Senator KERNOT (Leader of the Australian Democrats)(11.26 a.m.) —I just want to revisit the question of the whole election being invalidated and go through a check list of what we know. We know that circumstances surrounding nominations are not changing. That process is not changing. We know that nominations are closing and that the rolls are closing in accordance with what everyone has been told.

Senator Herron —Yes, that's correct.

Senator KERNOT —That has not changed. We know the period of the election. We know that the election is going to be on 12 October. That is not changing.

Senator Herron —That's correct.

Senator KERNOT —We know that the number of commissioners is going to be 19. That is not changing.

Senator Margetts —We haven't passed the bill yet. We don't know that.

Senator KERNOT —This is in the existing bill. All of this is in the existing bill?

Senator Bob Collins —Correct.

Senator Margetts —The existing bill. Where? What bill?

Senator KERNOT —The Aboriginal and Torres Strait Islander Commission Act updated—

Senator Margetts —This has not been passed yet.

Senator KERNOT —This is the 1 June 1995 version, not the new bill.

Senator Margetts —Which hasn't passed.

Senator KERNOT —It has. This is the existing act I am talking about. So nothing has changed in nominations, opening and closure of rolls, the period of election, the date of election, or the number of commissioners.

Senator Margetts —Number of councillors?

Senator KERNOT —I am getting to that next. What the new bill is proposing to do is not implement what was about to happen, which was the election of the chair of ATSIC, and maintain the appointment. So that is a change. When we get down to the other provisions of this existing bill, when we get down to the number of regional councils, the number of regional councillors and wards, that is where I think we need some clarification. Division 4—Regional Council elections, clause 100 states:

Regional Council elections shall be conducted by the Australian Electoral Commission in accordance with:

(a)   the provisions of this Act; and

(b)   the Regional Council election rules in force at the beginning of the election period.

Then it says:

Rules may divide regions into wards and no more than five wards in each region.

So what we are looking at is: have people been disadvantaged in any way to this point in the process? In the next month to come, if the rules, the numbers of regional councillors, are clarified by the Australian Electoral Commission, is this likely to invalidate the election in any way? That to me is the only issue from that entire list over which there is a question.

Senator Herron —The advice I have received is that it won't.

Amendments (by Senator Herron)—by leave—proposed:

(1)   Clause 2, page 1 (line 9), omit "subsection (2)", substitute "this section".

(2)   Clause 2, page 1 (after line 10), after subclause (1), insert:

   (1A)   If this Act does not receive the Royal Assent on or before 12 September 1996, item 3 of Schedule 1 commences on a day to be fixed by Proclamation.

   (1B)   If item 3 of Schedule 1 does not commence under subsection (1A) 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.

(3)   Schedule 1, page 3 (after line 8), after item 1, insert:

1A 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).

1B Subsection 4(1)

   Insert:

      elected Commissioner means a member of the Commission referred to in paragraph 27(1)(b).

1C Subsection 4(1)

   Insert:

      non-elected Commissioner means the member of the Commission referred to in paragraph 27(1)(c).

(4)   Schedule 1, page 3 (before line 19), after item 3, insert:

3A 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 3 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

(5)   Schedule 1, item 4, page 4 (after line 11), at the end of proposed section 21A, add:

   (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.

(6)   Schedule 1, page 4 (after line 11), after item 4, insert:

4A 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.

4B Section 31A

   Repeal the section.

4C 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.

4D 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.

(7)   Schedule 1, page 5 (after line 3), after item 8, insert:

8A Paragraph 36(1)(a)

   Omit "a person has previously been elected as Commission Chairperson", substitute "an appointment has previously been made to the office".

(8)   Schedule 1, page 6 (after line 8), after item 10, insert:

10A 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.

(9)   Schedule 1, item 11, page 6 (lines 12 and 13), omit "a Commissioner (other than the Commission Chairperson)", substitute "an elected Commissioner".

(10)   Schedule 1, item 11, page 6 (line 17), before "Commissioner", insert "elected".

(11)   Schedule 1, page 6 (after line 29), after item 13, insert:

13A Subsection 39(2)

   Omit "A Commissioner is", substitute "An elected Commissioner is".

(12)   Schedule 1, page 7 (after line 6), after item 14, insert:

14A Subsection 40(6)

   Omit "appointment of a Commissioner", substitute "appointment of an elected Commissioner".

(13)   Schedule 1, item 15, page 7 (line 9), omit "a Commissioner", substitute "an elected Commissioner".

(14)   Schedule 1, item 15, page 7 (line 12), omit "a Commissioner", substitute "an elected Commissioner".

(15)   Schedule 1, page 7 (after line 12), after item 15, insert:

15A Subsection 44(3)

   Omit "7", substitute "8".

15B Subsection 44(4)

   Omit "11", substitute "12".

15C Paragraph 44(5)(c)

   Omit "7", substitute "8".

(16)   Schedule 1, page 13 (after line 15), after item 30, insert:

30A 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.

(17)   Schedule 1, page 19, (after line 3), after item 42, insert:

42A Paragraph 138(1)(b)

   Before "Commissioners", insert "elected".

(18)   Schedule 1, page 28 (after line 18), at the end of the Schedule, add:

56 Application

(1)   In this item:

      appointment day means the day, or the earliest day, on which the Minister appoints a person as a Commissioner after the person has been elected in the first zone election (other than a zone election for the Torres Strait zone) held after the end of the election period that started on 12 July 1996.

      deferred items means items 1A, 1B, 1C, 4A, 4B, 4C, 4D, 8A, 10A, 11, 13A, 14A, 15, 15A, 15B, 15C and 42A.

(2)   The amendments made by the deferred items do not apply until the appointment day.

(3)   The person who held office as the Commission Chairperson immediately before the appointment day ceases to hold that office on that day.