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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
As read a third
time
Aboriginal and
Torres Strait Islander Commission Amendment Bill
1996
No. ,
1996
A Bill for an Act
relating to the Aboriginal and Torres Strait Islander Commission, and for
related purposes
9603141—930/27.6.1996—(31/96) Cat. No. 96
4861 5 ISBN 0644 443383
Contents
THIS bill originated
in the Senate; and, having this day passed, is now ready for presentation to the
House of Representatives for its concurrence.
HARRY EVANS
Clerk of the Senate
The Senate
26 June 1996
A Bill for an Act relating to the Aboriginal and Torres
Strait Islander Commission, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Aboriginal and Torres Strait Islander
Commission Amendment Act 1996.
(1) Subject to subsection (2), this Act commences on the day on which it
receives the Royal Assent.
(2) Item 52 in Schedule 1 commences on the 28th day after the day on which
this Act receives the Royal Assent.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 After section 21
Insert:
(1) Any liability or obligation of an individual, a body corporate or an
unincorporated body to the Commission arising:
(a) under the terms and conditions of a grant or loan referred to in
subsection 14(2); or
(b) under section 20 or 21;
is taken to be an interest of the Commission in the land to which it
relates.
(2) The land is charged with the payment of all costs and expenses
incurred by the Commission in respect of its enforcement of the liability or
obligation.
2 Subsections 31(2) and (3)
Repeal the subsections, substitute:
(2) Subject to subsection (3), a person is not qualified to be appointed
as a Commissioner if he or she has been convicted and is under sentence, or
subject to be sentenced, for any offence punishable under the law of the
Commonwealth or of a State or Territory by imprisonment for one year or
longer.
(3) Subsection (2) does not disqualify a person from being appointed as a
Commissioner if the Federal Court of Australia, on application by the person,
declares that in spite of the person’s conviction, he or she ought not to
be disqualified from being appointed as a Commissioner.
3 Subsection 32(1)
Omit “a zone election”, substitute “each round of zone
elections”.
4 At the end of Division 3 of Part
2
Add:
If there is a vacancy in the office of alternate of the Deputy
Chairperson of the Commission, the Commissioners may, at a meeting of the
Commission, elect one of them to be the alternate of the Deputy
Chairperson.
5 After subsection 33(1B)
Insert:
(1BA) The alternate of the Deputy Chairperson of the Commission is to be
elected for a period determined by the Commission and holds office
until:
(a) the end of that period; or
(b) he or she is elected as Deputy Chairperson of the Commission;
or
(c) he or she ceases to be a Commissioner;
whichever happens first. However, if he or she ceases to hold office
because of paragraph (a) and is still a Commissioner, he or she may be
re-elected.
6 Subsection 35(3)
Omit “(1)”, substitute “(1A)”.
7 After subsection 36(1)
Insert:
(1A) If:
(a) either of the following circumstances exists:
(i) there is a vacancy in the office of Commission Chairperson, whether or
not an appointment has previously been made to the office;
(ii) the Commission Chairperson is absent from duty or from Australia or
is, for any reason unable to perform the duties of the office; and
(b) either of the following circumstances exists:
(i) there is a vacancy in the office of Deputy Chairperson of the
Commission, whether or not a person has previously been elected as Deputy
Chairperson;
(ii) the Deputy Chairperson is absent from duty or from Australia or is,
for any reason, unable to perform the duties of Deputy Chairperson;
the alternate of the Deputy Chairperson is to act as the Commission
Chairperson.
(1B) If the alternate of the Deputy Chairperson of the Commission is not
acting as the Commission Chairperson under subsection (1A) and either of the
following circumstances exists:
(a) there is a vacancy in the office of Deputy Chairperson;
(b) the Deputy Chairperson is absent from duty or from Australia or is,
for any reason, unable to perform the duties of Deputy Chairperson;
the alternate of the Deputy Chairperson is to act as the Deputy
Chairperson.
(1C) Anything done by or in relation to a person purporting to act under
subsection (1), (1A) or (1B) is not invalid merely because the occasion to act
had not arisen or had ceased.
8 After subsection 36(2)
Insert:
(2A) A person appointed to act as the Deputy Chairperson of the Commission
may not act if there is an alternate of the Deputy Chairperson.
9 Subsection 36(6)
Repeal the subsection, substitute:
(6) The Minister may, after consulting the Commission Chairperson, appoint
a person to act in the office of a Commissioner (other than the Commission
Chairperson):
(a) during a vacancy in the office, whether or not a person has previously
been appointed to the office; or
(b) during any period, or during all periods, when the Commissioner is
absent from duty or from Australia or is, for any reason, unable to perform the
duties of the office.
10 Section 38
Repeal the section, substitute:
A Commissioner or acting Commissioner who is not a Regional Councillor
must comply with section 119A as if he or she were a Regional
Councillor.
11 After subsection 39(1B)
Insert:
(1C) The alternate of the Deputy Chairperson of the Commission may resign
the office of alternate of the Deputy Chairperson by writing signed by him or
her and sent to the Commission Chairperson.
12 After subsection 40(6)
Insert:
(6A) If a person who is a Commissioner is, because of a decision or order
of the Federal Court of Australia, taken not to have been duly elected as a
member of a Regional Council, the person ceases, as a result of the decision or
order, to be a Commissioner.
13 Paragraphs 40(7)(a) and
(b)
Repeal the paragraphs, substitute:
(a) has been convicted and is under sentence, or subject to be sentenced,
for any offence punishable under the law of the Commonwealth or of a State or
Territory by imprisonment for one year or longer;
14 Subsection 68(4)
Repeal the subsection.
15 After paragraph
76(1)(da)
Insert:
(db) when requested to do so by the TSRA, to evaluate or audit particular
aspects of the operations of the TSRA;
16 Paragraph 78A(1)(a)
After “(ba)”, insert “(c), (d), (da),
(db),”.
17 Paragraph 81(1)(a)
Omit “by the TSRA, by other Commonwealth bodies”, substitute
“by other Commonwealth bodies (except the TSRA)”.
18 Paragraph 81(1)(b)
Omit “by the TSRA, by Regional Councils and by other Commonwealth
bodies,”, substitute “by Regional Councils and by other Commonwealth
bodies (except the TSRA),”.
19 Paragraph 81(1)(c)
Omit “, the TSRA”.
20 After subsection 90(2)
Insert:
(2A) Despite subsection (2), a person to whom this section applies
may:
(a) divulge or communicate any information referred to in paragraph (2)(a)
to anyone who is authorised in writing by the person to whose affairs the
information relates to receive the information; and
(b) produce a document referred to in paragraph (2)(b) to anyone who is
authorised in writing by the person to whose affairs the document relates to
receive the document.
21 Paragraph 91(7)(a)
Repeal the paragraph, substitute:
(a) has effect for the purposes of the first round of Regional Council
elections held after the date of the determination; and
22 Application
The amendment made by item 21 applies to determinations made after the
commencement of that item.
23 Paragraph 100A(5)(a)
Repeal the paragraph, substitute:
(a) have effect for the purposes of the first round of Regional Council
elections held after the commencement of the rules; and
24 Application
The amendment made by item 23 applies to rules made after the commencement
of that item.
25 Paragraph 102(1)(c)
Repeal the paragraph, substitute:
(c) the person:
(i) is a member of the staff of the Commission or the TSRA; or
(ii) is a consultant to the Commission or the TSRA; or
(iii) is a director of, or has a controlling interest in, a body corporate
that is a consultant to the Commission or the TSRA;
26 Paragraphs 102(1)(d) and
(e)
Repeal the paragraphs, substitute:
(d) the person has been convicted and is under sentence, or subject to be
sentenced, for any offence punishable under the law of the Commonwealth or of a
State or Territory by imprisonment for one year or longer;
27 At the end of subsection
102(1A)
Add “or to the Chairperson of a Regional Council covered by a
determination in force under subsection 121(1B)”.
28 Subsection 102(2)
Repeal the subsection, substitute:
(2) In spite of subsection (1), a person covered by paragraph (1)(d) is
not disqualified by that paragraph from standing for election, or being elected,
as a member of a Regional Council if the Federal Court of Australia, on
application by the person, declares that in spite of the person’s
conviction, he or she ought not to be disqualified from standing for election,
or being elected, as a member of a Regional Council.
29 After subsection 119(2)
Insert:
(2A) The Minister must cause a copy of each determination made under
paragraph (2)(a) or (b) to be published in the Gazette.
30 After section 119
Insert:
(1) Each member of a Regional Council must make to the Commission written
disclosures of the member’s direct or indirect pecuniary interests in
accordance with a Ministerial determination under subsection (4).
(2) The Commission must keep a register of the interests disclosed in
accordance with a Ministerial determination under subsection (4).
(3) The Commission must allow any person to inspect the register at any
reasonable time without charge.
(4) The Minister may make a written determination specifying:
(a) the kinds of interests to be disclosed; and
(b) the manner in which, and the times at which, disclosures are to be
made; and
(c) the form in which the register is to be kept.
(5) A determination under subsection (4) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
31 Subsection 121(3)
Repeal the subsection, substitute:
(3) If the Commission is satisfied that a member of a Regional
Council:
(a) has become a member of the staff of the Commission or the TSRA;
or
(b) has become a consultant to the Commission or the TSRA; or
(c) has become a director of, or has acquired a controlling interest in, a
body corporate that is a consultant to the Commission or the TSRA; or
(d) is a director of, or has a controlling interest in, a body corporate
that has become a consultant to the Commission or the TSRA;
the Commission must declare, in writing, that it is so satisfied.
32 Paragraphs 122(1)(a) and
(b)
Repeal the paragraphs, substitute:
(a) has been convicted and is under sentence, or subject to be sentenced,
for any offence punishable under the law of the Commonwealth or of a State or
Territory by imprisonment for one year or longer;
33 Paragraph 122(1)(c)
Repeal the paragraph, substitute:
(c) has failed, without reasonable excuse, to comply with section 119 or
119A; or
34 At the end of paragraphs 122(1)(d), (e) and
(f)
Add “or”.
35 After subsection 127C(6)
Insert:
(6A) If the person who is the Chairperson of a Regional Council is,
because of a decision or order of the Federal Court of Australia, taken not to
have been duly elected as a member of the Regional Council, the person ceases,
as a result of the decision or order, to be the Chairperson of the Regional
Council.
36 Subsection 127E(2)
After “Commissioner”, insert “or the Chairperson of the
Regional Council”.
37 After subsection 127G(6)
Insert:
(6A) If a person who is the Deputy Chairperson of a Regional Council is,
because of a decision or order of the Federal Court of Australia, taken not to
have been duly elected as a member of the Regional Council, the person ceases,
as a result of the decision or order, to be the Deputy Chairperson of the
Regional Council.
38 Subsection 127J(4)
After “Commissioner,”, insert “the Chairperson of the
Regional Council or the Deputy Chairperson of the Regional
Council”.
39 After subsection 128(4)
Insert:
(4A) When appropriate action has been taken under this section to convene
a meeting of a Regional Council, the Chairperson of the Regional Council or, if
the Regional Council does not have a Chairperson, the Commission Chairperson
must cause notice of the proposed date, time and place of the meeting to be
publicly notified, at least 7 days before the proposed date of the meeting, in
any manner that the Chairperson concerned thinks appropriate.
(4B) A Regional Council must make available, at a meeting of the Council,
for inspection by any person:
(a) copies of the agenda for the meeting; and
(b) copies of any other business papers prepared for the meeting except
papers that, in the opinion of the Chairperson of the Council, are likely to be
considered by the Council at the meeting at a time when it is closed to the
public.
(4C) A Regional Council must make available at reasonable times during,
and at the end of, a meeting of the Council and on the first business day
following the day of the meeting, for inspection by any person, any documents
presented to the meeting other than documents presented at a time when the
meeting was closed to the public.
40 After section 128
Insert:
(1) Except as provided by this section, anyone is entitled to be present
at a meeting of a Regional Council.
(2) A person (other than a member of the Regional Council concerned) is
not entitled to be present at a meeting of a Regional Council if:
(a) the Council has passed a resolution stating that the person is to be
excluded from the meeting; or
(b) the Council has passed a resolution authorising the member presiding
at the meeting to direct that a person or persons be excluded from the meeting
and the member presiding has given such a direction in relation to the
first-mentioned person.
(3) A person (other than a member of the Regional Council concerned) is
not entitled to be present at a meeting of a Regional Council if:
(a) the Council is considering an excludable matter; and
(b) the Council has resolved that the meeting be closed to the public
while that matter is being considered.
(4) A resolution referred to in paragraph (3)(b) must identify the matter
concerned and the resolution must be recorded in the minutes of the
meeting.
A Regional Council must allow any person to inspect, at any reasonable
time, without charge, any documents described in the following paragraphs that
are in its possession:
(a) a document setting out a code of conduct to be observed by the Council
or its members;
(b) rules for the conduct of proceedings at meetings of the
Council;
(c) a regional or other plan formulated by the Council;
(d) a determination of, or any other document relating to, remuneration or
allowances for members;
(e) a document identifying any of the facilities that are provided for
members;
(f) the minutes of proceedings at meetings of the Council other than any
part of the minutes that relates to an excludable matter;
(g) a determination made under subsection 119(2);
(h) any other document to which the person is entitled to have access
under the Freedom of Information Act 1982.
The following are excludable matters for the purposes of sections 128A
and 128B:
(a) a matter relating to a member of the staff of the Regional Council or
to any other person assisting the Council in the performance of its
functions;
(b) a matter involving personal hardship suffered by a person;
(c) any of the following:
(i) a trade secret;
(ii) other information having a commercial value the disclosure of which
would, or could reasonably be expected to, affect a person adversely in respect
of the person’s lawful business, professional, commercial or financial
affairs;
(iii) information (other than a trade secret or information to which
subparagraph (ii) applies) that would, or could reasonably be expected to,
confer a financial advantage on a competitor of the Regional Council;
(d) a proposal for the making of a grant or loan, or the giving of a
guarantee, by the Regional Council;
(e) any matter the divulging of which is prohibited by section
90;
(f) information the disclosure of which would found an action for breach
of confidence;
(g) information of such a nature that it would be privileged from being
disclosed in legal proceedings on the ground of legal professional
privilege;
(h) information the disclosure of which would, or could reasonably be
expected to, prejudice the enforcement or proper administration of the
law;
(i) a matter affecting the security of the Regional Council, its members,
its staff or its property;
(j) a motion to close the meeting to the public.
41 At the end of Division 7 of Part
3
Insert:
(1) If a person has engaged, is engaging or is proposing to engage in any
conduct that constituted, constitutes or would constitute a contravention of, or
an offence against, this Act in its application to an election held under this
Act, a prescribed court may, on the application of the Australian Electoral
Commission, grant an injunction restraining the person from engaging in the
conduct and, if in the court’s opinion it is desirable to do so, requiring
the person to do something.
(2) If:
(a) a person has refused or failed, is refusing or failing, or is
proposing to refuse or fail, to do something; and
(b) the refusal or failure was, is, or would be, a failure to comply with,
or an offence against, this Act in its application to an election held under
this Act;
a prescribed court may, on the application of the Australian Electoral
Commission, grant an injunction requiring the person to do the thing.
(3) If an application is made to a prescribed court for an injunction
under subsection (1), the court may, if in its opinion it is desirable to do so,
before considering the application, grant an interim injunction restraining a
person from engaging in conduct of the kind referred to in that subsection
pending the determination of the application.
(4) A prescribed court may discharge or vary an injunction granted under
subsection (1), (2) or (3).
(5) If an application is made to a prescribed court for the grant of an
injunction restraining a person from engaging in conduct of a particular kind,
the power of the court to grant the injunction may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—whether or
not the person has previously engaged in conduct of that kind and whether or not
there is an imminent danger of substantial damage to anyone if the person
engages in conduct of that kind.
(6) If an application is made to a prescribed court for the grant of an
injunction requiring a person to do something, the power of the court to grant
the injunction may be exercised:
(a) if the court is satisfied that the person has refused or failed to do
the thing—whether or not it appears to the court that the person intends
to refuse or fail again, or to continue to refuse or fail, to do the thing;
or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will refuse or fail to do the thing—whether or
not the person has previously refused or failed to do the thing and whether or
not there is an imminent danger of substantial damage to anyone if the person
refuses or fails to do the thing.
(7) If the Australian Electoral Commission applies to a prescribed court
for the grant of an injunction under this section, the court must not require
the applicant or anyone else, as a condition of the granting of an interim
injunction, to give any undertakings as to damages.
(8) The Supreme Court of each State is invested with federal jurisdiction,
and, to the extent that the Constitution permits, jurisdiction is conferred on
the Supreme Court of each Territory, with respect to all matters arising under
this section.
(9) An appeal lies to the Federal Court of Australia from a judgment or
order of a prescribed court exercising jurisdiction under this
section.
(10) The powers conferred on a prescribed court under this section are in
addition to, and not in derogation of, any other powers of the court, whether
conferred by this Act or otherwise.
(11) In this section:
prescribed court means the Supreme Court of a State or
Territory.
42 At the end of section
141
Add:
(6) A report to the Minister under subsection (3) in respect of the first
Regional Council elections conducted after 1 July 1996 must include an
examination of ways in which the representation of distinct community groups on
Regional Councils could be accommodated.
43 After section 142J
Insert:
(1) Any liability or obligation of an individual, a body corporate or an
unincorporated body to the TSRA arising:
(a) under the terms and conditions of a grant or loan referred to in
subsection 142F(2); or
(b) under section 142H or 142J;
is taken to be an interest of the TSRA in the land to which it
relates.
(2) The land is charged with the payment of all costs and expenses
incurred by the TSRA in respect of its enforcement of the liability or
obligation.
44 After section 172
Insert:
(1) The Commercial Development Corporation General Manager must give
written notice to the Minister and the Chairperson of the Commercial Development
Corporation Board of all direct or indirect pecuniary interests that the General
Manager has or acquires in any business or in any body corporate that carries on
a business.
(2) If the Commercial Development Corporation General Manager has a direct
or indirect pecuniary interest in a matter being considered or about to be
considered by the Commercial Development Corporation Board, the General Manager
must, as soon as possible after becoming aware of the relevant facts, disclose
the nature of the interest to the Chairperson of the Board in writing.
45 Subsection 191(2)
(penalty)
Repeal the penalty, substitute:
Penalty: 50 penalty units.
46 After section 191S
Insert:
(1) Any liability or obligation of a body corporate to the Indigenous Land
Corporation arising:
(a) under the terms and conditions of a grant, loan or guarantee referred
to in subsection 191D(2) or (2A) or 191E(2), (2A) or (2B); or
(b) under section 191S;
is taken to be an interest of the Corporation in the land to which the
liability or obligation relates.
(2) The land is charged with the payment of all costs and expenses
incurred by the Corporation in respect of its enforcement of the liability or
obligation.
(1) Any liability or obligation of a body corporate to a subsidiary of the
Indigenous Land Corporation arising:
(a) under the terms and conditions of a grant, loan or guarantee made or
given by the subsidiary under an arrangement referred to in subsection 191G(1);
or
(b) under section 191S;
is taken to be an interest of the subsidiary in the land to which the
liability or obligation relates.
(2) The land is charged with the payment of all costs and expenses
incurred by the subsidiary in respect of its enforcement of the liability or
obligation.
47 Subsection 197(1)
(penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 5 years or 100 penalty units.
48 Subsection 197(2)
(penalty)
Repeal the penalty.
49 At the end of section
197
Add:
(3) A person who contravenes subsection (2) is guilty of an offence
punishable on conviction by imprisonment for not more than 6 months or 10
penalty units.
50 Subsections 198(1) and
(2)
Omit “$5,000”, substitute “50 penalty
units”.
51 Subsection 198(3)
Omit “$1,000”, substitute “10 penalty
units”.
52 After subsection 198(3)
Insert:
(3A) A person must not make a statement to another person, either orally
or in writing, as to the other person’s right to vote in an election under
this Act if the person making the statement knows that the statement is false or
misleading in a material particular.
Penalty: 25 penalty units.
(3B) A person must not encourage another person to vote in an election
under this Act if the first-mentioned person knows that the other person is not
entitled to vote in the election.
Penalty: 25 penalty units.
(31/96)