Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND
OTHER LEGISLATION AMENDMENT (EMERGENCY RESPONSE
CONSOLIDATION) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Community Services and Indigenous Affairs,
the Hon Mal Brough MP)
FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND
OTHER LEGISLATION AMENDMENT (EMERGENCY RESPONSE
CONSOLIDATION) BILL 2007
OUTLINE
This bill provides for several minor policy measures to consolidate the
government's response to the national emergency confronting the welfare of
Aboriginal children in the Northern Territory, following up the Northern
Territory National Emergency Response Act 2007 and the Families,
Community Services and Indigenous Affairs and Other Legislation
Amendment (Northern Territory National Emergency Response and Other
Measures) Act 2007.
Schedule 1 - R 18+ programs
As part of the government's emergency response in the Northern Territory,
this bill amends the Broadcasting Services Act 1992 to prohibit the provision
of R 18+ television programs in prescribed areas of the Northern Territory.
Schedule 2 - Residential tenancies
Where the Commonwealth has become a landlord under a residential tenancy
agreement that relates to premises on land leased as part of the emergency
response, Northern Territory legislation relating to residential tenancies will be
disapplied and the Commonwealth will not be subject to certain obligations
under existing tenancy agreements.
Schedule 3 - Defence Housing Australia
The bill amends Defence Housing Australia's (DHA's) additional functions
under the Defence Housing Australia Act 1987 so that it will be possible for
DHA to assist the Department of Families, Community Services and
Indigenous Affairs to deliver housing to remote Indigenous communities. This
will be subject to certain requirements intended to ensure that the provision of
housing and housing-related services to the Defence Force and the
Department of Defence remains DHA's first and primary responsibility. The
bill also makes some technical and cosmetic amendments to the DHA Act.
Schedule 4 - Land rights
This bill makes minor amendments to the Aboriginal Land Rights (Northern
Territory) Act 1976 and the Northern Territory National Emergency Response
Act 2007. For example, certain powers of the Minister will be clarified, certain
new functions conferred on Land Councils, and provision made for the
Executive Director of Township Leasing to be appointed on a part-time basis.
Schedule 5 - Acquisition of rights, titles and interests in land
Minor improvements are made to several provisions in Part 4 of the Northern
Territory National Emergency Response Act 2007. Amendments are also
made to allow the Commonwealth and certain persons to agree on amounts
to be paid in respect of the five-year leases and certain other payments, and
other minor and technical amendments made.
Schedule 6 - Community stores
This bill will make sure that, if a roadhouse effectively takes the place of a
community store in a remote area, it is properly treated as a community store
in having to meet the new licensing standards.
Financial impact statement
There is no financial impact from this bill in 2007-08.
FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND
OTHER LEGISLATION AMENDMENT (EMERGENCY RESPONSE
CONSOLIDATION) BILL 2007
NOTES ON CLAUSES
Clause 1 sets out how the Act is to be cited, that is, the Families, Community
Services and Indigenous Affairs and Other Legislation Amendment
(Emergency Response Consolidation) Act 2007.
Clause 2 provides a table that sets out the commencement dates of the
various sections in, and Schedules to, the Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
This explanatory memorandum uses the following abbreviations:
· `Land Rights Act' means the Aboriginal Land Rights (Northern
Territory) Act 1976;
· `NT Amendment Act' means the Families, Community Services and
Indigenous Affairs and Other Legislation Amendment (Northern
Territory National Emergency Response and Other Measures)
Act 2007; and
· `NT NER Act' means the Northern Territory National Emergency
Response Act 2007.
1
Schedule 1 - R 18+ programs
Summary
As part of the government's emergency response in the Northern Territory,
this Schedule amends the Broadcasting Services Act 1992 (Broadcasting
Services Act) to prohibit the provision of R 18+ television programs in
prescribed areas of the Northern Territory.
Background
Research published in the Little Children are Sacred report by the Northern
Territory Board of Inquiry into the Protection of Aboriginal Children from
Sexual Abuse noted that subscription-based R 18+ programs provided by
Austar United Communications Ltd (Austar) appeared to be readily accessible
to children in Northern Territory Indigenous communities. The government
has received similar reports that confirm this research from field workers since
the emergency response commenced.
Austar is licensed as a subscription television broadcasting service under the
Broadcasting Services Act. Austar also provides several subscription
television narrowcasting services (under a class licence). Generally, a
narrowcasting service comprises `special interest' programming. Unlike a
broadcasting service, which provides programming that is intended to appeal
to, and be accessible by, the general public and is individually licensed under
the Broadcasting Services Act, a narrowcasting service is provided under a
class licence (Part 8 of the Broadcasting Services Act refers). An open
narrowcasting service is provided free-to-air, whereas a subscription
narrowcasting service is provided upon payment of a fee.
The statutory licence conditions in the Broadcasting Services Act for a
subscription television narrowcasting service are set out in clause 11 of Part 7
of Schedule 2 to the Broadcasting Services Act.
Some of Austar's subscription television narrowcasting services provide
subscribers who pay an additional fee with access to R 18+ programming.
Currently, the provision of R 18+ programs under a subscription television
narrowcasting licence is legal. Using the National Classification Scheme
Guidelines, a film or television program would be rated R 18+ if it is regarded
as unsuitable for a child to see.
As part of the Northern Territory national emergency response, the
amendments discussed below will prohibit any subscription television
narrowcasting service from providing television programs that are rated R 18+
to subscribers who receive the service in prescribed areas, as defined in
section 4 of the NT NER Act. This would be achieved through the addition of
a new licence condition in Part 7 of Schedule 2 to the Broadcasting Services
Act.
2
The amendments made by this Schedule commence on the 35th day after
Royal Assent. This will allow affected television broadcasters sufficient time
to make necessary adjustments to their business.
Explanation of the changes
Items 1 and 2 make amendments to the criminal offence and civil penalties
provisions in the Broadcasting Services Act that apply to breaches of a
subscription narrowcasting television licence condition. The amendments
extend the existing criminal and civil penalties that apply to such breaches to
the new licence condition inserted by item 3 below.
Item 3 adds four new clauses at the end of Part 7 of Schedule 2 to the
Broadcasting Services Act. Part 7 of Schedule 2 to the Broadcasting Services
Act sets out the statutory conditions that apply to class licences. A
subscription television narrowcasting licence is a category of class licence.
Licence condition for certain subscription television narrowcasting
services in the Northern Territory
The first of the new clauses will impose an additional licence condition that
applies only to particular subscription television narrowcasting services that
provide services to a subscriber who is in a prescribed area of the Northern
Territory (subclause 12(1) refers).
Sunset clause
Subclause 12(2) provides that the proposed licence condition be repealed
after five years, or on an earlier date (if any) specified in a legislative
instrument made by the Minister. The sunset provision is appropriate in light
of the fact that this licence condition is designed to respond to an emergency
situation currently faced by many children in the Northern Territory. It is
appropriate to enable this emergency response measure to be repealed as
soon as the measure is no longer needed - this should be within the five-year
`outer limits' period specified in paragraph 12(2)(a).
Subclause 12(3) provides that the Minister's instrument to repeal the licence
condition is exempt from disallowance by Parliament under section 42 of the
Legislative Instruments Act 2003.
Exemption from disallowance for ministerial repeal instrument
Exemption from parliamentary scrutiny and possible disallowance is
appropriate for the following reasons:
3
· A similar non-disallowable ministerial repeal instrument was recently
approved by Parliament when passing the NT Amendment Act. That
Act inserted section 114 into the Classification (Films, Publications, and
Computer Games) Act 1995 to enable the repeal of Northern Territory
emergency response measures that prohibit the possession or supply
of prohibited material (that is, pornography) in prescribed areas of the
Northern Territory.
· A repeal instrument that `sunsets' legislation is analogous to a
proclamation commencing legislation, and so should similarly not be
disallowable by Parliament.
· If Parliament were to disallow the repeal instrument, it would create
confusion and uncertainty for subscription television licensees and
subscribers who are affected by the licence condition concerned, to the
extent that disallowance would `revive' the licence condition and the
rights and obligations that it entails.
The remaining clauses 13 to 15 will protect people (such as the licensee or
the Australian Communications and Media Authority) who do things in relation
to the additional licence condition from particular causes of action.
Racial Discrimination Act 1975
New clause 13 in Part 7 of Schedule 2 to the Broadcasting Services Act will
declare the licence condition in clause 12 (above) and related provisions of
the Broadcasting Services Act to be a `special measure' for the purposes of
the Racial Discrimination Act 1975 (Racial Discrimination Act).
A `special measure' is based on Article 1.4 of the Convention on the
Elimination of All Forms of Racial Discrimination, which allows governments to
enact laws that, in a lay person's terms, are positively discriminating so as to
ensure the adequate development and protection of individuals with the
purpose of securing and advancing their fundamental freedoms. The
Convention relevantly provides that:
`Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring
such protection as may be necessary in order to ensure such groups or
individuals equal enjoyment or exercise of human rights and
fundamental freedoms shall not be deemed racial discrimination,
provided, however, that such measures do not, as a consequence,
lead to the maintenance of separate rights for different racial groups
and that they shall not be continued after the objectives for which they
were taken have been achieved.'
4
The government's Northern Territory national emergency response
recognises the importance of prompt action, as well as Australia's obligations
under international law. The Convention on the Rights of the Child requires
Australia to protect children from abuse and exploitation and ensure their
survival and development. The International Convention for the Elimination of
All Forms of Racial Discrimination requires Australia to ensure that people of
all races are protected from discrimination and equally enjoy their human
rights and fundamental freedoms.
The provisions in this Schedule are intended to advance Indigenous
Australians, and especially Indigenous children, living in prescribed areas, by
protecting the vulnerable people there from exposure to television
programming that is often degrading, violent, and generally unsuitable for
vulnerable children to see. This response is reasonable because the
prohibition is for a limited period of time, and is not intended to result in the
maintenance of separate rights for different racial groups for any longer than
is necessary.
Clause 13 will also exempt acts done under or in relation to the licence
condition from the operation of Part II of the Racial Discrimination Act (which
contains the prohibitions against racial discrimination).
Since the licence condition is needed to address a serious problem in certain
communities in the Northern Territory, so too is subclause 13(2), which would
allow the emergency response to proceed without delay and with certainty. In
the absence of this subclause, a subscription television narrowcasting
licensee would be vulnerable to a racial discrimination claim in relation to any
action the licensee took to comply with the licence condition (for example,
varying or terminating the service agreement with the subscriber in the
prescribed area). The Australian Communications and Media Authority would
be similarly vulnerable in relation to any action it took to enforce compliance
with the licence condition. The proposed exemption from Part II of the Racial
Discrimination Act is reasonable since it is limited to the period of no more
than five years of the emergency response, with the Minister able to shorten
the exemption period by making a legislative instrument.
Exclusion of some Northern Territory laws
New clause 14 will provide that the licence condition in clause 12 (above) and
related provisions of the Broadcasting Services Act operate to the exclusion of
Northern Territory discrimination laws, and that any acts done in relation to
the licence condition are lawful regardless of any contrary Northern Territory
discrimination laws.
Similarly, new clause 15 will exclude section 49 of the Northern Territory
(Self-Government) Act 1978 (which guarantees that trade and commerce
between the Northern Territory and other States shall be absolutely free) with
respect to the special licence condition and related provisions of the
Broadcasting Services Act.
5
Schedule 2 - Residential tenancies
Summary
Where the Commonwealth has become a landlord under a residential tenancy
agreement that relates to premises on land leased as part of the emergency
response, Northern Territory legislation relating to residential tenancies will be
disapplied and the Commonwealth will not be subject to certain obligations
under existing tenancy agreements.
Background
Section 31 of the NT NER Act provides for a lease to be granted to the
Commonwealth over specified land in the Northern Territory. Where a lease
is granted under section 31, section 34 of the NT NER Act preserves any
existing right, title or other interest in the land and provides that, where a right,
title or interest was granted by the owner of the land, it will have effect as if
granted by the Commonwealth. The effect of these provisions will be to
cause the Commonwealth to be a `landlord' for some of the premises located
on the leased land.
This Schedule makes amendments to the NT NER Act that will exclude any
residential tenancy agreement involving the Commonwealth from the
operation of the Residential Tenancies Act (NT) (the RTA) and the Tenancy
Act (NT) (the Tenancy Act). The amendments will also provide that the
Commonwealth is not required to comply with obligations arising under those
agreements that relate to the condition and the repair or maintenance of the
premises.
Although the Commonwealth will be intending to upgrade the housing in the
relevant communities, and bring it up to the standard required by the RTA, the
Commonwealth will be unable to comply initially with these obligations
because, in many cases, the housing in the communities is in a poor state of
repair. The intention of these amendments is to ensure that the
Commonwealth can proceed with the upgrade of the housing in the
communities and implementation of the emergency response as intended.
The Commonwealth is committed to bringing the quality of housing in remote
communities to acceptable standards as quickly as practicable and will only
charge rents that recognise the actual condition of the premises.
The amendments made by this Schedule commence on the day after Royal
Assent.
Explanation of the changes
Item 1 inserts into Part 4 of the NT NER Act, new Division 3A - Residential
tenancies.
6
New section 59A sets out a number of definitions that are relevant to the
provisions contained in new Division 3A. RTA is defined as meaning the
Residential Tenancies Act of the Northern Territory. Tenancy Act is defined
as meaning the former Tenancy Act of the Northern Territory as continued in
force by section 160 of the RTA. Tenancy agreement and ancillary
property are defined as having the same meaning as provided for in the RTA.
New section 59B provides that new Division 3A applies to land that is covered
by a lease granted to the Commonwealth under section 31 of the NT NER
Act.
New section 59C provides that neither the RTA nor the Tenancy Act applies
to tenancy agreements in respect of premises on land that is leased to the
Commonwealth under section 31 of the NT NER Act. This will have the effect
that, where the Commonwealth is a landlord in respect of premises on leased
land, neither the Commonwealth nor the tenants will be subject to obligations
arising under the RTA or the Tenancy Act. The Commonwealth, therefore,
will be excluded from statutory obligations such as those requiring that a
landlord ensure that premises are habitable, meet health and safety
requirements, are secure, and remain in a reasonable state of repair. The
Commonwealth will also not be subject to provisions of the RTA that may
prevent it entering into new tenancy agreements.
The Commonwealth is unable to comply initially with these requirements as
many of the premises acquired will be below RTA standard. Inadequate
tenancy and property management practices by previous landlords may be
responsible for the condition of the premises. It is the Commonwealth's
intention to bring residential premises up to the standard required by the RTA
and the Tenancy Act. However, because the Commonwealth will be unable
to comply with these requirements in the short term, if the RTA and the
Tenancy Act were to continue to apply, they may have the effect of requiring
the Commonwealth to evict tenants to ensure that it is not in breach of its
legislative responsibilities as a landlord. Therefore, without these
amendments, houses could remain vacant until significant repairs could be
undertaken, thereby further exacerbating the housing crisis in remote
Indigenous communities. In the short term, the government is intending to
undertake the repairs necessary to provide a safe environment but will not be
immediately able to undertake the repairs that may be required to meet the
standards required by the RTA and the Tenancy Act.
The Commonwealth is committed to bringing the quality of housing in remote
communities to acceptable standards as quickly as practicable and will only
charge rents that recognise the actual condition of the premises.
7
Where the Commonwealth has taken over the role of landlord in the
communities under lease, the government is intending to enter into new
residential tenancy agreements. These new agreements will provide for
normalisation of the residential tenancy arrangements. They will reflect many
of the obligations contained in the RTA, as they apply to both landlords and
tenants, and will also ensure that tenants have a formal mechanism to
exercise their rights, including providing for an appropriate response time to
all future maintenance requests, quiet enjoyment, and security and access
restrictions. The rents charged under these new agreements will be
appropriate for the actual condition of the premises.
New section 59D provides that the Commonwealth will not be subject to
obligations arising under existing tenancy agreements that relate to the
condition and repair or maintenance of the premises. This provision is
necessary to allow time for the Commonwealth to terminate any existing
arrangements that may exist and enter into alternative residential tenancy
agreements. This provision is intended to exclude the Commonwealth from
obligations similar to those provided for in the RTA and the Tenancy Act and
that the Commonwealth would be excluded from under new section 59C.
Tenants will continue to enjoy other rights under the relevant tenancy
agreements, including the right to quiet enjoyment, but only to the extent that
this is consistent with the exclusion of the Commonwealth's obligations in
relation to the condition of the premises. The proposed amendment will
ensure all positive rental practices, including timely payment of rent, continue
while the Commonwealth completes the residential housing upgrade. As
mentioned above, the Commonwealth will only charge rents that recognise
the actual condition of the premises.
New section 59E provides for the Minister to declare that the RTA or the
Tenancy Act, or specified provisions of those Acts, applies to tenancy
agreements in premises with respect to specified leased land. This provision
will allow the Minister to provide for the reapplication of the RTA and the
Tenancy Act where it is considered appropriate for them to apply. Therefore,
when premises in a community are brought up to the standard required under
the RTA and the Tenancy Act, the RTA and the Tenancy Act will be able to be
reapplied in that community.
The Commonwealth envisages that this will occur through a staged approach,
community by community, over the five-year lease period. In addition, under
provisions introduced through the NT Amendment Act, where consent from
the owner (the Land Council on behalf of the Lands Trust) has been given for
the Commonwealth to build housing or substantially upgrade it (over
$50,000), the Commonwealth will have a statutory right to use and control the
use of these buildings, while the buildings exist or until a lease is put in place.
8
Where agreement has been reached on a section 19A lease (99-year lease)
or a section 19 lease (being a lease granted under section 19 or 19A of the
Land Rights Act), the Commonwealth (or the Northern Territory Government)
becomes the leaseholder and has housing and management rights and
responsibilities consistent with the lease. Where these lease arrangements
exist, an individual can purchase a house and have the rights of a
homeowner, for the period of the lease, though the inalienable owner still
owns the land and fixtures thereon.
Where neither a lease nor a statutory right exists, the ownership of the
housing, or, more correctly, the ability to control the housing, will return to the
communal owners.
Racial Discrimination Act 1975
These measures will be covered by section 132 (Racial Discrimination Act) of
the NT NER Act. This will mean that the provisions and any acts done under
or for the purposes of the provisions will be excluded from the operation of
Part II of the Racial Discrimination Act 1975 (Racial Discrimination Act).
The government's Northern Territory national emergency response
recognises the importance of prompt action, as well as Australia's obligations
under international law. The Convention on the Rights of the Child requires
Australia to protect children from abuse and exploitation and ensure their
survival and development. The International Convention for the Elimination of
All Forms of Racial Discrimination requires Australia to ensure that people of
all races are protected from discrimination and equally enjoy their human
rights and fundamental freedoms.
The provisions contained in this Schedule are intended to allow for the
government to take appropriate action to advance Indigenous Australians and
protect children from abuse by improving the condition of the housing in the
communities on land under lease to the Commonwealth. In many cases, the
standard of housing in these communities is not up to the standard of the
housing elsewhere in the Northern Territory. The government will be taking
steps to address these different standards. These provisions are necessary
in order to allow the government to undertake the improvements that are
required and to bring the housing in these communities up to an appropriate
standard. When that objective is achieved, it is intended that the RTA and the
Tenancy Act will be reapplied.
9
Schedule 3 - Defence Housing Australia
Summary
This Schedule amends Defence Housing Australia's (DHA's) additional
functions under the Defence Housing Australia Act 1987 (DHA Act) so that it
will be possible for DHA to assist the Department of Families, Community
Services and Indigenous Affairs (FaCSIA) to deliver housing to remote
Indigenous communities. This will be subject to certain requirements
intended to ensure that the provision of housing and housing-related services
to the Defence Force and the Department of Defence remains DHA's primary
responsibility. The Schedule also makes some technical and cosmetic
amendments to the DHA Act.
Background
Part of the Australian Government's response to the national emergency
confronting the welfare of Aboriginal children in the Northern Territory will
involve reforming and improving living arrangements in remote communities.
In addition, in the 2007-08 Budget, the Australian Government announced a
major new Indigenous housing program, Australian Remote Indigenous
Accommodation (ARIA), aimed at addressing the backlog in housing needs in
remote Indigenous communities. Through ARIA, the Australian Government
will be investing $1.3 billion in remote Indigenous communities across
Australia over the next four years.
Both ARIA and the emergency response will essentially involve constructing
new houses and associated infrastructure and upgrading existing houses and
associated infrastructure in remote locations across Australia.
To achieve these outcomes, FaCSIA is putting in place a range of strategies
that reflect the challenges and special needs of providing high quality, cost
effective housing in remote Australia.
It is envisaged that DHA could potentially play a key role in assisting to
implement these strategies, given its experience and expertise in providing
housing and housing-related services. The amendments in this Schedule
allow for the possibility of DHA assisting in the delivery of housing to remote
Indigenous communities, which currently would not be within DHA's functions.
This builds on amendments to the DHA Act made by the Defence Housing
Authority Amendment Act 2006, which expanded the scope of services DHA
can provide to enable DHA to expand its operations to include the provision of
services to Australian Government agencies other than Defence.
At the same time, the Australian Government recognises that DHA's primary
responsibility is to provide housing and housing-related services to the
Defence Force and the Department of Defence.
10
Accordingly, this bill retains and builds on existing provisions in the DHA Act
that are intended to safeguard the interests of the Defence Force and
Department of Defence and to ensure that DHA maintains its primary Defence
focus.
The Schedule also makes some technical and cosmetic amendments to the
DHA Act.
The amendments made by this Schedule commence on the day after Royal
Assent.
Explanation of the changes
Item 1 inserts into subsection 3(1) a definition of Agency in order to avoid the
need to state repeatedly that definition in section 6, which sets out DHA's
additional functions. Agency has the same meaning as in the Financial
Management and Accountability Act 1997.
Item 2 makes a technical amendment to subsection 5(1), which sets out
DHA's main function, to clarify that, in performing the main function, DHA can
provide housing and/or housing-related services.
Item 3 makes substantially the same technical amendment as item 2, but in
relation to DHA's first additional function. That is, in performing the first
additional function, DHA can provide housing and/or housing-related services.
Item 4 removes from subsection 6(1) the definition of Agency because that
definition now appears in the general definitions provision in subsection 3(1)
as a result of item 1.
Item 5 gives DHA a new second additional function that would allow DHA to
assist an Agency (other than the Department of Defence) in relation to the
delivery of a program that involves the provision of housing, or
housing-related services, to persons. It would be within the scope of this
function, for example, for DHA to assist FaCSIA in relation to the delivery of
programs such as ARIA and the Northern Territory emergency response,
which involve the provision of housing and housing-related services.
However, this new second additional function is made subject to certain
existing requirements in the DHA Act that are intended to safeguard the
interests of the Defence Force and the Department of Defence and to ensure
that DHA maintains its primary Defence focus (see items 9, 10 and 11).
Item 6 amends subsection 6(2) to renumber DHA's current second additional
function as DHA's third additional function.
11
Item 7 amends subsection 6(2), setting out what is now DHA's third additional
function, which is to provide services ancillary to the services mentioned in
DHA's main function and additional functions. The amendment clarifies that
DHA is allowed to provide services that are ancillary to assisting an Agency
(other than the Department of Defence) in relation to the delivery of a program
that involves the provision of housing, or housing-related services, to persons.
Item 8 removes from subsection 6(2) the definition of Agency because that
definition now appears in the general definitions provision in subsection 3(1)
as a result of item 1.
Item 9 amends subsection 6(3) so that DHA may perform the new second
additional function only to the extent mentioned in a determination made by
the Minister for Defence under subsection 6(4). The effect is that DHA may
assist an Agency (other than the Department of Defence) in relation to the
delivery of a program that involves the provision of housing, or
housing-related services, to persons only to the extent approved by the
Minister for Defence. Under subsection 6(4), the Minister for Defence may
determine to whom services can be provided, the kind of services that can be
provided and any other matter, plus new matters inserted by item 10.
Item 10 amends subsection 6(4) to expand the list of matters by reference to
which the Minister for Defence may limit the extent to which DHA may perform
its additional functions in a determination made under that provision. The
effect is that the Minister for Defence may determine the specific Agency and
specific programs to which DHA may provide services in performing its
additional functions. For example, it would be possible for the Minister for
Defence to determine under subsection 6(4) that DHA may perform its second
additional function only in relation to FaCSIA and the delivery of the Northern
Territory emergency response or ARIA.
Item 11 amends subsection 6(6), which limits by volume the amount of work
DHA can do in performing its additional functions, so that the same limit
applies to what is now DHA's second additional function. The volume is
measured by gross revenue of the additional functions as a percentage of
DHA's total gross revenue. The total gross revenue figure is to be determined
from DHA's audited financial statements. The limit is, and will continue to be,
no more than 25 per cent but, if the limit is to be less than 25 per cent, it may
be varied in the future in the regulations. This is a further safeguard intended
to ensure that the provision of housing and housing-related services to the
Defence Force and the Department of Defence remains DHA's primary
responsibility.
12
Schedule 4 - Land rights
Summary
This Schedule makes minor amendments to the Land Rights Act and the NT
NER Act. For example, certain powers of the Minister will be clarified, certain
new functions conferred on Land Councils, and provision made for the
Executive Director of Township Leasing to be appointed on a part-time basis.
Background
The amendments made to the Land Rights Act include amendments to:
· Part IIA to allow the Executive Director of Township Leasing to be
appointed on a part-time basis;
· Part IIB to permit the Minister to exercise certain powers where the
Commonwealth has statutory rights over infrastructure and to allow the
Minister to delegate his powers under Part IIB; and
· section 23 to give Land Councils new functions in respect of
negotiating agreed payments on behalf of land owners and certain
existing lease holders.
This Schedule also inserts a new section 33B, which allows Land Councils to
charge the Commonwealth a fee for reasonable expenses they incur in
performing the new functions.
The Schedule also makes an amendment to the NT NER Act to provide that
these fees are payable from the Consolidated Revenue Fund, which is
appropriated under section 63 of that Act.
The amendments also insert into the Land Rights Act a new section 70J to
ensure that the Director of National Parks can continue to regulate activities in
areas leased to the Director, despite the application of new access measures
in sections 70B to 70G.
Most of the amendments made by this Schedule commence on the day after
Royal Assent (but not items 20 and 21 - see below).
Explanation of the changes
Amendments to the Land Rights Act
Executive Director of Township Leasing
Item 1 repeals and substitutes section 20E to provide that the Executive
Director may be appointed on a part-time basis.
13
Item 2 repeals and substitutes section 20H to provide that, where an
Executive Director is appointed on a part-time basis, he or she may not
engage in outside paid employment that would conflict with the proper
performance of his or her duties.
Item 3 repeals and substitutes section 20K to provide that, where the
Executive Director is appointed on a part-time basis, the Minister may grant a
leave of absence on the terms and conditions determined by the Minister.
Item 4 repeals and substitutes section 20M to provide that, where the
Executive Director is appointed on a part-time basis, the Governor-General
may terminate the appointment of the Executive Director if he or she engages
in paid employment that conflicts or could conflict with the proper performance
of his or her duties.
Statutory rights over buildings and infrastructure
Items 5 and 8 repeal and substitute subsections 20Y(1) and 20ZJ(1) to
provide that, where the Commonwealth has statutory rights, the Minister may,
on behalf of the Commonwealth and in writing, permit a person to exercise the
statutory rights.
Items 6 and 9 repeal and substitute sections 20ZA and 20ZL to provide that,
where the Commonwealth has statutory rights, the Minister may, on behalf of
the Commonwealth, agree with a Land Council to vary the area over which
the statutory rights apply.
Items 7 and 10 repeal and substitute subsections 20ZE(1) and 20ZP(1) to
provide that, where the Commonwealth has statutory rights, the Minister may,
on behalf of the Commonwealth, determine that the buildings or infrastructure
to which statutory rights apply are no longer required by the Commonwealth.
Functions of Land Councils
Item 11 makes a technical change to each of paragraphs 23(1)(a), (b), (ba),
(c), (d), (e), (ea), (f) and (fa).
Item 12 inserts new paragraphs 23(1)(fb), (fc) and (fd) to give Land Councils
additional functions. New paragraph 23(1)(fb) gives a Land Council the
function of negotiating agreed payments under new subsection 62(1G) of the
NT NER Act in respect of the grant of a lease under section 31 of that Act on
behalf of a Land Trust.
New paragraph 23(1)(fc) gives a Land Council the function of negotiating
agreed payments under new subsection 62(1G) of the NT NER Act in respect
of the grant of a lease under section 31 of that Act on behalf of owners of land
who fall within paragraph (b) or (f) of the definition of relevant owner in
section 3 of the NT NER Act, if requested.
14
New paragraph 23(1)(fd) gives a Land Council the function of negotiating
agreed payments under new subsection 62(1G) of the NT NER Act in respect
of the suspension of a lease under section 40 of that Act on behalf of the
holder of the suspended lease, if requested.
Item 13 inserts a new paragraph 23(1)(i) to provide that the regulations may
prescribe additional functions for Land Councils.
Fees
Item 14 inserts new section 33B to permit a Land Council to charge certain
fees. New subsection 33B(1) permits the Land Council to charge the
Commonwealth a fee for reasonable expenses incurred in performing
functions referred to in new paragraph 23(1)(fb), (fc) or (fd) (which relate to
the negotiation of agreed payments under new subsection 62(1G) of the
NT NER Act). New subsection 33B(2) permits the Land Council to charge the
Commonwealth a fee for reasonable expenses the Land Council incurs in
providing services prescribed by regulations. New subsection 33B(3)
provides that the fee charged must not amount to taxation. New
subsection 33B(4) ensures that nothing in new section 33B prevents a Land
Council charging the Commonwealth a fee under existing section 33A (which
permits a Land Council to charge a fee for prescribed services).
Item 15 makes a consequential amendment to subsection 34(1A) to require a
Land Council to notify the Minister of the fees it expects to receive under new
section 33B.
Item 16 makes a consequential amendment to subsection 34(4) to define
administrative costs as including the expenses for which the Land Council
can charge a fee under new section 33B.
Item 17 makes a consequential amendment to paragraph 35(1)(b) to provide
that a Land Council must spend any amounts it receives under new
section 33B for its administrative or capital costs.
Item 18 amends subsection 35(4) to clarify that a Land Council does not have
to disburse payments it receives under existing section 33A (fees for
prescribed services) or under new section 33B. Instead, subsection 35(1)
requires a Land Council to spend these amounts in meeting its administrative
or capital costs. Item 18 further amends subsection 35(4) to provide that a
Land Council must distribute payments it receives under sections 60 and 62
of the NT NER Act for the benefit of traditional owners.
Item 19 inserts a new paragraph 37(2)(c), which provides that the annual
report of a Land Council under section 9 of the Commonwealth Authorities
and Companies Act 1997 must specify the total fees the Land Council
received under section 33B during the financial year on which it is reporting.
15
Access to land leased to the Director of National Parks
Item 20 amends subsection 70F(2) to provide that the right of a person to
enter and remain on a common area that is within community land applies to
common areas which are the subject of a lease to the Director of National
Parks granted under section 19.
Item 21 inserts a new section 70J to provide that the access rights in
sections 70B to 70G (which provide a right to enter and remain on certain
areas of Aboriginal land) may be subject to regulation under the Environment
Protection and Biodiversity Conservation Act 1999 and regulations under that
Act.
Items 20 and 21 commence immediately after the commencement of item 12
of Schedule 4 to the NT Amendment Act. Because that item is to commence
on proclamation, and the proclamation has not yet happened, there is no
retrospectivity involved in these new amendments.
Delegation
Item 22 inserts a new subsection 76(1A) to permit the Minister to delegate
any of his or her functions or powers under Part IIB (statutory rights over
infrastructure) to: a Secretary or SES employee (including an acting SES
employee) within the Minister's Department; a Secretary or SES employee
(including an acting SES employee) in another Department; or the General
Manager of Indigenous Business Australia.
Amendments to the NT NER Act
Item 23 repeals subsection 52(8) of the NT NER Act. This repeal is
consequential to the amendment made by item 18, which makes
subsection 52(8) unnecessary.
Item 24 inserts new paragraph 63(1)(f) into the NT NER Act to provide that an
amount payable by the Commonwealth under new section 33B of the Land
Rights Act (inserted by item 14) is payable from the Consolidated Revenue
Fund, which is appropriated under section 63 of the NT NER Act.
This extension of the existing special (standing) appropriation under
section 63 of the NT NER Act is appropriate because amounts payable by the
Commonwealth under new section 33B, and the timing of those payments,
cannot be predicted in a way that would make an annual appropriation
suitable.
16
Schedule 5 - Acquisition of rights, titles and interests in land
Summary
This Schedule makes minor improvements to several provisions in Part 4 of
the NT NER Act. It also makes amendments to allow the Commonwealth and
certain persons to agree on amounts to be paid in respect of the five-year
leases and certain other payments, and other minor and technical
amendments.
Background
The amendments this Schedule include minor improvements to sections 38
(Canteen Creek), 51 (native title) and 52 (grants by Land Trusts). There are
also amendments to section 62 to allow the Commonwealth and certain
persons to agree on amounts to be paid in respect of the five-year leases and
certain other payments, and other minor and technical amendments.
The amendments made by this Schedule commence on the day after Royal
Assent.
Explanation of the changes
Five-year leases
Item 1 makes a minor amendment to subsection 35(2) to take account of
changes to section 62 (see items 12 to 16 below).
Item 2 repeals and substitutes subsections 38(1) and (2) to ensure that, if,
following the grant of a five-year lease of Canteen Creek, the Commonwealth
grants interests over that land, such interests will be valid despite section 67A
of the Land Rights Act and will not affect the traditional land claim to Canteen
Creek.
Item 3 makes a consequential amendment to subsection 38(3).
Town camps
Item 4 makes a technical amendment to subsection 47(2).
Item 5 amends paragraph 51(1)(c) to ensure that, if the Commonwealth, the
Northern Territory or an Authority (as defined in the Land Rights Act) grants
interests, within the five-year period, in relation to land that has been resumed
or land in respect of which a lease has been forfeited, the `future act'
provisions in the Native Title Act 1993 do not apply. (The non-extinguishment
principle will apply by virtue of subsection 51(2).)
17
Item 6 amends paragraph 51(1)(d) to ensure that, if the Commonwealth, the
Northern Territory or an Authority (as defined in the Land Rights Act) grants
interests in relation to land in which a Commonwealth interest exists, the
`future act' provisions in the Native Title Act 1993 do not apply. (The
non-extinguishment principle will apply by virtue of subsection 51(2).)
Grants of interests by Land Trusts under the Land Rights Act
Item 7 adds a note after subsection 52(1) to cross-refer to new
subsection 52(4A).
Item 8 inserts new subsection 52(4A) to permit Land Trusts to continue to
grant interests (not being leases), of a kind prescribed in regulations, over
land leased under section 31. This gives flexibility in case it is appropriate to
allow Land Trusts to grant particular interests despite the five-year leases.
Item 9 repeals and substitutes subsection 52(5) to clarify that only interests
referred to in subsections 52(1) and (4A) can be granted by Land Trusts while
a five-year lease is in place.
Effect of other laws in relation to land covered by Part 4 of the NT NER
Act
Item 10 makes technical changes to paragraphs 53(1)(c), 54(1)(c), 58(1)(c)
and 59(1)(c).
Agreed payments
Item 11 makes a consequential amendment to paragraph 61(a) following the
expansion of section 62 (see below).
Item 12 inserts new subsections 62(1A) to (1H). New subsection 62(1A)
provides for the Minister and a relevant owner (other than the Northern
Territory) of land covered by a five-year lease to agree on an amount that will
be paid by the Commonwealth, whether or not any liability to pay arises. New
subsection 62(1B) provides that such amounts may be one-off or periodic
payments. (In the latter case, these are paid while the lease under s31 is in
force.) New subsection 62(1C) provides for the Minister to request that the
Valuer-General of the Northern Territory determine an indicative amount for
the purposes of negotiations.
New subsection 62(1D) provides for the Minister and a person who had a
registered lease which has been terminated under paragraph 37(1)(b) to
agree on an amount that will be paid by the Commonwealth, whether or not
any liability to pay arises.
18
New subsection 62(1E) provides for the Minister and a person whose lease
has been suspended under section 40 to agree on an amount that will be paid
by the Commonwealth, whether or not any liability to pay arises. New
subsection 62(1F) provides that such amounts may be one-off or periodic
payments. (In the latter case, these are paid while the lease is suspended.)
New subsection 62(1G) provides that the Commonwealth must pay an
amount agreed under new subsection 62(1A), (1D) or (1E).
New subsection 62(1H) provides that, where the Land Council is not
representing the other party, the Commonwealth must pay the reasonable
expenses incurred in representing the other party in negotiations under new
subsections 62(1A), (1D) or (1E). These expenses may include the costs to
the other party of hiring a person to represent them. (Amendments are also
being made to the Land Rights Act to allow Land Councils to represent
parties: see item 12 of Schedule 4.)
Items 13 to 15 amend subsections 62(2) to (4) to take account of requests to
the Valuer-General under new subsection 62(1C).
Item 16 amends subsection 62(5) to refer expressly to payment of amounts
determined by the Valuer-General under subsection 62(1). There is no
obligation on the Commonwealth to agree to pay an indicative amount that the
Valuer-General has determined under new subsection 62(1C).
19
Schedule 6 - Community stores
Summary
This Schedule will make sure that, if a roadhouse effectively takes the place
of a community store in a remote area, it is properly treated as a community
store in having to meet the new licensing standards.
Background
The meaning of community store is set out in section 92 of the NT NER Act.
Paragraph 92(2)(b) excludes roadhouses from the definition of community
store, with the consequence that roadhouses are not subject to the
community stores licensing arrangements contained in Part 7 of the NT NER
Act.
There are a number of Indigenous communities in the Northern Territory
(located on or near major highways) which are largely dependent on
roadhouses for the provision of grocery items and drinks. In these
communities, the roadhouse effectively performs the function of a community
store. Given paragraph 92(2)(b), it is not currently possible to licence those
roadhouses which de facto are providing similar services to community stores,
and this will make it more difficult to introduce income management in those
communities.
The amendments made by this Schedule commence on the day after Royal
Assent.
Explanation of the changes
Item 1 amends paragraph 92(2)(b) of the NT NER Act by adding a qualifier,
which would mean that a roadhouse can be regarded as a community store,
and hence be subject to the licensing arrangements, in circumstances where
a particular Indigenous community (or communities) is substantially
dependent upon the roadhouse for the provision of grocery items and drinks.
20
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