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House of Representatives

Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022

Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Act 2023

Explanatory Memorandum

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

LIST OF ABBREVIATIONS

In this Explanatory Memorandum:

AI Act means the Acts Interpretation Act 1901

Amendment Act means the Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Act 2022

APP means Australian Privacy Principles included in the Privacy Act 1988

Bill means the Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022

CEO means Chief Executive Officer

Community means the Wreck Bay Aboriginal Community

Council means the Wreck Bay Aboriginal Community Council

Director means the Director of National Parks established under the EPBC Act

EPBC Act means the Environment Protection and Biodiversity Conservation Act 1999

executive committee means the committee established by section 28 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986

Land Grant Act means the Aboriginal Land Grant (Jervis Bay Territory) Act 1986

Land Rights Act means the Aboriginal Land Rights (Northern Territory) Act 1976

Minister means the Minister responsible for the Land Grant Act under the administrative arrangements order issued by the Department of the Prime Minister and Cabinet or their successor

NIAA means the National Indigenous Australians Agency

PGPA Act means the Public Governance, Performance and Accountability Act 2013

register means the register kept in accordance with Division 2 of Part IV of the Land Grant Act

registered member means a person whose name is on the Register

Registrar means the Registrar of the Wreck Bay Aboriginal Community Council

RTA means the Residential Tenancies Act 1997 (ACT)

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.

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.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022

1. 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.

BACKGROUND

2. The Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Land Grant Act) provides a legislative framework for the declaration of Aboriginal Land in the Jervis Bay Territory to be granted to the Wreck Bay Aboriginal Community Council (Council) and the establishment of the Council to hold title to, and manage, the Aboriginal Land. The Council is able to grant domestic leases to its registered members for housing on Jervis Bay Territory Aboriginal Land.

OVERVIEW OF THE BILL

3. 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 Residential Tenancies Act 1997 (RTA). This will help to facilitate registered members (and non-registered members under section 38(2)(d) of the Land Grant Act) 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 Chief Executive Officer (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 Public Governance, Performance and Accountability Act 1999 (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 of National Parks 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.

4. 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).

5. 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.

6. Some reforms were proposed by the National Indigenous Australians Agency (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. 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. 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.

HUMAN RIGHTS IMPLICATIONS

7. This Bill engages the following human rights:

a): the right of self-determination in Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
b): the right to enjoy, practice and benefit from culture in Article 27 of the ICCPR and Article 15 of the ICESCR;
c): the rights of equality and non-discrimination in Articles 2, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the International Convention on the Elimination of all forms of Racial Discrimination (CERD); and
d): the right to privacy and reputation in Article 17 of the ICCPR.

The right to self-determination

8. The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to collectively pursue their economic, social and cultural development without outside interference. The right to self-determination is a collective right applying to groups of "peoples". This is in contrast to the right to enjoy, practice and benefit from culture, which protect the rights of individuals within a group. The right is widely understood to be exercisable in a manner that preserves territorial integrity, political unity and sovereignty of a country.

9. The right is also contained in Articles 3 and 4 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). While UNDRIP is not included in the definition of "human rights" under the Human Rights (Parliamentary Scrutiny) Act 2011, it informs the way governments engage with and protect the rights of Indigenous peoples. Article 18 of UNDRIP also provides that "Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decision-making institutions".

10. The Bill protects the right to self-determination for the Community through:

a): The Council directly setting policies and changes for their community; The Bill addresses the longstanding needs and requests of the Community and Council. Shared decision making and the principle of co-design have guided the development of the reform measures. The Bill has been co-designed with the Council over a number of years and every reform in the Bill has been explicitly endorsed by the executive committee, therefore reflecting the Council's right to self-determination by directly setting the policies and changes for their community themselves.
b): Strengthening the Council's governance structures; The Bill empowers the executive committee to perform the full functions and powers of the Council, and empowers the Council's members to remove the executive committee (through a prescribed process) leading to additional accountability for the executive committee. The Bill also changes quorum requirements from set numbers to percentages of overall members, ensuring that as the number of the members continues to grow, small groups of members are not able to make decisions on behalf of all members. These measures will further allow the Community to make decisions and provide their informed consent, upholding the collective nature of decision making.
c): Enhancing local control over decision making; The Bill removes provisions that have historically limited the Council's decision making processes. The Bill raises the amount the Council can enter into a contract without obtaining approval from the Minister. This amount will increase from $100,000 to $1 million, giving the Council greater autonomy in pursuing commercial ventures. The Bill also removes a provision that prevents the Minister granting land in Booderee National Park to the Council unless the Council has entered into an agreement to lease the land back to the Director of National Parks.
d): Enhancing economic development opportunities; The Bill will help to empower members of the Council to hold long-term home ownership style leases, if they choose to do so. The strengthening of land tenure on Aboriginal Land could assist to bolster economic development opportunities and prosperity in the Community. It is envisioned that the assets could be monetised via sale of the leasehold interest to future generations or other Council members. This measure will facilitate the Community's ability to invest in their property to realise their own economic development and to continue to pursue their own financial autonomy.

11. As outlined above, the proposed measures will advance the right to self-determination by implementing measures designed by the Community, strengthening the Council's governance structures, enhancing local control over decision making and growing economic development opportunities.

The right to enjoy, practice and benefit from culture

12. The right to enjoy, practice and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the ICESCR. Article 27 of the ICCPR protects the rights of individuals belonging to minority groups within a country to enjoy their own culture. Article 15 of the ICESCR protects the right of all persons to take part in cultural life.

13. The United Nations Human Rights Committee has stated that culture can manifest itself as a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples, which may include such traditional activities as fishing or hunting and the right to live on lands protected by law.

14. The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) has stated that Indigenous peoples' cultural values and rights associated with their ancestral lands and their relationship with nature should be protected and regarded with respect. UNCESCR has also provided guidance on the communal and individual aspects of the right to culture, in particular, that the reference to "everyone" in Article 15 of the ICESCR may denote either individual or collective rights to culture. UNCESCR has noted, in particular, that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions.

15. Lastly, the UNCESCR has noted, in particular, the right to take part in cultural life for Indigenous peoples may be strongly communal. It notes that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions.

16. The Bill advances the right of individuals within the Community to enjoy and benefit from culture by:

a): Updating the title of the Land Grant Act to include waters; The Bill updates the name of the Land Grant Act to the "Aboriginal Land and Waters (Jervis Bay Territory) Act 1986", recognising the Community's ownership of, and strong connection to, waters as well as land. This connection is experienced through natural and cultural landscapes. A strong association exists between the natural landscape and the living traditions and belief of Aboriginal people in and around the Jervis Bay Territory.
b): Strengthening the Council's governance structures and decision making powers; The Land Grant Act established the Council to hold title to Aboriginal Land in the Jervis Bay Territory, to manage that land for the benefit of the Community, and to advocate for and serve the Community more generally, including promoting the social and cultural wellbeing of Aboriginal peoples. Strengthening the Council's governance structures and decision making powers, as outlined above, directly links to protecting cultural heritage, traditional knowledge and cultural expressions. Strengthening and empowering the Council to further create economic and community development outcomes will allow the Community to further enjoy, practice and benefit from its unique identity, heritage and culture.

The rights of equality and non-discrimination

17. The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against. Of particular relevance in the context of this Bill, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements the prohibition in Australia's domestic law.

18. Subsection 8(1) of the Racial Discrimination Act 1975, in accordance with Article 1(4) of CERD, allows "special measures" which are designed to ensure advancement of certain groups. Special measures are an exception to this general prohibition and are designed to "secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms". Where a special measure is taken, it is deemed not to be racial discrimination. For a measure to be characterised as a special measure it must:

a): be for a particular group or individuals;
b): be taken for the sole purpose of securing the adequate advancement of that group or those individuals;
c): be "necessary"; and
d): not continue after its objective has been achieved.

19. The measures in this Bill complement and enhance the existing measures in the Land Grant Act and, consequently, may be characterised as components of a broader special measure.

20. The Land Grant Act is enacted for the members of the Council. There is an ongoing need for the provisions in the Land Grant Act, and the Bill, as evidenced in the continuing levels of disadvantage confronting Aboriginal persons compared to other Australians, including in relation to economic self-sufficiency, positive cultural identity and social and emotional wellbeing. The Land Grant Act remains necessary to address this continuing disadvantage.

21. The mechanisms in the Land Grant Act, and the Bill, are appropriate, adapted and proportionate, as they address historical dispossession and promote self-management and self-sufficiency, with minimal impact on other persons.

The right to privacy and reputation

22. Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.

23. The United Nations Human Rights Committee has not defined "privacy", however it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

a): Nature and scope of the amendments

24. The Bill requires the Registrar to investigate, upon the request of the Minister, CEO or an executive member, whether a prospective or serving executive member is a fit and proper person. For the purposes of the investigation, the Registrar may request that a person obtain a specified kind of criminal history check and provide it to the Registrar and/or provide their consent for the Registrar to access criminal, bankruptcy or insolvency records.

25. 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 a member of the executive committee.

26. The Registrar must remove an executive member from office if they are not a fit and proper person, was not a fit and proper person at the time when they were nominated for office or fail, without reasonable excuse, to comply with a notice under subsection 34G(2) or (4) of the Bill.

b): Nature and scope of the information collected

27. The information that may be collected includes criminal, bankruptcy or insolvency records, which is personal and sensitive information under the Privacy Act 1988. The information can be provided to the Registrar or obtained by the Registrar with the person's consent. However, if they elect not to comply with a request from the Registrar and they do not have a reasonable excuse, they must be removed from office.

c): Safeguards

28. Careful consideration was 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 Registrars access to personal and sensitive information. In this context, the information collected is considered to be reasonable and proportionate for the Register in determining whether a person is a fit and proper person to be an executive member.

29. 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 and sensitive information. This mechanism ensures that the relevant personal and sensitive information will only be collected in circumstances where it is provided by, or collected with the consent of, the person being investigated. This is to ensure the proper operation of the fit and proper person test.

30. The Bill makes clear that the provisions requiring the disclosure of criminal history do not affect the operation of the spent convictions scheme under 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).

31. 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, a comparable statutory authority and corporate Commonwealth entity established by 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).

d): Compatibility with the right to privacy

32. While the Bill limits the right to privacy if criminal, bankruptcy or insolvency records are obtained, the measures are reasonable, necessary and proportionate.

i.: The limitations on the right to privacy are in pursuit of a legitimate objective, that is, to ensure that service on the executive committee is reserved for fit and proper persons. The limitations to the right to privacy are rationally connected to the objective as people with recent serious criminal convictions or who are bankrupt would not be appropriate to serve on the executive committee.
ii.: The collection of the records, as a last resort, by the Registrar (at the request of the Minister, CEO or an executive member) is a proportionate means of achieving the objective. The Registrar can only collect the records with the consent of the person or if they are provided to the Registrar, although failure to do so without reasonable excuse will render them ineligible to be an executive member.
iii.: Providing the Registrar with the power to request, or obtain with consent, personal and sensitive information of this kind is necessary in order to ensure that service on the executive committee is reserved for fit and proper persons.

CONCLUSION

33. The Bill is compatible with human rights because it promotes the right to self-determination and the right to enjoy, practice and benefit from culture. The Bill also advances the rights of equality and non-discrimination by enhancing an existing special measure. The Bill limits the right to privacy only in defined circumstances, and in pursuit of the legitimate objective of ensuring that only those persons who are fit and proper serve on the executive committee.

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LIST OF ABBREVIATIONS

GENERAL OUTLINE

FINANCIAL IMPACT

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

NOTES ON CLAUSES

Schedule 1 - Amendments

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

BACKGROUND

OVERVIEW OF THE BILL

HUMAN RIGHTS IMPLICATIONS

CONCLUSION

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