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This is a Bill, not an Act. For current law, see the Acts databases.
2004
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Aboriginal
and Torres Strait Islander Commission Amendment Bill
2004
No. ,
2004
(Immigration and Multicultural and Indigenous
Affairs)
A Bill for an Act to amend the
Aboriginal and Torres Strait Islander Commission Act 1989, and for other
purposes
Contents
Part 1—Abolition of Aboriginal and Torres Strait Islander
Commission 3
Aboriginal and Torres Strait Islander Commission Act
1989 3
Part 2—Consequential amendments relating to the abolition of
Aboriginal and Torres Strait Islander
Commission 4
Aboriginal and Torres Strait Islander Commission Act
1989 4
Part 3—Transitional and saving arrangements relating to
Aboriginal and Torres Strait Islander
Commission 35
Part 1—Amendment relating to Office of Evaluation and
Audit 58
Aboriginal and Torres Strait Islander Commission Act
1989 58
Part 2—Transitional and saving arrangements relating to Office
of Evaluation and Audit 66
Part 1—Abolition of Regional
Councils 70
Aboriginal and Torres Strait Islander Act
2004 70
Part 2—Consequential amendments relating to abolition of
Regional Councils 71
Aboriginal and Torres Strait Islander Act
2004 71
Aboriginal Councils and Associations Act
1976 76
Part 3—Transitional and saving arrangements relating to Regional
Councils 77
Aboriginal and Torres Strait Islander Heritage Protection Act
1984 80
Aboriginal Councils and Associations Act
1976 80
Aboriginal Land (Lake Condah and Framlingham Forest) Act
1987 80
Aboriginal Land Rights (Northern Territory) Act
1976 81
Australian Institute of Aboriginal and Torres Strait Islander Studies
Act 1989 81
Environment Protection and Biodiversity Conservation Act
1999 83
Human Rights and Equal Opportunity Commission Act
1986 83
National Health and Medical Research Council Act
1992 83
Native Title Act
1993 84
Remuneration Tribunal Act
1973 93
Social Security Act
1991 93
A Bill for an Act to amend the Aboriginal and Torres
Strait Islander Commission Act 1989, and for other
purposes
The Parliament of Australia enacts:
This Act may be cited as the Aboriginal and Torres Strait Islander
Commission Amendment Act 2004.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent. |
|
|
2. Schedules 1 and 2 |
A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6
months beginning on the day on which this Act receives the Royal Assent, they
commence on the first day after the end of that period. |
|
|
3. Schedule 3 |
The later of: (a) 1 July 2005; and (b) the day immediately following the day Schedules 1 and 2 to this
Act commence. |
|
|
4. Schedule 4 |
At the same time as the provision(s) covered by table
item 2. |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part
of this Act. Information in this column may be added to or edited in any
published version of this Act.
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.
Part 1—Abolition
of Aboriginal and Torres Strait Islander Commission
Aboriginal and Torres
Strait Islander Commission Act 1989
1 Part 2
Repeal the Part.
Part 2—Consequential
amendments relating to the abolition of Aboriginal and Torres Strait Islander
Commission
Aboriginal and Torres
Strait Islander Commission Act 1989
2 Title
Omit “an Aboriginal and Torres Strait Islander
Commission,”.
3 Section 1
Omit “Aboriginal and Torres Strait Islander Commission Act
1989”, substitute “Aboriginal and Torres Strait Islander Act
2004”.
4 Subsection 4(1) (definition of Advisory
Board)
Repeal the definition.
5 Subsection 4(1) (definition of appointed
Indigenous Land Corporation Director)
Repeal the definition.
6 Subsection 4(1) (definition of approved
Regional Council estimates)
Repeal the definition.
7 Subsection 4(1)
Insert:
ATSIC abolition day means the day Schedules 1 and
2 to the Aboriginal and Torres Strait Islander Commission Amendment Act 2004
commence.
8 Subsection 4(1) (definition of Chief Executive
Officer)
Repeal the definition.
9 Subsection 4(1) (definition of
Commission)
Repeal the definition.
10 Subsection 4(1) (definition of Commission
Chairperson)
Repeal the definition.
11 Subsection 4(1) (definition of
Commissioner)
Repeal the definition.
12 Subsection 4(1) (definition of Housing
Fund)
Repeal the definition.
13 Subsection 4(1) (definition of Ministerial
Finance Direction)
Repeal the definition.
14 Subsection 4(1)
Insert:
New Housing Fund means the New Housing Fund
established under section 181A.
15 Subsection 4(1) (definition of
Office)
Repeal the definition.
16 Subsection 4(1)
Insert:
Regional Councils abolition day means the day on which
Schedule 3 to the Aboriginal and Torres Strait Islander Commission
Amendment Act 2004 commences.
17 Subsection 4(1) (definition of Regional
Council estimates)
Repeal the definition.
18 Subsection 4(1) (definition of Regional Land
Fund)
Repeal the definition.
19 Subsection 4(1) (definition of regional
statement)
Repeal the definition.
20 Subsection 4(1) (definition of
zone)
Repeal the definition.
21 Subsection 4(1) (definition of zone
election)
Repeal the definition.
22 Subsection 4(1) (definition of zone election
rules)
Repeal the definition.
23 Subsection 4(2)
Omit “of the Commission,”.
24 Part 3 (heading)
Repeal the heading, substitute:
25 Paragraph 91(1)(a)
Repeal the paragraph, substitute:
(a) each of which includes a place set out in Schedule 1 and does not
include any other place included in the Schedule; and
26 Subsection 91(1B)
Omit “Commission”, substitute “Minister”.
27 Subsection 91(5)
Omit “the Commission and”.
28 Subsections 93(2) and (3)
Repeal the subsections, substitute:
(3) The corporate name of a Regional Council for a region that includes a
place listed in Schedule 1 is, if a name for the Regional Council has not
been determined under subsection (1), the Regional Council for the region
that includes that place.
29 Paragraph 94(1)(b)
Omit “the Commission,”.
30 Paragraphs 94(1)(c) and (d)
Repeal the paragraphs, substitute:
(c) to make proposals to the Indigenous Land Corporation for the
expenditure of money that, before ATSIC abolition day, stood to the credit of
the Regional Land Fund that was established under section 68 of this Act as
in force before that day;
(d) to receive, and to pass on to the Minister and to the TSRA, the views
of Aboriginal persons and Torres Strait Islanders about the activities in the
region of the TSRA, other Commonwealth bodies and State, Territory and local
government bodies;
31 Subsections 95(2) and 96(4)
Omit “Commission”, substitute “Minister”.
32 Sections 97 and 98
Repeal the sections.
33 Subsection 99(1)
Omit “Commission” (wherever occurring), substitute
“Minister”.
34 Subsections 99(1A) and (2)
Repeal the subsections.
35 Subsection 99(3)
Omit “Commission”, substitute “Minister”.
36 Subsection 99(4)
Repeal the subsection.
37 Subsection 100A(4B)
Omit “the Aboriginal and Torres Strait Islander Commission
and”.
38 Paragraph 102(1)(c)
Omit “the Commission or”.
39 Subsection 102(1A)
Omit “a person who is the Commission Chairperson or
to”.
40 Section 103
Omit “the application of this Act to the Commission” (wherever
occurring), substitute “this Act”.
41 Subsection 105(3)
Omit “and to the Aboriginal and Torres Strait Islander
Commission”.
42 Subsection 105(4)
Repeal the subsection.
43 Subsection 113(1)
Omit “the Aboriginal and Torres Strait Islander Commission
and”.
44 Subsection 115(3)
Omit “Commission”, substitute “Minister”.
45 Section 115A
Repeal the section.
46 Subsection 116(1)
Omit “, after consulting the Commission,”, substitute “,
after consulting the Regional Council concerned,”.
47 Subsection 119(3)
Repeal the subsection.
48 Subsections 119A(1), (2) and
(3)
Omit “Commission”, substitute “Regional
Council”.
49 Subsection 121(1)
Omit “Commission” (wherever occurring), substitute
“Minister”.
50 Subsections 121(1A) and (1B)
Repeal the subsections.
51 Subsection 121(2)
Omit “Commission”, substitute “Minister”.
52 Subsection 121(3)
Repeal the subsection, substitute:
(3) If the Minister is satisfied that a member of a Regional
Council:
(a) has become a member of the staff of the TSRA; or
(b) has become a consultant to 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 TSRA; or
(d) is a director of, or has a controlling interest in, a body corporate
that has become a consultant to the TSRA;
the Minister must declare, in writing, that he or she is so
satisfied.
53 Subsection 121(4)
Omit “Commission”, substitute “Minister”.
54 Subsection 122(1)
Omit “Commission” (wherever occurring), substitute
“Minister”.
55 Subsection 122(1)
Omit “it is so satisfied”, substitute “he or she is so
satisfied”.
56 Subsection 122(2)
Omit “Commission”, substitute “Minister”.
57 Section 122A
Omit “Commission” (wherever occurring), substitute
“Minister”.
Note 1: The heading to subsection 122A(1) is altered by
omitting “Commission” and substituting
“Minister”.
Note 2: The heading to subsection 122A(2) is altered by
omitting “Commission” and substituting
“Minister”.
Note 3: The heading to subsection 122A(5) is altered by
omitting “Commission” and substituting
“Minister”.
58 Section 122B
Omit “Commission” (wherever occurring), substitute
“Minister”.
59 Subsection 123(1)
Omit “Commission” (wherever occurring), substitute
“Minister”.
60 Subsection 123(2) (paragraph (c) of the
definition of valid petition)
Omit “Commission”, substitute “Minister”.
61 Paragraphs 123A(1)(b), (ca) and
(cb)
Repeal the paragraphs.
62 Subsection 123A(1)
Omit “the Commission may”, substitute “the Minister
may”.
63 Subsection 123A(2)
Repeal the subsection, substitute:
(2) The Minister must not remove the Regional Councillors from Office
unless the Minister has, by written notice served on the Regional
Councillors:
(a) given the Regional Councillors 28 days within to which to show cause
why they should not be removed; and
(b) given reasons for the removal.
64 Subsection 123A(3)
Omit “Commission” (wherever occurring), substitute
“Minister”.
65 Paragraphs 124(c) and (d)
Repeal the paragraphs, substitute:
(c) has all powers necessary to rectify any problems in the affairs of the
Regional Council.
66 Subsections 124C(1) and (3)
Omit “Commission Chairperson”, substitute
“Minister”.
67 Section 124D
Omit “Commission”, substitute “Minister”.
68 Subsection 124E(2)
Omit “Commission” (wherever occurring), substitute
“Minister”.
69 Subsections 124F(1) and (2)
Omit “Commission”, substitute “Minister”.
Note 1: The heading to subsection 124F(1) is altered by
omitting “Commission” and substituting
“Minister”.
Note 2: The heading to subsection 124F(2) is altered by
omitting “Commission” and substituting
“Minister”.
70 Subsection 124G(1)
Omit “Commission”, substitute “Minister”.
71 Sections 124H and 124J
Omit “Commission”, substitute “Minister”.
Note: The heading to section 124J is altered by
omitting “Commission” and substituting
“Minister”.
72 Subsection 127(1A)
Repeal the subsection.
73 Subsection 127A(2)
Repeal the subsection.
74 Subsection 127C(2)
Repeal the subsection, substitute:
(2) The Minister must not suspend the Chairperson from office unless the
Minister has, by written notice served on the Chairperson, given the Chairperson
7 days within which to show cause why the Chairperson should not be
suspended.
75 Subsections 127D(2) and (3)
Omit “Commission Chairperson” (wherever occurring), substitute
“Minister”.
76 Subsection 127E(2)
Omit “a Commissioner or”.
77 Subsection 127G(2)
Repeal the subsection, substitute:
(2) The Minister must not suspend the Deputy Chairperson from office
unless the Minister has, by written notice served on the Deputy Chairperson,
given the Deputy Chairperson 7 days within which to show cause why the Deputy
Chairperson should not be suspended.
78 Subsections 127J(2) and (4)
Repeal the subsections.
79 Subsections 128(2) and (3)
Repeal the subsections, substitute:
(2) The Minister may at any time convene a meeting of a Regional
Council.
80 Subsection 128(4A)
Omit “Commission Chairperson”, substitute
“Minister”.
81 Subsection 128(4A)
Omit “concerned”, substitute “or
Minister”.
82 Subsection 128(12)
Repeal the subsection, substitute:
(12) The Registrar of Aboriginal Corporations under the Aboriginal
Councils and Associations Act 1976 may formulate model rules, not
inconsistent with this Act, for the conduct of proceedings at meetings of
Regional Councils.
(12A) Model rules formulated under subsection (12) are not
legislative instruments for the purposes of the Legislative Instruments Act
2003.
83 Subsection 128(14)
Omit “by the Commission”, substitute “by the Registrar of
Aboriginal Corporations”.
84 Section 129
Repeal the section.
85 Division 7 of
Part 3
Repeal the Division.
86 Section 140
Omit “, a TSRA election or a zone election”, substitute
“or a TSRA election”.
87 Division 9 of
Part 3
Repeal the Division.
88 Subsection 142AA(1)
Repeal the subsection, substitute:
(1) For the purpose of furthering the social, economic or cultural
development of Torres Strait Islanders, or Aboriginal persons, living in the
Torres Strait area, the Prime Minister may confer a departmental function on the
TSRA.
(1A) An instrument conferring a function under subsection (1) is not
a legislative instrument for the purposes of the Legislative Instruments Act
2003.
89 Subsection 142AA(3) (definition of
departmental function)
Omit “, but does not include a function of the
Commission”.
90 Subsection 142L(5)
Repeal the subsection.
91 Paragraph 142V(1)(b)
Omit “or the Commission”.
92 Subsection 143L(3)
Repeal the subsection.
93 Subsection 143R(3)
Omit “or the Commission”.
Note: The heading to subsection 142R(3) is altered by
omitting “or Commission”.
94 Subsection 143W(2)
Repeal the subsection.
95 Subsection 144(2)
Repeal the subsection.
96 Subsections 144D(2) and (4)
Repeal the subsections.
97 Subsection 144F(6)
Repeal the subsection.
98 Subsection 144L(3)
Repeal the subsection.
99 Section 144R (note 1)
Omit “or the Commission”.
100 Section 144R (note 2)
Omit “or the Commission”.
101 Section 144S
Repeal the section.
102 Section 144T (note 1)
Omit “or the Commission”.
103 Section 144T (note 2)
Omit “or the Commission”.
104 Division 10 of Part 3A
(heading)
Repeal the heading, substitute:
105 Subsection 144ZE(1)
Omit “or the Commission”.
106 Subsection 144ZE(3)
Repeal the subsection.
Note: The heading to section 144ZE is altered by
omitting “or Commission”.
107 Paragraphs 144ZF(c) and (d)
Repeal the paragraphs, substitute:
(c) has all powers necessary to rectify any problems in the affairs of the
TSRA.
108 Subsection 147(2)
Repeal the subsection, substitute:
(2) Without limiting by implication the meaning of commercial activities
in paragraph (1)(a), those activities include the performance of functions
that:
(a) the Minister has authorised Indigenous Business Australia to perform
as an agent of the Commonwealth; or
(b) the Minister has delegated to Indigenous Business Australia.
109 At the end of
section 148
Add:
(3) This section does not apply to:
(a) business loans or housing loans made, or treated as having been made,
by Indigenous Business Australia; or
(b) any grants made, or treated as having been made, by Indigenous
Business Australia in relation to business loans or housing loans; or
(c) guarantees provided, or treated as having been provided, by Indigenous
Business Australia in relation to business loans or housing loans.
110 Subsection 150(1)
Repeal the subsection.
111 Subsection 150(2)
Omit “and may also give to the Minister a copy of any written
comments by the Commission about the corporate plan”.
112 Section 151
Repeal the section, substitute:
(1) Indigenous Business Australia must perform its functions and exercise
its powers in accordance with any general written directions given to it by the
Minister.
(2) Subject to subsection (3), the Minister must cause a copy of a
direction to be laid before each House of the Parliament within 15 sitting days
of that House after the direction was given.
(3) A copy of a direction laid before each House of the Parliament in
accordance with subsection (2) must not disclose any matter the disclosure
of which in that manner would be inconsistent with the views or sensitivities of
Aboriginal persons or Torres Strait Islanders because that matter is sacred or
otherwise significant to those persons.
(4) A direction given by the Minister under subsection (1) is not a
legislative instrument for the purposes of the Legislative Instruments Act
2003.
113 At the end of paragraph
152(2)(a)
Add “(including contracts for the provision of business or housing
loans)”.
114 After paragraph 152(2)(a)
Insert:
(aa) to make grants for purposes associated with business loans or housing
loans;
115 After subsection 152(2)
Insert:
(2A) Despite any other provision of this Act, in making a housing loan or
business loan, or in making a grant, or giving a guarantee in relation to such a
loan, Indigenous Business Australia must be satisfied that the making of the
grant or loan, or the giving of the guarantee, will further the social, economic
or cultural development of Aboriginal persons or Torres Strait
Islanders.
(2B) A grant or loan made by Indigenous Business Australia is subject to
such terms and conditions as Indigenous Business Australia determines.
116 After subsection 153(1)
Insert:
(1A) If Indigenous Business Australia is satisfied that a housing loan or
business loan made, or to be made, to any person will further the social,
economic or cultural development of Aboriginal persons or Torres Strait
Islanders, Indigenous Business Australia may guarantee the due payment of all
money (including interest) payable by the person in accordance with the terms
and conditions of the loan.
117 Subsection 154(1)
Omit “or the Commission”.
118 Subsection 154(3)
Repeal the subsection.
Note: The heading to section 154 is altered by omitting
“or Commission”.
119 Section 156
After “Board”, insert “, subject to any direction from
the Minister under section 151,”.
120 Subsection 157(4)
Repeal the subsection.
121 Section 158
Repeal the section, substitute:
Whenever there is, or is expected to be, a vacancy in an office of
Indigenous Business Australia Director, the Minister must consult Indigenous
Business Australia about a suitable appointee.
122 Subsection 165(1)
Omit “the Commission and”.
123 Subsection 165(3)
Repeal the subsection.
124 Section 176
Repeal the section.
125 At the end of
section 181
Add:
(2) In this section:
money held by Indigenous Business Australia does not
include:
(a) money held in trust by Indigenous Business Australia; or
(b) money in the New Housing Fund.
126 After section 181
Insert:
(1) There is established a fund to be known as the New Housing
Fund.
(2) The New Housing Fund comprises:
(a) the money that stood to the credit of the fund established under
section 67 of this Act as in force immediately before ATSIC abolition day
and that was transferred to Indigenous Business Australia by subitem 192(2) of
Schedule 1 to the Aboriginal and Torres Strait Islander Commission
Amendment Act 2004; and
(b) such amounts as are appropriated to Indigenous Business Australia for
the purposes of the New Housing Fund; and
(c) such amounts as are paid to Indigenous Business Australia as repayment
of, or otherwise in respect of:
(i) housing loans made by Indigenous Business Australia, or treated, by
subitem 199(5) of Schedule 1 to the Aboriginal and Torres Strait
Islander Commission Amendment Act 2004, as having been so made, out of the
New Housing Fund; or
(ii) loans made by the Aboriginal Development Commission under
section 25 of the Aboriginal Development Commission Act 1980;
or
(iii) loans made by the Aboriginal Loans Commission under section 25
of the Aboriginal Loans Commission Act 1974; and
(d) interest received by Indigenous Business Australia on investment of
money from the New Housing Fund; and
(e) such amounts of the money of Indigenous Business Australia as it
determines, in writing, to make available to the New Housing Fund; and
(f) such amounts (if any) as are made available by any other person to
Indigenous Business Australia for the purposes of the New Housing
Fund.
(3) The money in the New Housing Fund may only be applied:
(a) in making housing loans to individuals or bodies; or
(b) in making loans to individuals or bodies to enable the individuals or
bodies to provide housing for Aboriginal persons or Torres Strait Islanders;
or
(c) in making grants of money for the purpose of enabling Aboriginal
persons or Torres Strait Islanders to obtain housing loans from lenders
operating on a commercial basis.
(4) Subsection (3) does not prevent the investment of money under
section 18 of the Commonwealth Authorities and Companies Act
1997.
(5) Indigenous Business Australia must prepare budget estimates for the
New Housing Fund for each financial year and, if the Minister so directs, for
any other period specified by the Minister, and must submit estimates so
prepared to the Minister not later than such date as the Minister
directs.
(6) Money in the New Housing Fund must not be applied otherwise than in
accordance with budget estimates approved by the Minister.
(7) For the purposes of subsection (5):
(a) if the period from ATSIC abolition day to the 30 June next
following that day is more than 6 months—that period; and
(b) in any other case—the period from ATSIC abolition day to the
second 30 June next following that day;
is taken to be first financial year for which Indigenous Business Australia
must prepare budget estimates for the New Housing Fund.
(8) A determination by Indigenous Business Australia for the purposes of
paragraph (2)(e) is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
An application may be made to the Administrative Appeals Tribunal for
review of a decision made by Indigenous Business Australia to refuse a housing
loan from the New Housing Fund to an individual.
127 At the end of
section 183
Add:
(3) In this section:
money of Indigenous Business Australia does not
include:
(a) money held in trust by Indigenous Business Australia; or
(b) money in the New Housing Fund.
128 At the end of
section 185
Add:
(2) In this section, the reference to assets of Indigenous Business
Australia does not include a reference to:
(a) money held in trust by Indigenous Business Australia; or
(b) money in the New Housing Fund; or
(c) any money owed to Indigenous Business Australia on a housing loan
made, or treated as having been made, from the New Housing Fund.
129 At the end of Division 8 of
Part 4
Add:
(1) In this section:
annual report means the annual report of Indigenous Business
Australia prepared under section 9 of the Commonwealth Authorities and
Companies Act 1997.
(2) Indigenous Business Australia must include in each annual report
particulars of:
(a) any direction given by the Minister under section 151;
and
(b) any consultants engaged under section 178;
during the period to which the report relates.
(3) Subject to any direction by the Minister responsible for administering
the Commonwealth Authorities and Companies Act 1997, the financial
statements included in the annual report must deal with the New Housing Fund
separately from the other finances of Indigenous Business Australia.
(4) A direction referred to in subsection (3) is not a legislative
instrument for the purposes of the Legislative Instruments Act
2003.
130 After subsection 191(2)
Insert:
(2A) It is a defence to a prosecution for contravening
subsection (2), if:
(a) in relation to a prosecution for divulging information to a person or
body:
(i) the information relates either to a housing loan or a business loan
made, or treated as having been made, by Indigenous Business Australia or to a
grant made, or treated as having been made, by Indigenous Business Australia, in
relation to a housing loan or a business loan; and
(ii) the information was communicated to a person authorised in writing by
the person to whose affairs the document relates to receive the information;
or
(b) in relation to a prosecution for producing a document to a person or
body:
(i) the document relates either to a housing loan or a business loan made,
or treated as having been made, by Indigenous Business Australia or to a grant
made, or treated as having been made, by Indigenous Business Australia, in
relation to a housing loan or a business loan; and
(ii) the document was produced to a person authorised in writing by the
person to whose affairs the document relates to receive the document.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
131 Paragraph 191C(c)
After “this Act”, insert “or any other law of the
Commonwealth”.
132 After subsection 191D(1)
Insert:
Grants may be subject to conditions
(1A) The grant of an interest in land by the Indigenous Land Corporation
may be made subject to such terms and conditions as the Indigenous Land
Corporation determines.
(1B) An instrument determining terms and conditions under
subsection (1A) is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
133 After section 191E
Insert:
The Indigenous Land Corporation may make payments to Indigenous Business
Australia to assist Indigenous Business Australia to carry out its
functions.
134 Section 191K
Repeal the section.
135 At the end of
section 191L
Add:
(2) In performing its functions and exercising its powers in relation to
the expenditure, during the period starting on ATSIC abolition day and ending
immediately before Regional Councils abolition day, of money that, before ATSIC
abolition day, stood to the credit of the Regional Land Fund established under
section 68 of this Act as in force before that day, the Indigenous Land
Corporation must act in accordance with any general written directions given to
it by the Minister.
(3) Subject to subsection (4), the Minister must cause a copy of a
direction under subsection (2) to be laid before each House of the
Parliament within 15 sitting days of that House after the direction was
given.
(4) A copy of a direction laid before each House of the Parliament in
accordance with subsection (3) must not disclose any matter the disclosure
of which in that manner would be inconsistent with the views or sensitivities of
Aboriginal persons or Torres Strait Islanders because that matter is sacred or
otherwise significant to those persons.
(5) A direction given by the Minister under subsection (2) is not a
legislative instrument for the purposes of the Legislative Instruments Act
2003.
136 Subsection 191N(3)
Repeal the subsection, substitute:
(3) In performing functions under this section, the Indigenous Land
Corporation Board may consult such other persons and bodies as the Board
considers appropriate.
137 Paragraph 191V(2)(c)
Repeal the paragraph, substitute:
(c) an ordinary member (whose office may be referred to as the
paragraph (c) office);
138 Section 191W
After “Board”, insert “, subject to any direction from
the Minister under subsection 191L(2),”.
139 Subsection 191X(1)
Omit “referred to in paragraph 191V(2)(a), (b), (d), (e), (f) or
(g)”.
140 Subsection 191X(3)
Omit “the Commission and”.
141 Subsection 191X(4)
Omit “appointed” (wherever occurring).
142 Subsection 191X(5)
Repeal the subsection.
143 Sections 191Z, 192A and
192G
Omit “appointed”.
144 Subsection 192H(1)
Omit “, after consulting the Commission, terminate the appointment of
an appointed”, substitute “terminate the appointment of
an”.
145 Subsections 192H(2) and (4)
Omit “appointed”.
146 Section 192I
Omit “appointed”.
147 Subsection 192T(1)
Repeal the subsection.
Note: The heading to section 192T is altered by
omitting “Commission staff or”.
148 Section 192X
Omit “and the Commission”.
149 Section 193B
Repeal the section.
150 Section 193H
Omit “Commission”, substitute “Secretary of the
Department”.
151 At the end of
section 193H
Add:
(2) Subject to any direction by the Minister responsible for administering
the Commonwealth Authorities and Companies Act 1997, the financial
statements relating to the financial year that includes ATSIC abolition day must
deal with expenditure of money that, before that day, stood to the credit of the
Regional Land Fund established under section 68 of this Act as in force
before that day, separately from the other finances of the Indigenous Land
Corporation.
(3) A direction referred to in subsection (2) is not a legislative
instrument for the purposes of the Legislative Instruments Act
2003.
152 After subsection 193I(2)
Insert:
(2A) There must also be included in the annual report for the financial
year that includes ATSIC abolition day particulars of any direction given by the
Minister under subsection 191L(2).
153 At the end of
section 193M
Add:
(2) For the purpose of giving any security during the period starting on
ATSIC abolition day and ending immediately before Regional Councils abolition
day, assets of the Indigenous Land Corporation do not include any money that,
before ATSIC abolition day, stood to the credit of the Regional Land Fund
established under section 68 of this Act as in force before that
day.
154 Paragraph 193R(1)(e)
Repeal the paragraph.
155 Sections 193U, 194A and
195
Repeal the sections.
156 Paragraphs 196(1)(a) to (c)
Repeal the paragraphs.
157 Paragraphs 196(1)(f), (fa) and
(g)
Omit “Commission”, substitute “Minister”.
158 Paragraph 196(1)(h)
Omit “or the zone election rules”.
159 Subsection 196(2)
Omit “Commission”, substitute “Minister”.
160 Subsection 196(4)
Repeal the subsection.
161 Subsection 199(9)
Omit “, the TSRA election rules or the zone election rules”
(wherever occurring), substitute “or the TSRA election
rules”.
162 After section 200
Insert:
(1) This section applies to a person who:
(a) has been, at any time:
(i) a member of the Aboriginal and Torres Strait Islander Commission (the
former Commission) before the abolition of the Commission on ATSIC
abolition day; or
(ii) a member of a committee that was established by the former Commission
to advise it in relation to the performance of its functions; or
(iii) the Chief Executive Officer of the former Commission; or
(iv) a member of the staff of the former Commission; or
(v) engaged as a consultant by the former Commission; or
(vi) a member of the body known as the Torres Strait Islander Advisory
Board; or
(b) is or has been:
(i) a Regional Councillor; or
(ii) a member of an advisory committee established under section 96;
or
(iii) an Administrator; or
(iv) a member of the TSRA; or
(v) a member of an advisory committee established under section 142M;
or
(vi) the TSRA General Manager; or
(vii) a member of the staff of the TSRA; or
(viii) engaged as a consultant under section 144T; or
(ix) a TSRA Administrator; or
(c) has been, before ATSIC abolition day, a Director of Evaluation and
Audit.
(2) Subject to this section, a person to whom this section applies must
not, either directly or indirectly:
(a) make a record of, or divulge or communicate to any person, any
information concerning the affairs of another person acquired by the
first-mentioned person in the performance of duties in connection with an
application for, or the giving of, a loan, grant or guarantee under this Act;
or
(b) produce to any person a document relating to the affairs of another
person furnished in connection with an application for, or the giving of, a
loan, grant or guarantee under this Act;
unless that record is made, information divulged or document
produced:
(c) for the purposes of this Act or of a prosecution for an offence
against this Act; or
(d) if the person is a statutory office holder in, or an officer or
employee of, a Department or agency that has taken over a function or functions
previously performed by the former Commission—in the performance of the
person’s duties as such a statutory office holder, officer or
employee.
Penalty: Imprisonment for one year.
(3) It is a defence to a prosecution for contravening subsection (2),
if:
(a) in relation to a prosecution for divulging information to a person or
body—the information was communicated to a person authorised in writing by
the person to whose affairs the document relates to receive the information;
or
(b) in relation to a prosecution for producing a document to a person or
body—the document was produced to a person authorised in writing by the
person to whose affairs the document relates to receive the document.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) A person to whom this section applies must not be required:
(a) to divulge or communicate to a court any information referred to in
subsection (2); or
(b) to produce in a court any document referred to in that
subsection;
except when it is necessary to do so for the purposes of this Act, or of a
prosecution for an offence against this Act.
(5) A reference in this section to an offence against this Act includes a
reference to:
(a) an offence relating to this Act against section 6 of the
Crimes Act 1914; or
(b) an offence against section 134.1, 134.2, 135.1, 135.2, 135.4 or
136.1 of the Criminal Code.
(6) In this section:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of questions.
produce includes permit access to.
this Act includes the regulations.
(1) Subject to subsection (2) the Minister may, by written
instrument, delegate to:
(a) the Secretary of the Department; or
(b) an SES employee or acting SES employee;
all or any of the powers or functions conferred on the Minister under this
Act.
(2) Subsection (1) does not apply to:
(a) the power to make declarations under section 121; or
(b) the power to remove Regional Councillors and appoint administrators
under section 123A; or
(c) the power to give directions to Indigenous Business Australia under
section 151; or
(d) the power to give directions to the Indigenous Land Corporation under
section 191L.
Note 1: The expressions SES employee and
acting SES employee are defined in section 17AA of the
Acts Interpretation Act 1901.
Note 2: See also sections 34AA and 34AB of the Acts
Interpretation Act 1901.
163 Subsection 201(1)
Omit “, the TSRA election rules or the zone election rules”,
substitute “or the TSRA election rules”.
164 Paragraph 201(2)(a)
Repeal the paragraph.
165 Paragraph 201(2)(c)
Repeal the paragraph, substitute:
(c) make provision in relation to requests under subsection 195A(1) and
the reconsideration of matters under subsection 195A(2);
166 Section 202 (definition of authorised
officer)
Omit “new Commission”, substitute “successor
Commission”.
167 Section 202 (definition of new
Commission)
Repeal the definition.
168 Section 202
Insert:
successor Commission means the Aboriginal and Torres Strait
Islander Commission.
169 Sections 204 and 205
Repeal the sections.
170 Subsection 206(1)
Omit “to the new Commission or to Indigenous Business
Australia”, substitute “to Indigenous Business Australia or to the
Indigenous Land Corporation”.
171 Subsections 206(2), (3) and
(4)
Omit “of the new Commission or of Indigenous Business
Australia”, substitute “of Indigenous Business Australia or of the
Indigenous Land Corporation”.
172 Subsection 206(5)
Repeal the subsection, substitute:
(5) Liabilities of the Commonwealth that have become liabilities of
Indigenous Business Australia or of the Indigenous Land Corporation because of
subsection (4) are, after the commencement, taken to be liabilities
incurred by Indigenous Business Australia or by the Indigenous Land Corporation,
as the case requires, in the performance of its functions and the exercise of
its powers.
173 Sections 207, 209 and
210
Repeal the sections.
174 Paragraphs 211(2)(a), (b) and
(c)
Repeal the paragraphs, substitute:
(a) in the case of an instrument relating to an asset or liability that
has, because of section 208 of this Act as in force before 17 April
2001, or because of section 210 of this Act as in force before ATSIC
abolition day, become an asset or liability of the body previously known as the
Aboriginal and Torres Strait Islander Commercial Development Corporation and now
known as Indigenous Business Australia—Indigenous Business Australia;
or
(b) in the case of an instrument relating to a liability that has, because
of a declaration under subsection 209(1) of this Act as in force before ATSIC
abolition day, become a liability of the Commonwealth—the Commonwealth;
or
(c) in any other case—the successor Commission.
175 Sections 212, 213 and
214
Repeal the sections.
176 Paragraphs 215(1)(a), (b) and
(c)
Repeal the paragraphs, substitute:
(a) an asset or liability specified or described in the certificate
became, because of section 207 of this Act as in force before ATSIC
abolition day, an asset or liability of the successor Commission; or
(b) an asset or liability specified or described in the certificate
became, because of section 208 of this Act as in force before 17 April
2001, an asset or liability of the body previously known as the Aboriginal and
Torres Strait Islander Commercial Development Corporation and now known as
Indigenous Business Australia; or
(c) an instrument specified or described in the certificate is an old
Commission instrument for the purposes of section 211 of this Act as in
force before ATSIC abolition day.
177 Sections 217 and 218
Repeal the sections.
178 Subsection 220(1)
Omit “new” (wherever occurring), substitute
“successor”.
179 Section 221
Repeal the section.
180 Schedule 1
Repeal the Schedule, substitute:
Note: See subsection 91(1)
|
Places included in regions |
|---|
|
Adelaide |
|
Alice Springs |
|
Apatula |
|
Ballarat |
|
Bourke |
|
Brisbane |
|
Broome |
|
Cairns |
|
Ceduna |
|
Coffs Harbour |
|
Cooktown |
|
Darwin |
|
Derby |
|
Geraldton |
|
Hobart |
|
Jabiru |
|
Kalgoorlie |
|
Katherine |
|
Kununurra |
|
Mt Isa |
|
Narrogin |
|
Nhulunbuy |
|
Perth |
|
Port Augusta |
|
Queanbeyan |
|
Rockhampton |
|
Roma |
|
South Hedland |
|
Sydney |
|
Tamworth |
|
Tennant Creek |
|
Townsville |
|
Wagga Wagga |
|
Wangaratta |
|
Warburton |
181 Schedule 3
Repeal the Schedule.
182 Subclause 1(1) of Schedule 4 (definition of
election)
Omit “, a TSRA election or a zone election”, substitute
“or a TSRA election”.
183 Subclause 1(1) of Schedule 4 (definition of
illegal practice)
Omit “, the TSRA election rules or the zone election rules”,
substitute “or the TSRA election rules”.
184 Subclause 1(2) of
Schedule 4
Omit “, the TSRA election rules or the zone election rules”,
substitute “or the TSRA election rules”.
185 Subclause 3A(3) of Schedule 4
(paragraph (b) of the definition of general
election)
Repeal the paragraph.
186 Paragraph 15(b) of
Schedule 4
Omit “, the TSRA election rules and the zone election rules”,
substitute “and the TSRA election rules”.
187 Paragraph 22(b) of
Schedule 4
Repeal the paragraph.
Note: The heading to clause 22 of Schedule 4 is
altered by omitting “Commission,”.
188 Subclause 27(2) of
Schedule 4
Repeal the subclause.
189 Subclause 27(3) of
Schedule 4
Omit “by the Commission or”.
190 Subclause 28(1) of
Schedule 4
Omit “, the TSRA election rules and the zone election rules,”,
substitute “and the TSRA election rules”.
Part 3—Transitional
and saving arrangements relating to Aboriginal and Torres Strait Islander
Commission
191 Transitional
arrangements—Interpretation
(1) In this Part, unless the contrary intention appears:
assets means property of every kind and, without limiting the
generality of the foregoing, includes:
(a) choses in action; and
(b) rights, interests and claims of every kind in or to property, whether
arising under an instrument or otherwise, and whether legal or equitable,
liquidated or unliquidated, certain or contingent, accrued or
accruing.
ATSIC abolition day means the day on which Schedules 1
and 2 to this Act commence.
ATSIC Act means the Aboriginal and Torres Strait Islander
Commission Act 1989.
authorised officer means the Minister, the Secretary of the
Department or any other person authorised by the Minister for the purposes of
this Part.
business loan instrument means an instrument subsisting
immediately before ATSIC abolition day under which:
(a) the Commonwealth makes a business loan, or makes a grant relating to a
business loan, under a business loans program; or
(b) the Commonwealth takes a security, or gives a guarantee, in respect of
a business loan, under a business loans program; or
(c) the Commonwealth protects its interest in such a business loan or
grant or in respect of such a security or guarantee.
business loans program means a program of expenditure (other
than expenditure under Part 2 of the ATSIC Act) that is declared by the
Minister, by notice in writing, to be a business loans program.
class A exempted asset has the meaning given by
item 192.
class A exempted instrument has the meaning given by
item 193.
class A exempted liability has the meaning given by
item 192.
class B exempted asset has the meaning given by
item 192.
class B exempted instrument has the meaning given by
item 193.
class B exempted liability has the meaning given by
item 192.
Commission means the Aboriginal and Torres Strait Islander
Commission that was established under section 6 of the ATSIC Act.
Commissioner means a member of the Commission.
Commission instrument means an instrument subsisting
immediately before ATSIC abolition day:
(a) to which the Commission or a Commission predecessor was a party;
or
(b) that was given to, or in favour of, the Commission or a Commission
predecessor; or
(c) in which a reference is made to the Commission or a Commission
predecessor; or
(d) under which money is or was, or may become or may have become, payable
to the Commission or a Commission predecessor; or
(e) under which any other property is or was to be, or may become liable
to be or to have been, transferred to or by the Commission or a Commission
predecessor.
Commission predecessor means:
(a) the Aboriginal Loans Commission established by section 6 of the
Aboriginal Loans Commission Act 1974; or
(b) the Department of Aboriginal Affairs, the Minister for Aboriginal
Affairs or any officer of that Department; or
(c) the Aboriginal Development Commission.
Housing Fund means the fund of that name that was established
under section 67 of the ATSIC Act.
liabilities means liabilities of every kind and, without
limiting the generality of the foregoing, includes obligations of every kind,
whether arising at law or in equity, whether arising under or by virtue of an
instrument or otherwise, and whether liquidated or unliquidated, certain or
contingent, accrued or accruing.
Regional Councils abolition day means the day on which
Schedule 3 to this Act commences.
Regional Land Fund means the fund of that name that was
established under section 68 of the ATSIC Act.
Secretary means the Secretary of the Department.
(2) In this Part, a reference to a grant that is declared to be a class A
exempted asset or a class B exempted asset is taken to include a reference to a
right in relation to such a grant that is so declared.
(3) A declaration by the Minister that a program of expenditure is a
business loans program is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
192 Transfer of assets and
liabilities
(1) On ATSIC abolition day:
(a) any assets, other than class A or class B exempted assets, that,
immediately before that day, were vested in the Commission are, by force of this
item, vested in the Commonwealth; and
(b) the Commonwealth becomes, by force of this item, liable to pay and
discharge liabilities of the Commission, other than class A or class B exempted
liabilities, that existed immediately before that day.
(2) On ATSIC abolition day:
(a) any assets comprising:
(i) class A exempted assets, that, immediately before that day, were
vested in the Commission; or
(ii) the interest of the Commonwealth in any grant or loan made under a
business loans program or in any security taken under such a program in respect
of a business loan;
are, by force of this item, vested in Indigenous Business Australia;
and
(b) so far as those assets are class A exempted assets comprising money
standing to the credit of the Housing Fund—that money becomes money of the
New Housing Fund; and
(c) Indigenous Business Australia becomes, by force of this item, liable
to pay and discharge the class A exempted liabilities of the Commission that
existed immediately before that day; and
(d) Indigenous Business Australia becomes, by force of this item, liable
to pay and discharge liabilities of the Commonwealth that existed immediately
before that day in relation to grants or loans made under a business loans
program or in relation to any security taken or guarantee given under such a
program.
(3) On ATSIC abolition day:
(a) any class B exempted assets that, immediately before that day, were
vested in the Commission:
(i) are, by force of this item, vested in the Indigenous Land Corporation;
and
(ii) so far as those class B exempted assets comprised money standing to
the credit of the Regional Land Fund—may be used by the Indigenous Land
Corporation only as permitted in accordance with item 194 of this Act;
and
(b) the Indigenous Land Corporation becomes, by force of this item, liable
to pay and discharge the class B exempted liabilities of the Commission that
existed immediately before that day.
(4) If an asset that has become an asset of the Commonwealth, Indigenous
Business Australia or the Indigenous Land Corporation by force of
subitem (1), (2) or (3) was, immediately before ATSIC abolition day, held
by the Commission on trust, that asset is taken, on and after that day, to be
held by the body to which it is transferred on trust and subject to the terms of
the trust on which the asset was so held by the Commission.
(5) In this item:
class A exempted asset means:
(a) the money standing to the credit of the Housing Fund immediately
before ATSIC abolition day; or
(b) any housing loan or business loan made by, or vested in, the
Commission that is declared by the Minister, by notice in writing, to be a class
A exempted asset; or
(c) any other asset of the Commission that is declared by the Minister, by
notice in writing, to be a class A exempted asset.
class A exempted liability means any liability of the
Commission that is declared by the Minister, by notice in writing, to be a class
A exempted liability.
class B exempted asset means:
(a) the money standing to the credit of the Regional Land Fund immediately
before ATSIC abolition day; or
(b) any other asset of the Commission that is declared by the Minister, by
notice in writing, to be a class B exempted asset.
class B exempted liability means any liability of the
Commission that is declared by the Minister, by notice in writing, to be a class
B exempted liability.
(6) A notice that declares assets to be class A or class B exempted assets
or declares liabilities to be class A or class B exempted liabilities:
(a) may identify those assets or liabilities by class or in any other
manner; and
(b) is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
193 Commission instruments
(1) A Commission instrument (other than a class A or class B exempted
instrument) in force immediately before ATSIC abolition day has effect on and
after that day, in relation to everything occurring on or after that day, as if
a reference in the instrument to the Commission or to a Commission predecessor
were a reference to the Commonwealth.
(2) A class A exempted instrument in force immediately before ATSIC
abolition day has effect on and after that day, in relation to everything
occurring on or after that day, as if a reference in the instrument to the
Commission or to a Commission predecessor were a reference to Indigenous
Business Australia.
(3) A business loan instrument, in force immediately before ATSIC abolition
day, has effect on and after that day, in relation to everything occurring on or
after that day, as if a reference in the instrument to the Commonwealth were a
reference to Indigenous Business Australia.
(4) A class B exempted instrument, in force immediately before ATSIC
abolition day, has effect on and after that day, in relation to everything
occurring on or after that day, as if a reference in the instrument to the
Commission or to a Commission predecessor, were a reference to the Indigenous
Land Corporation.
(5) In this item:
class A exempted instrument means any Commission instrument
that is declared by the Minister, by notice in writing, to be a class A exempted
instrument.
class B exempted instrument means any Commission instrument
that is declared by the Minister, by notice in writing, to be a class B exempted
instrument.
(6) A notice that declares Commission instruments to be class A or class B
exempted instruments:
(a) may identify those instruments by class or in any other manner;
and
(b) is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
194 Constraints on expenditure of money transferred
from Regional Land Fund
(1) If class B exempted assets that are vested in the Indigenous Land
Corporation comprise money that stood to the credit of the Regional Land Fund
immediately before ATSIC abolition day, that money may only be used by the
Indigenous Land Corporation:
(a) during the period starting on that day and ending immediately before
Regional Councils abolition day—if the money is applied:
(i) to make a grant to a person or body on condition that the grant money
is spent in acquiring an interest in land and that acquisition has been proposed
by a Regional Council; or
(ii) to acquire an interest in land for the purpose of transferring that
interest to a person or body, where that acquisition has been proposed by a
Regional Council;
and the grant so made or the transfer for which the interest in land was
acquired will further the social, economic and cultural development of
Aboriginal persons or Torres Strait Islanders; and
(b) on and after Regional Councils abolition day—in performing any
function conferred on the Indigenous Land Corporation by the Aboriginal and
Torres Strait Islander Act 2004.
(2) Any interest in land acquired by the Indigenous Land Corporation for
the purpose referred to in subparagraph (1)(a)(ii) must be transferred to a
person or body in accordance with that purpose.
195 Pending proceedings
(1) If, immediately before ATSIC abolition day, proceedings to which the
Commission was a party, other than proceedings relating to:
(a) a class A or class B exempted asset; or
(b) a class A or class B exempted liability; or
(c) a class A or class B exempted instrument; or
(d) a loan or grant made, a security taken, or a guarantee given, under a
business loans program;
were pending in any court or tribunal, the Commonwealth is, on and after
that day and despite the provisions of any other law or instrument, substituted
for the Commission as a party to the proceedings and has the same rights in the
proceedings as the Commission had.
(2) If, immediately before ATSIC abolition day, proceedings to which the
Commission was a party and that relate to:
(a) a class A exempted asset; or
(b) a class A exempted liability; or
(c) a class A exempted instrument;
were pending in any court or tribunal, Indigenous Business Australia is, on
and after that day and despite the provisions of any other law or instrument,
substituted for the Commission as a party to the proceedings and has the same
rights in the proceedings as the Commission had.
(3) If, immediately before ATSIC abolition day, proceedings to which the
Commonwealth was a party and that relate to a loan or grant made, a security
taken, or a guarantee given, under a business loans program were pending in any
court or tribunal, Indigenous Business Australia is, on and after that day and
despite the provisions of any other law or instrument, substituted for the
Commonwealth as a party to the proceedings and has the same rights in the
proceedings as the Commonwealth had.
(4) If, immediately before ATSIC abolition day, proceedings to which the
Commission was a party and that relate to:
(a) a class B exempted asset; or
(b) a class B exempted liability; or
(c) a class B exempted instrument;
were pending in any court or tribunal, the Indigenous Land Corporation is,
on and after that day and despite the provisions of any other law or instrument,
substituted for the Commission as a party to the proceedings and has the same
rights in the proceedings as the Commission had.
196 Final report and financial statements for
Commission
(1) The Secretary must, as soon as practicable after ATSIC abolition day,
prepare and give to the Minister:
(a) a report on the operations of the Commission during the period (in
this section called the closure period) commencing on 1 July
2004 and ending immediately before ATSIC abolition day; and
(b) financial statements that relate to the Commission during that period
in such form as the Minister administering the Commonwealth Authorities and
Companies Act 1997 approves.
(2) The report prepared by the Secretary in accordance with
paragraph (1)(a):
(a) must include particulars of any directions given to the Commission
during the closure period under section 12 of the ATSIC Act; and
(b) must not disclose any matters known to the Secretary to be held sacred
by Aboriginal persons or Torres Strait Islanders or by any particular community
or group of Aboriginal persons or Torres Strait Islanders.
(3) Subject to any direction by the Minister administering the
Commonwealth Authorities and Companies Act 1997, the financial statements
prepared by the Secretary under paragraph (1)(b) must deal with the Housing
Fund and the Regional Land Fund separately from each other and from the other
finances of the Commission, and must:
(a) in the case of the Housing Fund—properly reflect the state of
the Fund immediately before ATSIC abolition day; and
(b) in the case of the Regional Land Fund—properly reflect the state
of the Fund immediately before ATSIC abolition day.
(4) A direction referred to in subsection (3) is not a legislative
instrument for the purposes of the Legislative Instruments Act
2003.
(5) Before giving financial statements to the Minister under
subitem (1), the Secretary must give them to the Auditor-General, who must
report to the Minister:
(a) whether, in the Auditor-General’s opinion, the statements are
based on proper accounts and records; and
(b) whether the statements are in agreement with the accounts and records
and, in the Auditor-General’s opinion, show fairly the financial
transactions and state of affairs of the Commission; and
(c) whether, in the Auditor-General’s opinion, the receipt,
expenditure and investment of money, and the acquisition and disposal of assets
by the Commission during the closure period were in accordance with the ATSIC
Act; and
(d) such other matters arising out of the statements as the
Auditor-General considers should be reported to the Minister.
(6) The Secretary and the Auditor-General may, in discharging their
obligations under this item, rely on accounts and records of the Commission that
are in the possession of the Commonwealth or to which the Secretary is allowed
access, and on any other information provided to a person who was a member of
the Commission or who was a member of the staff of the Commission.
(7) The Minister must cause copies of the reports and financial reports,
together with a copy of the report to the Auditor-General, to be laid before
each House of the Parliament within 15 sittings days of that House after the
receipt by the Minister.
197 Certificates relating to assets, liabilities and
instruments
(1) An authorised officer may certify, in writing, that:
(a) an asset or liability specified in the certificate becomes or became,
because of item 192 of this Schedule, an asset or liability of the
Commonwealth, of Indigenous Business Australia or of the Indigenous Land
Corporation; or
(b) an instrument specified in the certificate is a Commission instrument;
or
(c) an instrument specified in the certificate is a class A or class B
exempted instrument; or
(d) an instrument specified in the certificate is a business loan
instrument.
(2) The certificate is, in all courts and for all purposes, prima facie
evidence of the matter stated in the certificate.
(3) If:
(a) under item 192 of this Part, an estate or interest in land
becomes an asset of the Commonwealth, Indigenous Business Australia or the
Indigenous Land Corporation; and
(b) a certificate under subitem (1) to that effect is lodged with the
Registrar-General, Registrar of Titles or other proper officer of the State or
Territory in which the land is situated;
the officer with whom the certificate is lodged may deal with and give
effect to the certificate as if it were a grant, conveyance, memorandum or
instrument of transfer of the estate or interest to the Commonwealth, Indigenous
Business Australia or the Indigenous Land Corporation, as the case may be, duly
executed under the laws in force in that state or Territory.
(4) If a document purports to be a certificate under subitem (1) or
(3) signed by a person purporting to be an authorised officer, judicial notice
must be taken of the signature of the person and of the fact that the person is
or was an authorised officer.
198 Exemption from taxation
(1) Any transfer or other dealing under this Part, and any instrument
facilitating or evidencing such a transfer or other dealing, is not subject to
stamp duty or other tax under a law of the Commonwealth or of a State or
Territory if an authorised officer certifies, in writing:
(a) that the transfer or dealing is a transfer or dealing for a purpose
connected with, or arising out of, the operation of this Part; or
(b) that the instrument facilitating or evidencing a transfer or dealing
is an instrument made or given because of, or for a purpose connected with, or
arising out of, the operation of this Part.
(2) A certificate given by an authorised officer under subitem (1) is
not a legislative instrument for the purposes of the Legislative Instruments
Act 2003.
199 Repayment of grants and
loans
(1) If, before ATSIC abolition day, the Commission had made a grant to a
person or body under Part 2 of the ATSIC Act (other than a grant that is,
on ATSIC abolition day, declared to be a class A exempted asset or a class B
exempted asset) on particular terms and conditions:
(a) the Commonwealth is treated, on and after that day, as if it had made
the grant on the same terms and conditions; and
(b) if the Minister is satisfied that the person or body has failed to
fulfil such a term or condition—the Minister may, on behalf of the
Commonwealth, give notice to the person or body receiving the grant that the
Minister is so satisfied; and
(c) if the Commission had, before ATSIC abolition day, given a notice
under section 20 of the ATSIC Act to the effect that the Commission was
satisfied that the person or body receiving the grant had failed to fulfil a
term or condition of the grant—that notice has effect, on and after that
day, as if it had been given by the Minister under paragraph (b).
(2) A person or body to whom a notice is given, or treated as having been
given, by the Commonwealth under subitem (1) is liable to pay to the
Commonwealth, immediately, an amount equal to:
(a) the amount of the grant; or
(b) so much of the amount of the grant as was specified in the
notice.
(3) If, before ATSIC abolition day, the Commission had made a loan to a
person or body under Part 2 of the ATSIC Act (other than a loan that is, on
ATSIC abolition day, declared to be a class A exempted asset) on particular
terms and conditions:
(a) the Commonwealth is treated, on and after that day, as if it had made
the loan on the same terms and conditions; and
(b) if the Minister is satisfied that the person or body has failed to
fulfil such a term or condition—the Minister may, on behalf of the
Commonwealth, give notice to the person or body receiving the loan that the
Minister is so satisfied; and
(c) if the Commission had, before ATSIC abolition day, given a notice
under section 20 of the ATSIC Act to the effect that the Commission was
satisfied that the person or body receiving the loan had failed to fulfil a term
or condition of the loan—that notice has effect, on and after that day, as
if it had been given by the Minister under paragraph (b).
(4) A notice given, or treated as having been given, by the Minister under
paragraph (1)(b) or (3)(b) is not a legislative instrument for the purposes
of the Legislative Instruments Act 2003.
(5) A person or body to whom a notice is given, or treated as having been
given, by the Commonwealth under subitem (3) is liable to pay to the
Commonwealth, immediately, an amount equal to the sum of:
(a) so much of the amount of the loan as has not yet been repaid;
and
(b) any accrued interest that has not been paid;
or so much of that amount as was specified in the notice.
(6) If:
(a) the Commission had, before ATSIC abolition day, made a grant or loan
under Part 2 of the ATSIC Act to a person or body on particular terms and
conditions; and
(b) on ATSIC abolition day the grant or loan is declared to be a class A
exempted asset;
then:
(c) Indigenous Business Australia is to be treated, on and after that day,
as if it had made the grant or loan on the same terms and conditions, and, in
the case of a housing loan, as if it had made the loan from the New Housing
Fund; and
(d) if Indigenous Business Australia is satisfied that the person or body
has failed to fulfil such a term or condition—Indigenous Business
Australia may give notice to the person or body receiving the grant or loan that
it is so satisfied; and
(e) if the Commission had, before ATSIC abolition day, given a notice
under section 20 of the ATSIC Act to the effect that the Commission was
satisfied that the person or body receiving the grant or loan had failed to
fulfil a term or condition of the grant or loan—that notice has effect, on
and after that day, as if it had been given by Indigenous Business Australia
under paragraph (d) of this item.
(7) A notice given, or treated as having been given, by Indigenous Business
Australia under paragraph (6)(d) is not a legislative instrument for the
purposes of the Legislative Instruments Act 2003.
(8) A person or body to whom a notice is given, or treated as having been
given, by Indigenous Business Australia under subitem (6) is liable to pay
to Indigenous Business Australia, immediately, an amount equal to the sum
of:
(a) in the case of a grant:
(i) the amount of the grant; or
(ii) so much of the amount of the grant as was specified in the notice;
and
(b) in the case of a loan:
(i) so much of the amount of the loan as has not yet been repaid;
and
(ii) any accrued interest that has not been paid;
or so much of that amount as was specified in the notice.
(9) If:
(a) before ATSIC abolition day, the Commission had made a grant under
section 14 of the ATSIC Act to a person or body from the Regional Land Fund
on particular terms and conditions; and
(b) on ATSIC abolition day the grant is declared to be a class B exempted
asset;
then:
(c) the Indigenous Land Corporation is treated, on and after that day, as
if it had made the grant on the same terms and conditions; and
(d) if the Indigenous Land Corporation is satisfied that the person or
body has failed to fulfil such a term or condition—the Corporation may
give notice to the person or body receiving the grant that the Corporation is so
satisfied; and
(e) if the Commission had, before ATSIC abolition day, given a notice
under section 20 of the ATSIC Act to the effect that the Commission was
satisfied that the person or body receiving the grant had failed to fulfil a
term or condition of the grant—that notice has effect, on and after that
day, as if it had been given by the Indigenous Land Corporation under
paragraph (d).
(10) A notice given, or treated as having been given, by the Indigenous
Land Corporation under paragraph (9)(d) is not a legislative instrument for
the purposes of the Legislative Instruments Act 2003.
(11) A person or body to whom a notice is given, or treated as having been
given, by the Indigenous Land Corporation under subitem (9) is liable to
pay to the Corporation, immediately, an amount equal to:
(a) the amount of the grant; or
(b) so much of the amount of the grant as was specified in the
notice.
(12) This item does not affect the availability to the Commonwealth, to
Indigenous Business Australia or to the Indigenous Land Corporation, of any
legal or equitable remedy for a failure to fulfil a term or condition of a grant
or loan that was made by the Commission before ATSIC abolition day under
Part 2 of the ATSIC Act.
200 Restrictions on right to dispose of certain
property
(1) This item applies if an individual or body has acquired an interest in
land and any of the following applies:
(a) the interest was acquired using money granted to the individual or
body by the Commission before ATSIC abolition day under paragraph 14(1)(a) of
the ATSIC Act;
(b) the interest was acquired from the Commission before ATSIC abolition
day under paragraph 14(1)(b) of the ATSIC Act;
(c) the acquisition of the interest was financed by a loan that was
guaranteed by the Commission before ATSIC abolition day under section 15 of
the ATSIC Act.
(2) The individual or body must not dispose of the interest without the
appropriate consenting authority giving written consent to that
disposal.
(3) The consent must specify the disposal it covers by identifying the
person or class of persons to whom the interest is to be disposed of.
(4) Subitem (3) does not prevent a consent from further specifying a
particular disposal in other ways.
(5) A purported disposal of the interest by the individual or body has no
effect unless it is covered by the consent.
(6) The appropriate consenting authority may attach a condition to a
consent by specifying the condition in the document setting out the
consent.
(7) Contravention of a condition does not affect the disposal of the
interest by the individual or body.
(8) The appropriate consenting authority may give the individual or body
written notice requiring the individual or body to pay to the Commonwealth,
Indigenous Business Australia or the Indigenous Land Corporation, as the case
requires, the amount specified in the notice if:
(a) the interest disposed of was acquired by the individual or body
either:
(i) using money granted by the Commission to the individual or body under
paragraph 14(1)(a) of the ATSIC Act; or
(ii) by way of a grant of that interest in land from the Commission under
paragraph 14(1)(b) of that Act; and
(b) the condition attached to the consent to the disposal of that interest
was that some or all of the proceeds of the disposal be applied for a purpose
specified by the appropriate consenting authority; and
(c) the appropriate consenting authority is satisfied that the condition
was not complied with.
(9) The appropriate consenting authority must not specify in a notice under
subitem (8) an amount greater than the amount of the grant made to the
individual or body under paragraph 14(1)(a) or (b) of the ATSIC Act.
(10) An individual or body that is given a notice is liable to pay to the
Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation,
as the case requires, the amount specified in the notice.
(11) Subitems (8), (9) and (10) do not affect the availability to the
Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation,
of any legal or equitable remedy for contravention of a condition attached to
the consent.
(12) A consent given under subitem (2) or a notice under
subitem (8) is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
(13) In this item:
appropriate consenting authority means:
(a) unless paragraph (b) or (c) applies—the Secretary;
and
(b) if the interest in land to which the consent relates:
(i) was acquired using money made available to the individual or body by
means of a grant made by the Commission before ATSIC abolition day under
section 14 of the ATSIC Act and the grant is declared to be a class A
exempted asset; or
(ii) was acquired using money made available to the individual or body by
means of a loan that was guaranteed by the Commission before ATSIC abolition day
under section 15 of the ATSIC Act and the guarantee is declared to be a
class A exempted liability;
Indigenous Business Australia; and
(c) if the interest in land to which the consent relates:
(i) was acquired using money made available to the individual or body by
means of a grant made by the Commission before ATSIC abolition day under
paragraph 14(1)(a) of the ATSIC Act from the Regional Land Fund; or
(ii) was granted to the individual or body by the Commission before ATSIC
abolition day after the Commission acquired the interest using money from the
Regional Land Fund; or
(iii) was acquired using money made available to the individual or body by
means of a loan that was guaranteed by the Commission before ATSIC abolition day
under section 15 of the ATSIC Act and the guarantee is declared to be a
class B exempted liability;
the Indigenous Land Corporation.
201 Liabilities taken to be interests in
land
(1) Any liability of an individual, a body corporate or an unincorporated
body to the Commission (other than a liability arising under subitem (2) or
(3)) arising:
(a) under the terms and conditions of a grant or loan referred to in
subsection 14(2) of the ATSIC Act; or
(b) under section 20 or 21 of the ATSIC Act in relation to such a
grant or loan;
is taken, on and after ATSIC abolition day, to be an interest of the
Commonwealth in the land to which it relates.
(2) Any liability 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) of the ATSIC Act that is, on ATSIC abolition day, declared to
be a class A exempted asset; or
(b) under section 20 or 21 of the ATSIC Act in relation to such a
grant or loan;
is taken, on and after that day, to be an interest of Indigenous Business
Australia in the land to which it relates.
(3) Any liability of an individual, a body corporate or an unincorporated
body to the Commission arising:
(a) under the terms and conditions of a grant referred to in subsection
14(2) of the ATSIC Act that is, on ATSIC abolition day, declared to be a class B
exempted asset; or
(b) under section 20 or 21 of the ATSIC Act in relation to such a
grant;
is taken, on and after that day, to be an interest of the Indigenous Land
Corporation in the land to which it relates.
(4) Any liability of an individual, a body corporate or an unincorporated
body to the Commonwealth, Indigenous Business Australia or the Indigenous Land
Corporation arising under item 199 or 200 of this Schedule is taken to be
an interest of the Commonwealth, Indigenous Business Australia or the Indigenous
Land Corporation in the land to which the liability relates.
(5) The land is charged with a payment of all costs and expenses incurred
by the Commission, the Commonwealth, Indigenous Business Australia or the
Indigenous Land Corporation in respect of its enforcement of the
liability.
(6) The land referred to in subitem (1), (2), (3) or (4) is taken, for
the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976
to be alienated Crown land in which all estates or interests not held by the
Crown are held on behalf of Aboriginals.
(7) This item does not apply to a liability arising under subsection 21(10)
of the ATSIC Act or under subitem 200(10) of this Schedule.
202 Preservation of model rules
Despite the repeal of subsection 128(12) of the ATSIC Act, the model rules
formulated by the Commission under that subsection and in force immediately
before ATSIC abolition day have effect, on and after that day, as if they were
model rules formulated by the Registrar of Aboriginal Corporations under
subsection 128(12) of the Aboriginal and Torres Strait Islander Act
2004.
203 Transitional provision—Suspension of
Regional Councillors before ATSIC abolition day
If, before ATSIC abolition day:
(a) the Commission had suspended a Regional Councillor under
section 122A of the ATSIC Act; and
(b) the Commission had caused a statement in relation to that suspension
to be laid before each House of the Parliament in accordance with the
requirements of that section; and
(c) neither House of the Parliament had, before that day, passed a
resolution declaring that the Regional Councillor ought to be restored to
office; and
(d) the period within which such a resolution could be passed had not, as
at ATSIC abolition day, finally elapsed;
section 122A of the ATSIC Act as amended by this Act applies, on and
after ATSIC abolition day, in relation to that suspension as if:
(e) that section as so amended had been in force at the time when the
Regional Councillor had been suspended; and
(f) the actions of the Commission before ATSIC abolition day had been
actions of the Minister.
204 Transitional provision—Petitions for
suspension of Regional Council received by the Commission
If:
(a) at any time within the period of 6 months before ATSIC abolition day,
the Commission had received a petition under section 123 of the ATSIC Act
calling for the suspension of a Regional Council; and
(b) the Commission had not, by notice published in the Gazette,
taken action to remove the members of the Regional Council from office or to
appoint an administrator to administer the affairs of the Regional
Council;
then section 123 of the ATSIC Act as amended by this Act has effect,
on and after ATSIC abolition day, as if:
(c) that section as so amended had been in force at the time when the
Commission had received the petition; and
(d) the petition received by the Commission had been received by the
Minister.
205 Former Commissioners on Board of Directors of
Indigenous Business Australia or on Board of Indigenous Land
Corporation
(1) A person who was a Commissioner at any time on or after 14 April
2004 and who is, immediately before ATSIC abolition day, a member of the Board
of Directors of Indigenous Business Australia, ceases on ATSIC abolition day, by
force of this subitem, to hold office as such a member.
(2) A person who was a Commissioner at any time on or after 14 April
2004 and who is, immediately before ATSIC abolition day, a member of the Board
of the Indigenous Land Corporation, ceases on ATSIC abolition day, by force of
this subitem, to hold office as such a member.
206 Saving provision—Rights of internal review
of decisions made before ATSIC abolition day
(1) If, before ATSIC abolition day, an agent or delegate of the Commission
had refused to make a housing loan under section 14 of the ATSIC Act from
the Housing Fund:
(a) that refusal is to be treated, on and after that day, as a refusal to
make that loan by a delegate of Indigenous Business Australia; and
(b) the notice of that refusal given by the agent or delegate of the
Commission is to be treated as if it were a notice given by a delegate of
Indigenous Business Australia; and
(c) the person or body refused that loan may, within 30 days after being
notified of the refusal, request that Indigenous Business Australia reconsider
that refusal.
(2) If a request is made in the circumstances set out in subitem (1),
Indigenous Business Australia must reconsider the refusal and decide whether to
make the loan.
(3) If, before ATSIC abolition day:
(a) an agent or delegate of the Commission refused to make a housing loan
to a person or body under section 14 of the ATSIC Act from the Housing
Fund; and
(b) that person or body had requested the Commission to reconsider the
refusal; and
(c) that reconsideration had not been completed;
Indigenous Business Australia must reconsider the refusal and decide
whether to make the loan.
207 Saving provision—Rights of review of
decisions made before ATSIC abolition day
(1) For the purpose of this item, and without limiting the effect of
item 193 of this Schedule, each decision of a kind referred to in
section 196 of the ATSIC Act that was made by the Aboriginal and Torres
Strait Islander Commission before ATSIC abolition day has effect, on and after
that day:
(a) unless paragraph (b) or (c) applies—as a decision of the
Commonwealth; and
(b) if the decision related to a grant or loan that is, on ATSIC abolition
day, declared to be a class A exempted asset, or to a guarantee in respect of a
loan that is so declared—as a decision of Indigenous Business Australia;
and
(c) if the decision related to a grant that is, on ATSIC abolition day,
declared to be a class B exempted asset—as a decision of the Indigenous
Land Corporation.
(2) Despite the amendment of section 196 of the ATSIC Act, that
section continues in force, on and after ATSIC abolition day, for the purpose of
enabling persons or bodies to seek review of decisions referred to in that
section that were made before that day as if:
(a) the amendments made by those items had not been made; and
(b) each reference in that section, as so continued in force, to a
decision of the Commission were a reference to a like decision made by the
Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation,
as the case requires.
208 Rights of review of certain repayment decisions
made on or after ATSIC abolition day
(1) An application may be made on or after ATSIC abolition day to the
Administrative Appeals Tribunal for a review of:
(a) a decision to give notice to a person or body that is made by the
Minister on or after that day under subitem 199(1) or (3); or
(b) a decision to give notice to a person or body that is made by
Indigenous Business Australia on or after that day under subitem 199(6);
or
(c) a decision to give notice to a person or body that is made by the
Indigenous Land Corporation on or after that day under subitem 199(9).
(2) In this item:
decision made by the Minister means:
(a) a decision made by the Minister; or
(b) a decision made by a delegate of the Minister on a reconsideration of
a decision made by another delegate of the Minister.
209 Offences in relation to guarantees given by
Commission before ATSIC abolition day
A person must not, in or in connection with a claim under a guarantee given
by the Commission under Part 2 of the ATSIC Act, make a statement that the
person knows to be false or misleading in a material particular or present a
document that, to the person’s knowledge, contains information that is
false or misleading in a material particular.
Penalty: Imprisonment for 5 years or 100 penalty units.
210 Transitional provision—Notices under
section 124H or 124J of ATSIC Act
Any notice published by the Commission in the Gazette under
section 124H or 124J of the ATSIC Act and in force immediately before ATSIC
abolition day, has effect, on and after that day, as if it were a notice to the
same effect published by the Minister under that section of that Act as amended
by this Act.
211 Transitional provision—Determinations in
force under subsection 127D(2) of ATSIC Act
Any determination of leave entitlements, other than recreation leave, made
by the Commission and in force under subsection 127D(2) of the ATSIC Act as in
force before ATSIC abolition day, has effect, on and after that day, as if it
were a determination to the same effect made by the Minister under that
subsection of that Act as amended by this Act.
212 Saving provision—Conferral of functions
under subsection 142AA(1) of ATSIC Act
If the Prime Minister had conferred a departmental function on the TSRA
under subsection 142AA(1) of the ATSIC Act as in force before ATSIC abolition
day, that conferral continues to have effect, on and after that day, as if it
were a conferral of that function under that subsection of that Act as amended
by this Act.
213 Delegation of powers and functions conferred
under this Part
(1) The Minister may, by written instrument, delegate to:
(a) the Secretary or any other agency head within the meaning of the
Public Service Act 1999; or
(b) an SES employee or acting SES employee; or
(c) the Chief Executive Officer of a Commonwealth authority or an employee
of a Commonwealth authority of equivalent rank to an SES employee;
all or any of the powers and functions conferred on or acquired by the
Minister under this Part, other than the power to declare a program of
expenditure to be a business loans program, or the power to make a declaration
under subitem 192(5) or 193(5).
(2) The Secretary may, by written instrument, delegate to:
(a) an SES employee or acting SES employee; or
(b) an employee of a Commonwealth authority of equivalent rank to an SES
employee;
the powers and functions of the Secretary under this Part.
(3) An agency head, within the meaning of the Public Service Act
1999, to whom a power or function is delegated under subitem (1) may,
by written instrument, delegate that power to:
(a) an SES employee or acting SES employee; or
(b) an employee of a Commonwealth authority of equivalent rank to an SES
employee.
Note 1: The expressions SES employee, and
acting SES employee are defined in section 17AA of the
Acts Interpretation Act 1901.
Note 2: See also sections 34AA and 34AB of the Acts
Interpretation Act 1901.
Part 1—Amendment
relating to Office of Evaluation and Audit
Aboriginal and Torres
Strait Islander Commission Act 1989
1 After Part 4A
Insert:
(1) In this Part:
activities of any individual or organisation includes the
operations of any individual or organisation.
Australian Government body means:
(a) a Department of State, a Department of the Parliament or a prescribed
Agency within the meaning of the Financial Management and Accountability Act
1997; and
(b) a Commonwealth authority within the meaning of the Commonwealth
Authorities and Companies Act 1997; and
(c) a Commonwealth company within the meaning of the Commonwealth
Authorities and Companies Act 1997; and
(d) a body established for a public purpose by or under a law of the
Commonwealth.
Director means the Director of Evaluation and Audit
appointed, or taken to have been appointed, under section 193ZA.
evaluate or audit includes evaluate and audit.
individual or organisation includes any person, body
corporate or unincorporated body.
Office means the Office of Evaluation and Audit (Indigenous
Programs) referred to in section 193W.
relevant program means a program, or a program component,
under which money is provided, including on loan, or a guarantee is given, or an
interest in land or other property is transferred, for the purpose of furthering
the social, economic or cultural development of Aboriginal persons or Torres
Strait Islanders.
(2) A reference in this Part to a person engaged under the Public
Service Act 1999 is to be read as a reference to a person so engaged whose
Agency Head, within the meaning of that Act, is the Secretary of the
Department.
(1) An Office of Evaluation and Audit (Indigenous Programs) is established
within the Department.
(2) The purposes of the Office are:
(a) to evaluate or audit relevant programs administered by Australian
Government bodies; and
(b) to evaluate or audit the activities of any individual or organisation
that has received funding under any relevant program; and
(c) to report to the Minister on those evaluations or audits and to report
to other Ministers in accordance with the directions of the Minister.
(1) The Office has the following functions:
(a) in accordance with a program developed by the Director under
section 193Y, or, in the circumstances referred to in subsection (2),
at the request of the Minister—to evaluate or audit:
(i) relevant programs administered by an Australian Government body;
or
(ii) particular aspects of the operations of Australian Government bodies,
but only to the extent that the evaluation or audit concerns relevant programs
administered by such a body; and
(b) when requested to do so by the Minister—to evaluate or audit the
activities of any individual or organisation:
(i) who has received money, including money on loan, or an interest in
land or other property, from an Australian Government body under a relevant
program; or
(ii) who has had a loan guaranteed by an Australian Government body under
such a program; or
(iii) who has derived income or other benefit, directly or indirectly,
from money (including money on loan), or a guarantee, provided by an Australian
Government body under such a program or from a transfer of an interest in land
or other property from such a body under such a program;
but only to the extent that the evaluation or audit concerns the money,
land or other property, or the guarantee, provided under that program or
concerns the income or other benefit derived from such money, land or other
property or from such a guarantee; and
(c) when a funding or loan agreement entered into with any individual or
organisation under a relevant program provides that the Office can evaluate or
audit the activities of the individual or organisation:
(i) that directly or indirectly relate to the use of money provided under
the agreement; or
(ii) that relate to any matter facilitated by income derived from the use
of money so provided;
with the consent of the Minister—to evaluate or audit those
activities in accordance with that agreement; and
(d) to report on evaluations or audits conducted under this section in a
manner required by the Minister; and
(e) to inform the Minister about any significant issues that have arisen,
or may arise, in relation to audits or evaluations conducted under this section;
and
(f) to inform the Minister about any issues affecting the independence of
the Office.
(2) In any circumstance where the Minister considers that there is a need
for the Office of Evaluation and Audit to evaluate or audit:
(a) relevant programs administered by an Australian Government body;
or
(b) particular aspects of the operations of an Australian Government body,
to the extent that the evaluation or audit concerns relevant programs
administered by such a body;
the Minister may request the Office to conduct such an evaluation or audit
whether or not an evaluation or audit would ordinarily be conducted at that time
under a program developed under section 193Y.
(3) The functions conferred on the Office under this section are in
addition to, and not in substitution for, any functions conferred on the
Auditor-General or any other person by or under any other law of the
Commonwealth.
(1) As soon as practicable after the commencement of this section, and
before the start of each succeeding year commencing on a 1 July, the
Director must develop a program for the evaluation or audit of Australian
Government bodies by the Office in the performance of the function referred to
in paragraph 193X(1)(a).
(2) The first program must cover the period ending on 30 June 2007
and each subsequent program must cover a period of 3 years from the 1 July
on which it commences.
(3) The Director may, from time to time, vary a program in force under
subsection (1).
(4) In developing a program under subsection (1) and in making any
variation to that program, the Director must have regard to the audit priorities
of the Minister and also of the Minister having primary responsibility for
indigenous affairs.
(5) A program for the evaluation or audit of Australian Government bodies
developed in accordance with subsection (1) is not a legislative instrument
for the purposes of the Legislative Instruments Act 2003.
The Minister may, in his or her discretion, lay before each House of the
Parliament, a copy of any report that is given to the Minister by the Office
under this Act.
(1) There is to be a Director of Evaluation and Audit.
(2) The Director is to be a person engaged under the Public Service Act
1999 who is appointed as Director of Evaluation and Audit by the
Minister.
(3) The Director is the head of the Office.
(4) The Director must, as soon as practicable after 30 June in each
year, give the Secretary of the Department a report of the operations of the
Office during that year for inclusion in the annual report of the
Department.
(5) The office of Director of Evaluation and Audit is not a public office
for the purposes of the Remuneration Tribunal Act 1973.
(1) The Director holds office for the period specified in, or worked out
under, the instrument of appointment.
(2) The period must not be longer than 5 years.
(1) The Minister may appoint a person engaged under the Public Service
Act 1999 to act as the Director of Evaluation and Audit:
(a) during a vacancy in the office of Director; or
(b) during any period, or during all periods, when the Director is absent
from duty or from Australia or is, for any reason, unable to perform the duties
of the office;
but a person appointed to act during a vacancy must not continue so to act
for more than 6 months.
(2) Anything done by or in relation to a person purporting to act under
this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(3) Any reference in section 193ZD, 193ZE, 193ZF or 193ZG to the
Director or to the Director of Evaluation and Audit is taken to include a
reference to the acting Director.
The Director may resign by writing signed by him or her and sent to the
Minister.
(1) The Minister may terminate, by writing signed by him or her, the
appointment of the Director.
(2) The appointment of the Director is terminated if the Director ceases
to be, for any reason, engaged under the Public Service Act
1999.
The Director is not personally liable in an action or other proceeding
for damages for, or in relation to, anything done or omitted to be done in good
faith:
(a) by the Office; or
(b) by the Director in the capacity of Director.
(1) The Director may, by notice in the Gazette, authorise a person
(the authorised person) who is a member of the staff of, or an
independent contractor engaged by, the Department to perform functions and
exercise powers for the purposes of this section.
(2) For the purposes of an evaluation or audit relating to an Australian
Government body, individual or organisation, the Director or an authorised
person may examine documents relating to the Australian Government body,
individual or organisation concerned.
(3) An authorised person must report to the Director on the results of an
examination conducted in accordance with subsection (2).
(4) For the purposes of performing the functions conferred by
subsection (2) and section 193X, the Director or the authorised
person:
(a) is entitled at all reasonable times to full and free access to
documents relating to the body, individual or organisation; and
(b) may make copies, or take extracts from, any such document;
and
(c) by notice in writing, may require a person:
(i) to answer such questions; and
(ii) to produce such documents in the person’s possession or to
which the person has access;
within such reasonable period, not being a period of less than 14 days,
as is specified in the notice.
(5) For the purposes of exercising powers conferred by
subsection (4), an Australian Government body must provide access to
premises (including any land or place) occupied by the Australian Government
body, at all reasonable times, to the Director or an authorised
person.
(6) A person may only be required, under paragraph (4)(c), to provide
information or to produce a document if the Director or authorised person has
reason to believe that the person is capable of providing that information or
producing that document.
(7) A person who fails to comply with a requirement under
paragraph (4)(c) is guilty of an offence punishable upon conviction by a
fine not exceeding 20 penalty units.
(8) Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the
Criminal Code.
(9) Subsection (7) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (9) (see subsection 13.3(3) of the Criminal
Code).
(10) For the purposes of subsection (9), it is not a reasonable
excuse for a person to fail:
(a) to give information; or
(b) to produce a document;
in accordance with a requirement made of the person, on the ground that the
information or production of the document might tend to incriminate the person
or make the person liable to a penalty. However:
(c) evidence as to the giving of the information or the producing of the
document; or
(d) any information, document or thing obtained as a direct or indirect
consequence of the giving of the information or the producing of the
document;
is not admissible in evidence against the person in any proceedings in a
court that may expose the person to a penalty, other than proceedings for an
offence against, or arising out of, subsection (7) or (11).
(11) A person who, in purported compliance with a requirement under
paragraph (4)(c), makes a statement that is, to the person’s
knowledge, false or misleading in a material particular, is guilty of an offence
punishable on conviction by a fine not exceeding 20 penalty units.
(12) Before exercising powers under subsection (4), an authorised
person must produce written authority given by the Director as notified in the
Gazette under subsection (1). If the authorised person fails to do
so, he or she has no powers under that subsection.
(13) The functions and powers conferred by this section are in addition
to, and not in substitution for, any functions or powers conferred on the
Auditor-General, or any other person, by or under any other law of the
Commonwealth.
(14) A notice under subsection (1) or under paragraph (4)(c) is
not a legislative instrument for the purposes of the Legislative Instruments
Act 2003.
Part 2—Transitional
and saving arrangements relating to Office of Evaluation and
Audit
2 Transitional arrangement
definitions
In this Part, unless the contrary intention appears:
ATSIC abolition day means the day on which Schedules 1
and 2 to this Act commence.
ATSIC Act means the Aboriginal and Torres Strait Islander
Commission Act 1989.
Commission means the Aboriginal and Torres Strait Islander
Commission that was established under section 6 of the ATSIC Act.
Indigenous Business Australia means the body of that name
referred to in section 145 of the Aboriginal and Torres Strait Islander
Act 2004.
Indigenous Land Corporation means the body of that name
established under section 191A of the Aboriginal and Torres Strait
Islander Act 2004.
Office of Evaluation and Audit (Indigenous Programs) means
the office, referred to in section 193W of the Aboriginal and Torres
Strait Islander Act 2004, that was originally established by
section 75 of the ATSIC Act and that became, on ATSIC abolition day, the
Office of Evaluation and Audit (Indigenous Programs).
Secretary means the Secretary of the Department.
TSRA means the Torres Strait Regional Authority established
by section 142 of the ATSIC Act.
3 Office of Evaluation and Audit to continue under
new name
The Office of Evaluation and Audit that was established within the
Commission by section 75 of the ATSIC Act becomes, by force of this item,
on ATSIC abolition day, for the purposes of section 193W of the
Aboriginal and Torres Strait Islander Act 2004, the Office of Evaluation
and Audit (Indigenous Programs) established in the Department.
4 Current Director of Evaluation and
Audit
(1) The person holding office as Director of Evaluation and Audit under
section 77 of the ATSIC Act immediately before ATSIC abolition day
continues, on and after that day, by force of this item and despite
section 193ZA of the Aboriginal and Torres Strait Islander Act 2004,
to hold office as the Director of Evaluation and Audit as if the person had been
duly appointed by the Minister under section 193ZA of the Aboriginal and
Torres Strait Islander Act 2004.
(2) The person referred to in subitem (1):
(a) is taken to have been so appointed under section 193ZA of the
Aboriginal and Torres Strait Islander Act 2004, by instrument in writing,
for the balance of the term of appointment under section 77 of the ATSIC
Act; and
(b) is taken to have been so appointed on the same terms and conditions as
applied to the person immediately before ATSIC abolition day.
(3) Despite section 193ZA of the Aboriginal and Torres Strait
Islander Act 2004, the person referred to in subitem (1):
(a) is entitled to remuneration and allowances in accordance with
section 194 of that Act; and
(b) is to have such recreation leave entitlements as are determined by the
Remuneration Tribunal.
(4) Section 193ZE of the Aboriginal and Torres Strait Islander Act
2004 does not apply in relation to the deemed appointment of the person
referred to in subitem (1).
(5) The Minister may grant the person referred to in subitem (1) leave
of absence (other than recreation leave) on such terms and conditions, as to
remuneration or otherwise, as the Minister determines in writing.
(6) The Minister may terminate the appointment of the person referred to in
subitem (1) as Director of Evaluation and Audit because of incompetence,
misbehaviour or physical or mental incapacity.
(7) The Minister must terminate the appointment of the person referred to
in subitem (1) as Director of Evaluation and Audit if the person:
(a) is absent from duty, except on leave granted to that person, for 14
consecutive days or for 28 days in any period of 12 months; or
(b) becomes bankrupt; or
(c) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(d) compounds with his or her creditors; or
(e) makes an assignment of his or her remuneration for the benefit of his
or her creditors; or
(f) fails, without reasonable excuse, to make a disclosure of financial
interests equivalent to the disclosure required to be made by an SES employee;
or
(g) engages in paid employment outside the duties of the office of
Director of Evaluation and Audit without the written consent of the
Minister.
(8) The person referred to in subitem (1) holds office on such terms
and conditions (if any) in respect of matters not provided for by operation of
subitems (1) to (7) as are determined by the Minister by notice in the
Gazette.
5 Transitional evaluation and audit
functions
(1) The Office of Evaluation and Audit (Indigenous Programs) has, in
addition to the functions imposed on it under section 193X of the
Aboriginal and Torres Strait Islander Act 2004, the following
functions:
(a) when requested to do so by the Minister—to evaluate or audit the
activities of any individual or organisation who, before ATSIC abolition day,
received one or more grants or loans from the Commission, but only to the extent
that the evaluation or audit concerns those grants or loans;
(b) when requested to do so by the Minister—to evaluate or audit the
activities of a borrower, being any individual or organisation, one or more of
whose loans were guaranteed, before ATSIC abolition day, by the Commission, but
only to the extent that the evaluation or audit concerns those
guarantees;
(c) to report on evaluations or audits conducted in accordance with
paragraph (a) or (b), in writing, to the Minister as required by the
Minister.
(2) A requirement under paragraph (1)(c) is not a legislative
instrument for the purposes of the Legislative Instruments Act
2003.
(3) Subsection 193X(3) and section 193ZG of the Aboriginal and
Torres Strait Islander Act 2004 apply in relation to any evaluation or audit
commenced at the request of the Minister under this item.
6 Evaluations or audits begun but not completed
before ATSIC abolition day
(1) If:
(a) before ATSIC abolition day, the Office of Evaluation and Audit has
begun an evaluation or audit in relation to a body corporate, an unincorporated
body or an individual under section 76 of the ATSIC Act, whether at the
request of the Minister, the Commission, Aboriginal Hostels Limited, Indigenous
Business Australia, the TSRA, or the Indigenous Land Corporation; and
(b) that evaluation or audit has not been completed before that
day;
the Office of Evaluation and Audit (Indigenous Programs) must continue that
evaluation or audit and, subject to subitem (3), report on that evaluation
or audit, as if the amendments of the ATSIC Act made by this Act had not been
made.
(2) An instrument under subitem (1) reporting on an evaluation or
audit is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
(3) If the evaluation or audit is one in respect of which the Office of
Evaluation and Audit would have been required to report in accordance with
subitem (1) both to the Minister and to the Commission, the Office of
Evaluation and Audit (Indigenous Programs) is required to report only to the
Minister.
(4) For the avoidance of doubt, the Director of Evaluation and Audit must
include in any report of the operations of the Office of Evaluation and Audit
(Indigenous Programs) in a particular year that is given under subsection
193ZA(4) of the Aboriginal and Torres Strait Islander Act 2004, a report
of the operations of the Office that are carried out during that year under
item 5 and under this item.
(5) The Office of Evaluation and Audit must:
(a) under subsection 77(3) of the ATSIC Act, make a final report of its
operations for the period commencing on 1 July 2004 and ending immediately
before ATSIC abolition day as if that period were a financial year;
and
(b) ensure that a copy of that report is included in the final annual
report of the Commission.
Part 1—Abolition
of Regional Councils
Aboriginal and Torres
Strait Islander Act 2004
1 Part 3
Repeal the Part.
Part 2—Consequential
amendments relating to abolition of Regional Councils
Aboriginal and Torres
Strait Islander Act 2004
2 Subsection 4(1) (definition of
Administrator)
Repeal the definition.
3 Subsection 4(1) (paragraph (a) of the
definition of designated number)
Repeal the paragraph.
4 Subsection 4(1) (definition of election
period, in relation to a round of Regional Council
elections)
Repeal the definition.
5 Subsection 4(1) (definition of electorate
notice)
Repeal the definition.
6 Subsection 4(1) (definition of electorate
number)
Repeal the definition.
7 Subsection 4(1) (definition of estimated
population, in relation to a region)
Repeal the definition.
8 Subsection 4(1) (definition of member for a
Regional Council ward)
Repeal the definition.
9 Subsection 4(1) (definition of prescribed
number)
Repeal the definition.
10 Subsection 4(1) (definition of
region)
Repeal the definition.
11 Subsection 4(1) (definition of Regional
Council)
Repeal the definition.
12 Subsection 4(1) (definition of Regional
Council election)
Repeal the definition.
13 Subsection 4(1) (definition of Regional
Council election rules)
Repeal the definition.
14 Subsection 4(1) (definition of Regional
Council election year)
Repeal the definition.
15 Subsection 4(1) (definition of Regional
Council ward)
Repeal the definition.
16 Subsection 4(1) (definition of Regional
Council ward election)
Repeal the definition.
17 Subsection 4(1) (definition of Regional
Councillor)
Repeal the definition.
18 Subsection 4(1) (definition of Torres Strait
area)
Repeal the definition, substitute:
Torres Strait area means the area declared by the Minister,
by instrument in writing made for the purposes of this definition, to be the
Torres Strait area.
19 Subsection 4(1) (paragraph (a) of the
definition of ward)
Repeal the paragraph.
20 At the end of section 4
Add:
(3) A declaration by the Minister for the purposes of the definition of
Torres Strait area is not a legislative instrument for the
purposes of the Legislative Instruments Act 2003.
21 At the end of Division 5 of
Part 3A
Add:
Schedule 4 applies where there is a dispute in relation to a TSRA
election.
22 Section 196
Repeal the section.
23 Subsection 200A(1)
Repeal the subsection, substitute:
(1) This section applies to a person who:
(a) has been, at any time:
(i) a member of the Aboriginal and Torres Strait Islander Commission (the
former Commission) before the abolition of Commission on ATSIC
abolition day; or
(ii) a member of a committee that was established by the former Commission
to advise it in relation to the performance of its functions; or
(iii) the Chief Executive Officer of the former Commission; or
(iv) a member of the staff of the former Commission; or
(v) engaged as a consultant by the former Commission; or
(vi) a member of the body known as the Torres Strait Islander Advisory
Board; or
(vii) a member of a Regional Council before the abolition of Regional
Councils on Regional Councils abolition day; or
(viii) a member of an advisory committee established by such a Regional
Council to advise it in relation to the performance of its functions;
or
(ix) an Administrator of such a Regional Council; or
(b) is or has been:
(i) a member of the TSRA; or
(ii) a member of an advisory committee established under
section 142M; or
(iii) the TSRA General Manager; or
(iv) a member of the staff of the TSRA; or
(v) engaged as a consultant under section 144T; or
(vi) a TSRA Administrator; or
(c) has been, before ATSIC abolition day, a Director of Evaluation and
Audit.
24 Paragraphs 200B(2)(a) and
(b)
Repeal the paragraphs.
25 Paragraph 201(2)(b)
Omit “127, 127J,”.
26 Schedule 2 (heading)
Repeal the heading, substitute:
27 Clause 1 of
Schedule 2
Omit “Regional Council ward election or”.
28 Clause 24 of Schedule 2 (definition of
leading shortfall)
Omit “Regional Council ward election or”.
29 Clause 24 of Schedule 2 (definition of
shortfall)
Omit “Regional Council ward election or”.
30 Clause 24 of Schedule 2 (definition of
vacancy shortfall)
Omit “Regional Council ward election or”.
31 Schedule 2A (heading)
Repeal the heading, substitute:
32 Subclause 3(4) of
Schedule 2A
Omit “113 or 143G, the rules made by the Minister under either of
those sections”, substitute “143G, the rules made by the Minister
under that section”.
33 Subclause 1(1) of Schedule 4 (definition of
election)
Omit “a Regional Council election or”.
34 Subclause 1(1) of Schedule 4 (definition of
illegal practice)
Omit “, the Regional Council election rules”.
35 Subclause 1(2) of
Schedule 4
Omit “, the Regional Council election rules”.
36 Subclause 3A(3) of Schedule 4
(paragraph (a) of the definition of general
election)
Repeal the paragraph.
37 Paragraph 15(a) of
Schedule 4
Omit “, the Regional Council election rules”.
38 Paragraph 15(b) of
Schedule 4
Omit “, and whichever of the Regional Council election rules and the
TSRA election rules is applicable”, substitute “and the TSRA
election rules”.
39 Paragraphs 17(1)(a) and (b) of
Schedule 4
Repeal the paragraphs.
40 Paragraphs 21(1)(b) and (c) of
Schedule 4
Repeal the paragraphs.
41 Paragraph 22(c) of
Schedule 4
Repeal the paragraph.
Note: The heading to clause 22 of Schedule 4 is
altered by omitting “, TSRA and Regional Council affected”
and substituting “and TSRA”.
42 Subclause 27(3) of
Schedule 4
Repeal the subclause.
43 Subclause 28(1) of
Schedule 4
Omit “, the Regional Council election rules”.
Aboriginal Councils and
Associations Act 1976
44 Paragraph 5(1)(c)
Omit “Council; and”, substitute
“Council.”.
45 Paragraph 5(1)(d)
Repeal the paragraph.
46 Subsection 5(1A)
Repeal the subsection.
Part 3—Transitional
and saving arrangements relating to Regional Councils
47 Transitional arrangement
definitions
In this Part, unless the contrary intention appears:
assets means property of every kind and, without limiting the
generality of the foregoing, includes:
(a) choses in action; and
(b) rights, interests and claims of every kind in or to property, whether
arising under an instrument or otherwise, and whether liquidated or
unliquidated, certain or contingent, accrued or accruing.
ATSIC abolition day means the day Schedules 1 and 2 to
this Act commence.
authorised officer means the Minister, the Secretary of the
Department or any other person authorised by the Minister for the purposes of
this Part.
liabilities means liabilities of every kind and, without
limiting the generality of the foregoing, includes obligations of every kind,
whether arising under an instrument or otherwise, and whether liquidated or
unliquidated, certain or contingent, accrued or accruing.
Regional Council means a Regional Council that was
established under section 92 of the Aboriginal and Torres Strait
Islander Act 2004 and was in existence immediately before Regional Councils
abolition day.
Regional Council instrument means an instrument subsisting
immediately before Regional Councils abolition day:
(a) to which a Regional Council was a party; or
(b) that was given to, or in favour of, a Regional Council; or
(c) in which a reference is made to a Regional Council; or
(d) under which money is, or may become, payable to a Regional Council;
or
(e) under which any other property is to be, or may become liable to be,
transferred to or by a Regional Council.
Regional Councils abolition day means the day Schedule 3
to this Act commences.
Secretary means the Secretary of the Department.
48 Transfer of assets and liabilities of Regional
Councils
On Regional Councils abolition day:
(a) any assets that, immediately before that day, were vested in a
Regional Council are, by force of this item, vested in the Commonwealth;
and
(b) the Commonwealth becomes, by force of this item, liable to pay and
discharge liabilities or other obligations of a Regional Council that existed
immediately before that day.
49 Regional Council instruments
A Regional Council instrument in force under the Aboriginal and Torres
Strait Islander Act 2004 immediately before Regional Councils abolition day
has effect, on and after that day, in relation to everything occurring on or
after that day, as if a reference in the instrument to a Regional Council were a
reference to the Commonwealth.
50 Pending proceedings
If, immediately before Regional Councils abolition day, proceedings to
which a Regional Council was a party were pending in any court or tribunal, the
Commonwealth is, with effect from that day, substituted for the Regional Council
as a party to the proceedings and has the same rights in the proceedings as the
Regional Council had.
51 Certificates relating to assets, liabilities and
instruments
(1) An authorised officer may certify, in writing, that:
(a) an asset or liability specified or described in the certificate
became, because of item 48, an asset or liability of the Commonwealth;
or
(b) an instrument specified or described in the certificate is a Regional
Council instrument.
(2) A certificate under subitem (1) is, in all courts and for all
purposes, prima facie evidence of the matter stated in the
certificate.
(3) If a document purports to be a certificate under subitem (1)
signed by a person purporting to be an authorised officer, judicial notice must
be taken of the signature of the person and of the fact that the person is or
was an authorised officer.
52 Exemption from taxation
(1) Any transfer or other dealing under this Part, and any instrument
facilitating or evidencing such a transfer or other dealing, is not subject to
stamp duty or other tax under a law of the Commonwealth or of a State or
Territory if an authorised officer certifies, in writing:
(a) that the transfer or dealing is a transfer or dealing for a purpose
connected with, or arising out of, the operation of this Part; or
(b) that the instrument facilitating or evidencing a transfer or dealing
is an instrument made or given because of, or for a purpose connected with, or
arising out of, the operation of this Part.
(2) A certificate given by an authorised officer under subitem (1) is
not a legislative instrument for the purposes of the Legislative Instruments
Act 2003.
53 Saving provision—Rights of review of
certain decisions made before Regional Councils abolition
day
Despite the repeal of section 196 of the Aboriginal and Torres
Strait Islander Act 2004 by this Schedule, that section as in force
immediately before Regional Councils abolition day is to be treated as
continuing in force, on and after that day, for the purpose of enabling persons
or bodies to seek review of decisions referred to in that section that were made
on or after ATSIC abolition day and before Regional Councils abolition day, as
if that section had not been repealed.
Aboriginal and Torres
Strait Islander Heritage Protection Act 1984
1 Paragraphs 21B(1)(b) and (c)
Repeal the paragraphs, substitute:
or (b) an officer of the Department.
2 Saving provision
Despite the amendment of section 21B of the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984, any delegation by the Minister
to an officer of the Department that was in force under that section immediately
before the day Schedules 1 and 2 to this Act commence continues in force on
and after that day as if it were a delegation made by the Minister under that
section as amended by this Act.
Aboriginal Councils and
Associations Act 1976
3 At the end of subsection 5(1)
Add:
; and (d) to formulate model rules, not inconsistent with the
Aboriginal and Torres Strait Islander Act 2004, for the conduct of
proceedings at meetings of Regional Councils elected under that Act.
4 After subsection 5(1)
Add:
(1A) Model rules formulated under paragraph (1)(d) are not
legislative instruments for the purposes of the Legislative Instruments Act
2003.
Aboriginal Land (Lake
Condah and Framlingham Forest) Act 1987
5 Paragraphs 5(1)(b) and (c)
Repeal the paragraphs, substitute:
or (b) an officer of the Department.
6 Saving provision
Despite the amendment of section 5 of the Aboriginal Land (Lake
Condah and Framlingham Forest) Act 1987, any delegation by the Minister to
an officer of the Department that was in force under that section immediately
before the day Schedules 1 and 2 to this Act commence continues in force on
and after that day as if it were a delegation made by the Minister under that
section as amended by this Act.
Aboriginal Land Rights
(Northern Territory) Act 1976
7 At the end of paragraph
23E(3)(a)
Add “or”.
8 At the end of paragraph of
23E(3)(b)
Add “or”.
9 Paragraph 23E(3)(ba)
Repeal the paragraph.
10 Subsection 64B(1)
Omit “Commission”, substitute
“Department”.
11 Subsection 64B(5)
Repeal the subsection.
Australian Institute of
Aboriginal and Torres Strait Islander Studies Act 1989
12 At the end of section 2
Add:
Note: The Aboriginal and Torres Strait Islander
Commission Act 1989 was renamed the Aboriginal and Torres Strait Islander
Act 2004. See item 3 of Schedule 1 to the Aboriginal and Torres
Strait Islander Commission Amendment Act 2004.
13 Section 3 (definition of Advisory
Board)
Repeal the definition.
14 Section 3 (definition of
Commission)
Repeal the definition.
15 Section 3 (definition of Commission
Act)
Repeal the definition.
16 Section 3 (definition of
TSRA)
Omit “Commission Act”, substitute “Aboriginal and
Torres Strait Islander Act 2004”.
17 Paragraph 12(1)(b)
Omit “and whose appointment has been recommended by the Advisory
Board”.
18 Saving provision
A person appointed by the Minister under paragraph 12(1)(b) of the
Australian Institute of Aboriginal and Torres Strait Islander Studies Act
1989 as in force immediately before the day Schedules 1 and 2 to this
Act commence continues to hold office, on and after that day, for the balance of
the term of the person’s appointment, as if the person had been appointed
by the Minister under that paragraph of the Australian Institute of
Aboriginal and Torres Strait Islander Studies Act 1989 as amended by this
Act.
19 Subsection 42(2)
Omit “the Commission and”.
20 Subsection 42(3)
Omit “the Commission or” (wherever occurring).
Note: The heading to section 42 is altered by omitting
“Commission and”.
21 Subsection 43(1)
Omit “, the Commission”.
22 Paragraph 43(2)(b)
Omit “the Commission or”.
Note: The heading to section 43 is altered by omitting
“or Commission”.
Environment Protection and
Biodiversity Conservation Act 1999
23 Subsection 74(1A)
Repeal the subsection.
Human Rights and Equal
Opportunity Commission Act 1986
24 Subsection 46C(3)
Omit “must, as appropriate, consult the Aboriginal and Torres Strait
Islander Commission and”.
National Health and Medical
Research Council Act 1992
25 Section 4 (definition of ATSIC
member)
Repeal the definition.
26 Paragraph 20(f)
Repeal the paragraph, substitute:
(f) a person having knowledge of the health needs of Aboriginal persons or
Torres Strait Islanders;
27 Saving provision
A person who was appointed by the Minister under section 21 of the
National Health and Medical Research Council Act 1992, as in force
immediately before the day Schedules 1 and 2 to this Act commence,
continues to hold office, on and after that day, for the balance of the term of
the person’s appointment, as if the person had been duly appointed by the
Minister as a person having knowledge of the health needs of Aboriginal persons
or Torres Strait Islanders in accordance with the requirements of that Act as
amended by this Act.
28 Subsection 28(3)
Repeal the subsection, substitute:
(3) The Minister must terminate the appointment of a person appointed
under paragraph 20(d) on the nomination of the Minister (the nominator) having
administrative responsibility for a State or Territory health instrumentality if
the nominator asks the Minister to terminate that person’s
appointment.
29 Subsection 31(3)
Repeal the subsection, substitute:
(3) If the Commonwealth member or a State or Territory member is unable to
attend a Council meeting, attendance at the meeting by another nominee of the
Minister, or of the Minister having administrative responsibility for the State
or Territory health instrumentality concerned, as the case requires, is to be
treated as attendance by the member.
30 Section 201A (definition of
ATSIC)
Repeal the definition.
31 Paragraphs 203AG(4)(b), (c) and
(d)
Repeal the paragraphs, substitute:
(b) any reports under section 193X of the Aboriginal and Torres
Strait Islander Act 2004 in relation to funding provided to the body under
section 203C or 203FE of this Act;
(c) any notices that the Secretary of the Department has given to the
Minister under section 203F in relation to the body.
32 Paragraphs 203AH(4)(b), (c) and
(d)
Repeal the paragraphs, substitute:
(b) any reports under section 193X of the Aboriginal and Torres
Strait Islander Act 2004 in relation to funding provided to the body under
section 203C or 203FE of this Act;
(c) any notices that the Secretary of the Department has given to the
Minister under section 203F in relation to the body.
33 Subsection 203C(1)
Omit “ATSIC for a grant of money”, substitute “the
Secretary of the Department for funding”.
Note: The heading to subsection 203C(1) is altered by
omitting “grant” and substituting
“funding”.
34 Subsection 203C(2)
Repeal the subsection, substitute:
Provision of funds
(2) The Secretary of the Department may, on behalf of the Commonwealth,
provide funds to a representative body, by making a grant to the representative
body or in any other way the Secretary considers appropriate, from money
appropriated by the Parliament.
35 Subsection 203C(3)
Omit “grant of money”, substitute “provision of
funding”.
Note: The heading to section 203C is altered by
omitting “Grants to” and substituting “Funding
of”.
36 Subsection 203CA(1)
Omit all the words from and including “A grant of money” to and
including “thinks fit.”, substitute “Funds provided to a
representative body under this Division, whether provided by grant or otherwise,
may be so provided on whatever conditions the Secretary considers
appropriate.”.
37 Subsection 203CA(1)
Omit “ATSIC must”, substitute “the Secretary
must”.
38 Paragraph 203CA(1)(e)
Repeal the paragraph, substitute:
(e) the appointment of a person, in cases where the Secretary considers
that money from funds provided has not been spent in accordance with the
conditions of the funding, with the power to prevent expenditure of further
money from funds provided, otherwise than in accordance with the conditions of
the funding; and
Note: The heading to subsection 203CA(1) is altered by
omitting “grants” and substituting
“funding”.
39 Subsection 203CA(1A)
Repeal the subsection, substitute:
Repayment of part of funding provided on withdrawal of
recognition
(1A) The provision of funding, however achieved, is also subject to a
condition that if:
(a) the representative body’s recognition as a representative body
is withdrawn under section 203AH; and
(b) the withdrawal takes effect during the period for which funding is
provided;
the representative body must repay to the Commonwealth an amount equal to
so much (if any) of the funding provided as is uncommitted at the time the
recognition is withdrawn.
40 Transitional provision
Subsection 203CA(1A) of the Native Title Act 1993 as amended by this
Act applies in relation to the repayment, on or after the day Schedules 1
and 2 to this Act commence, of a part of a grant made to a representative body
before that day as if:
(a) the amendment of that subsection made by this Act had been in force at
the time the grant was made; and
(b) the grant had been made on behalf of the Commonwealth.
41 Subsection 203CA(1B)
Omit “the grant” (first and second occurring), substitute
“funding provided”.
42 Paragraph 203CA(1B)(a)
Omit “by ATSIC”, substitute “by the
Commonwealth”.
43 Subsection 203CA(1B)
Omit “the grant” (third and fourth occurring), substitute
“funding provided”.
Note: The heading to subsection 203CA(1B) is altered by
omitting “the grant” and substituting “funding
provided”.
44 Transitional provision
Subsection 203CA(1B) of the Native Title Act 1993 as amended by this
Act applies in relation to the repayment, on or after the day Schedules 1
and 2 to this Act commence, of a part of a grant made to a representative body
before that day as if:
(a) the amendment of that subsection made by this Act had been in force at
the time the grant was made; and
(b) the grant had been made on behalf of the Commonwealth.
45 Subsection 203CA(2)
Repeal the subsection, substitute:
Strategic plan to be considered in providing funds
(2) In providing funds and deciding on the conditions to be imposed under
subsection (1), the Secretary of the Department must have regard to the
matters set out in the strategic plan (see section 203D) of the
representative body concerned. The conditions on which money is provided must be
consistent with the strategic plan.
46 Subsection 203CA(3)
Omit “the grant”, substitute “funding”.
Note: The heading to subsection 203CA(3) is altered by
omitting “grants” and substituting
“funding”.
47 Subsections 203CA(4) and (5)
Repeal the subsections, substitute:
Serious or repeated breaches of conditions
(5) If the Secretary of the Department considers that the representative
body:
(a) has committed, or is committing, serious breaches of conditions to
which the provision of funding has been made subject under this Division;
or
(b) has repeatedly breached, or is repeatedly breaching, such
conditions;
the Secretary must give to the Commonwealth Minister a written notice
informing the Minister of the breaches and stating what measures the Secretary
is taking, or proposes to take, as a result of the breaches.
Certain instruments not to be legislative instruments
(6) An instrument that:
(a) determines conditions of funding for the purposes of
subsection (1); or
(b) informs the Minister of a breach under subsection (5);
is not a legislative instrument for the purposes of the Legislative
Instruments Act 2003.
Note: The heading to section 203CA is replaced by the
heading “Conditions of funding”.
48 Saving provision
Despite the repeal of subsection 203CA(4) of the Native Title Act
1993 by this Act, sections 20, 21 and 21A of the Aboriginal and
Torres Strait Islander Commission Act 1989 (the ATSIC Act) as
in force before the day Schedules 1 and 2 to this Act commence continue to
apply on and after that day in relation to any grants to representative bodies
made under Division 4 of Part 11 of the Native Title Act 1993
as if:
(a) the grants had been made on behalf of the Commonwealth; and
(b) the grants had been made under section 14 of the ATSIC Act as in
force before that day; and
(c) references to the Commission in sections 20, 21 and 21A of the
ATSIC Act as in force before that day were references to the
Commonwealth.
49 Subsection 203D(3)
Repeal the subsection, substitute:
Strategic plan to be prepared in consultation with
Department
(3) The representative body must prepare the strategic plan in
consultation with the Department.
50 Subsection 203D(4)
Omit “ATSIC”, substitute “the
Department”.
51 Paragraph 203DC(1)(b)
Omit “ATSIC”, substitute “the
Department”.
52 Subsection 203DC(2)
Omit “ATSIC”, substitute “The Secretary of the
Department”.
53 Subsection 203DC(6)
Omit “ATSIC”, substitute “the Secretary of the
Department”.
54 Subsection 203DF(1) (note)
Repeal the note, substitute:
Note: A representative body may also be audited under
Part 4B of the Aboriginal and Torres Strait Islander Act 2004, which
enables the Office of Evaluation and Audit, when requested to do so by the
Commonwealth Minister or a Commonwealth authority that has made a grant to a
representative body, or when the funding agreement in relation to a grant made
to a representative body so provides, to evaluate and audit the operations of
the body that has received the grant.
55 Section 203F
Omit “ATSIC” (first occurring), substitute “the Secretary
of the Department”.
56 Section 203F
Omit “ATSIC” (second occurring), substitute “the
Secretary”.
57 Section 203F (note)
Repeal the note, substitute:
Note: The Secretary must also give written notice of
breaches of grant conditions to the Commonwealth Minister—see subsection
203CA(5).
Note: The heading to section 203F is altered by
omitting “ATSIC” and substituting
“Secretary”.
58 Section 203FA
Repeal the section.
59 Subsection 203FB(1)
Omit “ATSIC”, substitute “the Secretary of the
Department”.
60 Subsection 203FB(2)
Omit “ATSIC”, substitute “the Secretary”.
61 Subsection 203FB(2)
Omit “ATSIC’s”, substitute “the
Secretary’s”.
62 Subsections 203FB(3) and (5)
Omit “ATSIC” (wherever occurring), substitute “the
Secretary”.
63 Subsections 203FB(7) and (8)
Omit “ATSIC”, substitute “The Secretary”.
Note: The heading to subsection 203FB(7) is altered by
omitting “ATSIC” and substituting “the
Secretary”.
64 Transitional provision—Secretary to
complete applications for review of assistance decisions
If:
(a) before the day Schedules 1 and 2 to this Act commence, an
Aboriginal person or Torres Strait Islander has applied to ATSIC for review of a
decision of a representative body not to assist the person; and
(b) that review has not been completed before that day;
section 203FB of the Native Title Act 1993 as amended by this
Act applies in relation to that application to review, as if that section as so
amended had been force at the time when the application was made and the
application had been made to the Secretary.
65 Subsection 203FE(1)
Omit “ATSIC may make one or more grants of money to a person or
body”, substitute “The Secretary of the Department may make funding
available to a person or body, by way of a grant or in any other way the
Secretary considers appropriate,”.
Note: The heading to subsection 203FE(1) is altered by
omitting “Grants” and substituting
“Funding”.
66 Subsection 203FE(2)
Omit “ATSIC may make one or more grants of money to a person or
body”, substitute “The Secretary of the Department may make funding
available to a person or body, by way of a grant or in any other way the
Secretary considers appropriate,”.
Note: The heading to subsection 203FE(2) is altered by
omitting “Grants” and substituting
“Funding”.
67 Subsection 203FE(3)
Omit all the words from and including “A grant of money” to and
including “thinks fit.”, substitute “Funds provided to a
representative body under this Division, whether provided by grant or otherwise,
may be so provided on whatever conditions the Secretary considers
appropriate.”.
68 Subsection 203FE(3)
Omit “ATSIC must”, substitute “the Secretary of the
Department must”.
69 Paragraph 203FE(3)(e)
Repeal the paragraph, substitute:
(e) the appointment of a person, in cases where the Secretary considers
that money from funds provided has not been spent in accordance with the
conditions of the funding, with the power to prevent expenditure of further
money from funds provided otherwise than in accordance with the conditions of
the funding; and
Note: The heading to subsection 203FE(3) is altered by
omitting “grants” and substituting
“funding”.
70 After subsection 203FE(3)
Insert:
Certain instruments not to be legislative instruments
(3A) An instrument that determines conditions of funding for the purposes
of subsection (3) is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
71 Subsection 203FE(4)
Omit “ATSIC”, substitute “The Secretary of the
Department”.
Note: The heading to subsection 203FE(4) is altered by
omitting “Grant” and substituting
“Funding”.
72 Subsection 204FE(5)
Omit “ATSIC considers it appropriate, ATSIC”, substitute
“the Secretary of the Department considers it appropriate, the
Secretary”.
Note: The heading to subsection 203FE(5) is altered by
omitting “Grant” and substituting
“Funding”.
73 Subsection 204FE(6)
Omit “the grant”, substitute “funding”.
74 Subsection 203FE(7)
Repeal the subsection.
Note: The heading to section 203FE is replaced by the
heading “Provision of funding by the
Commonwealth”.
75 Saving provision
Despite the repeal of subsection 203FE(7) of the Native Title Act
1993 by this Act, sections 20, 21 and 21A of the Aboriginal and
Torres Strait Islander Commission Act 1989 (the ATSIC Act) as
in force before the day Schedules 1 and 2 to this Act commence continue to
apply on and after that day in relation to any funding by way of grant made
before that day under section 203FE of the Native Title Act 1993 as
if:
(a) the grants had been made on behalf of the Commonwealth; and
(b) the grants had been made under section 14 of the ATSIC Act as in
force before that day; and
(c) references to the Commission in sections 20, 21 and 21A of the
ATSIC Act as in force before that day were references to the
Commonwealth.
76 Section 203FG
Omit “ATSIC for a grant”, substitute “the Secretary of
the Department for funding”.
77 At the end of Division 7 of
Part 11
Add:
The Secretary of the Department may, by written instrument, delegate to
an SES employee, to an acting SES employee or to another person of equivalent
rank, all or any of the Secretary’s powers under sections 203C,
203CA, 203DC, 203F, 203FB, 203FE and 203FG.
Note 1: The expressions SES employee, and
acting SES employee are defined in section 17AA of the
Acts Interpretation Act 1901.
Note 2: See also sections 34AA and 34AB of the Acts
Interpretation Act 1901.
78 Paragraphs 206(a) and (c)
Omit “Aboriginal and Torres Strait Islander Commission Act
1989”, substitute “Aboriginal and Torres Strait Islander Act
2004”.
79 Subparagraph 206(d)(vii)
Omit “Aboriginal and Torres Strait Islander Commission Act
1989”, substitute “Aboriginal and Torres Strait Islander Act
2004”.
Remuneration Tribunal Act
1973
80 Paragraph 7(9)(ac)
Repeal the paragraph.
81 Paragraphs 7(9)(acaa), (aca) and
(acaaa)
Omit “Aboriginal and Torres Strait Islander Commission Act
1989”, substitute “Aboriginal and Torres Strait Islander Act
2004”.
82 Subsection 1188B(3) (definition of
ATSIC)
Repeal the definition.
83 Subsection 1188B(3) (definition of authorised
officer)
Omit “Chief Executive Officer of ATSIC”, substitute
“Secretary of the Department whose Minister is responsible for
administration of the CDEP Scheme”.
84 Subsection 1188B(3) (definition of CDEP Scheme
Participant Schedule)
Omit “ATSIC”, substitute “the Secretary of the Department
whose Minister is responsible for administration of the CDEP
Scheme”.