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2002
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION AMENDMENT
BILL 2002
EXPLANATORY MEMORANDUM
(Circulated
by authority of the Minister for Immigration and Multicultural and Indigenous
Affairs,
The Hon Philip Ruddock MP)
ABORIGINAL AND TORRES
STRAIT ISLANDER COMMISSION AMENDMENT BILL 2002
The Bill amends the Aboriginal and Torres Strait Islander Commission
Act 1989 (the ATSIC Act).
The Bill
would
• implement some of the recommendations in the review of the
ATSIC Act under s.26 of the ATSIC Act;
• implement some of the recommendations of the Review Panel established
by section 141 of the ATSIC Act;
• prevent an ATSIC Commissioner or
Regional Councillor who has been removed from office for misbehaviour from
standing for the next round of Regional Council
elections;
• entitle corporations to appeal to the ATSIC Board and
Administrative Appeals Tribunal against refusals of loans for business
enterprises;
• allow the Commission to delegate its power to review
delegates’ decisions;
• allow review by the Administrative
Appeals Tribunal of the merits of a decision to refuse a loan or guarantee once
internal review by the Commission has been exhausted; and
• amend
financial provisions of the ATSIC Act to ensure consistency with new accrual
budgeting system.
The Bill will commence on the day after it receives the
Royal Assent.
FINANCIAL IMPACT STATEMENT
There are no
financial implications arising from this Bill.
General
1. Unless otherwise indicated any reference to a
“section”, “subsection” or “paragraph” in
these notes is a reference to a section, subsection or paragraph in the
Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC
Act).
Clause 1 - Short Title
2. This clause provides that
the Bill when passed may be cited as the Aboriginal and Torres Strait
Islander Commission Amendment Act 2002 (the Amendment Act).
Clause
2 – Commencement
3. Sections 1 and 3 of the Amendment Act
commence on the day it receives the Royal Assent. Section 4 and Schedule 1 of
the Amendment Act commence on the 28th day after the Amendment Act
receives the Royal Assent. Anything in the Amendment Act not elsewhere covered,
commences on the day on which the Amendment Act receives the Royal
Assent.
Clause 3 – Schedule(s)
4. This clause
provides that each Act that is specified in a Schedule to the Amendment Act is
amended or repealed as set out in the Schedule and that any other item in the
Schedule has effect according to its terms.
Clause 4 –
Transitional Provisions
5. This clause contains provisions enabling a
transition from the old provisions of the ATSIC Act. That is the provisions in
relation to multiple convictions apply to convictions during the current term of
office of a Regional Councillor or ATSIC Commissioner. Also, where this Bill
gives a corporation the power to seek the review of a decision, any previous
reviews and applications for reviews are validated by this clause.
Items 1, 3, 6, 8, 28, 30, 33, 34, 40 and 41 - Effect of sentences for
multiple criminal offences
These items clarify that a person is ineligible to stand for election to the offices of Regional Councillor or ATSIC Commissioner where they have received a single sentence, whether imposed in respect of a single or multiple criminal offences. Also, the items clarify that a Regional Councillor or ATSIC Commissioner can be removed from office where he/she has received a single sentence, whether imposed in respect of a single or multiple criminal offences.
Item 2
A technical amendment to paragraph 31(2)(b) consequent upon the addition of a
paragraph 31(2((c).
Item 4 and 9 – Continuity of office of
Commission Chairperson
The new paragraph has the effect of extending
the Commission Chairperson’s appointment until a new Commission
Chairperson is elected following a round of Zone elections. This will ensure
that the Chair continues to be Chair until a new Chair is elected by
Commissioners even if he or she is not re-elected as Commissioner in a round of
Zone elections. However, item 9 provides that if the Chairperson is not
re-elected as a Commissioner then he or she is not entitled to be present at a
meeting of the Commission.
Items 5 and 7
These items correct typographical errors to
subsection 40(7).
Item 10 - repeal of paragraph
45(1)(d)
This item repeals paragraph 45(1)(d). The effect of the
repeal is to empower the Commission to delegate its power to reconsider matters
under section 195. Section 195 allows the review of delegates’
decisions.
Item 11 and 12 – repeal of sections 58 and
59
These items repeal redundant provisions. The organisations
referred to in section 58 are subject to their own appropriations. Section 59
is redundant because the first Regional Councillors have taken
office.
Items 13, 16, 17, 18, 21, 22 and 23 – accrual
accounting amendments
These items substitute the words “budget
estimates” for the words “estimates of the receipts and expenditure
of” in subsection 61(1), “budget estimates” for
“detailed estimates of expenditure” in subsection 62(2),
“expenses” for “expenditure” in subsection 62(4),
“those expenses” for “that expenditure” in subsection
62(4), “budget estimates for” for “estimates of the receipts
of, and expenditure from” in subsection 67(4), “budget estimates
for” for “estimates of expenditure” in subsection 67(5). Item
23 removes the words “for Commission expenditure” from paragraph
94(1)(c). That paragraph refers to section 97 which sets out the procedure for
the preparation of a Regional Council draft budget. There is no change to the
effect of the section by the removal of the words. The changes made by these
items are to align the terminology in the ATSIC Act
with the Commonwealth Accrual-Based Outcomes and Outputs
Framework.
Items 14, 15, 19 and 20 – repeal of paragraphs
61(7)(c) and 66(2)(c)
These items repeal paragraph (c) of the
definition of money of the Commission in subsections 61(7) and 66(2) and
make the consequential amendment to paragraph (b) of those subsections.
Paragraphs 61(7)(c) and 66(2)(c) are redundant because money is directly
appropriated to Indigenous Business Australia and Aboriginal Hostels
Limited.
Items 24, 25 and 26
These items correct
typographical errors to subsection 102(1).
Items 27, 29 and
32
These items are consequential on the insertion of the new
paragraphs 102(1)(da) and (ea).
Item 31 – Where person has
been removed from the office of Regional Councillor he/she is disqualified from
standing for election as Regional Councillor until after the next round of
elections for Regional Councils
Item 31 inserts a new subsection 102(1B).
The new subsection applies to a person who has ceased to be a Regional
Councillor under declaration of the Commission under section 122 or has been
removed from office by the Commission under subsection 122A(5). Such a person
is not qualified to stand for election, or to be elected, as a member for a
Regional Council ward until after the next round of elections for Regional
Councils.
Item 35 – nomination fees
This item inserts
a new paragraph after paragraph 113(2)(c). The effect of the insertion is to
enable Regional Council Election Rules to deal with nomination
fees.
Item 36
This amendment is consequential upon the
insertion of the new section 115A.
Item 37 – Commissioner to be
replaced as Regional Councillor
Item 38 – Commissioner to be eligible to stand for election as
Regional Council Chairperson
This item substitutes a new subsection 127(1A). The new subsection 127(1A)
provides that if a Commissioner is elected as Commission Chairperson, the
Commissioner immediately ceases to hold office as a Commissioner and ceases to
hold office as a person elected under Division 7 to represent a zone. This is
to allow an outgoing Commissioner who has not been re-elected as zone
representative to stand for election as incoming Regional Council Chairperson
without first resigning as Commissioner.
Items 39 and 42 – Term
of office of Regional Council Chairperson
Item 39 has the effect of
extending the Regional Council Chairperson’s appointment until a new
Regional Council Chairperson is elected following a round of Regional Council
elections. This will ensure that the Regional Council Chairperson continues to
be Regional Council Chairperson until a new Regional Council Chairperson is
elected by the Regional Council even if he or she is not re-elected as Regional
Councillor. However, item 42 provides that if the Regional Council Chairperson
is not re-elected as a Regional Councillor then he or she is not entitled to be
present at a meeting of the Regional
Council.
Items 43 and 44 – Chairperson of
a section 141 Review Panel not to be a Commissioner, Regional Councillor or
member of the TSRA
Item 43 substitutes a new paragraph for paragraph 141A(1)(a). The new 141A(1)(a) replaces the Commission Chairperson as Chairperson of a Review Panel with another person appointed by the Minister, who is an Aboriginal person or a Torres Strait Islander but is not a Commissioner, a member of the TSRA or a Regional Councillor. Item 44 repeals section 141B which provides that the Commission Chairperson is the Chairperson of a Review Panel. This is to minimise the risk of a conflict of interest.
Item 45 - Chairperson of an Augmented Review Panel not to be a
Commissioner, Regional Councillor or member of the TSRA
This item substitutes a new paragraph for paragraph 141S(1)(a) which replaces
the Commission Chairperson as Chairperson of an Augmented Review Panel with a
Chairperson appointed by the Minister, being a person who is an Aboriginal
person or a Torres Strait Islander and who is not a Commissioner, a member of
the TSRA or a Regional Councillor. This is to minimise the risk of a conflict
of interest.
Item 46 – Corporations and unincorporated bodies
able to seek internal review
This item amends section 195 to entitle a body corporate or an unincorporated body to request reconsideration by the Commission of a decision to refuse a loan or guarantee to that body corporate or that unincorporated body.
Item 47 – Only one internal review
Item 47 adds subsection 195(3) to section 195 so that internal review by a delegate of the Commission of another delegate’s decision cannot be subject to further internal review by the Board of the Commission.
Items 48 and 49 – Corporations and unincorporated bodies to be
able to seek review by the Administrative Appeals Tribunal
These items amend section 196. The effect of the amendment is that an application may be made to the Administrative Appeals Tribunal for review of a Commission decision to refuse a loan or a guarantee to a body corporate or an unincorporated body. This follows the amendment to section 195.
Item 50 – Internal review of certain decisions before Administrative Appeals Tribunal review
This item repeals the definition of “decision made by the Commission” in subsection 196(4) and substitutes a new definition. The effect of the substitution is that an application may still be made to the Administrative Appeals Tribunal for review of a decision made by the Commission itself. However, an application may also be made to the Administrative Appeals Tribunal for review of a decision made by a delegate of the Commission where that delegate has reviewed a decision to refuse a loan or guarantee being a refusal by another delegate.