Aboriginal and Torres Strait Islander Commission Amendment Act 1996 (Cth)

Aboriginal and Torres Strait Islander Commission Amendment Act 1996 No. 35, 1996 An Act relating to the Aboriginal and Torres Strait Islander Commission, and for related purposes Contents Short title......................................... 833 1 Commencement.................................... 834 Schedule(s).......................................ot 834 2 3 Schedule 1—Amendment of the Aboriginal and Torres Strait Islander Commission Act 1989 835 Schedule 2—Amendment of the Aboriginal and Torres Strait Islander Commission Act 1989 861 Aboriginal and Torres Strait Islander Commission Amendment Act 1996 No. 35, 1996 An Act relating to the Aboriginal and Torres Strait Islander Commission, and for related purposes [Assented to 12 September 1996] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Aboriginal and Torres Strait Islander Commission Amendment Act 1996. 2 Commencement (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) If this Act does not receive the Royal Assent on or before 12 September 1996, item 4 of Schedule 1 commences on a day to be fixed by Proclamation. (3) If item 4 of Schedule 1 does not commence under subsection (2) within 6 months after the day on which this Act receives the Royal Assent, that item commences on the first day after the end of that period. (4) Item 68 in Schedule 1 commences on the 28th day after the day on which this Act receives the Royal Assent. (5) Schedule 2 commences on the day, or the earliest day, on which the Minister appoints a person as a Commissioner after the person has been elected in the 1999 round of Regional Council elections. 3 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Aboriginal and Torres Strait Islander Commission Act 1989 Subsection 4(1) (definition of Commission Chairperson) Repeal the definition, substitute: Commission Chairperson means the Chairperson of the Commission referred to in paragraph 27(1)(a). 2 Subsection 4(1) Insert: elected Commissioner means a member of the Commission referred to in paragraph 27(1)(b). 3 Subsection 4(1) Insert: non-elected Commissioner means the member of the Commission referred to in paragraph 27(1)(c). 4 Subsection 4(1) (table in definition of prescribed number) Repeal the table, substitute: Estimated population of region Prescribed number not more than 1,000 8 more than 1,000 but not more than 4,000 9 more than 4,000 but not more than 7,000 10 more than 7,000 but not more than 10,000 11 more than 10,000 12 5 Transitional (1) This item applies only if this Act receives the Royal Assent on or before 12 September 1996. (2) The amendment made by item 4 extends to the round of Regional Council elections for which the election period started on 12 July 1996 (the current round of Regional Council elections), (3) The Regional Council Election Rules are amended by repealing Schedule 1 and substituting the Schedule set out at the end of this item. (4) The amendment of the Regional Council Election Rules made by subitem (3) is taken to have been duly made by the Minister under section 113 of the Aboriginal and Torres Strait Islander Commission Act 1989 and may be amended or repealed by further rules made by the Minister under that section. (5) Despite paragraph 100(b) of the Aboriginal and Torres Strait Islander Commission Act 1989, the current round of Regional Council elections is to be conducted by the Australian Electoral Commission in accordance with the Regional Council Election Rules referred to in that paragraph as amended by subitem (3). (6) If: (a) before the commencement of this Act, the authorised electoral officer, under subsection 107(1) of the Aboriginal and Torres Strait Islander Commission Act 1989, declared, in relation to the current round of Regional Council elections, a candidate or candidates who nominated for election as the member or members for a Regional Council ward to be duly elected; and (b) the number of candidates nominated for election as the member or members for that Regional Council ward was greater than the number that, under that Act as amended by this Act, is the designated number in relation to the ward; the declaration is taken not to have been made and a poll must be held. SCHEDULE TO BE INSERTED IN REGIONAL COUNCIL ELECTION RULES SCHEDULE 1 Rule 2A WARDS Column 1 Column 2 Column 3 Column 4 Region that Ward Designated Map depicting contains the number for boundaries of following place ward wards PART 1 NEW SOUTH WALES Coffs Harbour Gattang 7 ATSIC Coffs Northern Rivers 5 Harbour Region - ATSIC 96/1 Tamworth Gomilaroi 5 ATSIC Tamworth Tingha 3 Region - ATSIC Quirindi 4 96/2 Sydney Sydney 12 ATSIC Sydney Region - ATSIC 96/3 Bourke Wangkumara 7 ATSIC Bourke NSW Far West 3 Region - ATSIC 96/4 Wagga Wagga Deniliquin 1 ATSIC Wagga Wirawongam 7 Wagga Region - Murrumbidgee/ Lachlan 4 ATSIC 96/5 Queanbeyan Bogong 5 ATSIC Umbara 6 Queanbeyan Region - ATSIC 96/6 PART 2 - NORTHERN TERRITORY Katherine Ward 1 1 ATSIC Katherine Ward 2 2 Region - ATSIC Ward 3 3 96/7 Ward 4 2 Ward 5 Ward 5 3333333 Jabiru Tiwi Islands 3 ATSIC Jabiru Jabiru 4 Region - ATSIC Coburg 1 96/8 Wadeye 2 Daly River 1 Nhulunbuy West 5 ATSIC East 3 Nhulunbuy South 3 Region - ATSIC 96/9 Darwin Ward 1 6 ATSIC Darwin Ward 2 3 Region - ATSIC Ward 3 1 96/10 Ward 4 1 Alice Springs Alice Springs 10 ATSIC Alice Springs Region - ATSIC 96/11 Tennant Creek Tennant Creek 9 ATSIC Tennant Creek Region - ATSIC 96/12 Apatula Papunya 6 ATSIC Apatula Impiyara 1 Region - ATSIC Arltarlpilta 3 96/13 PART 3 –QUEENSLAND Cooktown Cooktown 10 ATSIC Cooktown Region - ATSIC 96/14 Mt Isa Burke 2 ATSIC Mt Isa Mornington 1 Region - ATSIC Mount Isa 4 96/15 South East 2 Carpentaria 1 Brisbane Brisbane 6 ATSIC Brisbane Brisbane North 2 Region - ATSIC Brisbane South 4 96/16 Cairns Cairns 12 ATSIC Cairns Region - ATSIC 96/17 Townsville Townsville 4 ATSIC Palm Island 2 Townsville Mackay 4 Region - ATSIC Ingham 1 96/18 Charters Towers 1 Roma Roma 11 ATSIC Roma Region - ATSIC 96/19 Rockhampton Rockhampton 11 ATSIC Rockhampton Region - ATSIC 96/20 PART 4 - SOUTH AUSTRALIA Adelaide Kaurna 8 ATSIC Adelaide Murrundi 4 Region - ATSIC 96/21 Port Augusta Amata 2 ATSIC Port Indulkana 2 Augusta Region - Coober Pedy 1 ATSIC 96/22 Nulla Wanga 4 Tjuta South Nulla Wanga 1 Tjuta North Ceduna Wangka Pulka 4 ATSIC Ceduna North Region - ATSIC Wangka Pulka 3 96/23 South Kakarrara 2 Wilurrara PART 5 - TASMANIA Hobart Hobart 12 ATSIC Hobart Region - ATSIC 96/24 PART 6 - VICTORIA Wangaratta Gippsland 3 ATSIC Goulburn Valley 3 Wangaratta East Melbourne 5 Region - ATSIC 96/26 Ballarat Tumbukka 7 ATSIC Ballarat West Melbourne 5 Region - ATSIC 96/27 PART 7 - WESTERN AUSTRALIA Perth Perth 12 ATSIC Perth Region - ATSIC 96/28 Narrogin Moora 1 ATSIC Narrogin Northam 2 Region - ATSIC Bunbury 3 96/29 Narrogin 1 Albany 3 Derby Jayida Buru 5 ATSIC Derby Bandaral Ngadu 5 Region - ATSIC 96/30 Kununurra Wunan 5 ATSIC Yarleyel 3 Kununurra Kutjungka 2 Region - ATSIC 96/31 Broome Broome 5 ATSIC Broome Outer Areas 4 Region - ATSIC 96/32 South Hedland Port Hedland 4 ATSIC South Roeboume 3 Hedland Region - Ashburton 1 ATSIC 96/33 East Pilbara 2 Geraldton Geraldton 10 ATSIC Geraldton Region - ATSIC 96/34 Kalgoorlie Town 4 ATSIC North 2 Kalgoorlie South 3 Region - ATSIC 96/35 Warburton Western Desert 4 ATSIC Warburton 4 Warburton Cundeelee 1 Region-ATSIC 96/36 6 After section 21 Insert: 21A Commission's interest in land (1) Any liability or obligation of an individual, a body corporate or an unincorporated body to the Commission arising: (a) under the terms and conditions of a grant or loan referred to in subsection 14(2); or (b) under section 20 or 21; is taken to be an interest of the Commission in the land to which it relates. (2) The land is charged with the payment of all costs and expenses incurred by the Commission in respect of its enforcement of the liability or obligation. (3) The land is taken, for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976, to be alienated Crown land in which all estates and interests not held by the Crown are held on behalf of Aboriginals. 7 Section 27 Repeal the section, substitute: 27 Constitution of the Commission (1) The Commission consists of 19 members, as follows: (a) a Chairperson; (b) 17 members, who are to be the persons elected under Division 7 of Part 3 to represent the several zones; (c) 1 other member. (2) The members are to be appointed by the Minister. (3) The Chairperson may be, but is not required to be, a person elected under Division 7 of Part 3 to represent a zone. (4) The member referred to in paragraph (1)(c) must not be a person elected under Division 7 of Part 3 to represent a zone. (5) If the Minister appoints as the Chairperson a person elected under Division 7 of Part 3 to represent a zone, the person ceases to hold office as the member representing the zone and as a Regional Councillor. 8 Section 31A Repeal the section. 9 Subsection 33(1) Repeal the subsection, substitute: (1) The Commission Chairperson holds office as Commission Chairperson for such period, not exceeding 3 years, as is stated in, or worked out under, the instrument of appointment. 10 After subsection 33(1B) Insert: (1C) The non - elected Commissioner holds office for such period, not exceeding 3 years, as is stated in, or worked out under, the instrument of appointment. 11 Subsection 32(1) Omit "a zone election", substitute "each round of zone elections". 12 At the end of Division 3 of Part 2 Add: 32A Alternate Deputy Chairperson If there is a vacancy in the office of alternate of the Deputy Chairperson of the Commission, the Commissioners may, at a meeting of the Commission, elect one of them to be the alternate of the Deputy Chairperson. 13 After subsection 33(1B) Insert: (1BA) The alternate of the Deputy Chairperson of the Commission is to be elected for a period determined by the Commission and holds office until: (a) the end of that period; or (b) he or she is elected as Deputy Chairperson of the Commission; or (c) he or she ceases to be a Commissioner; whichever happens first. However, if he or she ceases to hold office because of paragraph (a) and is still a Commissioner, he or she may be re-elected. 14 Subsection 35(3) Omit "(1)", substitute "(1A)". 15 Paragraph 36(1)(a) Omit "a person has previously been elected as Commission Chairperson", substitute "an appointment has previously been made to the office". 16 After subsection 36(1) Insert: (1A) If: (a) either of the following circumstances exists: (1) there is a vacancy in the office of Commission Chairperson, whether or not an appointment has previously been made to the office; (2) the Commission Chairperson is absent from duty or from Australia or is, for any reason unable to perform the duties of the office; and (b) either of the following circumstances exists: (1) there is a vacancy in the office of Deputy Chairperson of the Commission, whether or not a person has previously been elected as Deputy Chairperson; (2) the Deputy Chairperson is absent from duty or from Australia or is, for any reason, unable to perform the duties of Deputy Chairperson; the alternate of the Deputy Chairperson is to act as the Commission Chairperson. (1B) If the alternate of the Deputy Chairperson of the Commission is not acting as the Commission Chairperson under subsection (1 A) and either of the following circumstances exists: (a) there is a vacancy in the office of Deputy Chairperson; (b) the Deputy Chairperson is absent from duty or from Australia or is, for any reason, unable to perform the duties of Deputy Chairperson; the alternate of the Deputy Chairperson is to act as the Deputy Chairperson. (1C) Anything done by or in relation to a person purporting to act under subsection (1), (1A) or (1B) is not invalid merely because the occasion to act had not arisen or had ceased. 17 After subsection 36(2) Insert: (2A) A person appointed to act as the Deputy Chairperson of the Commission may not act if there is an alternate of the Deputy Chairperson. 18 After subsection 36(3) Insert: (4) The Minister may appoint a person to act in the office of non-elected Commissioner: (a) during a vacancy in that office whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the non-elected Commissioner is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. (5) A person appointed to act during a vacancy in the office of non-elected Commissioner under section (4): (a) must not continue so to act for more than 6 months; and (b) must not be re-appointed to act during the vacancy for a period that would be continuous with the period of 6 months from the day when the person first started acting during that vacancy. 19 Subsection 36(6) Repeal the subsection, substitute: (6) The Minister may, after consulting the Commission Chairperson, appoint a person to act in the office of an elected Commissioner: (a) during a vacancy in the office, whether or not a person has previously been appointed to the office; or (b) during any period, or during all periods, when the elected Commissioner is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office. 20 Section 38 Repeal the section, substitute: 38 Disclosure of interests A Commissioner or acting Commissioner who is not a Regional Councillor must comply with section 119A as if he or she were a Regional Councillor. 21 After subsection 39(1B) Insert: (1C) The alternate of the Deputy Chairperson of the Commission may resign the office of alternate of the Deputy Chairperson by writing signed by him or her and sent to the Commission Chairperson. 22 Subsection 39(2) Omit "A Commissioner is", substitute "An elected Commissioner is". 23 Subsection 40(2) Repeal the subsection, substitute: (2) The Minister must not suspend a Commissioner from office unless the Minister has, by written notice served on the Commissioner, given the Commissioner 7 days within which to show cause why the Commissioner should not be suspended. 24 Subsection 40(6) Omit "appointment of a Commissioner", substitute "appointment of an elected Commissioner". 25 After subsection 40(6) Insert: (6A) If a person who is an elected Commissioner is, because of a decision or order of the Federal Court of Australia, taken not to have been duly elected as a member of a Regional Council, the person ceases, as a result of the decision or order, to be an elected' Commissioner. 26 Subsection 44(3) Omit "7", substitute "8". 27 Subsection 44(4) Omit "11", substitute "12". 28 Paragraph 44(5)(c) Omit "7", substitute "8". 29 Subsection 68(4) Repeal the subsection. 30 After paragraph 76(1)(da) Insert: (db) when requested to do so by the TSRA, to evaluate or audit particular aspects of the operations of the TSRA; 31 Paragraph 78A(1)(a) After "(ba)", insert "(c), (d), (da), (db),". 32 Paragraph 81(1)(a) Omit "by the TSRA, by other Commonwealth bodies", substitute "by other Commonwealth bodies (except the TSRA)". 33 Paragraph 81(1)(b) Omit "by the TSRA, by Regional Councils and by other Commonwealth bodies,", substitute "by Regional Councils and by other Commonwealth bodies (except the TSRA),". 34 Paragraph 81(1)(c) Omit", the TSRA". 35 After subsection 90(2) Insert: (2A) Despite subsection (2), a person to whom this section applies may: (a) divulge or communicate any information referred to in paragraph (2)(a) to anyone who is authorised in writing by the person to whose affairs the information relates to receive the information; and (b) produce a document referred to in paragraph (2)(b) to anyone who is authorised in writing by the person to whose affairs the document relates to receive the document. 36 Paragraph 91(7)(a) Repeal the paragraph, substitute: (a) has effect for the purposes of the first round of Regional Council elections held after the date of the determination; and 37 Application The amendment made by item 36 applies to determinations made after the commencement of that item. 38 Paragraph 100A(5)(a) Repeal the paragraph, substitute:. (a) have effect for the purposes of the first round of Regional Council elections held after the commencement of the rules; and 39 Application The amendment made by item 38 applies to rules made after the commencement of that item. 40 At the end of subsection 102(1A) Add "or to the Chairperson of a Regional Council covered by a determination in force under subsection 121(1B)". 41 After subsection 115(1) Insert: (1A) The performance of the functions or the exercise of the powers of a Regional Council is not affected merely because there are more than the prescribed number of members of the Regional Council provided that the number of members of the Regional Council is not more than the number that was the prescribed number of members at the beginning of the election period for the last round of Regional Council elections. 42 At the end of subsection 115(1) Add "and such number (if any) of other members as are appointed under section 116". 43 After section 115 Add: 116 Additional members of Regional Councils (1) Subject to subsection (2), if the Minister is of the opinion that the number of members of a particular Regional Council is insufficient to enable the Council properly to perform its functions, the Minister may, after consulting the Commission, appoint an additional person or persons to be a member or members of the Regional Council. (2) The Minister may not appoint a person as a member of a Regional Council under subsection (1) unless the person is qualified for election as a member for a Regional Council ward for the Regional Council concerned. (3) A person appointed as a member of a Regional Council under this section holds office until the end of the next round of Regional Council elections following his or her appointment. (4) If a person appointed under this section as a member of a Regional Council ceases to hold the office to which he or she was appointed, the Minister may appoint another person as a member of the Regional Council in place of the first-mentioned person. 44 After subsection 119(2) Insert: (2A) The Minister must cause a copy of each determination made under paragraph (2)(a) or (b) to be published in the Gazette. 45 After section 119 Insert: 119A Register of interests (1) Each member of a Regional Council must make to the Commission written disclosures of the member's direct or indirect pecuniary interests in accordance with a Ministerial determination under subsection (4). (2) The Commission must keep a register of the interests disclosed in accordance with a Ministerial determination under subsection (4). (3) The Commission must allow any person to inspect the register at any reasonable time without charge. (4) The Minister may make a written determination specifying: (a) the kinds of interests to be disclosed; and (b) the manner in which, and the times at which, disclosures are to be made; and (c) the form in which the register is to be kept. (5) A determination under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 46 Subsection 121(3) Repeal the subsection, substitute: (3) If the Commission is satisfied that a member of a Regional Council: (a) has become a member of the staff of the Commission or the TSRA; or (b) has become a consultant to the Commission or the TSRA; or (c) has become a director of, or has acquired a controlling interest in, a body corporate that is a consultant to the Commission or the TSRA; or (d) is a director of, or has a controlling interest in, a body corporate that has become a consultant to the Commission or the TSRA; the Commission must declare, in writing, that it is so satisfied. 47 Paragraphs 122(1)(a) and (b) Repeal the paragraphs, substitute: (a) has been convicted of an offence against a Commonwealth, State or Territory law and sentenced in respect of the offence to imprisonment for one year or longer; or (aa) has been convicted of 2 or more offences against a Commonwealth, State or Territory law and sentenced in respect of all the offences to a single penalty of imprisonment for one year or longer; or (b) has been convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced in respect of the offence to imprisonment for 3 months or longer; or (ba) has been convicted of 2 or more offences against a Commonwealth, State or Territory law involving dishonesty and sentenced in respect of all the offences to a single penalty of imprisonment for 3 months or longer; or 48 Paragraph 122(1)(c) Repeal the paragraph, substitute: (c) has failed, without reasonable excuse, to comply with section 119 or 119A; or 49 At the end of paragraphs 122(1)(d), (e) and (f) Add "or". 50 After subsection 127C(6) Insert: (6A) If the person who is the Chairperson of a Regional Council is, because of a decision or order of the Federal Court of Australia, taken not to have been duly elected as a member of the Regional Council, the person ceases, as a result of the decision or order, to be the Chairperson of the Regional Council. 51 Subsection 127E(2) After "Commissioner", insert "or the Chairperson of the Regional Council". 52 After subsection 127G(6) Insert: (6A) If a person who is the Deputy Chairperson of a Regional Council is, because of a decision or order of the Federal Court of Australia, taken not to have been duly elected as a member of the Regional Council, the person ceases, as a result of the decision or order, to be the Deputy Chairperson of the Regional Council. 53 Subsection 127J(4) After "Commissioner,", insert "the Chairperson of the Regional Council or the Deputy Chairperson of the Regional Council". 54 After subsection 128(4) Insert: (4A) When appropriate action has been taken under this section to convene a meeting of a Regional Council, the Chairperson of the Regional Council or, if the Regional Council does not have a Chairperson, the Commission Chairperson must cause notice of the proposed date, time and place of the meeting to be publicly notified, at least 7 days before the proposed date of the meeting, in any manner that the Chairperson concerned thinks appropriate. (4B) A Regional Council must make available, at a meeting of the Council, for inspection by any person: (a) copies of the agenda for the meeting; and (b) copies of any other business papers prepared for the meeting except papers that, in the opinion of the Chairperson of the Council, are likely to be considered by the Council at the meeting at a time when it is closed to the public. (4C) A Regional Council must make available at reasonable times during, and at the end of, a meeting of the Council and on the first business day following the day of the meeting, for inspection by any person, any documents presented to the meeting other than documents presented at a time when the meeting was closed to the public. 55 After section 128 Insert: 128A Meeting of Regional Council to be open to the public except in certain circumstances (1) Except as provided by this section, anyone is entitled to be present at a meeting of a Regional Council. (2) A person (other than a member of the Regional Council concerned) is not entitled to be present at a meeting of a Regional Council if: (a) the Council has passed a resolution stating that the person is to be excluded from the meeting; or (b) the Council has passed a resolution authorising the member presiding at the meeting to direct that a person or persons be excluded from the meeting and the member presiding has given such a direction in relation to the first-mentioned person. (3) A person (other than a member of the Regional Council concerned) is not entitled to be present at a meeting of a Regional Council if: (a) the Council is considering an excludable matter; and (b) the Council has resolved that the meeting be closed to the public while that matter is being considered. (4) A resolution referred to in paragraph (3)(b) must identify the matter concerned and the resolution must be recorded in the minutes of the meeting. 128B Right of public to inspect documents without charge A Regional Council must allow any person to inspect, at any reasonable time, without charge, any documents described in the following paragraphs that are in its possession: (a) a document setting out a code of conduct to be observed by the Council or its members; (b) rules for the conduct of proceedings at meetings of the Council; (c) a regional or other plan formulated by the Council; (d) a determination of, or any other document relating to, remuneration or allowances for members; (e) a document identifying any of the facilities that are provided for members; (f) the minutes of proceedings at meetings of the Council other than any part of the minutes that relates to an excludable matter; (g) a determination made under subsection 119(2); (h) any other document to which the person is entitled to have access under the Freedom of Information Act 1982. 128C Excludable matters The following are excludable matters for the purposes of sections 128A and 128B: (a) a matter relating to a member of the staff of the Regional Council or to any other person assisting the Council in the performance of its functions; (b) a matter involving personal hardship suffered by a person; (c) any of the following: (i) a trade secret; (ii) other information having a commercial value the disclosure of which would, or could reasonably be expected to, affect a person adversely in respect of the person's lawful business, professional, commercial or financial affairs; (iii) information (other than a trade secret or information to which subparagraph (ii) applies) that would, or could reasonably be expected to, confer a financial advantage on a competitor of the Regional Council; (d) a proposal for the making of a grant or loan, or the giving of a guarantee, by the Regional Council; (e) any matter the divulging of which is prohibited by section 90; (f) information the disclosure of which would found an action for breach of confidence;