House of Representatives

Explanatory Memorandum

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

NOTES ON CLAUSES

Clause 1 - Short title

1. Clause 1 provides for the Amendment Act to be cited as the Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Act 2022.

Clause 2 - Commencement

2. Clause 2 provides for the commencement of each provision in the Amendment Act, as set out in the table. The whole of the Amendment Act commences the day after the Amendment Act receives the Royal Assent.

Clause 3 - Schedules

3. Clause 3 provides that legislation that is specified in a Schedule to the Amendment Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Amendment Act has effect according to its terms.

Schedule 1 - Amendments

Part 1 - Amendments

Aboriginal Land Grant (Jervis Bay Territory) Act 1986

Item 1 - Section 1

4. This item amends subsection 1 of the Land Grant Act to omit "Grant" and insert "and Waters" into the short title. The current short title of the Land Grant Act does not reflect its application to waters.

Item 2 - Subsection 2(1)

5. This item inserts the following definitions into subsection 2(1) of the Land Grant Act:

i.

Chief Executive Officer means the Chief Executive Officer of the Council.

ii.

child means an individual who has not reached 18 years.

iii.

eligible child means a child with a connection to the Community.

iv.

fit and proper person has the meaning given by section 34F.

Item 3 - Section 4A

6. Section 4A of the Land Grant Act would define the executive committee as the accountable authority of the Council for the purposes of the PGPA Act. Item 3 repeals the existing section 4A and substitutes a new section 4A to define the accountable authority of the Council for the purposes of the PGPA Act and prescribes the operation of meetings of the members of the accountable authority of the Council.

7. Meetings of the members of the accountable authority of the Council must operate as follows:

i.

The Chairperson must preside at all meetings at which they are present.

ii.

If the Chairperson is not present, the Deputy Chairperson must preside at the meeting.

iii.

If the Deputy Chairperson is not present at the meeting, the members present must appoint someone from amongst themselves to preside at the meeting.

iv.

Questions must be determined by a majority of the votes of the members present and voting.

v.

The person presiding at the meeting has a deliberative vote and, in the case of an equality of votes, a casting vote.

Items 4-9 - Section 6

8. Section 6 of the Land Grant Act sets out various functions of the Council. Items 4-9 omit references to "the members of the Community", "members of the Community, and "the Community" and substitute "registered members and eligible children" to provide that the Council, in performing its functions, serves registered members and eligible children. As a result, minors that have a connection to the Community will still be able to receive services from the Council.

Item 10 - Subsection 7(3)

9. Subsection 7(3) of the Land Grant Act requires the Council to obtain the approval of the Minister before entering into a contract involving the payment by the Council of an amount exceeding $100,000, or, if a higher amount is prescribed, that amount. Item 10 updates the figure to "$1 million" to reduce red tape on both the Council and the Minister. The $100,000 threshold has not increased since 1995.

Item 11 - Subsection 9A(2)

10. Subsection 9A(2) of the Land Grant Act requires the Council and the Director to enter into an agreement under which the Council agrees to grant to the Director a lease of all land that is to become Aboriginal Land under a subsection 9A(1) declaration of Aboriginal Land. Item 11 repeals subsection 9A(2) to ensure that the Minister can grant land within Booderee National Park to the Council even if the Council has not promised to lease that land back to the Director.

Item 12 - Subsection 23(2)

11. Subsection 23(2) of the Land Grant Act requires the Chairperson to, on receipt of a written request signed by not less than 20 registered members, convene a special general meeting of the Council. Item 12 omits "20" and substitutes "10% of the" to accommodate an increasing membership. As the number of registered members grow, the number that constitutes a quorum at meetings is decreasing as a proportion of the overall membership.

Item 13 - After subsection 23(2)

12. Item 13 inserts subsections (2A), (2B) and (2C) after subsection 23(2) of the Land Grant Act to provide for the convening of a special general meeting to consider removing all executive members from office.

i.

Subsection 23(2A) provides that a registered member may, on receipt of a written request signed by not less than 10% of the registered members, convene a special general meeting of the Council to consider and vote on a motion that all executive members be removed from office. The requirement to move a motion does not need to be explicitly incorporated into subsection 23(2A).

ii.

Subsection 23(2B) confirms that if a registered member convenes a special general meeting the registered member must attend the meeting and if the registered member does not attend the meeting a motion that all executive members be removed from office must not be moved at the meeting.

iii.

Subsection 23(2C) says that the Registrar must convene a special general meeting if required to do so by subsection 29(3A). Subsection 29(3A) is about elections to be held following the removal from office of all executive members.

Item 14 - Section 24

13. Subsections 23(1) and (2) of the Land Grant Act provide for the Minister and the Chairperson to convene a special general meeting. Section 24 of the Land Grant Act provides that a special general meeting may deal with any matters relating to the functions of the Council. Item 14 inserts after "A special general meeting" the words "convened under subsection 23(1) or (2)".

Item 15 - Subsection 26(1)

14. Subsection 26(1) of the Land Grant Act deals with voting on motions at general meetings. Item 15 adds a reference to subsection 33(4) to clarify that a motion that all executive members be removed from office moved at a special general meeting is taken to be passed only if it is supported by not less than two-thirds of the registered members present at the meeting and voting.

Item 16 - Paragraph 26A(1)(b)

15. Paragraph 26A(1)(b) of the Land Grant Act says that where a general meeting fails because a quorum has not formed within 60 minutes of the notified time of the meeting, the Chairperson must reconvene the meeting and at the reconvened meeting a quorum is constituted by 40 registered members.

16. Item 16 omits "40" and substitutes "10% of the registered members". The number of registered members has increased since the Council was established. As the number of registered members continues to grow, the proportion of registered members required to form a quorum will also continue to grow in a proportionate manner.

Item 17 - Paragraph 26A(2)(b)

17. Paragraph 26A(2)(b) of the Land Grant Act says that where a general meeting convened under subsection (1) fails because a quorum has not formed within 60 minutes of the notified time of the meeting, the Chairperson must reconvene the meeting in the same manner, for the same time, in the same place and for the same day of the following week, as the failed meeting and at the reconvened meeting, a quorum is constituted by 40 registered members.

18. Item 17 omits "40" and substitutes "10% of the registered members". The number of registered members has increased since the Council was established. As the number of registered members continues to grow, the proportion of registered members required to form a quorum will also continue to grow in a proportionate manner.

Item 18 - Subsection 28(2)

19. Subsection 28(2) prescribes the functions of the executive committee. Item 18 repeals the subsection because the functions of the executive committee will be set out in new section 28A of the Act (as outlined in item 19 below).

Item 19 - After section 28

20. Item 19 inserts the functions of the executive committee to clarify its role in the Council.

i.

The functions of the executive committee are such functions conferred on it by a provision of the Act (other than subsection 28A(1)), the regulations, or the PGPA Act.

ii.

The executive committee may perform any of the functions, and exercise any of the powers, of the Council.

iii.

In performing any of the functions, or exercising any of the powers, of the Council, the executive committee is to act in accordance with the policies determined by the Council.

iv.

All acts and things done in the name of, or on behalf of, the Council by the executive committee are taken to have been done by the Council.

v.

A policy mentioned in subsection (3) is not a legislative instrument.

21. Subsection 28A(5) is merely declaratory of the law, rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003. The policies issued by the Council under subsection 28A(3) apply to the specific functions of the executive committee and do not determine the content of the law. As the issuing of a policy is an administrative decision, review under the Administrative Decisions (Judicial Review) Act 1977 is available.

Item 20 - Subsection 29(1)

22. Subsection 29(1) of the Land Grant Act says that a person is not eligible to be an executive member unless he or she is a registered member. Item 20 replaces that subsection to confirm that a person is not eligible to be an executive member unless the person is a registered member and a fit and proper person. Further, subsection 29(1A) is inserted to clarify that anything done by or in relation to a person purporting to hold the office of an executive member is not invalid merely because the person is not a fit and proper person. Below subsection 29(1A), the Note points to subsection 33(7), which deals with the removal of office of an executive member who is not a fit and proper person.

Item 21 - Subsection 29(2)

23. Subsection 29(2) of the Land Grant Act confirms that, subject to subsection (3), executive members shall be elected at annual general meetings. Item 21 omits "subsection (3)" and substitutes "subsections (3) and (3A)", for consistency with item 22.

Item 22 - After subsection 29(3)

24. Subsection 29(3) of the Land Grant Act requires that a special general meeting be convened to hold an election, where a vacancy occurs in the office of an executive member, earlier than 30 days before the next annual general meeting. Item 22 inserts subsection 29(3A), which requires the Registrar to convene a special general meeting and an election for each of the offices of the executive members in the circumstance where all executive members are removed from office. The special general meeting, where that election is held, must be held not earlier than 30 days and not later than 60 days after the removal from office of the executive members.

Item 23 - At the end of subsection 30(5)

25. Subsection 30(5) of the Land Grant Act sets out the requirements for a nomination of a person for office. Item 23 adds the requirements that the nomination be accompanied:

i.

by a declaration signed by the person that the person is a fit and proper person; and

ii.

by a signed undertaking that, in the event that the person is elected to office, the person will notify the Registrar if they cease to be a fit and proper person whilst in office.

26. The Note below subsection 30(5) confirms that section 137.1 of the Criminal Code creates an offence of providing false or misleading information.

Item 24 - After section 32

27. Item 24 inserts section 32A, which provides that the executive committee may grant leave of absence to any executive member. A leave of absence will be granted on the terms and conditions that the executive committee determines. For the avoidance of doubt, leave can be granted in respect of a period that occurred wholly or partly before the day on which leave was granted.

Item 25 - Paragraph 33(1)(b)

28. Section 33 of the Land Grant Act deals with the removal of executive members from office. Paragraph 33(1)(b) provides the Minister with the power to remove an executive member from office "for physical or mental incapacity". Item 25 repeals this paragraph and substitutes it with updated language in order to comply with modern drafting conventions. New paragraph 31(1)(b) confirms that the Minister has the power to remove an executive member from office "if the executive member is unable to perform the duties of the executive member's office because of a physical or mental incapacity".

29. Item 25 also inserts paragraph 33(1)(c), which provides the Minister with the power to remove an executive member from office if the executive member ceases to be a registered member.

Item 26 - At the end of section 33

30. Section 33 of the Land Grant Act deals with the removal of executive members from office. Item 26 adds subsections (3)-(9) to section 33. These subsections set out the additional circumstances in which an executive member may be removed from office and processes relating to the removal of executive members from office.

i.

Subsection 33(3) provides that all executive members can be removed from office if a motion is passed at a special general meeting.

ii.

Subsection 33(4) provides that the motion in subsection 33(3) must be supported by not less than two-thirds of the registered members present at the meeting and voting in order to be passed.

iii.

Subsection 33(5) provides that an executive member may be removed from office by the Chairperson, in writing, if they are absent from three consecutive meetings of the executive committee without leave of absence and without reasonable excuse. The Note below subsection 33(5) confirms that leave of absence is granted under section 32A of the Land Grant Act.

iv.

Subsection 33(6) provides that the Chairperson can be removed from office by the Registrar, in writing, if they have been absent from three consecutive meetings of the executive committee without leave of absence and without reasonable excuse. The Note below subsection 33(6) confirms that leave of absence is granted under section 32A of the Land Grant Act.

v.

Subsection 33(7) provides that the Registrar, in writing, must remove an executive member from office if: (a) the executive member is not a fit and proper person; or (b) the executive member was not a fit and proper person at the time when the executive member was nominated for the office of executive member; or (c) the executive member fails, without reasonable excuse to comply with a notice under subsection 34G(2) or (4). Item 30 sets out new section 34G, which provides the Registrar with the power to request a person to obtain a criminal history check (and provide this to the Registrar) or to give the Registrar consent to access criminal, bankruptcy or insolvency records for the purpose of conducting a fit and proper person investigation. There is no express requirement for a person to comply with the Registrar's request. However, if a person fails to provide the requested information or consent without reasonable excuse, they must be removed from office.

vi.

Subsection 33(8) provides that if the Registrar removes the Chairperson from office, the Registrar must notify the Minister, the Chairperson and the CEO, in writing, and do so as soon as practicable after the removal.

vii.

Subsection 33(9) provides that subsection 33(7), set out above, does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirements to disclose spent convictions and require persons aware of such convictions to disregard them).

Item 27 - After section 33

31. Item 27 inserts section 33A, providing that the Registrar is to be the administrator of the Council during the "interim period" if all executive members are removed from office.

i.

Subsection (1) clarifies the interim period begins at the time of the removal from office and ends at the start of the first meeting of the executive committee that is held after that removal from office.

ii.

The Note below subsection (1) refers the reader to subsection 29(3A), which is about elections to be held following the removal from office of all executive members.

iii.

Subsection (2) confirms that during the interim period the Registrar may perform any of the functions, and exercise any of the powers, of the Council or the executive committee.

iv.

Subsections (3) and (4) clarify that all acts and things done during the interim period in the name of, or on behalf of, the Council or the executive committee by the Registrar are to be taken to have been done by the Council or the executive committee, respectively.

v.

Subsection 33(5) says that for the purposes of the PGPA Act, the accountable authority of the Council consists of the Registrar and the CEO. Further, section 4A, which defines the accountable authority during all other times, does not apply during the interim period.

vi.

Subsection (6) clarifies that section 33A does not authorise the Registrar to exercise a power conferred by section 38 or 39. Section 38 relates to dealings in Aboriginal Land by the Council and section 39 relates to the surrender of Aboriginal Land to the Crown.

Item 28 - Subsection 34(6)

32. Subsection 34(6) of the Land Grant Act says "Questions arising at a meeting of the executive committee shall be determined by a majority of the votes of the executive members present and voting and the person presiding at the meeting has a deliberative vote and, in the case of an equality of votes, also has a casting vote." Item 28 omits the word "Questions" and substitutes, "Subject to subsection 34A(4), questions." Subsection 34A(4) provides the appointment of the CEO may be revoked by the executive committee by a unanimous resolution of the executive members present at a meeting of the executive committee. This ensures that a unanimous resolution is required for the appointment of the CEO to be revoked.

Item 29 - After Division 4 of Part IV

33. Item 29 inserts "Division 4A - Chief Executive Officer" into the Land Grant Act. This Division includes 5 sections that relate to the appointment, functions and powers of the CEO, among other things.

i.

Section 34A says there is to be a CEO of the Council. The CEO is appointed, in writing, by the executive committee and employed by the Council (otherwise than on a casual basis). This appointment continues in force despite a change to the membership of the executive committee. The appointment may be revoked by the executive committee by a unanimous resolution of the executive members present at a meeting of the executive committee.

ii.

Section 34B sets out the functions of the CEO. The CEO is responsible for the day-to-day administration of the Council. The CEO may enter into contracts and employ staff on behalf of the Council. The CEO has all the rights, duties and powers of an employer in respect of the engagement and employment, of employees of the Council and in relation to the Council's capacity as a party to a contract. Lastly, the CEO has the power to do all things necessary or convenient to be done for or in connection with the performance of the CEO's duties.

iii.

Section 34C provides that the executive committee may give written directions to the CEO in relation to the performance of the CEO's functions and powers. However, such a direction can only be of a general nature. The CEO is to act in accordance with any directions given by the executive committee. Lastly, it is confirmed that a direction is not a legislative instrument, which is simply declaratory of the law rather than prescribing a substantive exemption from the requirements of the Legislation Act 2003.

iv.

Section 34D says the executive committee may, by written instrument, appoint a person who is employed by the Council (otherwise than on a casual basis) to act as the CEO in certain circumstances: during a vacancy in the office of CEO; during any period when the CEO is absent from duty or from Australia; or the CEO is unable to perform the duties of the office. The appointment continues in force despite a change in the membership of the executive committee. Lastly, the appointment may be revoked by the executive committee (where or not there has been a change in the membership of the executive committee).

v.

Section 34E provides that the CEO may, in writing, delegate all or any of the CEO's functions or powers to an employee of the Council. For the reader's convenience, the Note says that sections 34AA to 34A of the AI Act contain provisions relating to delegations. The delegate must comply with any written directions of the CEO. Section 34E is an express power of delegation and the employees to whom the CEO's functions and powers are delegated to must use their own discretion in exercising that power or function whilst also complying with any written direction from the CEO. It is important to note that the power to delegate cannot be delegated further.

vi.

The proposed delegation power is necessary and appropriate given the broad remit of the CEO's functions and powers. The powers and functions that will be delegated are not limited, which will ensure the CEO is able to operate efficiently. The powers and functions will be delegated to employees of the Council with various qualifications, skills and expertise. 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. In practice, the CEO delegates to employees with specific expertise for each task at hand. Given the employee must comply with any written direction from the CEO, the CEO retains strategic control over their operations.

Item 30 - Before section 35

34. Item 30 inserts two sections relating to the meaning of a fit and proper person and investigations conducted by the Registrar into whether a person is a fit and proper person.

i.

Subsection 34F(1) sets out the conditions that preclude a person from being a fit and proper person:

#	Condition 1	Condition 2	Condition 3
(a)	The person has been convicted of an offence against a law of the Commonwealth, a State or a Territory (not involving dishonesty, violence or an offence against a child) and sentenced to a period of imprisonment of 12 months or more.	If the person does not serve a term of imprisonment-less than 5 years have elapsed since the day on which the person was convicted.	If the person serves a term of imprisonment-the person is in prison or less than 5 years have elapsed since the day on which the person was released from prison.
(b)	The person has been convicted of an offence against a law of the Commonwealth, a State or a Territory involving dishonesty, violence or an offence against a child and sentenced to a period of imprisonment of 3 months or more.	If the person does not serve a term of imprisonment-less than 10 years have elapsed since the day on which the person was convicted.	If the person serves a term of imprisonment-the person is in prison or less than 10 years have elapsed since the day on which the person was released from prison.
(c)	The person has been convicted of an offence against a law of a foreign country that is punishable by imprisonment for a period of 12 months or more and the offence is constituted by conduct that, if engaged in in the Jervis Bay Territory, would constitute an offence against a law of the Commonwealth or that Territory.	If the person does not serve a term of imprisonment-less than 5 years have elapsed since the day on which the person was convicted.	If the person serves a term of imprisonment-the person is in prison or less than 5 years have elapsed since the day on which the person was released from prison.
(d)	The person is an undischarged bankrupt under: (i) a law of the Commonwealth; or (ii) a law of an external Territory; or (iii) a law of a foreign country.
(e)	The person has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 or a similar law of an external Territory or a foreign country.		The terms of the agreement have not been fully complied with.
(f)	The person is disqualified from managing Aboriginal and Torres Strait Islander corporations under Part 6-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.
(g)	The person is disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001.

-

Subsection 34F(2) says that section 34F does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions, that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

-

Subsection 34F(3) clarifies that the definition of Territory in section 2 does not apply to section 34F.

ii.

Section 34G relates to investigations conducted by the Registrar into whether a person is a fit and proper person. The Registrar must, if requested by the Minister, CEO or an executive member investigate whether an executive member is a fit and proper person or whether a person nominated under subsection 30(4) is a fit and proper person.

-

The Registrar may, by written notice given to a person who is the subject of an investigation under subsection (1), request:

1.

The person to obtain a specified kind of criminal history check and give that check to the Registrar within the period specified in the notice, which must not be shorter than 30 days. The Registrar may vary the notice by extending the period specified in the notice.

2.

The person to give the Registrar, within the period specified in the notice, which must not be shorter than 30 days, a specified kind of written consent that the Registrar requires to enable criminal records to be checked for the purpose of the investigation or bankruptcy or insolvency records to be checked for the purposes of the investigation.

-

Subsection 34G(6) says that section 34G does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

35. Careful consideration has been given to the protection of personal and sensitive information in designing the relevant provisions so as to strike an appropriate balance between the objective of ensuring suitable persons are serving as officers on the executive committee and the Registrar's ability to request to personal and sensitive information in the course of conducting a fit and proper person investigation. In this context, the types of information that the Registrar may collect has been determined to be reasonable and proportionate for determining a person's fitness and propriety for office having regard to the functions that they will perform while holding that position. That information is limited in nature, may only be collected by the Registrar, and only for the purpose of conducting the investigation.

36. 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 need to collect personal and sensitive information at the outset. Information about a person's criminal history, bankruptcy status and/or disqualification from managing a corporation may only be collected where the Registrar is requested to conduct a fit and proper person investigation, and where the Registrar considers that such information is necessary for performing the investigation. The individual concerned will have discretion about whether they provide the information and/or consent to the Registrar, although a failure to comply without reasonable excuse will make them ineligible to hold office as an executive member.

Item 31 - Section 35 (at the end of the heading)

37. The heading of section 35 of the Land Grant Act is "Committees". Item 31 adds "established by the Council" at the end of the heading to provide greater specificity.

Item 32 - After section 35

38. Item 32 inserts section 35A to deal with subcommittees established by the executive committee.

i.

The executive committee may, from time to time, by resolution establish such subcommittees as the executive committee considers necessary or desirable for the purposes of the Act.

ii.

A subcommittee must be constituted by no fewer than 2 and no more than 5 executive members. One or more registered members can also be part of a subcommittee.

iii.

If the Chairperson is a member of a subcommittee, the Chairperson must convene, and preside at, meetings of the subcommittee.

iv.

If the Deputy Chairperson is a member of a subcommittee and the Chairperson is not a member of the subcommittee, the Deputy Chairperson is to convene, and preside at, meetings of the subcommittee.

v.

If neither the Chairperson nor the Deputy Chairperson is a member of a subcommittee, the subcommittee must elect a person is a member of the subcommittee and an executive member to convene, and preside at, meetings of the subcommittee.

vi.

A member of a subcommittee may resign by writing signed by the member and given to the Chairperson.

Item 33 - Section 36

39. Section 36 of the Land Grant Act deals with delegation of power. Item 33 repeals existing section 36 and substitutes a more specific provision about delegation by the executive committee.

i.

Subsection 36(1) says that the executive committee may, in writing, delegate all or any of its functions or powers under the Act (other than section 38 or 39) to a subcommittee established under section 35A, the CEO or an employee of the Council. Section 38 of the Land Grant Act relates to dealings in Aboriginal Land by the Council and section 39 relates to the surrender of Aboriginal Land to the Crown. The Note refers the reader to sections 34AA to 34A of the AI Act, which contain provisions relating to delegations.

ii.

Subsection (2) confirms that the delegate must comply with any written directions of the executive committee.

iii.

Subsection (3) confirms that the delegation continues in force despite a change in the membership of the executive committee.

iv.

Subsection (4) confirms that the delegation may be varied or revoked by the executive committee (whether or not there has been a change in the membership of the executive committee).

v.

The proposed delegation power is necessary and appropriate given the broad remit of the executive committee's functions and powers. The powers and functions that will be delegated are not limited to ensure the executive committee is able to operate efficiently. The powers and functions will be delegated to a subcommittee, the CEO or an employee of the Council with various qualifications, skills and expertise. It would not be appropriate to impose seniority or other limits on the executive committee's discretion to delegate given the small size of the Council and its employee base. In practice, the executive committee delegates to those with specific expertise for the task at hand. Given the delegate must comply with any written direction from the executive committee, the executive committee retains strategic control over their operations.

Item 34 - At the end of section 38

40. Section 38 of the Land Grant Act relates to dealings in Aboriginal Land by the Council. Item 34 provides that the RTA does not apply to a lease to which paragraph (2)(a), (c) or (d) applies where the term of the lease is 40 years or more. The particular leases are those leases granted to:

i.

a registered member or registered members for use for domestic purposes;

ii.

a registered member or registered members for use for the benefit of members, or of a significant number of the members, of the Community;

iii.

with the consent in writing of the Minister - to a person other than a registered member, or to persons at least one of whom is not a registered member, for use for domestic purposes.

Item 35 - Section 52

41. Section 52 of the Land Grant Act requires the executive committee to table a copy of the annual report on the Council at the next general meeting of the Council held after the deadline for the period to which the report relates. The report is prepared under section 46 of the PGPA Act, and the period and deadline are as specified in that section. Item 52 omits "executive committee" and substitutes with "accountable authority" in order to ensure consistency with the PGPA Act, which refers to "accountable authority".

Part 2 - Consequential amendments

Age Discrimination Act 2004

Item 36- Schedule 1 (table item 3)

42. Item 36 amends table item 3 so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Carbon Credits (Carbon Farming Initiative) Act 2011

Item 37 - Section 5 (paragraph (b) of the definition of statutory authority )

43. This item amends paragraph (b) of the definition of "statutory authority" so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Crimes Act 1914

Item 38 - Paragraph 15AB(3A)(c)

44. This item amends paragraph 15AB(3A)(c) of the Crimes Act 1914 so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Item 39 - Paragraph 16A(2AA)(c)

45. This item amends paragraph 16A(2AA)(c) of the Crimes Act 1914 so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect the its application to waters.

Environment Protection and Biodiversity Conservation Act 1999

Item 40 - Paragraph 363(2)(b)

46. This item amends paragraph 363(2)(b) of the EPBC Act so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Item 41 - Section 528 (subparagraph (i)(iii) of the definition of Commonwealth agency )

47. This item amends subparagraph (i)(iii) of the definition of "Commonwealth agency" in section 528 of the EPBC Act so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Jervis Bay Territory Acceptance Act 1915

Item 42 - Section 5

48. This item amends section 5 of the Jervis Bay Territory Acceptance Act 1915 so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Native Title Act 1993

Item 43 - Paragraph 210(a)

49. This item amends paragraph 210(a) of the Native Title Act 1993 so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Item 44 - Section 253 (subparagraph (a)(i) of the definition of Aboriginal/Torres Strait Islander land or waters )

50. This item amends subparagraph (a)(i) of the definition of Aboriginal/Torres Strait Islander land or waters in section 253 of the Native Title Act 1993 so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Protection of Movable Cultural Heritage Act 1986

Item 45 - Paragraph 17(1)(c)

51. This item amends paragraph 17(1)(c) of the Protection of Movable Cultural Heritage Act 1986 so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Item 46 - Subsection 18(2)

52. This item amends subsection 18(2) of the Protection of Movable Cultural Heritage Act 1986 so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Superannuation Act 1922

Item 47 - Subsection 4(9)

53. This item amends subsection 4(9) of the Superannuation Act 1922 so the Land Grant Act's title is accurately cited as the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 by omitting "Grant" and substituting "and Waters" to reflect its application to waters.

Part 3 - Application and transitional provisions

Item 48 - Application-general meetings

54. The amendment of subsection 23(2) of the Land Grant Act (made by this Schedule), which confirms that 10% of the registered members may request that the Chairperson convene a special general meeting of the Council, applies in relation to a request received by the Chairperson after the commencement of the item.

Item 49 - Transitional-executive member

55. The transitional item applies if a person held office as an executive member immediately before the commencement of the item and the person was elected to that office before the commencement of the item.

56. Subitem (2) says while such a person holds office paragraph 29(1)(b) of the Land Grant Act (as amended by this Schedule), which confirms that a person is not eligible to be an executive member unless the person is a fit and proper person, does not apply to the person. Furthermore, the person must not be nominated by two or more registered members under subsection 30(4) of the Land Grant Act unless the person is a fit and proper person.

57. The Note says that subsection 29(4) of the Land Grant Act (as amended by this Schedule) sets out the period during which the person holds that office. Subsection 29(4) says that an executive members hold office from the time at which they are declared to have been elected to the office at an annual general meeting until the time, at the first or second annual general meetings, as the case may be, after that meeting, at which a person is declared to have been elected to that office.

58. An executive member can still be removed from office under subsection 33(7) if the person is not a fit and proper person. However, while an executive member holds office, paragraph 33(7)(b) of the Land Grant Act does not apply to the person.

59. As subsection 33(7) of the Land Grant Act (as amended by this Schedule) applies pursuant to the paragraph above the Registrar must, by writing signed by the Registrar, remove an executive member from office if the executive member is not a fit and proper person or the executive member fails, without reasonable excuse, to comply with a notice under subsections 34G(2) or (4) of the Land Grant Act.

Item 50 - Application-removal from office of executive members

60. The application item confirms that subsections 33(5) and (6) of the Land Grant Act (as amended by this Schedule) apply in relation to a meeting that occurred after the commencement of the item.

i.

Subsection 33(5) says that if an executive member (other than the Chairperson) is absent from three consecutive meetings of the executive committee without leave of absence and without reasonable excuse, the Chairperson may, by writing signed by the Chairperson, remove the executive member from office.

ii.

Subsection 33(6) says that if the Chairperson is absent from three consecutive meetings of the executive committee without leave of absence and without reasonable excuse, the Registrar may, by writing signed by the Registrar, remove the Chairperson from office.

Item 51 - Application-fit and proper person

61. The application item confirms that subparagraphs 34F(1)(a)(i), (b)(i) and (c)(i) of the Land Grant Act (as amended by this Schedule) apply in relation to a conviction that occurred before, at or after the commencement of the item.

i.

Subparagraph 34F(1)(a)(i) relates to convictions for an office against a law of the Commonwealth, a State or a Territory (not involving dishonesty, violence or an offence against a child) for which a person is sentenced to a period of imprisonment of 12 months or more.

ii.

Subparagraph 34F(1)(b)(i) relates to convictions for an offence against a law of the Commonwealth, a State or a Territory involving dishonesty, violence or an offence against a child for which a person is sentenced to a period of imprisonment of 3 months or more.

iii.

Subparagraph 34F(1)(c)(i) relates to convictions for an offence against a law of a foreign country that is punishable by imprisonment for a period of 12 months or more.

62. The application item also confirms that subparagraph 34F(1)(e)(i) of the Land Grant Act (as amended by this Schedule) applies in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966, or a similar law of an external Territory or a foreign country, executed before, at or after the commencement of the item.

Item 52 - Application-leases

63. The application item confirms that subsection 38(7) of the Land Grant Act (as amended by this Schedule) applies in relation to a lease granted before, at or after the commencement of this item. Subsection 38(7) says that the RTA does not apply to a lease granted under this section if the lease is a lease to which paragraphs 38(2)(a), (c) or (d) applies and the term of the lease is 40 years or more. The particular leases are those leases granted to:

i.

a registered member or registered members for use for domestic purposes;

ii.

a registered member or registered members for use for the benefit of members, or of a significant number of the members, of the Community;

iii.

with the consent in writing of the Minister - to a person other than a registered member, or to persons at least one of whom is not a registered member, for use for domestic purposes.

Item 53 - Transitional-National Cultural Heritage Committee

64. The transitional item confirms that the amendment of paragraph 17(1)(c) of the Protection of Movable Cultural Heritage Act 1986 does not affect the continuity of a person's appointment covered by paragraph 17(1)(c) to the office if the person held office as a member of the National Cultural Heritage Committee immediately before the commencement of this item.