Commonwealth of Australia Explanatory Memoranda

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ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT (ECONOMIC EMPOWERMENT) BILL 2021

                              2019-2020-2021




   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                  SENATE




ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT
           (ECONOMIC EMPOWERMENT) BILL 2021




       ADDENDUM TO THE EXPLANATORY MEMORANDUM




     (Circulated by authority of the Minister for Indigenous Australians,
                    the Honourable Ken Wyatt AM MP)
 ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT
            (ECONOMIC EMPOWERMENT) BILL 2021

This addendum responds to concerns raised by the Senate Standing Committee for the
Scrutiny of Bills in Scrutiny Digest 16 of 2021, dated 21 October 2021.

Corrections to the Notes on Clauses

Insert a new paragraph after paragraph 42

42.1. The no-invalidity clause in subsection 65BH(3) is necessary and appropriate as
    it protects the rights of, and provides business certainty for, entities transacting
    with the NTAI Corporation. This is consistent with existing no invalidity
    provisions in the Land Rights Act, which protect the rights of persons who have
    estates or interests granted to them under the Land Rights Act.


Insert new paragraphs after paragraph 73

73.1. The strategic investment plan is an administrative document setting out the
    NTAI Corporation's priorities and principal objectives in relation to performing
    its functions, developed in consultation with Aboriginal people and organisations
    in the NT. The NTAI Corporation must have regard to the strategic investment
    plan in performing its functions (see paragraph 65BC(b)) and an acquisition of a
    derivative must be consistent with the strategic investment plan (see subsection
    65BL(2)). In this respect, it is not determining the law or altering its content, does
    not affect rights or interests and is clearly administrative in nature, acting to guide
    how the NTAI Corporation exercises its functions and powers in particular
    circumstances and provide engagement with and transparency to Aboriginal
    people and organisations in the NT in developing its priorities.


Insert new paragraphs after paragraph 198

198.1. The progress reports under this item are an additional transitional measure that
    can be invoked at the discretion of the Minister for Indigenous Australians to
    provide supplementary information to Government during the first 3 years of the
    NTAI Corporation's operation. The transitional reports are likely to be
    operational in nature and will be followed by published and tabled strategic
    investment plans.

198.2. These progress reports may contain commercially sensitive material or other
    sensitive information. This creates a need for discretion to publish in order to
    protect sensitive commercial information, particularly where third parties may be
    involved.




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Insert new paragraphs after paragraph 290

290.1. As outlined above, the key details of what is required to constitute a
    nomination are prescriptively set out in subsection 3AA(5). Further, the Minister
    may only approve a CATSI corporation as an approved entity if they are satisfied
    of the matters set out in subsection 3AA(2). However, it is not possible to predict
    all of the conditions, information and matters that should be considered by the
    Minister in the future.

290.2. It is necessary and appropriate to provide the Minister with sufficient flexibility
    to determine, by legislative instrument, additional conditions, information, and
    matters that must or may be taken into account in the nomination and approval
    process for CATSI corporations as approved entities. This flexibility is a prudent
    mechanism that will ensure that the processes mature over time as more
    community entity township leases are granted.

290.3. In accordance with the requirements for making legislative instruments under
    the LA Act, the Minister must be satisfied that appropriate consultation has been
    undertaken in relation to the proposed legislative instrument. In addition, the
    instrument is subject to Parliamentary scrutiny, disallowance and sunsetting
    requirements.


Insert new paragraphs after paragraph 323

323.1. The no-invalidity clause in subsection 12D(7) will further facilitate such
    arrangements by giving certainty to proponents entering into such agreements
    with the Land Council. Security and certainty of land tenure is a crucial element
    that has been built into proposed section 12D. Certainty of tenure provides
    incentives for investment in land and therefore an impetus for sustainable
    economic development. If a section 12D agreement is not certain, it is unlikely
    that proponents would have an interest in continuing to live and work in mining
    towns transitioning to Aboriginal land under the Land Rights Act. The end result
    being poor economic outcomes for those communities derived from a reduction
    in residents and businesses due to uncertainty of tenure.

323.2. Section 12D is modelled off existing section 11A of the Land Rights Act,
    which permits the Land Councils to enter into agreements concerning land under
    claim. This section also has a no-invalidity clause to protect the rights and
    interests of persons who have entered into an agreement with the Land Council.

323.3. The no-invalidity clause is necessary and appropriate to ensure that a failure by
    the Land Council to comply with subsection 12D(4) does not affect the validity
    of the agreement. As discussed above, this is considered important to ensure the
    integrity and certainty of the agreement where compliance with subsection
    12D(4) may be called into question at a later time.




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