House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Indigenous Australians, the Honourable Linda Burney MP)

GENERAL OUTLINE

Purpose

1. The Bill will amend the Land Grant Act in four key areas:

a)

Facilitate home ownership style leases

The Bill will exempt certain leases granted by the Council (for a term of 40 years or more) from the application of the RTA. This will help to facilitate registered members voluntarily entering into a home ownership style lease with the Council.

b)

Strengthen local decision-making

The Bill will increase the payment amount at which the Council is required to seek approval from the Minister before entering into a contract, from $100,000 to $1 million.

c)

Improve the Council's governance and corporate operations

The Bill will:

i.

empower the executive committee to perform the full functions and powers of the Council (and to delegate some of those functions and powers);

ii.

empower the registered members to remove the executive committee (as a whole) at a special general meeting (by a two thirds majority) and prescribe a process for electing a new executive committee at a special general meeting;

iii.

introduce a fit and proper person test for executive members and prospective executive members;

iv.

introduce standard provisions to declare vacant the seat of any executive member who misses three consecutive meetings without being on leave and without reasonable excuse;

v.

establish the CEO position, confer functions and powers on the CEO, and prescribe the CEO's role as being to administer the Council's affairs in accordance with general directions issued by the executive committee. The CEO will also be added to the accountable authority of the Council for the purposes of the PGPA Act;

vi.

alter the numbers required to constitute a quorum at a reconvened general meeting from 40 members to 10 per cent, and numbers required to sign a written request calling for a special general meeting from 20 members to 10 per cent;

vii.

clarify processes and rules for the establishment of subcommittees of the Council;

viii.

confer on the Registrar powers to administer and constitute part of the accountable authority of the Council in the event the membership removes the executive committee, call and oversee an election for a new executive committee, administer the fit and proper person test for executive candidates and members, and declare the position of Chairperson vacant if the Chairperson misses three consecutive executive committee meetings without being on leave and without reasonable excuse; and

ix.

empower the Minister to remove an executive member from office if the executive member ceases to be a registered member.

d)

Amend or remove outdated or unclear provisions

The Bill will:

i.

change the name of the Land Grant Act to the "Aboriginal Land and Waters (Jervis Bay Territory) Act 1986";

ii.

repeal subsection 9A(2) of the Land Grant Act, which requires the Council to enter into an agreement to lease with the Director before land in the Booderee National Park can be declared as Aboriginal Land;

iii.

provide that the Council serves the registered members and eligible children, rather than the Community more generally; and

iv.

update the wording in relation to the term "physical or mental incapacity" (of executive members) at paragraph 33(1)(b) of the Land Grant Act.

Background

2. The Land Grant Act provides a legislative framework for declaring land as Aboriginal Land in Jervis Bay Territory to be granted to the Council and the establishment of the Council to hold title to, and manage, the Aboriginal Land. The Council is able to grant leases for domestic purposes on Aboriginal Land (that are leases to which the RTA applies).

3. The reforms in this Bill are designed to address the longstanding needs and requests of the Community and executive committee. The reforms will help to facilitate registered members voluntarily entering into home ownership style leases, build the Council's corporate capability, reduce red tape and remove certain provisions that have historically limited the Council's decision making processes. All reforms have been informed by an extensive co-design process between the Council, the Australian Government and the Community more generally.

4. Some reforms were proposed by the NIAA and others by the executive committee and past CEOs during a series of meetings over multiple years. These co-design meetings culminated in an agreed list of proposed reforms in mid-2020. A series of targeted in-person, telephone and online meetings were conducted during the next phase of the co-design process in 2020 and 2021. These sessions provided opportunities for specific subsets of the community, including elders, a youth group, subcommittees and men's and women's groups, as well as the Community more generally, to provide feedback on the proposed reforms.

5. An exposure draft of the Bill was sent to the executive committee on 11 February 2022 and NIAA staff met in person with the executive committee to discuss the Bill further. Every reform in the Bill has been explicitly endorsed by the executive committee.

6. The Bill was introduced into the House of Representatives on 30 March 2022 but lapsed when Parliament was prorogued. The Council's executive committee requested the Bill be reintroduced unchanged. NIAA held community information sessions on the Bill in Wreck Bay in August 2022, and there was consensus for the Bill to be reintroduced unchanged at the earliest opportunity.

Help to facilitate home ownership style leases

7. The High Court decided in Williams v Wreck Bay Aboriginal Community Council & Anor [2019] HCA 4 that the RTA applies to leases granted by the Council. The Bill provides the RTA does not apply to leases for domestic purposes over 40 years. The Council intends to offer home ownership style leases of 40 years or more to registered members. These leases may be sold to other registered members or passed down to future generations.

Strengthen local decision-making

8. The threshold at which the Council is required to seek approval from the Minister before entering into a contract has been $100,000 since 1995. Increasing the threshold to $1 million will give the Council greater autonomy and will reduce administrative burdens on the Council and the Minister.

9. By way of comparison, under the Land Rights Act, the Northern Territory Land Councils' comparable threshold increased from $100,000 to $1 million in 2006 amendments to the Land Rights Act. This threshold increased to $5 million with passage of the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Act 2021, which reflects Northern Territory Land Councils' current size relative to the Council.

Improve the Council's governance and corporate operations

Empower the executive committee to perform its full functions and powers

10. The Land Grant Act presently vests the powers and functions of the Council in the registered members, who are empowered under section 36 of the Land Grant Act to delegate those powers and functions to the executive committee, and to revoke that delegation. By ensuring that the executive committee can perform the full functions and powers of the Council (including to look after land, housing and other services) the executive committee will be able to function fully and make all necessary decisions without the risk of being stripped of its delegated powers, which can cause significant instability if exercised.

11. The executive committee will be explicitly empowered to delegate any of its functions or powers (other than those powers conferred by sections 38 and 39 of the Land Grant Act) to the CEO, a subcommittee established under section 35A, or an employee of the Council. This will ensure that the Council is able to operate efficiently. Given the broad remit of the functions and powers of the executive committee, it will be explicitly empowered to delegate any of those functions or powers. It is not appropriate to impose seniority or other limits on the discretion to delegate given the small size of the Council and its employee base. The executive committee generally delegates to subcommittees with specific cultural expertise or seniority. The executive committee may provide written directions regarding the exercise of delegated functions and powers. This ensures that the executive committee retains strategic control over the Council's operations.

12. The executive committee will be required to act in accordance with any policies determined by the Council. Given the nature of these policies, they are not legislative instruments.

Empower the registered members to remove the executive committee

13. Given the registered members will no longer have the power to revoke the executive committee's delegated powers, empowering registered members to remove the executive committee and prescribing a process in the Bill for electing a new executive committee will provide an accountability mechanism for the executive committee. To ensure continuity and stability, the Registrar will also have additional powers in the event the executive committee is removed, including to administer the Council prior to a new executive committee being elected.

14. If two thirds or more of registered members present and voting at a special general meeting vote in favour of the removal of the executive committee they will be removed. With of the signatures of 10 per cent of the registered members, any registered member may initiate this process, provided they also attend the meeting.

Introduce a fit and proper person test

15. Introducing an objective fit and proper person test for the executive committee members, and prospective members, will ensure that persons who may be unsuitable to serve are precluded from a position on the executive committee. A person will not be able to serve on the executive committee if they have a recent serious criminal conviction or if they are currently bankrupt, among other things.

16. Prospective executive members will be required, in the course of nominating for election to the executive committee, to declare that they are a fit and proper person. Prospective executive members will also undertake to notify the Registrar if they cease to be a fit and proper person whilst being an executive member.

17. The Registrar, if requested by the Minister, the CEO, or an executive member, must investigate whether or not a prospective or serving executive member is a fit and proper person. In the course of conducting such an investigation, the Registrar may request that the person who is the subject of the investigation provide the Registrar with criminal history records. The Registrar may also request that the person provide their consent for the Registrar to access the person's criminal history records or bankruptcy records for the purposes of the investigation.

18. Providing the Registrar with the power to request personal information of this kind is necessary in order to ensure that service on the executive committee is reserved for fit and proper persons. Requiring a signed declaration as to fitness and propriety - rather than the provision of criminal and bankruptcy records - upon nomination for election to the executive committee is designed to limit the collection of personal or sensitive information. This mechanism ensures that personal information will only be collected in circumstances where an investigation is being conducted into a person's fitness and propriety to hold office as an executive member and the Registrar considers it appropriate to obtain the information in order to conduct that investigation.

19. Criminal and bankruptcy/insolvency records can only be collected by the Registrar with the consent of the individual, and used only for the purpose of conducting an investigation into a person's fitness and propriety to hold office as an executive member.

20. The Registrar must remove any executive member who is not a fit and proper person, or who fails without reasonable excuse to comply with the Registrar's request for information and/or consent to obtaining information in the course of investigating whether they are a fit and proper person.

21. Requiring prospective executive committee candidates to sign a declaration confirming they meet the prescribed fit and proper person test is broadly consistent with the process used by the Torres Strait Regional Authority, which is established under the Aboriginal and Torres Strait Islander Act 2005. Requiring members to commit to informing the Registrar if they cease to be fit and proper is consistent with the comparable process used by some corporations registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (for example, the Ngarrariyal Aboriginal Corporation).

Introduce provisions to declare vacant the seats of executive committee members who fail to attend meetings

22. There are currently no repercussions for executive members who fail to attend meetings. Members can retain their position without performing their role. An executive member who misses three consecutive meetings without reasonable excuse or without being on leave of absence will be liable to have their position declared vacant and a by-election will be called to fill the position. This will encourage better meeting attendance and performance by executive members.

Include CEO provisions and add the CEO to the accountable authority of the Council

23. The position of the CEO is not established in the Land Grant Act so the functions and powers of the CEO, including the relationship between the executive committee, the CEO and broader membership, are presently unclear. Clarifying the CEO's role and responsibilities will reduce confusion and uncertainty.

24. The CEO is to be responsible for the day-to-day administration of the Council, entering into contracts and employing staff. The CEO will be empowered to do all things necessary or convenient to be done for or in connection with the performance of the CEO's duties.

25. Given the broad remit of the CEO's functions and powers, the CEO will be explicitly empowered to delegate any of those functions or powers to employees of the Council. It would not be appropriate to impose seniority or other limits on the CEO's discretion to delegate given the small size of the Council and its employee base.

26. The executive committee may give written directions to the CEO in relation to the performance of the CEO's functions and powers. A direction given by the executive committee to the CEO is not a legislative instrument.

27. Currently, the Council's accountable authority under the PGPA Act consists only of the executive committee. Including the CEO in the Council's accountable authority for the purposes of the PGPA Act will ensure the CEO will be explicitly subject to the requirements set out in the PGPA Act, and will align the Land Grant Act with the Land Rights Act's accountable authority arrangements to ensure consistency across land rights legislation.

Alter the amount of the registered members required for meetings

28. As the number of registered members grows, the number that constitutes a quorum at general meetings and the number required to call a special general meeting is decreasing as a proportion of overall membership. Having a percentage of members rather than a fixed number of members to constitute a quorum at a reconvened general meeting (from 40 members to 10 per cent) and to sign a written request calling for a special general meeting (from 20 members to 10 per cent), including for the newly established process for calling a special general meeting to allow registered members to vote to remove the executive committee, will accommodate the increasing membership base.

Clarify processes and rules for the establishment of subcommittees

29. There are currently no provisions relating to subcommittees in the Land Grant Act. The Bill makes clear the executive committee is able to establish subcommittees and outlines broad rules for their operation. Subcommittees must be constituted by no fewer than two and no more than five executive committee members, may include registered members who are not elected to the executive committee, and must be chaired by an executive committee member on the subcommittee.

Confer certain powers on the Registrar

30. The Registrar was important in 1986 in setting up the Council, however the Registrar does not currently have a clear role and purpose. Equipping the Registrar with a clearer role and further powers will provide an additional resource and dispute resolution mechanism for the registered members.

31. The Bill provides that the Registrar is to be the administrator of the Council if all executive members are removed from office. A period where the Registrar is the administrator of the Council is referred to as the "interim period". It is considered appropriate for the Registrar to have the functions and powers of WBACC in the interim period given it will in practice be unlikely but will provide an option for objective impartiality in the short-term, if needed.

32. During periods where the Registrar administers the Council, the Bill ensures that the Registrar will be part of WBACC's accountable authority for the purposes of the PGPA Act.

Empower the Minister to remove an executive member from office if they cease to be a registered member

33. There is presently no such removal mechanism in the Land Grant Act. This will ensure that the Council is governed by registered members only.

Amend or remove outdated or unclear provisions

Change the name of the Land Grant Act to include "Waters"

34. The title of the Land Grant Act does not reflect its application to waters as well as land. Including "Waters" reflects the applicability of the Council's 1995 grant of Jervis Bay Territory waters as well as land.

Remove a leaseback requirement for Booderee National Park

35. Booderee National Park land currently cannot be granted to the Council unless the Council has agreed to lease that land back to the Director. Repealing subsection 9A(2) demonstrates the Government's commitment to shared decision-making. This reform will not impact the current Booderee National Park lease which expires in 2094.

Clarify the Council serves registered members and eligible children

36. When the Land Grant Act was established all residents on Aboriginal Land were registered members but this is no longer the case. Specifying that the Council exists to serve registered members and eligible children rather than the Community more generally will clarify who the Council is obliged to serve. Eligible children are included to ensure that minors who do not qualify for membership due to their age will still be able to receive services, even if those minors live outside of Aboriginal Land.

Update the wording of "physical or mental incapacity"

37. The wording in the Land Grant Act in relation to "physical or mental incapacity" regarding executive members is outdated. Ensuring the Land Grant Act's wording is updated to clarify that if the executive member is unable to perform the duties of the executive member's office because of physical or mental incapacity brings the wording into line with modern drafting conventions.

FINANCIAL IMPACT

38. The measures in the Bill have no financial impact.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

39. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

40. The Statement of Compatibility with Human Rights is provided at the end of this Explanatory Memorandum.