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TASMANIA
__________
ABORIGINAL LANDS AMENDMENT BILL 2005
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
PART 2 ABORIGINAL LANDS ACT 1995 AMENDED
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 3A inserted
3A. Aboriginal person
6. Section 8 amended (Aboriginal Land Council of Tasmania
Electors Roll)
7. Section 9 amended (Who is entitled to be on the Roll)
8. Section 10 amended (Preliminary Roll)
9. Section 10A inserted
10A. Transfer of names to Roll
10. Sections 11 and 12 substituted
11. Availability of Preliminary Roll and Roll
12. Conduct of elections
11. Section 14 amended (Who may stand for election)
12. Section 18 amended (Functions and powers of Council)
13. Section 19 amended (Review of Council's decisions)
14. Section 27 amended (Land vested in Council)
[Bill 39]-I
15. Section 33 amended (Folio of Register to be created for
Aboriginal land)
16. Section 34 amended (Stamp duty and charges not payable)
17. Section 35A inserted
35A. Registration of declarations of land acquired by
Council
18. Section 40 amended (Indemnity of Council in respect of
Aboriginal land)
PART 3 CHILDREN, YOUNG PERSONS AND THEIR FAMILIES
ACT 1997 AMENDED
19. Principal Act
20. Section 3 amended (Interpretation)
PART 4 DUTIES ACT 2001 AMENDED
21. Principal Act
22. Section 53 amended (Exemptions relating to various
transactions)
PART 5 LAND ACQUISITION ACT 1993 AMENDED
23. Principal Act
24. Section 5A amended (Certain land may not be acquired)
PART 6 LIVING MARINE RESOURCES MANAGEMENT ACT 1995
AMENDED
25. Principal Act
26. Section 3 amended (Interpretation)
PART 7 YOUTH JUSTICE ACT 1997 AMENDED
27. Principal Act
28. Section 3 amended (Interpretation)
2
ABORIGINAL LANDS AMENDMENT BILL 2005
(Brought in by the Premier, the Honourable Paul Anthony
Lennon)
A BILL FOR
An Act to amend the Aboriginal Lands Act 1995 and make
consequential amendments to other Acts
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Aboriginal Lands
Amendment Act (No. 2) 2005.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 39] 3
s. 3 No. Aboriginal Lands Amendment 2005
PART 2 ABORIGINAL LANDS ACT 1995 AMENDED
3. Principal Act
In this Part, the Aboriginal Lands Act 1995* is
referred to as the Principal Act.
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by omitting the definitions of
"Aboriginal land" and "Aboriginal
person" and substituting the following
definitions:
"Aboriginal land" means
(a) land vested in the Council
under section 27(1); or
(b) any land declared by the
Minister to be Aboriginal
land under section 35A;
"Aboriginal person" means a person
specified in section 3A;
(b) by inserting "at the time and date fixed
by the Electoral Commissioner under
section 12(2) for the relevant election"
after "that area" in the definition of
"eligible elector";
*No. 98 of 1995
4
2005 Aboriginal Lands Amendment No. s. 5
(c) by inserting the following definition after
the definition of "north-west region":
"Preliminary Roll" means the
Preliminary Roll prepared under
section 10(2A);
(d) by inserting "Derwent Valley," after
"Highlands," in the definition of "south
region";
(e) by omitting "New Norfolk," from the
definition of "south region".
5. Section 3A inserted
After section 3 of the Principal Act, the
following section is inserted in Part 1:
3A. Aboriginal person
(1) An Aboriginal person is a person who
satisfies all of the following
requirements:
(a) Aboriginal ancestry;
(b) self-identification as an
Aboriginal person;
(c) communal recognition by
members of the Aboriginal
community.
(2) The onus of proving that a person
satisfies the requirements referred to in
subsection (1) lies on that person.
5
s. 6 No. Aboriginal Lands Amendment 2005
6. Section 8 amended (Aboriginal Land Council of
Tasmania Electors Roll)
Section 8 of the Principal Act is amended by
omitting subsections (1) and (2) and substituting
the following subsections:
(1) The Electoral Commissioner is to
(a) prepare and maintain an
Aboriginal Land Council of
Tasmania Electors Roll; and
(b) include on the Roll, subject to
subsection (2), the address at
which each person named on the
Roll resides and indicate the
electoral area in which each such
person is enrolled.
(2) If the Electoral Commissioner is satisfied
that there is reason to do so, the Electoral
Commissioner may determine that an
address, other than the address at which a
person resides, is to be shown on the Roll
in respect of that person.
(2A) As soon as practicable after the
commencement of the Aboriginal Lands
Amendment Act (No. 2) 2005, the
Electoral Commissioner is to prepare the
Roll, which is to comprise the names of
those persons who were entitled to vote
at the election of members of the Council
in 2001 and is to be constituted from the
material from which the Roll for that
election was constituted.
6
2005 Aboriginal Lands Amendment No. s. 6
(2B) The Electoral Commissioner is to
transfer the name of a person to the Roll
in accordance with section 10A.
(2C) The Electoral Commissioner may
remove the name of a person from the
Roll if
(a) the Electoral Commissioner is
satisfied that the person has
ceased to be entitled under
section 9(1)(b); or
(b) that person has applied in writing
to have his or her name removed
from the Roll.
(2D) A person whose name has been removed
from the Roll under subsection (2C) may
apply in writing to the Electoral
Commissioner to have his or her name
reinstated to the Roll if that person is
entitled under section 9(1)(b).
(2E) On receipt of an application under
subsection (2D), the Electoral
Commissioner is to reinstate the name of
a person to the Roll if the Electoral
Commissioner is satisfied that the person
is entitled under section 9(1)(b).
(2F) The Electoral Commissioner may change
the address shown on the Roll in respect
of a person if the Electoral
Commissioner is satisfied that the person
has changed the address at which he or
she resides.
7
s. 7 No. Aboriginal Lands Amendment 2005
7. Section 9 amended (Who is entitled to be on the
Roll)
Section 9(3) of the Principal Act is amended by
omitting "the eligibility of a person to have his
or her name entered on the Roll on the basis that
the person is or is not an Aboriginal person" and
substituting "the requirements referred to in
section 3A".
8. Section 10 amended (Preliminary Roll)
Section 10 of the Principal Act is amended as
follows:
(a) by omitting subsection (1);
(b) by omitting from subsection (2)(a)
"which is to be prepared for the purposes
of the election";
(c) by omitting from subsection (2)(b) "of
closure of the Roll" and substituting "at
which applications for enrolment on the
Roll close";
(d) by inserting the following subsections
after subsection (2):
(2A) In each year in which
nominations for an election of
members of the Council are to be
called, the Electoral
Commissioner is to prepare a
Preliminary Roll.
8
2005 Aboriginal Lands Amendment No. s. 8
(2B) The Electoral Commissioner is to
enter on the Preliminary Roll the
names of all persons who
(a) have lodged a properly
completed enrolment
form with the Electoral
Commissioner
(i) after the
commencement of
the Aboriginal
Lands Amendment
Act (No. 2) 2005
and before the
close of
applications for
enrolment on the
Roll in the year
2005; or
(ii) in any other year
after the year 2005
in which
nominations for an
election of
members of the
Council are to be
called, after the
close of
applications for
enrolment on the
Roll in the
previous year in
which
nominations for an
election of
members of the
9
s. 8 No. Aboriginal Lands Amendment 2005
Council were
called and before
the close of
applications for
enrolment on the
Roll in that other
year; and
(b) have been determined by
the Electoral
Commissioner as meeting
the requirements in
section 9(1)(b) and (c).
(e) by omitting from subsection (3)(a) "an
Aboriginal Land Council of Tasmania
Electors" and substituting "a
Preliminary";
(f) by omitting paragraph (b) from
subsection (3) and substituting the
following paragraph:
(b) stating that the Preliminary Roll
may be inspected and specifying
the times and places at which the
Preliminary Roll may be
inspected; and
(g) by omitting from subsection (3)(c)
"inclusion of the name of a person on the
Roll or the exclusion of the name of a
person from the Roll on the basis that the
person is or is" and substituting "transfer
of the name of a person from the
Preliminary Roll to the Roll on the basis
that the person is";
10
2005 Aboriginal Lands Amendment No. s. 8
(h) by omitting from subsection (4)(b)
"included on or excluded from" and
substituting "transferred from the
Preliminary Roll to";
(i) by inserting the following subsection
after subsection (4):
(4A) Before rejecting an objection, the
Electoral Commissioner must be
satisfied that the person to whom
the objection relates has satisfied
the requirements referred to in
section 3A(1)(a), (b) and (c).
(j) by omitting paragraph (a) from
subsection (5);
(k) by omitting from subsection (5)(b) "that
person" and substituting "those persons";
(l) by omitting subsection (6) and
substituting the following subsections:
(6) No action or proceeding may be
brought in respect of a decision of
the Electoral Commissioner as to
whether a person is or is not an
Aboriginal person except as
prescribed in subsection (7).
(7) A person who lodged an
objection under this section, or a
person to whom an objection
related, who is aggrieved by the
decision of the Electoral
Commissioner may, in
accordance with the Rules of the
Supreme Court, appeal to the
11
s. 9 No. Aboriginal Lands Amendment 2005
Supreme Court, within 7 days
after the date on which notice was
served on that person under
subsection (5), on the ground that
procedures that are required by
law to be observed relating to the
making of the decision have not
been observed.
9. Section 10A inserted
After section 10 of the Principal Act, the
following section is inserted in Division 2:
10A. Transfer of names to Roll
(1) If no objection in relation to a name was
lodged with the Electoral Commissioner
in accordance with section 10, the
Electoral Commissioner is to transfer the
name from the Preliminary Roll to the
Roll.
(2) If the Electoral Commissioner has
rejected an objection in relation to a
name in accordance with section 10, and
no appeal has been lodged under that
section in relation to that decision, the
Electoral Commissioner is to transfer the
name from the Preliminary Roll to the
Roll.
(3) If, in relation to an appeal to the Supreme
Court lodged under section 10, the effect
of the decision of the Supreme Court is
that the Electoral Commissioner
reconsider the objection in relation to a
name, and the objection is then rejected
12
2005 Aboriginal Lands Amendment No. s. 10
by the Electoral Commissioner, the
Electoral Commissioner is to transfer the
name from the Preliminary Roll to the
Roll.
10. Sections 11 and 12 substituted
Sections 11 and 12 of the Principal Act are
repealed and the following sections are
substituted:
11. Availability of Preliminary Roll and Roll
(1) The Electoral Commissioner is to make
the Preliminary Roll and the Roll
available to the Council.
(2) The Council may use the Preliminary
Roll and the Roll for any purposes
related to the performance of its
functions.
(3) The Electoral Commissioner may use the
Preliminary Roll and the Roll for the
purpose of performing any of his or her
functions under this Act.
(4) The Council may provide to any person
who has obtained the approval of the
Council a copy of the Preliminary Roll
and the Roll or any part of those Rolls in
printed or electronic form.
(5) For the purposes of subsection (4), the
approval of the Council is to be in
writing and is to specify the purpose for
which information contained in the
13
s. 10 No. Aboriginal Lands Amendment 2005
Preliminary Roll or the Roll may be
used.
(6) A person must not make or use a copy of
the Preliminary Roll or the Roll or any
part of the Preliminary Roll or the Roll
for any purpose other than that specified
in subsection (2) or (3) or in the approval
referred to in subsection (5).
Penalty: Fine not exceeding 100 penalty
units or imprisonment for a term
not exceeding 6 months, or both.
(7) The Freedom of Information Act 1991
does not apply to the Preliminary Roll or
the Roll.
12. Conduct of elections
(1) Elections of members of the Council are,
subject to any other provisions of this
Act, to be conducted in such manner as is
approved by the Electoral Commissioner.
(2) Without limiting subsection (1), the
Electoral Commissioner is to fix a time
and date for the purposes of determining
a person's entitlement to vote at an
election of members of the Council.
(3) Without limiting subsection (1), the
Electoral Commissioner is to fix a time
and date for the close of nominations in
respect of an election of members of the
Council.
14
2005 Aboriginal Lands Amendment No. s. 11
11. Section 14 amended (Who may stand for election)
Section 14 of the Principal Act is amended by
omitting "person is an eligible elector for that
area" and substituting "person's name is shown
on the Roll in respect of that electoral area at the
time and date fixed by the Electoral
Commissioner under section 12(3)".
12. Section 18 amended (Functions and powers of
Council)
Section 18 of the Principal Act is amended as
follows:
(a) by inserting in subsection (4) "and, in
particular, has power, subject to this Act,
to acquire, hold, dispose of and otherwise
deal with property, both real and
personal" after "functions";
(b) by omitting from subsection (6)
"acquired by the Council" and
substituting "in which the Council
acquires an interest".
13. Section 19 amended (Review of Council's decisions)
Section 19(1)(c) of the Principal Act is amended
by inserting "or other land in which the Council
acquires an interest" after "land".
15
s. 14 No. Aboriginal Lands Amendment 2005
14. Section 27 amended (Land vested in Council)
Section 27 of the Principal Act is amended as
follows:
(a) by inserting the following subsection
after subsection (1):
(1A) The land declared under
section 35A is held by the
Council
(a) in trust for Aboriginal
persons in perpetuity; and
(b) subject to the provisions
of this Act.
(b) by inserting in subsection (2) "referred to
in subsection (1)" after "land";
(c) by inserting the following subsection
after subsection (2):
(2A) The land referred to in
subsection (1A) includes the right
to minerals, other than oil, atomic
substances and geothermal
substances, within the meaning of
the Mineral Resources
Development Act 1995, and to
helium, to a depth of 50 metres.
(d) by inserting in subsection (3) "referred to
in subsection (1)" after "land";
(e) by omitting from subsection (4)(a)
"Aboriginal land" and substituting "land
referred to in subsection (1)".
16
2005 Aboriginal Lands Amendment No. s. 15
15. Section 33 amended (Folio of Register to be created
for Aboriginal land)
Section 33 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)
"Aboriginal land" and substituting "land
vested in the Council under
section 27(1)";
(b) by omitting from subsection (2)
"Aboriginal land" and substituting "land
vested in the Council under
section 27(1)";
(c) by omitting from subsection (3)
"Aboriginal land" first occurring and
substituting "land vested in the Council
under section 27(1)";
(d) by omitting from subsection (3)
"Aboriginal" second occurring and
substituting "that".
16. Section 34 amended (Stamp duty and charges not
payable)
Section 34(2) of the Principal Act is amended by
inserting "under section 27(1)" after "Council".
17. Section 35A inserted
After section 35 of the Principal Act, the
following section is inserted in Part 3:
17
s. 18 No. Aboriginal Lands Amendment 2005
35A. Registration of declarations of land acquired
by Council
(1) The Council may apply to the Minister in
writing for land acquired by it to be
declared to be Aboriginal land.
(2) On receipt of an application under
subsection (1), the Minister must declare
the land referred to in the application to
be Aboriginal land.
(3) As soon as practicable after making the
declaration, the Minister must lodge with
the Recorder of Titles in a form approved
by the Recorder a copy of the
declaration.
(4) The Recorder of Titles must, as soon as
practicable after lodgment of the copy of
the declaration, record the declaration on
the folio of the Register in respect of that
land.
18. Section 40 amended (Indemnity of Council in
respect of Aboriginal land)
Section 40 of the Principal Act is amended by
omitting "Aboriginal land" and substituting
"land vested in the Council under section 27(1)".
18
2005 Aboriginal Lands Amendment No. s. 19
PART 3 CHILDREN, YOUNG PERSONS AND THEIR
FAMILIES ACT 1997 AMENDED
19. Principal Act
In this Part, the Children, Young Persons and
Their Families Act 1997* is referred to as the
Principal Act.
20. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by
omitting the definition of "Aboriginal child" and
substituting the following definition:
"Aboriginal child" means a child who is an
Aboriginal person within the meaning of
the Aboriginal Lands Act 1995;
*No. 28 of 1997
19
s. 21 No. Aboriginal Lands Amendment 2005
PART 4 DUTIES ACT 2001 AMENDED
21. Principal Act
In this Part, the Duties Act 2001* is referred to
as the Principal Act.
22. Section 53 amended (Exemptions relating to various
transactions)
Section 53 of the Principal Act is amended by
omitting paragraph (h) and substituting the
following paragraphs:
(h) any instrument relating to the vesting of
land in the Aboriginal Land Council of
Tasmania under section 27(1) of the
Aboriginal Lands Act 1995;
(ha) any instrument relating to the transfer of
land to the Aboriginal Land Council of
Tasmania by way of gift, bequest or
devise and declared to be Aboriginal land
under section 35A of the Aboriginal
Lands Act 1995;
*No. 15 of 2001
20
2005 Aboriginal Lands Amendment No. s. 23
PART 5 LAND ACQUISITION ACT 1993 AMENDED
23. Principal Act
In this Part, the Land Acquisition Act 1993* is
referred to as the Principal Act.
24. Section 5A amended (Certain land may not be
acquired)
Section 5A of the Principal Act is amended by
inserting "without the agreement of the
Aboriginal Land Council of Tasmania
established under the Aboriginal Lands Act
1995" after "this Act".
*No. 23 of 1993
21
s. 25 No. Aboriginal Lands Amendment 2005
PART 6 LIVING MARINE RESOURCES
MANAGEMENT ACT 1995 AMENDED
25. Principal Act
In this Part, the Living Marine Resources
Management Act 1995* is referred to as the
Principal Act.
26. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended by
omitting the definition of "Aborigine" and
substituting the following definition:
"Aborigine" means an Aboriginal person
within the meaning of the Aboriginal
Lands Act 1995;
*No. 25 of 1995
22
2005 Aboriginal Lands Amendment No. s. 27
PART 7 YOUTH JUSTICE ACT 1997 AMENDED
27. Principal Act
In this Part, the Youth Justice Act 1997* is
referred to as the Principal Act.
28. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by
omitting the definition of "Aboriginal youth"
and substituting the following definition:
"Aboriginal youth" means a youth who is an
Aboriginal person within the meaning of
the Aboriginal Lands Act 1995;
*No. 81 of 1997
Government Printer, Tasmania 23