause 102 Amendment of s 159ZB (Functions of
interim chief executive officer before
changeover day)
Clause 102 amends section 159ZB to add a subsection specific to the
interim chief executive for an indigenous regional council. It states an
added function for those chief executives is to conduct the first election of
the community forum members on behalf of the indigenous regional
council.
43
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 103 Amendment of s 159ZH (Local
government workforce transition
code of practice)
Clause 103 amends section 159ZH to clarify that a workforce transition
code of practice is a statutory instrument and not subordinate legislation no
matter when it was made.
Clause 104 Amendment of s 159ZK (Holding of
2008 quadrennial elections)
To provide support and guidance during the reform process, clause 104
amends section 159ZK to apply the provisions of the LGA relating to local
government elections to community governments for the 2008 quadrennial
elections.
Clause 105 Amendment of s 159ZM (Changed
application of s 220 for Northern
Peninsula Area and Torres Strait
Island regional councils)
Clause 105 amends section 159ZM to provide for the differing and specific
requirements for qualifications for membership for potential candidates for
NPARC and TSIRC.
For NPARC, the candidacy provisions of the LGA apply, being that a
candidate (other than a candidate for mayor) is required to live in the
particular division for which they are a candidate. They are also required,
under the Electoral Act 1992, to be enrolled on the electoral roll for their
area, which means they must have lived in that area for at least the past
month. Similarly, a candidate for mayor is required to have lived in the
local government area (which comprises all the divisions) for the past
month.
For TSIRC, the specific requirements are set out in new inserted section
159ZZF as discussed in detail below.
44
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 106 Insertion of new ch 3, pt 1C
Clause 106 inserts a new chapter 3, part 1C (Particular provisions for
implementation of reform matters for indigenous regional councils). The
new part deals with matters that are specific and unique to the new
indigenous regional councils.
Inserted division 1 provides for definitions of words used within the new
part.
Inserted division 2 provides for the operation of TSIRC.
Particular entities to go out of existence:
Specific mention, for the sake of clarity, is made to the Island councils that
will no longer exist when TSIRC is formed.
Extension of jurisdiction:
In recognition of Torres Strait Island custom and the specific set of issues
relating to the governance of the Torres Strait, a new provision within the
LGA will empower TSIRC to make local laws and ensure the good rule of
their area in accordance with Island custom.
Requirements for candidates:
Inserted section 159ZZE outlines the specific application of requirements
for TSIRC candidates. A person is required to be an Aborigine or a Torres
Strait Islander and to have lived for two years immediately prior to
nomination day in the particular division for which they are a candidate.
A candidate for the mayor of TSIRC is also required to be an Aborigine or
a Torres Strait Islander and to have lived for two years leading up to the
election in the local government area of TSIRC.
The requirements for candidates for NPARC are provided for under the
LGA as for other Queensland local governments for both councillors and
mayor, except that councillors for NPARC must reside within the division
for which they are contesting.
Inserted division 3 provides for the operation of NPARC.
Particular entities to go out of existence:
Specific mention, for the sake of clarity, is made to the two Island councils
and three community governments that will go out of existence when
NPARC is formed.
45
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Extension of jurisdiction:
In recognition of Aboriginal culture and traditions and Torres Strait Island
custom, and taking into account the specific set of issues relating to the
governance of the Northern Peninsula Area, a new provision within the
LGA will empower NPARC to make local laws and ensure the good rule of
their area in accordance with Aboriginal culture and traditions and Island
custom.
Inserted division 4 provides generally for both TSIRC and NPARC.
Function of community forum:
The role of the community forums will be to provide advice to TSIRC and
NPARC on matters of Torres Strait Island custom and Aboriginal culture
and traditions and on local service delivery and planning. The community
forum's operational procedures will largely be at the discretion of the new
indigenous regional councils.
Establishing community forums:
The new part, in an inserted division, establishes community forums for
each division of TSIRC and NPARC. The establishment of a community
forum for each division of TSIRC and NPARC will provide a mechanism
to recognise and protect the unique Torres Strait Islander custom and
Aboriginal culture and traditions of the region. The community forums
will give community members an additional voice on matters of
community importance and a platform to discuss views, ideas and
opinions.
The indigenous regional councils can not establish any other body to carry
out any of the functions of a community forum.
To provide a mechanism for accountability and transparency, any matter
relating to the establishment of a community forum, including elections
and filling of vacancies, must be carried out under a regulation.
The mayor or a candidate for mayor of an indigenous regional council can
not become a member of a community forum.
The community forums will perform distinct advisory roles of both a
community forum and a land panel. The community forums will hold
separate meetings to consider general community or cultural matters from
those held for the purpose of advising on land trustee matters.
To ensure openness and answerability, and to allow general community
members to have representation, the meetings of the community forums
46
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
must be held publicly and at least 7 days notice given before the meeting is
held. This includes the meetings as a community forum and the meetings
as a land panel.
The community forums will comprise the councillor representing the
particular division, three to up to seven elected community members and a
convenor. A mayor or a candidate for mayor of an indigenous regional
council cannot be a member of a community forum.
Members are not ordinarily entitled to be remunerated, but the indigenous
regional council may authorise the payment of expenses to members.
The convenor can be a convenor of two or more community forums and
will be a TSIRC or NPARC officer who is skilled and experienced in the
administration of land. However, the convenor cannot be a councillor or
mayor of an indigenous regional council.
The Minister must ensure the names of each community forum for each
division, along with the names of all the members, are published in the
gazette so as to ensure that the local communities are aware of who their
forum members are.
Indigenous regional council as land trustee and community forum as land
panel to deal with community deed of grant in trust:
Under the provisions of this Bill, TSIRC and NPARC will become trustees
of any community deeds of grant in trust in their local government area.
Inserted chapter 3, part 1C, division 4, subdivision 2 deals with the specific
way in which councils deal with that land and how they make decisions
regarding that land.
The indigenous regional council must separately constitute itself to
perform its functions as the trustee. This includes establishing
arrangements but having separate meetings and keeping separate records in
relation to any land held in trust.
The indigenous regional councils must have regard to the Land Act 1994
and any other law in relation to the land held in trust. The requirements
inserted by this Bill and specific to TSIRC and NPARC are in addition to
those other laws.
The mayor of the indigenous regional council that is the trustee chairs a
meeting of that trustee for the community deed of grant in trust. However
to ensure an equality of representation of all local areas represented at
meetings of the trustee, the mayor cannot vote on any matter arising at the
meeting, including a decision.
47
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
The Bill inserts a provision specifically relating to meetings of an
indigenous regional council when acting in their role as trustee for land
held in trust. The provision reinforces the requirement that the meetings
must be open to the public, unless resolved for particular reasons outlined
in inserted section 159ZZZ.
When the indigenous regional council makes a decision relating to the
creation of interest, establishment of an improvement or any other matter in
relation to land held in trust (a trustee decision), it must refer the matter to
the community forum in the forum's capacity as a land panel.
A community forum must constitute itself separately as a land panel if
required to do so to assist the indigenous regional council in making a
trustee decision.
Community forums must ensure that for land held in trust by the
indigenous regional council, and for which the community forum is acting
as a land panel and formulating advice for the indigenous regional council:
· meetings are held separately from any other matter;
· the forum applies itself exclusively as a land panel;
· the forum advises the indigenous regional council separately from any
other matter.
An indigenous regional council must seek a land panel's advice on any
trustee decision relating to land held in trust. They can also, by resolution,
seek a land panel's advice on any land matter if deemed necessary. The
indigenous regional council must allow the land panel sufficient time to
formulate its advice.
When an indigenous regional council is acting as a trustee of land, and
needs to make a decision regarding land that is the subject of a deed of
grant in trust, it must consider the advice of the community forum in its
capacity as a land panel. If the trustee's decision in relation to the land is
not consistent with advice received from the land panel, the reason(s) for
the decision must be provided to the land panel. However, land panels will
not have any veto over a decision of TSIRC or NPARC acting as trustees.
To ensure absolute fairness and natural justice, a special requirement is
inserted that will ensure a decision regarding land held in trust cannot be
made unless the absolute majority of the councillors (except the mayor,
who cannot vote) agree. For example, as there are to be 15 councillors
representing 15 divisions of TSIRC, for an effective trustee decision to be
made, the number of councillors in agreement would have to be eight. In
48
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
addition, the councillor for the affected division will also exercise a 'double
majority'. For the resolution to be carried, the councillor for the affected
division must be in favour.
The Bill also provides for the following:
· that the chairperson of the community forum as a whole, is the
chairperson of the land panel;
· the functions of the convenor in relation to land panels;
· specification of the type of decisions the indigenous regional councils
acting as trustees can refer to land panels for advice;
· a process for the trustee to submit proposals to the land panel and for
the land panels to provide their advice back to the trustee;
· certain restrictions on the indigenous regional council's powers as
trustee in relation to the Land Act 1994.
Further extension of jurisdiction:
Taking into account the unique needs and circumstances of the new
indigenous regional councils, the Bill provides a mechanism to allow those
councils to make local laws further to the provisions provided for in the
Local Government Act.
The indigenous regional councils can, while taking into account Island
custom under inserted section 159ZZE, and Aboriginal culture and
traditions under inserted section 159ZZH, make local laws relating to
peace and order and the delivery of services appropriate to the social needs
of its communities. This phrase encapsulates the variety of functions that
previously existed under section 45 of the repealed Torres Strait Act.
Financial controllers:
The provisions of the LGA will apply to the appointment of financial
controllers and administrators to the indigenous regional councils. In
addition, the Torres Strait Act gives a financial controller the power to
revoke or suspend a council resolution, or end the suspension of a council
resolution. It also provides for the termination of the appointment of a
financial controller for any reason by the Governor in Council. These
additional mechanisms do not currently exist in the LGA. As it is desirable
to preserve them for operational convenience, both mechanisms will be
brought into the LGA specifically for TSIRC and NPARC.
49
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Additional role for councillors:
Due to the unique structure of the new indigenous regional councils with
one community forum for each division, the councillor of each division is
to be the chair of their respective community forum (consisting of separate
community board and land panel meetings) in addition to their roles
outlined in the LGA.
Financial management:
Due to the findings of successive Auditor-General reports on the financial
standing of the Aboriginal and Torres Strait Island councils which state that
the repayment of loans continues to be an issue, an indigenous regional
council will not be able to lend money to an individual. This provision will
apply to all local governments under the LGA and Aboriginal Councils
under the Community Government Areas Act.
Payments made to indigenous regional councils under the Indigenous
Communities Liquor Licences Act 2002 must be accounted for separately
and used for funding programs and services for the benefit of residents of
its community area.
Power to levy charge on residents:
An indigenous regional council may charge a resident in its area a levy in
addition to utility charges. These provisions maintain the capacity in
communities without rateable land to levy a charge on residents to help
maintain community services and infrastructure.
The indigenous regional council may exempt a resident from the charge if
the council is receiving another payment from the resident in relation to the
land.
Limited application of rates and charges provisions:
As land held in deed of grant in trust is not rateable, the Bill makes
provision to exempt indigenous regional councils from basing their rates
and charges on the value of land.
Disposal of land:
Special provision is made so that an indigenous regional council as trustee
cannot dispose of any land the subject of a deed of grant in trust.
It should be noted the provisions relating to the procurement and disposal
of assets under the LGA may have delayed application to indigenous
regional councils via a regulation under inserted section 1290 (inserted by
clause 128).
50
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
However, in addition to, and separate from, the conditions stated in the
LGA for the disposal of land, a condition for the disposal of land not the
subject of a deed of grant in trust is provided for, namely, if the disposal of
the land would restore rights consistent with Aboriginal or Torres Strait
Island custom.
Clause 107 Amendment of s 188B (Appointment
of financial controller)
For administrative convenience and expediency, clause 107 changes the
requirement for the Governor in Council to appoint a financial controller by
gazette notice instead of by regulation for all local governments.
Clause 108 Omission of s 190 (Application of part
to Torres Strait Islander local
governments)
Clause 108 omits section 190. The LGA is to apply in full to TSIRC and
NPARC except where provided for in a specific part.
Clause 109 Amendment of s 191 (Local
Government Grants Commission and
its members)
Clause 109 amends section 191 to update the reference to Torres Strait
local government to reflect the new governance arrangements for
indigenous regional councils.
This amendment will ensure that the Local Government Grants
Commission will continue to include one member with knowledge of
Torres Strait local government.
51
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 110 Amendment of s 242 (Requirements
of councillors before acting in office)
Clause 110 amends section 242 to add the word `region' to the councillor's
declaration of office to include reference to the new regional class of local
government. The provisions for declaration of office remain unchanged.
Clause 111 Amendment of s 250AK (Deciding
remuneration)
Clause 111 amends section 250AK to clarify that the Remuneration
Tribunal may decide the remuneration to be paid to-
· a councillor;
· a mayor; and
· a deputy mayor.
The amendment also clarifies that in deciding remuneration, the
Remuneration Tribunal may provide for councillors performing duties
under section 452 of the LGA (Appointment of committees).
The amendment also clarifies that any amount set by the Tribunal excludes
a superannuation component payable by council. It is necessary to make
this amendment to clarify the relationship between the chapter 4, part 3
(Entitlements and obligations) and the Remuneration Tribunal provisions.
Clause 112 Amendment of s 250AN (Conduct of
inquiries)
Clause 112 amends section 250AN for consistency with current drafting
practice and to remove unnecessary words.
52
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 113 Amendment of s 250B (Definitions for
pt 3A)
Clause 113 inserts a definition for special committee, which is used
throughout part 3A to describe a community forum for an indigenous
regional council.
Clause 114 Insertion of new s 284AA
Clause 114 inserts a new section 284AA (Non-application of part to
indigenous regional councils) to provide that the division requirements and
provisions applying to all other local governments do not apply to the
indigenous regional councils.
Indigenous regional councils have distinct divisional requirements
applying after the 2008 local government elections that must be provided
for under a regulation.
Clause 115 Amendment of s 318 (Direction that
poll be conducted by postal ballot)
Clause 115 amends section 318 to include large remote areas or extensive
island areas (such as exist in the local government areas for TSIRC) in the
regions for which a postal ballot can be called.
Clause 116 Amendment of s 346A (Distribution of
ballot papers to certain electors who
may cast declaration vote)
Clause 116 amends section 346A to ensure the reference `Region' is
included on the reply paid envelope for a declaration vote for certain
electors, to include the indigenous regional council areas.
53
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 117 Amendment of s 347 (Distribution of
ballot papers to other electors who
may or must cast declaration vote)
Clause 117 amends section 347 to ensure the reference `Region' is
included on the reply paid envelope for a declaration vote for other
electors, to include the indigenous regional council areas.
Clause 118 Amendment of s 349 (Distribution of
ballot papers to electors for postal
ballot election)
Clause 118 amends section 349 to ensure the reference `Region' is
included on the reply paid envelope for a postal vote, to include the
indigenous regional council areas.
Clause 119 Amendment of s 444 (Other meetings)
Clause 119 amends section 444 to add the word `region' to include the
indigenous regional councils under the requirement to meet at least once in
each month.
Clause 120 Amendment of s 450 (Notice of
meetings)
Clause 120 amends notice of meetings (i.e. four days instead of two days as
for other local governments under the LGA). This recognises the
remoteness of the Torres Strait and Northern Peninsula Area regions and
accommodates any difficulty with transportation in the region.
54
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 121 Omission of s 465 (Public notice of
resolution authorising remuneration
etc.)
Clause 121 omits section 465 of the LGA, which would otherwise require
councils to comply with notice requirements before resolving to adopt the
remuneration determined by the Remuneration Tribunal.
As the schedule of remuneration determined by the Tribunal is binding on
local governments, the public notification and submission requirements in
section 465 are not required.
Clause 122 Amendment of s 472 (Delegation by
local government)
Clause 122 inserts a qualifying provision into section 472 that states an
indigenous regional council cannot delegate its powers to its community
forum. This provision supports and protects the forum's advisory role as
distinct from the council's decision-making role.
Clause 123 Insertion of new s 493A
Clause 123 inserts a new section 493A (Non-application of part to
indigenous regional councils) to clarify the LGA part regarding enterprises
of local governments does not apply to indigenous regional councils.
Clause 124 Insertion of new ch 6, pt 6
Loaning money to individuals is not a valid local government function and
could facilitate the misuse of community funds. To ensure council
accountability and transparency, clause 124 inserts a new chapter 6, part 6
(Miscellaneous) to expressly provide any local government may not loan,
give a guarantee or provide security to any individual.
55
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 125 Omission of s 1193C (Application to
Torres Strait Islander local
governments)
Clause 125 omits section 1193C. The LGA is to apply in full to TSIRC
and NPARC except where provided for in a specific part.
Clause 126 Insertion of new ch 19, pt 14
Clause 126 inserts a new chapter 19, part 14 (Transitional provisions for
Local Government and Other Legislation (indigenous regional councils)
Amendment Act 2007.
The new part provides definitions for certain words used within the part
and separates the transitional provisions for TSIRC and NPARC. The
formation of TSIRC from fifteen Torres Strait Island councils under the
Torres Strait Act requires different transitional provisions to the formation
of NPARC from the three Aboriginal community governments under the
Community Government Act and two Torres Strait councils under the
Torres Strait Act.
TSIRC transitional provisions under the inserted part:
Loans to individuals:
The current function of Island councils which will comprise TSIRC of
providing interest free loans to members of the community will be
discontinued. Successive reports of the Auditor-General have highlighted
that the repayment of loans continues to be an issue. All loans existing on
changeover day become payable to TSIRC.
Financial matters:
In recognition of the issues involved with changing to the new financial
arrangements under the LGA, the Torres Strait Island councils, upon
becoming TSIRC, have until 1 July 2009 to fully transition to the new
financial arrangements.
Up until that time, only a regulation may provide the extent to which
TSIRC must comply with the financial operation and accountability
provisions under the LGA. The regulation can utilise elements of the
56
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
repealed financial provisions of the Torres Strait Act to assist in the
transition.
Change of trustee for lands subject to deeds of grant in trust:
On the day TSIRC is established, all land the subject of a deed of grant held
by the abolished Torres Strait Island councils will be held in trust by
TSIRC despite any provision of the Land Act 1994. The transfer does not
affect any interest held in the land.
Local laws and subordinate local laws:
Any local or subordinate law of a Torres Strait Island council that will
become part of TSIRC upon changeover day becomes a local law of
TSIRC applicable to the relevant division (previously Island council) for
which it was made.
Rates and charges:
Any rate or charge levied by a Torres Strait Island council that will become
part of TSIRC upon changeover day, becomes a rate or charge payable to
TSIRC after the changeover day.
Any exemption given from a rate or charge by a Torres Strait Island council
that will become part of TSIRC upon changeover day continues in force
after the changeover day.
NPARC provisions under the inserted part:
Loans to individuals:
The current function of the two Torres Strait councils and the three
community governments which will comprise NPARC of providing
interest free loans to members of the community will be discontinued.
Successive reports of the Auditor-General have highlighted that the
repayment of loans continues to be an issue. All loans existing on the
changeover day become payable to NPARC.
Transitional arrangements for financial matters:
In recognition of the issues involved with changing to the new financial
arrangements under the LGA, the Torres Strait councils and community
governments, upon becoming NPARC, have until 1 July 2009 to fully
transition to the new financial arrangements.
Up until that time only a regulation may provide the extent to which
NPARC must comply with the financial operation and accountability
provisions under the LGA. There is provision to utilise elements of the
57
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
repealed financial provisions of the Torres Strait Act and the financial
provisions of the Community Government Act (as it applied to the three
community governments before they became part of NPARC) to assist in
the transition.
Change of trustee for lands subject to deeds of grant in trust:
On the day NPARC is established, all land the subject of a deed of grant
held by the two Torres Strait councils and three community governments
will be held in trust by NPARC despite any provision of the Land Act 1994.
The transfer does not affect any interest held in the land.
Local laws and subordinate local laws:
Any local or subordinate law of a Torres Strait Island or Aboriginal council
that will become part of TSIRC upon changeover day becomes a local law
of NPARC applicable to the relevant division (previously Island or
Aboriginal council) for which it was made.
Rates and charges:
Any rate or charge levied by a Torres Strait Island council or charge levied
by an Aboriginal council that will become part of NPARC upon
changeover day, becomes a rate or charge payable to NPARC after the
changeover day.
Any exemption given from a rate or charge by a Torres Strait Island or
charge by an Aboriginal council that will become part of NPARC upon
changeover day continues in force after the changeover day.
Complaint process:
The Bill provides that a regulation may state when an indigenous regional
councils must adopt a general complaints process.
Remuneration schedule:
The new part also provides that, for 2008, the remuneration schedule takes
effect on 15 March 2008 (the day of the next local government elections)
for all local governments, including those unaffected by reform.
Without this amendment, the Remuneration Tribunal would need to include
in the remuneration schedule for 2008, provision for all merging councils
as well as the new and adjusted councils.
Consequential transitional:
A provision is inserted for the repeal of chapter 2A (Townsville-
Thuringowa water supply joint board) under clause 94 of this Bill. The
58
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
transitional provision provides a head of power to transfer all matters
coming within the jurisdiction of the Townsville-Thuringowa water supply
joint board to the Townsville City Council.
A provision is inserted transferring liquor licences to ensure that existing
liquor licences transfer to the relevant local governments on changeover
day. The provision ensures the licence is subject to the same conditions as
before the changeover day. To ensure all liquor licences have a holder and
the holder is aware of their obligations, extra provision is made to allow a
regulation to specifically state which local government becomes the holder
of the licence if doubt arises. A nominee for a liquor licence remains the
nominee even when the licence is transferred to the new local government
until it is changed under the normal processes.
Clause 127 Amendment of sch 1A (Local
government reform implementation)
Clause 127 amends schedule 1A to reflect the local government areas that
have changed from divided to undivided local governments and to update
the references to the new maps showing this. This amendment is made as a
result of further community consultation. The amendment also updates a
map reference for transferring area C. This amendment also includes a
boundary change related to reviewable local government matters for
Ipswich and Scenic Rim local government areas.
Clause 128 Amendment of sch 2 (Dictionary)
Clause 128 inserts definitions for particular words used as a consequence
of this Bill and its amendments. It also omits the definition Torres Strait
Islander local government, as the term indigenous regional council is now
used under the new Torres Strait governance structure.
59
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Part 12 Amendment of Local
Government (Community
Government Areas) Act 2004
Clause 129 Act amended in pt 12
Clause 129 provides that this part amends the Local Government
(Community Government Areas) Act 2004.
Clause 130 Omission of s 5 (Notes in text)
Clause 130 provides for section 5 to be omitted. The Acts Interpretation
Act 1954 section 14(4) provides the basis for the use of notes in all
legislation and makes section 5 redundant.
Clause 131 Amendment of pt 2 hdg (New local
government areas and local
governments)
Clause 131 amends the heading to part 2 to reflect the omission of division
1 as explained below.
Clause 132 Omission of pt 2, div 1
Part 2, division 1 (Declaration of new local government areas and
establishment of new local governments) provides for what was declared to
be new local government areas at that time. Due to the local government
reform and the announcement of different local government areas, these
provisions are no longer relevant so are omitted under clause 132.
60
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 133 Amendment of s 22 (Appointment of
financial controller)
For administrative convenience and expediency, clause 133 changes the
requirement for the Governor in Council to appoint a financial controller by
gazette notice instead of by regulation.
Clause 134 Omission of sch 2 (Declaration of new
local government areas)
Due to the local government reform and the announcement of different
local government areas, schedule 2 is no longer relevant so will be omitted
under clause 134.
Clause 135 Amendment of sch 4 (Dictionary)
Clause 135 amends the definition of community government area. As part
of NPARC, these councils will become divisions of an indigenous regional
council under the LGA.
Part 13 Amendment of Penalties and
Sentences Act 1992
Clause 136 Act amended in pt 13
Clause 136 provides that this part amends the Penalties and Sentences Act
1992.
61
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 137 Amendment of s 6 (Application to
children and certain courts)
Clause 137 omits section 6(1). This amendment is consequential to other
amendments in the Bill which repeal the Torres Strait Act.
Clause 138 Amendment of s 9 (Sentencing
guidelines)
Clause 138 amends section 9, updating references to the renamed
Aboriginal and Torres Strait Act in the definitions community justice group
and offender's community.
This clause also relocates the amended definitions to section 4 of the Act,
which contains other definitions for the Act.
Clause 139 Insertion of new ss 195B - 195D
Clause 139 inserts new sections 195B, 195C and 195D. These new
sections ensure that representatives of community justice groups can access
information relevant to making submissions to the court in sentencing the
offender, and members of the community justice group are subject to
appropriate obligations and protections in performing this role under the
Act.
New section 195B allows the court to direct, whether or not upon
application, that a representative of a community justice group in an
Aboriginal or Torres Strait Islander offender's community may inspect, or
obtain a copy of, a court file or a document in a court file that may be
relevant to making a submission about the offender under section 9(2)(o) of
the Act.
New section 195C ensures that members of a community justice group
protect the confidentiality of information gained through performing a
function under the Act. Breaches of the confidentiality requirements will
constitute an offence for which the maximum penalty is 100 penalty units
or 2 years imprisonment. A member of a community justice group will be
authorised under this new section to record, use or disclose information as
62
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
part of making submissions to the court under section 9(2)(o) or which is
otherwise permitted by a law or to disclose information to another member
of the community justice group.
New section 195D provides protection to a representative of a community
justice group in a child's community who makes a submission, personally
or otherwise, to a court under the Act and members of the community
justice group who are involved in making the submission, from civil
liability for any act done, or omission made, honestly and without
negligence in relation to the making of the submission.
Part 14 Amendment of Valuation of Land
Act 1944
Clause 140 Act amended in pt 14
Clause 140 provides that this part amends the Valuation of Land Act 1944.
Clause 141 Amendment of s 2 (Definitions)
Clause 141 provides for the definitions of NPARC and TSIRC to be inserted
and the definition of area to be updated to include reference to these new
indigenous regional councils.
Clause 142 Insertion of new pt 8, div 1A
Clause 142 provides for part 8, division 1A to be inserted (Special
arrangements for implementation of local government reform).
The Department of Natural Resources and Water (NRW) does not provide
annual valuations for every local government area in the State each year.
This means that local governments may have different levels of value.
Many of the new local government areas will be made up of pre-reform
local government areas that currently have different levels of value.
63
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
NRW is committed to ensuring all new local governments have consistent
levels of value within their areas by 31 August 2009.
With this in mind, NRW has identified those areas and prioritised them to
be included in the next two annual valuation programs. This will provide
consistent levels of value for the new local governments--assisting with
their transition processes.
To achieve this NRW will continue to operate on pre-reform local
government boundaries until after the annual valuations become effective.
This also allows for the significant system changes required to reconfigure
the valuations database, to be completed.
NRW will provide valuation roll information to the new local governments
but will not complete the amalgamation process until after the new area's
annual valuation becomes effective.
New section 75K provides definitions specific to the local government
reform process and, therefore, to the provisions contained in this division.
New section 75L provides continuity of rating for new and adjusted local
governments by authorising the continued use of existing valuations for
land within their areas. These valuations will continue until they are
replaced by another valuation or altered by objection or appeal.
New section 75M provides for NRW to continue to operate on the pre-local
government reform areas. As mentioned previously, this allows NRW to
prioritise local government areas that have different levels of value and
include them in annual valuations effective by 30 June 2009.
This allows NRW to complete annual valuations for those areas where the
levels of valuation are different.
New section 75N ensures that even though, administratively, NRW will
continue to operate on pre-reform areas, valuation roll information will be
provided to the appropriate new area.
Part 15 Amendment of Water Act 2000
Clause 143 Act amended in pt 15
Clause 143 provides that this part amends the Water Act 2000.
64
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
On the changeover day, a new or an adjusted local government which is a
successor of any existing local government, or any other entity registered
as a service provider under the Water Act 2000, is taken to be a registered
service provider for the infrastructure for supplying water or sewerage
services in the same way as the existing local government or other
succeeded entity.
Clause 144 Amendment of s 25A (Meaning of
water supply emergency)
Clause 144 amends section 25A to update reference to a name of a council
as a consequence of local government reform.
Clause 145 Amendment of s 341 (What is the SEQ
region)
Clause 145 amends section 341 to update references to the local
governments which constitute the South-East Queensland region due to
local government reform.
Clause 146 Amendment of s 599 (Composition of
board for Gladstone Area Water
Board)
Clause 146 amends section 599 to update the reference to Gladstone
Regional Council, formed by the amalgamation of Gladstone City Council,
Calliope Shire Council and Miriam Vale Shire Council. The number of
persons nominated for the water board by the new Gladstone Regional
Council Water Board maintains the same level of representation for the
former areas of Gladstone City and Calliope Shire Councils.
65
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Clause 147 Amendment of s 1037A (Other
continuing authorities)
Clause 147 amends section 1037A to update a reference to a name of a
council as a consequence of local government reform.
Clause 148 Amendment of s 1041 (Completed
water allocation and management
plans)
Clause 148 amends section 1041 to update reference to a name of a council
as a consequence of local government reform.
Clause 149 Insertion of new ch 9, pt 5, div 10
Clause 149 inserts transitional provisions for the Local Government and
Other Legislation (Indigenous Regional Councils) Amendment Bill 2007 as
a result of the Reform Act and the new local government structure.
Inserted section 1156 sets out definitions used within the division.
Inserted section 1157 provides that if a local government was a service
provider for supplying water or sewerage services to a particular area
before the changeover day, and that area becomes part of a new local
government, on and after the changeover day the new local government is
taken to be the service provider to the same extent as is practical.
Inserted section 1158 sets a time limit of one year after the changeover day
within which the local government for new or adjusted local government
areas must supply the required documents to the regulator.
Inserted section 1159 provides that the regulator must amend its register to
reflect any changes that occurred as a result of the Reform Act and that the
new local government must give the regulator any information the regulator
requires to comply with this section.
Inserted section 1160 provides for the transfer of service areas and service
providers from existing local governments to new local governments from
the changeover day.
66
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Part 16 Repeals
Clause 150 Repeal of Community Services
(Torres Strait) Act 1984
Clause 150 provides that the Community Services (Torres Strait) Act 1984
No. 52 is repealed. The Torres Strait Island councils that were provided for
under that Act now come under the LGA as divisions of the new
indigenous regional councils - TSIRC or NPARC. The remaining
provisions regarding policing, community justice groups, access to land
and alcohol management are moved to be under the renamed Aboriginal
and Torres Strait Act.
Clause 151 Repeal of Nambour Library Act 1973
Clause 151 provides that the Nambour Library Act 1973 No. 27 is repealed.
The Act provided for the maintenance of a public library service by the
Council of the Shire of Maroochy and for the ratification of certain
dealings with land held by the council for that purpose. The shire of
Maroochy has been subsumed within the new Sunshine Coast Regional
Shire. However, because the Act's purposes have been achieved, the Act
can be repealed rather than amended.
Part 17 Consequential and minor
amendments
Clause 152 Acts amended
Clause 152 provides that the schedule amends the Acts mentioned in it.
67
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
Schedule - Consequential and minor amendments -
The schedule includes 50 minor and consequential amendments to -
· remove references to Torres Strait Island government, Island Councils
and Island Coordinating Council in certain Acts;
· replace definitions local government area as TSIRC and NPARC
are to be established under the LGA as with other local
governments;
· insert definitions for indigenous regional council for TSIRC and
NPARC established under the Reform Act;
· update references across the Statute Book to the renamed
Aboriginal and Torres Strait Act;
· provide that the Judicial Review Act 1991 does not affect a
decision made by the commissioner regarding the division
boundaries for new, adjusted or continued local government
areas;
· clarify community police officers powers and roles under the
Police Powers and Responsibilities Act 2000;
· update references and add definition for `Aboriginal or Island
police officers' to `community police officers' as amended under
this Bill;
· add a transitional provision in the Prostitution Act 1999 to ensure
that any development applications made by smaller local
governments that have been refused, or should have been
refused, continue to be refused after the implementation of the
reform process until the new local government or Minister
decides the application no longer needs to be refused;
· conform with current drafting practice; and
· omit redundant provisions.
68
Local Government and Other Legislation (Indigenous
Regional Councils) Amendment Bill 2007
The schedule also repeals sections 4, 5 and 6, and the schedule of the
School of Arts (Winding Up and Transfer) Act 1960. The sections
referenced the Shire of Jondaryan, the Shire of Clifton and the Shire of
Esk, which have been subsumed within the new Toowoomba Regional
Council and Somerset Regional Shire respectively. However, it is not
necessary to reflect these changes in the relevant sections because their
purposes have been achieved and therefore can be repealed.
© State of Queensland 2007