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Aboriginal and Torres Strait Islander Commission Amendment Bill 2004
Schedule 1 Abolition of Aboriginal and Torres Strait Islander Commission, consequential amendments and transitional and saving arrangements

Part 1 Abolition of Aboriginal and Torres Strait Islander Commission

Aboriginal and Torres Strait Islander Commission Act 1989

1  Part 2

Repeal the Part.



 

Part 2 Consequential amendments relating to the abolition of Aboriginal and Torres Strait Islander Commission

Aboriginal and Torres Strait Islander Commission Act 1989

2  Title

Omit “ an Aboriginal and Torres Strait Islander Commission, ”.

3  Section 1

Omit “ Aboriginal and Torres Strait Islander Commission Act 1989 ”, substitute “ Aboriginal and Torres Strait Islander Act 2004 ”.

4  Subsection 4(1) (definition of Advisory Board )

Repeal the definition.

5  Subsection 4(1) (definition of appointed Indigenous Land Corporation Director )

Repeal the definition.

6  Subsection 4(1) (definition of approved Regional Council estimates )

Repeal the definition.

7  Subsection 4(1) (definition of Chief Executive Officer )

Repeal the definition.

8  Subsection 4(1) (definition of Commission )

Repeal the definition.

9  Subsection 4(1) (definition of Commission Chairperson )

Repeal the definition.

10  Subsection 4(1) (definition of Commissioner )

Repeal the definition.

11  Subsection 4(1) (definition of Housing Fund )

Repeal the definition.

12  Subsection 4(1) (definition of Ministerial Finance Direction )

Repeal the definition.

13  Subsection 4(1)

Insert:

New Housing Fund means the New Housing Fund established under section 181A.

14  Subsection 4(1) (definition of Office )

Repeal the definition.

15  Subsection 4(1) (definition of Regional Council estimates )

Repeal the definition.

16  Subsection 4(1) (definition of Regional Land Fund )

Repeal the definition.

17  Subsection 4(1) (definition of regional statement )

Repeal the definition.

18  Subsection 4(1) (definition of zone )

Repeal the definition.

19  Subsection 4(1) (definition of zone election )

Repeal the definition.

20  Subsection 4(1) (definition of zone election rules )

Repeal the definition.

21  Subsection 4(2)

Omit “of the Commission,”.

22  Part 3 (heading)

Repeal the heading, substitute:

Part 3 Regions and Regional Councils

23  Paragraph 91(1)(a)

Repeal the paragraph, substitute:

                     (a)  each of which includes a place set out in Schedule 1 and does not include any other place included in the Schedule; and

24  Subsection 91(1B)

Omit “Commission”, substitute “Minister”.

25  Subsection 91(5)

Omit “the Commission and”.

26  Subsections 93(2) and (3)

Repeal the subsections, substitute:

             (3)  The corporate name of a Regional Council for a region that includes a place listed in Schedule 1 is, if a name for the Regional Council has not been determined under subsection (1), the Regional Council for the region that includes that place.

27  Paragraph 94(1)(b)

Omit “the Commission,”.

28  Paragraphs 94(1)(c) and (d)

Repeal the paragraphs, substitute:

                     (c)  to make proposals to the Indigenous Land Corporation for the expenditure of money that, before 1 July 2004, stood to the credit of the Regional Land Fund that was established under section 68 of this Act as in force before that day;

                     (d)  to receive, and to pass on to the Minister and to the TSRA, the views of Aboriginal persons and Torres Strait Islanders about the activities in the region of the TSRA, other Commonwealth bodies and State, Territory and local government bodies;

29  Subsections 95(2) and 96(4)

Omit “Commission”, substitute “Minister”.

30  Sections 97 and 98

Repeal the sections.

31  Subsection 99(1)

Omit “Commission” (wherever occurring), substitute “Minister”.

32  Subsections 99(1A) and (2)

Repeal the subsections.

33  Subsection 99(3)

Omit “Commission”, substitute “Minister”.

34  Subsection 99(4)

Repeal the subsection.

35  Subsection 100A(4B)

Omit “the Aboriginal and Torres Strait Islander Commission and”.

36  Paragraph 102(1)(c)

Omit “the Commission or”.

37  Subsection 102(1A)

Omit “a person who is the Commission Chairperson or to”.

38  Section 103

Omit “the application of this Act to the Commission” (wherever occurring), substitute “this Act”.

39  Subsection 105(3)

Omit “and to the Aboriginal and Torres Strait Islander Commission”.

40  Subsection 105(4)

Repeal the subsection.

41  Subsection 113(1)

Omit “the Aboriginal and Torres Strait Islander Commission and”.

42  Subsection 115(3)

Omit “Commission”, substitute “Minister”.

43  Section 115A

Repeal the section.

44  Subsection 116(1)

Omit “, after consulting the Commission,”, substitute “, after consulting the Regional Council concerned,”.

45  Subsection 119(3)

Repeal the subsection.

46  Subsections 119A(1), (2) and (3)

Omit “Commission”, substitute “Regional Council”.

47  Subsection 121(1)

Omit “Commission” (wherever occurring), substitute “Minister”.

48  Subsections 121(1A) and (1B)

Repeal the subsections.

49  Subsection 121(2)

Omit “Commission”, substitute “Minister”.

50  Subsection 121(3)

Repeal the subsection, substitute:

             (3)  If the Minister is satisfied that a member of a Regional Council:

                     (a)  has become a member of the staff of the TSRA; or

                     (b)  has become a consultant to 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 TSRA; or

                     (d)  is a director of, or has a controlling interest in, a body corporate that has become a consultant to the TSRA;

the Minister must declare, in writing, that he or she is so satisfied.

51  Subsection 121(4)

Omit “Commission”, substitute “Minister”.

52  Subsection 122(1)

Omit “Commission” (wherever occurring), substitute “Minister”.

53  Subsection 122(1)

Omit “it is so satisfied”, substitute “he or she is so satisfied”.

54  Subsection 122(2)

Omit “Commission”, substitute “Minister”.

55  Section 122A

Omit “Commission” (wherever occurring), substitute “Minister”.

Note 1:    The heading to subsection 122A(1) is altered by omitting “ Commission ” and substituting “ Minister ”.

Note 2:    The heading to subsection 122A(2) is altered by omitting “ Commission ” and substituting “ Minister ”.

Note 3:    The heading to subsection 122A(5) is altered by omitting “ Commission ” and substituting “ Minister ”.

56  Section 122B

Omit “Commission” (wherever occurring), substitute “Minister”.

57  Subsection 123(1)

Omit “Commission” (wherever occurring), substitute “Minister”.

58  Subsection 123(2) (paragraph (c) of the definition of valid petition )

Omit “Commission”, substitute “Minister”.

59  Paragraphs 123A(1)(b), (ca) and (cb)

Repeal the paragraphs.

60  Subsection 123A(1)

Omit “the Commission may”, substitute “the Minister may”.

61  Subsection 123A(2)

Repeal the subsection, substitute:

             (2)  The Minister must not remove the Regional Councillors from Office unless the Minister has, by written notice served on the Regional Councillors:

                     (a)  given the Regional Councillors 28 days within to which to show cause why they should not be removed; and

                     (b)  given reasons for the removal.

62  Subsection 123A(3)

Omit “Commission” (wherever occurring), substitute “Minister”.

63  Paragraphs 124(c) and (d)

Repeal the paragraphs, substitute:

                     (c)  has all powers necessary to rectify any problems in the affairs of the Regional Council.

64  Subsections 124C(1) and (3)

Omit “Commission Chairperson”, substitute “Minister”.

65  Section 124D

Omit “Commission”, substitute “Minister”.

66  Subsection 124E(2)

Omit “Commission” (wherever occurring), substitute “Minister”.

67  Subsections 124F(1) and (2)

Omit “Commission”, substitute “Minister”.

Note 1:    The heading to subsection 124F(1) is altered by omitting “ Commission ” and substituting “ Minister ”.

Note 2:    The heading to subsection 124F(2) is altered by omitting “ Commission ” and substituting “ Minister ”.

68  Subsection 124G(1)

Omit “Commission”, substitute “Minister”.

69  Sections 124H and 124J

Omit “Commission”, substitute “Minister”.

Note:       The heading to section 124J is altered by omitting “ Commission ” and substituting “ Minister ”.

70  Subsection 127(1A)

Repeal the subsection.

71  Subsection 127A(2)

Repeal the subsection.

72  Subsection 127C(2)

Repeal the subsection, substitute:

             (2)  The Minister must not suspend the Chairperson from office unless the Minister has, by written notice served on the Chairperson, given the Chairperson 7 days within which to show cause why the Chairperson should not be suspended.

73  Subsections 127D(2) and (3)

Omit “Commission Chairperson” (wherever occurring), substitute “Minister”.

74  Subsection 127E(2)

Omit “a Commissioner or”.

75  Subsection 127G(2)

Repeal the subsection, substitute:

             (2)  The Minister must not suspend the Deputy Chairperson from office unless the Minister has, by written notice served on the Deputy Chairperson, given the Deputy Chairperson 7 days within which to show cause why the Deputy Chairperson should not be suspended.

76  Subsections 127J(2) and (4)

Repeal the subsections.

77  Subsections 128(2) and (3)

Repeal the subsections, substitute:

             (2)  The Minister may at any time convene a meeting of a Regional Council.

78  Subsection 128(4A)

Omit “Commission Chairperson”, substitute “Minister”.

79  Subsection 128(4A)

Omit “concerned”, substitute “or Minister”.

80  Subsection 128(12)

Repeal the subsection, substitute:

           (12)  The Registrar of Aboriginal Corporations under the Aboriginal Councils and Associations Act 1976 may formulate model rules, not inconsistent with this Act, for the conduct of proceedings at meetings of Regional Councils.

81  Subsection 128(14)

Omit “by the Commission”, substitute “by the Registrar of Aboriginal Corporations”.

82  Section 129

Repeal the section.

83  Division 7 of Part 3

Repeal the Division.

84  Section 140

Omit “, a TSRA election or a zone election”, substitute “or a TSRA election”.

85  Division 9 of Part 3

Repeal the Division.

86  Subsection 142AA(1)

Repeal the subsection, substitute:

             (1)  For the purpose of furthering the social, economic or cultural development of Torres Strait Islanders, or Aboriginal persons, living in the Torres Strait area, the Prime Minister may confer a departmental function on the TSRA.

87  Subsection 142AA(3) (definition of departmental function )

Omit “, but does not include a function of the Commission”.

88  Subsection 142L(5)

Repeal the subsection.

89  Paragraph 142V(1)(b)

Omit “or the Commission”.

90  Subsection 143L(3)

Repeal the subsection.

91  Subsection 143R(3)

Omit “or the Commission”.

Note:       The heading to subsection 142R(3) is altered by omitting “ or Commission ”.

92  Subsection 143W(2)

Repeal the subsection.

93  Subsection 144(2)

Repeal the subsection.

94  Subsections 144D(2) and (4)

Repeal the subsections.

95  Subsection 144F(6)

Repeal the subsection.

96  Subsection 144L(3)

Repeal the subsection.

97  Section 144R (note 1)

Omit “or the Commission”.

98  Section 144R (note 2)

Omit “or the Commission”.

99  Section 144S

Repeal the section.

100  Section 144T (note 1)

Omit “or the Commission”.

101  Section 144T (note 2)

Omit “or the Commission”.

102  Division 10 of Part 3A (heading)

Repeal the heading, substitute:

Division 10 Minister may ask TSRA for information

103  Subsection 144ZE(1)

Omit “or the Commission”.

104  Subsection 144ZE(3)

Repeal the subsection.

Note:       The heading to section 144ZE is altered by omitting “ or Commission ”.

105  Paragraphs 144ZF(c) and (d)

Repeal the paragraphs, substitute:

                     (c)  has all powers necessary to rectify any problems in the affairs of the TSRA.

106  Subsection 147(2)

Repeal the subsection, substitute:

             (2)  Without limiting by implication the meaning of commercial activities in paragraph (1)(a), those activities include the performance of functions that:

                     (a)  the Minister has authorised Indigenous Business Australia to perform as an agent of the Commonwealth; or

                     (b)  the Minister has delegated to Indigenous Business Australia.

107  At the end of section 148

Add:

             (3)  This section does not apply to:

                     (a)  business loans or housing loans made, or treated as having been made, by Indigenous Business Australia; or

                     (b)  any grants made, or treated as having been made, by Indigenous Business Australia in relation to business loans or housing loans; or

                     (c)  guarantees provided, or treated as having been provided, by Indigenous Business Australia in relation to business loans or housing loans.

108  Subsection 150(1)

Repeal the subsection.

109  Subsection 150(2)

Omit “and may also give to the Minister a copy of any written comments by the Commission about the corporate plan”.

110  Section 151

Repeal the section, substitute:

151   Directions by Minister

             (1)  Indigenous Business Australia must perform its functions and exercise its powers in accordance with any general written directions given to it by the Minister.

             (2)  Subject to subsection (3), the Minister must cause a copy of a direction to be laid before each House of the Parliament within 15 sitting days of that House after the direction was given.

             (3)  Subsection (2) does not apply if the laying of a copy of the direction before each House of the Parliament would result in the disclosure of a matter in a manner that would be inconsistent with the views or sensitivities of Aboriginal persons or Torres Strait Islanders.

111  At the end of paragraph 152(2)(a)

Add “(including contracts for the provision of business or housing loans)”.

112  After paragraph 152(2)(a)

Insert:

                    (aa)  to make grants for purposes associated with business loans or housing loans;

113  After subsection 152(2)

Insert:

          (2A)  Despite any other provision of this Act, in making a housing loan or business loan, or in making a grant, or giving a guarantee in relation to such a loan, Indigenous Business Australia must be satisfied that the making of the grant or loan, or the giving of the guarantee, will further the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders.

          (2B)  A grant or loan made by Indigenous Business Australia is subject to such terms and conditions as Indigenous Business Australia determines.

114  After subsection 153(1)

Insert:

                  (1A)  If Indigenous Business Australia is satisfied that a housing loan or business loan made, or to be made, to any person will further the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders, Indigenous Business Australia may guarantee the due payment of all money (including interest) payable by the person in accordance with the terms and conditions of the loan.

115  Subsection 154(1)

Omit “or the Commission”.

116  Subsection 154(3)

Repeal the subsection.

Note:       The heading to section 154 is altered by omitting “ or Commission ”.

117  Section 156

After “Board”, insert “, subject to any direction from the Minister under section 151,”.

118  Subsection 157(4)

Repeal the subsection.

119  Section 158

Repeal the section, substitute:

158   Selection of Indigenous Business Australia Directors

                   Whenever there is, or is expected to be, a vacancy in an office of Indigenous Business Australia Director, the Minister must consult Indigenous Business Australia about a suitable appointee.

120  Subsection 165(1)

Omit “the Commission and”.

121  Subsection 165(3)

Repeal the subsection.

122  Section 176

Repeal the section.

123  At the end of section 181

Add:

             (2)  In this section:

money held by Indigenous Business Australia does not include:

                     (a)  money held in trust by Indigenous Business Australia; or

                     (b)  money in the New Housing Fund.

124  After section 181

Insert:

181A   New Housing Fund

             (1)  There is established a fund to be known as the New Housing Fund.

             (2)  The New Housing Fund comprises:

                     (a)  the money that stood to the credit of the fund established under section 67 of this Act as in force immediately before 1 July 2004 and that was transferred to Indigenous Business Australia by subitem 191(2) of Schedule 1 to the Aboriginal and Torres Strait Islander Commission Amendment Act 2004 ; and

                     (b)  such amounts as are appropriated to Indigenous Business Australia for the purposes of the New Housing Fund; and

                     (c)  such amounts as are paid to Indigenous Business Australia as repayment of, or otherwise in respect of:

                              (i)  housing loans made by Indigenous Business Australia, or treated, by subitem 198(5) of Schedule 1 to the Aboriginal and Torres Strait Islander Commission Amendment Act 2004 , as having been so made, out of the New Housing Fund; or

                             (ii)  loans made by the Aboriginal Development Commission under section 25 of the Aboriginal Development Commission Act 1980 ; or

                            (iii)  loans made by the Aboriginal Loans Commission under section 25 of the Aboriginal Loans Commission Act 1974 ; and

                     (d)  interest received by Indigenous Business Australia on investment of money from the New Housing Fund; and

                     (e)  such amounts of the money of Indigenous Business Australia as it determines, in writing, to make available to the New Housing Fund; and

                      (f)  such amounts (if any) as are made available by any other person to Indigenous Business Australia for the purposes of the New Housing Fund.

             (3)  The money in the New Housing Fund may only be applied:

                     (a)  in making housing loans to individuals or bodies; or

                     (b)  in making loans to individuals or bodies to enable the individuals or bodies to provide housing for Aboriginal persons or Torres Strait Islanders; or

                     (c)  in making grants of money for the purpose of enabling Aboriginal persons or Torres Strait Islanders to obtain housing loans from lenders operating on a commercial basis.

             (4)  Subsection (3) does not prevent the investment of money under section 18 of the Commonwealth Authorities and Companies Act 1997 .

             (5)  Indigenous Business Australia must prepare budget estimates for the New Housing Fund for each financial year and, if the Minister so directs, for any other period specified by the Minister, and must submit estimates so prepared to the Minister not later than such date as the Minister directs.

             (6)  Money in the New Housing Fund must not be applied otherwise than in accordance with budget estimates approved by the Minister.

181B   Review of decisions to refuse loans from New Housing Fund

                   An application may be made to the Administrative Appeals Tribunal for review of a decision made by Indigenous Business Australia to refuse a housing loan from the New Housing Fund to an individual.

125  At the end of section 183

Add:

             (3)  In this section:

money of Indigenous Business Australia does not include:

                     (a)  money held in trust by Indigenous Business Australia; or

                     (b)  money in the New Housing Fund.

126  At the end of section 185

Add:

             (2)  In this section, the reference to assets of Indigenous Business Australia does not include a reference to:

                     (a)  money held in trust by Indigenous Business Australia; or

                     (b)  money in the New Housing Fund; or

                     (c)  any money owed to Indigenous Business Australia on a housing loan made, or treated as having been made, from the New Housing Fund.

127  At the end of Division 8 of Part 4

Add:

189   Annual report and financial statements

             (1)  In this section:

annual report means the annual report of Indigenous Business Australia prepared under section 9 of the Commonwealth Authorities and Companies Act 1997 .

             (2)  Indigenous Business Australia must include in each annual report particulars of:

                     (a)  any direction given by the Minister under section 151; and

                     (b)  any consultants engaged under section 178;

during the period to which the report relates.

             (3)  Subject to any direction by the Minister responsible for administering the Commonwealth Authorities and Companies Act 1997 , the financial statements included in the annual report must deal with the New Housing Fund separately from the other finances of Indigenous Business Australia.

128  After subsection 191(2)

Insert:

          (2A)  It is a defence to a prosecution for contravening subsection (2), if:

                     (a)  in relation to a prosecution for divulging information to a person or body:

                              (i)  the information relates either to a housing loan or a business loan made, or treated as having been made, by Indigenous Business Australia or to a grant made, or treated as having been made, by Indigenous Business Australia, in relation to a housing loan or a business loan; and

                             (ii)  the information was communicated to a person authorised in writing by the person to whose affairs the document relates to receive the information; or

                     (b)  in relation to a prosecution for producing a document to a person or body:

                              (i)  the document relates either to a housing loan or a business loan made, or treated as having been made, by Indigenous Business Australia or to a grant made, or treated as having been made, by Indigenous Business Australia, in relation to a housing loan or a business loan; and

                             (ii)  the document was produced to a person authorised in writing by the person to whose affairs the document relates to receive the document.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code ).

129  Paragraph 191C(c)

After “this Act”, insert “or any other law of the Commonwealth”.

130  After subsection 191D(1)

Insert:

Grants may be subject to conditions

          (1A)  The grant of an interest in land by the Indigenous Land Corporation may be made subject to such terms and conditions as the Indigenous Land Corporation determines.

131  After section 191E

Insert:

191EA   Indigenous Land Corporation may make money available to Indigenous Business Australia

                   The Indigenous Land Corporation may make payments to Indigenous Business Australia to assist Indigenous Business Australia to carry out its functions.

132  Section 191K

Repeal the section.

133  At the end of section 191L

Add:

             (2)  In performing its functions and exercising its powers in relation to the expenditure, during the period starting on 1 July 2004 and ending on 1 July 2005, of money that, before 1 July 2004, stood to the credit of the Regional Land Fund established under section 68 of this Act as in force before that day, the Indigenous Land Corporation must act in accordance with any general written directions given to it by the Minister.

             (3)  Subject to subsection (4), the Minister must cause a copy of a direction under subsection (2) to be laid before each House of the Parliament within 15 sitting days of that House after the direction was given.

             (4)  Subsection (3) does not apply if the laying of a copy of the direction before each House of the Parliament would result in the disclosure of a matter in a manner that would be inconsistent with the views or sensitivities of Aboriginal persons or Torres Strait Islanders.

134  Subsection 191N(3)

Repeal the subsection, substitute:

             (3)  In performing functions under this section, the Indigenous Land Corporation Board may consult such other persons and bodies as the Board considers appropriate.

135  Paragraph 191V(2)(c)

Repeal the paragraph, substitute:

                     (c)  an ordinary member (whose office may be referred to as the paragraph (c) office);

136  Section 191W

After “Board”, insert “, subject to any direction from the Minister under subsection 191L(2),”.

137  Subsection 191X(1)

Omit “referred to in paragraph 191V(2)(a), (b), (d), (e), (f) or (g)”.

138  Subsection 191X(3)

Omit “the Commission and”.

139  Subsection 191X(4)

Omit “appointed” (wherever occurring).

140  Subsection 191X(5)

Repeal the subsection.

141  Sections 191Z, 192A and 192G

Omit “appointed”.

142  Subsection 192H(1)

Omit “, after consulting the Commission, terminate the appointment of an appointed”, substitute “terminate the appointment of an”.

143  Subsections 192H(2) and (4)

Omit “appointed”.

144  Section 192I

Omit “appointed”.

145  Subsection 192T(1)

Repeal the subsection.

Note:       The heading to section 192T is altered by omitting “ Commission staff or ”.

146  Section 192X

Omit “and the Commission”.

147  Section 193B

Repeal the section.

148  Section 193H

Omit “Commission”, substitute “Secretary of the Department”.

149  At the end of section 193H

Add:

             (2)  Subject to any direction by the Minister responsible for administering the Commonwealth Authorities and Companies Act 1997 , the financial statements relating to the year commencing on 1 July 2004 must deal with expenditure of money that, before that day, stood to the credit of the Regional Land Fund established under section 68 of this Act as in force before that day, separately from the other finances of the Indigenous Land Corporation.

150  After subsection 193I(2)

Insert:

          (2A)  There must also be included in the annual report for the year commencing on 1 July 2004 particulars of any direction given by the Minister under subsection 191L(2).

151  At the end of section 193M

Add:

             (2)  For the purpose of giving any security during the year commencing on 1 July 2004, assets of the Indigenous Land Corporation do not include any money that, before that date, stood to the credit of the Regional Land Fund established under section 68 of this Act as in force before that day.

152  Paragraph 193R(1)(e)

Repeal the paragraph.

153  Sections 193U, 194A and 195

Repeal the sections.

154  Paragraphs 196(1)(a) to (c)

Repeal the paragraphs.

155  Paragraphs 196(1)(f), (fa) and (g)

Omit “Commission”, substitute “Minister”.

156  Paragraph 196(1)(h)

Omit “or the zone election rules”.

157  Subsection 196(2)

Omit “Commission”, substitute “Minister”.

158  Subsection 196(4)

Repeal the subsection.

159  Subsection 199(9)

Omit “, the TSRA election rules or the zone election rules” (wherever occurring), substitute “or the TSRA election rules”.

160  After section 200

Insert:

200A   Secrecy

             (1)  This section applies to a person who:

                     (a)  has been, at any time:

                              (i)  a member of the Aboriginal and Torres Strait Islander Commission (the former Commission ) before the abolition of the Commission on 1 July 2004; or

                             (ii)  a member of a committee that was established by the former Commission to advise it in relation to the performance of its functions; or

                            (iii)  the Chief Executive Officer of the former Commission; or

                            (iv)  a member of the staff of the former Commission; or

                             (v)  engaged as a consultant by the former Commission; or

                            (vi)  a member of the body known as the Torres Strait Islander Advisory Board; or

                     (b)  is or has been:

                              (i)  the Director of Evaluation and Audit; or

                             (ii)  a Regional Councillor; or

                            (iii)  a member of an advisory committee established under section 96; or

                            (iv)  an Administrator; or

                             (v)  a member of the TSRA; or

                            (vi)  a member of an advisory committee established under section 142M; or

                           (vii)  the TSRA General Manager; or

                          (viii)  a member of the staff of the TSRA; or

                            (ix)  engaged as a consultant under section 144T; or

                             (x)  a TSRA Administrator.

             (2)  Subject to this section, a person to whom this section applies must not, either directly or indirectly, except for the purposes of this Act, or of a prosecution for an offence against this Act:

                     (a)  make a record of, or divulge or communicate to any person, any information concerning the affairs of another person acquired by the first-mentioned person in the performance of duties in connection with an application for, or the giving of, a loan, grant or guarantee under this Act; or

                     (b)  produce to any person a document relating to the affairs of another person furnished in connection with an application for, or the giving of, a loan, grant or guarantee under this Act.

Penalty:  Imprisonment for one year.

             (3)  It is a defence to a prosecution for contravening subsection (2), if:

                     (a)  in relation to a prosecution for divulging information to a person or body—the information was communicated to a person authorised in writing by the person to whose affairs the document relates to receive the information; or

                     (b)  in relation to a prosecution for producing a document to a person or body—the document was produced to a person authorised in writing by the person to whose affairs the document relates to receive the document.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).

             (4)  A person to whom this section applies must not be required:

                     (a)  to divulge or communicate to a court any information referred to in subsection (2); or

                     (b)  to produce in a court any document referred to in that subsection;

except when it is necessary to do so for the purposes of this Act, or of a prosecution for an offence against this Act.

             (5)  A reference in this section to an offence against this Act includes a reference to:

                     (a)  an offence relating to this Act against section 6 of the Crimes Act 1914 ; or

                     (b)  an offence against section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code .

             (6)  In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

this Act includes the regulations.

200B   Delegations

             (1)  Subject to subsection (2) the Minister may, by written instrument, delegate to:

                     (a)  the Secretary of the Department; or

                     (b)  an SES employee or acting SES employee;

all or any of the powers or functions conferred on the Minister under this Act.

             (2)  Subsection (1) does not apply to:

                     (a)  the power to make declarations under section 121; or

                     (b)  the power to remove Regional Councillors and appoint administrators under section 123A; or

                     (c)  the power to give directions to Indigenous Business Australia under section 151; or

                     (d)  the power to give directions to the Indigenous Land Corporation under section 191L.

Note 1:       The expressions SES employee and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901 .

Note 2:       See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

161  Subsection 201(1)

Omit “, the TSRA election rules or the zone election rules”, substitute “or the TSRA election rules”.

162  Paragraph 201(2)(a)

Repeal the paragraph.

163  Paragraph 201(2)(c)

Repeal the paragraph, substitute:

                     (c)  make provision in relation to requests under subsection 195A(1) and the reconsideration of matters under subsection 195A(2);

164  Section 202 (definition of authorised officer )

Omit “new Commission”, substitute “successor Commission”.

165  Section 202 (definition of new Commission )

Repeal the definition.

166  Section 202

Insert:

successor Commission means the Aboriginal and Torres Strait Islander Commission.

167  Section 202

Insert:

transfer day means 1 July 2004.

168  Sections 204 and 205

Repeal the sections.

169  Subsection 206(1)

Omit “to the new Commission or to Indigenous Business Australia”, substitute “to Indigenous Business Australia or to the Indigenous Land Corporation”.

170  Subsections 206(2), (3) and (4)

Omit “of the new Commission or of Indigenous Business Australia”, substitute “of Indigenous Business Australia or of the Indigenous Land Corporation”.

171  Subsection 206(5)

Repeal the subsection, substitute:

             (5)  Liabilities of the Commonwealth that have become liabilities of Indigenous Business Australia or of the Indigenous Land Corporation because of subsection (4) are, after the commencement, taken to be liabilities incurred by Indigenous Business Australia or by the Indigenous Land Corporation, as the case requires, in the performance of its functions and the exercise of its powers.

172  Sections 207, 209 and 210

Repeal the sections.

173  Paragraphs 211(2)(a), (b) and (c)

Repeal the paragraphs, substitute:

                     (a)  in the case of an instrument relating to an asset or liability that has, because of section 208 of this Act as in force before 17 April 2001, or because of section 210 of this Act as in force before the transfer day, become an asset or liability of the body previously known as the Aboriginal and Torres Strait Islander Commercial Development Corporation and now known as Indigenous Business Australia—Indigenous Business Australia; or

                     (b)  in the case of an instrument relating to a liability that has, because of a declaration under subsection 209(1) of this Act as in force before the transfer day, become a liability of the Commonwealth—the Commonwealth; or

                     (c)  in any other case—the successor Commission.

174  Sections 212, 213 and 214

Repeal the sections.

175  Paragraphs 215(1)(a), (b) and (c)

Repeal the paragraphs, substitute:

                     (a)  an asset or liability specified or described in the certificate became, because of section 207 of this Act as in force before the transfer day, an asset or liability of the successor Commission; or

                     (b)  an asset or liability specified or described in the certificate became, because of section 208 of this Act as in force before 17 April 2001, an asset or liability of the body previously known as the Aboriginal and Torres Strait Islander Commercial Development Corporation and now known as Indigenous Business Australia; or

                     (c)  an instrument specified or described in the certificate is an old Commission instrument for the purposes of section 211 of this Act as in force before the transfer day.

176  Sections 217 and 218

Repeal the sections.

177  Subsection 220(1)

Omit “new” (wherever occurring), substitute “successor”.

178  Section 221

Repeal the section.

179  Schedule 1

Repeal the Schedule, substitute:

Schedule 1 List of places for inclusion in regions whose boundaries are determined by the Minister

Note:       See subsection 91(1)

   

   

Places included in regions

Adelaide

Alice Springs

Apatula

Ballarat

Bourke

Brisbane

Broome

Cairns

Ceduna

Coffs Harbour

Cooktown

Darwin

Derby

Geraldton

Hobart

Jabiru

Kalgoorlie

Katherine

Kununurra

Mt Isa

Narrogin

Nhulunbuy

Perth

Port Augusta

Queanbeyan

Rockhampton

Roma

South Hedland

Sydney

Tamworth

Tennant Creek

Townsville

Wagga Wagga

Wangaratta

Warburton

180  Schedule 3

Repeal the Schedule.

181  Subclause 1(1) of Schedule 4 (definition of election )

Omit “, a TSRA election or a zone election”, substitute “or a TSRA election”.

182  Subclause 1(1) of Schedule 4 (definition of illegal practice )

Omit “, the TSRA election rules or the zone election rules”, substitute “or the TSRA election rules”.

183  Subclause 1(2) of Schedule 4

Omit “, the TSRA election rules or the zone election rules”, substitute “or the TSRA election rules”.

184  Subclause 3A(3) of Schedule 4 (paragraph (b) of the definition of general election )

Repeal the paragraph.

185  Paragraph 15(b) of Schedule 4

Omit “, the TSRA election rules and the zone election rules”, substitute “and the TSRA election rules”.

186  Paragraph 22(b) of Schedule 4

Repeal the paragraph.

Note:       The heading to clause 22 of Schedule 4 is altered by omitting “ Commission, ”.

187  Subclause 27(2) of Schedule 4

Repeal the subclause.

188  Subclause 27(3) of Schedule 4

Omit “by the Commission or”.

189  Subclause 28(1) of Schedule 4

Omit “, the TSRA election rules and the zone election rules,”, substitute “and the TSRA election rules”.



 

Part 3 Transitional and saving arrangements relating to Aboriginal and Torres Strait Islander Commission

190  Transitional arrangements—Interpretation

(1)       In this Part, unless the contrary intention appears:

assets means property of every kind and, without limiting the generality of the foregoing, includes:

                     (a)  choses in action; and

                     (b)  rights, interests and claims of every kind in or to property, whether arising under an instrument or otherwise, and whether legal or equitable, liquidated or unliquidated, certain or contingent, accrued or accruing.

ATSIC Act means the Aboriginal and Torres Strait Islander Commission Act 1989 .

authorised officer means the Minister, the Secretary of the Department or any other person authorised by the Minister for the purposes of this Part.

business loan instrument means an instrument subsisting immediately before the transfer day under which:

                     (a)  the Commonwealth makes a business loan, or makes a grant relating to a business loan, under a business loans program; or

                     (b)  the Commonwealth takes a security, or gives a guarantee, in respect of a business loan, under a business loans program; or

                     (c)  the Commonwealth protects its interest in such a business loan or grant or in respect of such a security or guarantee.

business loans program means a program of expenditure (other than expenditure under Part 2 of the ATSIC Act) that is declared by the Minister, by notice in writing, to be a business loans program.

class A exempted asset has the meaning given by item 191.

class A exempted instrument has the meaning given by item 192.

class A exempted liability has the meaning given by item 191.

class B exempted asset has the meaning given by item 191.

class B exempted instrument has the meaning given by item 192.

class B exempted liability has the meaning given by item 191.

Commission means the Aboriginal and Torres Strait Islander Commission that was established under section 6 of the ATSIC Act.

Commissioner means a member of the Commission.

Commission instrument means an instrument subsisting immediately before the transfer day:

                     (a)  to which the Commission or a Commission predecessor was a party; or

                     (b)  that was given to, or in favour of, the Commission or a Commission predecessor; or

                     (c)  in which a reference is made to the Commission or a Commission predecessor; or

                     (d)  under which money is or was, or may become or may have become, payable to the Commission or a Commission predecessor; or

                     (e)  under which any other property is or was to be, or may become liable to be or to have been, transferred to or by the Commission or a Commission predecessor.

Commission predecessor means:

                     (a)  the Aboriginal Loans Commission established by section 6 of the Aboriginal Loans Commission Act 1974 ; or

                     (b)  the Department of Aboriginal Affairs, the Minister for Aboriginal Affairs or any officer of that Department; or

                     (c)  the Aboriginal Development Commission.

Housing Fund means the fund of that name that was established under section 67 of the ATSIC Act.

liabilities means liabilities of every kind and, without limiting the generality of the foregoing, includes obligations of every kind, whether arising at law or in equity, whether arising under or by virtue of an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing.

Regional Land Fund means the fund of that name that was established under section 68 of the ATSIC Act.

Secretary means the Secretary of the Department.

transfer day means 1 July 2004.

(2)       In this Part, a reference to a grant that is declared to be a class A exempted asset is taken to include a reference to a right in relation to such a grant that is so declared.

191  Transfer of assets and liabilities

(1)       On the transfer day:

                     (a)  any assets, other than class A or class B exempted assets, that, immediately before that day, were vested in the Commission are, by force of this item, vested in the Commonwealth; and

                     (b)  the Commonwealth becomes, by force of this item, liable to pay and discharge liabilities of the Commission, other than class A or class B exempted liabilities, that existed immediately before that day.

(2)       On the transfer day:

                     (a)  any assets comprising:

                              (i)  class A exempted assets, that, immediately before that day, were vested in the Commission; or

                             (ii)  the interest of the Commonwealth in any grant or loan made under a business loans program or in any security taken under such a program in respect of a business loan;

                            are, by force of this item, vested in Indigenous Business Australia; and

                     (b)  so far as those assets are class A exempted assets comprising money standing to the credit of the Housing Fund—that money becomes money of the New Housing Fund; and

                     (c)  Indigenous Business Australia becomes, by force of this item, liable to pay and discharge the class A exempted liabilities of the Commission that existed immediately before that day; and

                     (d)  Indigenous Business Australia becomes, by force of this item, liable to pay and discharge liabilities of the Commonwealth that existed immediately before that day in relation to grants or loans made under a business loans program or in relation to any security taken or guarantee given under such a program.

(3)       On the transfer day:

                     (a)  any class B exempted assets that, immediately before that day, were vested in the Commission:

                              (i)  are, by force of this item, vested in the Indigenous Land Corporation; and

                             (ii)  so far as those class B exempted assets comprised money standing to the credit of the Regional Land Fund—may be used by the Indigenous Land Corporation only as permitted in accordance with item 193 of this Act; and

                     (b)  the Indigenous Land Corporation becomes, by force of this item, liable to pay and discharge the class B exempted liabilities of the Commission that existed immediately before that day.

(4)       If an asset that has become an asset of the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation by force of subitem (1), (2) or (3) was, immediately before the transfer day, held by the Commission on trust, that asset is taken, on and after the transfer day, to be held by the body to which it is transferred on trust and subject to the terms of the trust on which the asset was so held by the Commission.

(5)       In this item:

class A exempted asset means:

                     (a)  the money standing to the credit of the Housing Fund immediately before the transfer day; or

                     (b)  any housing loan or business loan made by, or vested in, the Commission that is declared by the Minister, by notice in writing, to be a class A exempted asset; or

                     (c)  any other asset of the Commission that is declared by the Minister, by notice in writing, to be a class A exempted asset.

class A exempted liability means any liability of the Commission that is declared by the Minister, by notice in writing, to be a class A exempted liability.

class B exempted asset means:

                     (a)  the money standing to the credit of the Regional Land Fund immediately before the transfer day; or

                     (b)  any other asset of the Commission that is declared by the Minister, by notice in writing, to be a class B exempted asset.

class B exempted liability means any liability of the Commission that is declared by the Minister, by notice in writing, to be a class B exempted liability.

(6)       A notice that:

                     (a)  declares assets to be class A or class B exempted assets; or

                     (b)  declares liabilities to be class A or class B exempted liabilities;

may identify those assets or liabilities by class or in any other manner.

192  Commission instruments

(1)       A Commission instrument (other than a class A or class B exempted instrument) in force immediately before the transfer day has effect on and after that day, in relation to everything occurring on or after that day, as if a reference in the instrument to the Commission or to a Commission predecessor were a reference to the Commonwealth.

(2)       A class A exempted instrument in force immediately before the transfer day has effect on and after that day, in relation to everything occurring on or after that day, as if a reference in the instrument to the Commission or to a Commission predecessor were a reference to Indigenous Business Australia.

(3)       A business loan instrument, in force immediately before the transfer day, has effect on and after that day, in relation to everything occurring on or after that day, as if a reference in the instrument to the Commonwealth were a reference to Indigenous Business Australia.

(4)       A class B exempted instrument, in force immediately before the transfer day, has effect on and after that day, in relation to everything occurring on or after that day, as if a reference in the instrument to the Commission or to a Commission predecessor, were a reference to the Indigenous Land Corporation.

(5)       In this item:

class A exempted instrument means any Commission instrument that is declared by the Minister, by notice in writing, to be a class A exempted instrument.

class B exempted instrument means any Commission instrument that is declared by the Minister, by notice in writing, to be a class B exempted instrument.

(6)       A notice that declares Commission instruments to be class A or class B exempted instruments may identify those instruments by class or in any other manner.

193  Constraints on expenditure of money transferred from Regional Land Fund

(1)       If class B exempted assets that are vested in the Indigenous Land Corporation comprise money that stood to the credit of the Regional Land Fund immediately before the transfer day, that money may only be used by the Indigenous Land Corporation:

                     (a)  during the period starting on that day and ending on 30 June 2005—if the money is applied:

                              (i)  to make a grant to a person or body on condition that the grant money is spent in acquiring an interest in land and that acquisition has been proposed by a Regional Council; or

                             (ii)  to acquire an interest in land for the purpose of transferring that interest to a person or body, where that acquisition has been proposed by a Regional Council;

                            and the grant so made or the transfer for which the interest in land was acquired will further the social, economic and cultural development of Aboriginal persons or Torres Strait Islanders; and

                     (b)  on and after 1 July 2005—in performing any function conferred on the Indigenous Land Corporation by the Aboriginal and Torres Strait Islander Act 2004 .

(2)       Any interest in land acquired by the Indigenous Land Corporation for the purpose referred to in subparagraph (1)(a)(ii) must be transferred to a person or body in accordance with that purpose.

194  Pending proceedings

(1)       If, immediately before the transfer day, proceedings to which the Commission was a party, other than proceedings relating to:

                     (a)  a class A or class B exempted asset; or

                     (b)  a class A or class B exempted liability; or

                     (c)  a class A or class B exempted instrument; or

                     (d)  a loan or grant made, a security taken, or a guarantee given, under a business loans program;

were pending in any court or tribunal, the Commonwealth is, on and after the transfer day and despite the provisions of any other law or instrument, substituted for the Commission as a party to the proceedings and has the same rights in the proceedings as the Commission had.

(2)       If, immediately before the transfer day, proceedings to which the Commission was a party and that relate to:

                     (a)  a class A exempted asset; or

                     (b)  a class A exempted liability; or

                     (c)  a class A exempted instrument;

were pending in any court or tribunal, Indigenous Business Australia is, on and after the transfer day and despite the provisions of any other law or instrument, substituted for the Commission as a party to the proceedings and has the same rights in the proceedings as the Commission had.

(3)       If, immediately before the transfer day, proceedings to which the Commonwealth was a party and that relate to a loan or grant made, a security taken, or a guarantee given, under a business loans program were pending in any court or tribunal, Indigenous Business Australia is, on and after the transfer day and despite the provisions of any other law or instrument, substituted for the Commonwealth as a party to the proceedings and has the same rights in the proceedings as the Commonwealth had.

(4)       If, immediately before the transfer day, proceedings to which the Commission was a party and that relate to:

                     (a)  a class B exempted asset; or

                     (b)  a class B exempted liability; or

                     (c)  a class B exempted instrument;

were pending in any court or tribunal, the Indigenous Land Corporation is, on and after the transfer day and despite the provisions of any other law or instrument, substituted for the Commission as a party to the proceedings and has the same rights in the proceedings as the Commission had.

195  Final report and financial statements for Commission

(1)       The Secretary must, as soon as practicable after the transfer day, prepare and give to the Minister:

                     (a)  a report on the operations of the Commission during the period (in this section called the closure period ) commencing on 1 July 2003 and ending immediately before the transfer day; and

                     (b)  financial statements that relate to the Commission during that period in such form as the Minister administering the Commonwealth Authorities and Companies Act 1997 approves.

(2)       The report prepared by the Secretary in accordance with paragraph (1)(a):

                     (a)  must include particulars of any directions given to the Commission during the closure period under section 12 of the ATSIC Act; and

                     (b)  must not disclose any matters known to the Secretary to be held sacred by Aboriginal persons or Torres Strait Islanders or by any particular community or group of Aboriginal persons or Torres Strait Islanders.

(3)       Subject to any direction by the Minister administering the Commonwealth Authorities and Companies Act 1997 , the financial statements prepared by the Secretary under paragraph (1)(b) must deal with the Housing Fund and the Regional Land Fund separately from each other and from the other finances of the Commission, and must:

                     (a)  in the case of the Housing Fund—properly reflect the state of the Fund immediately before the transfer day; and

                     (b)  in the case of the Regional Land Fund—properly reflect the state of the Fund immediately before the transfer day.

(4)       Before giving financial statements to the Minister under subitem (1), the Secretary must give them to the Auditor-General, who must report to the Minister:

                     (a)  whether, in the Auditor-General’s opinion, the statements are based on proper accounts and records; and

                     (b)  whether the statements are in agreement with the accounts and records and, in the Auditor-General’s opinion, show fairly the financial transactions and state of affairs of the Commission; and

                     (c)  whether, in the Auditor-General’s opinion, the receipt, expenditure and investment of money, and the acquisition and disposal of assets by the Commission during the closure period were in accordance with the ATSIC Act; and

                     (d)  such other matters arising out of the statements as the Auditor-General considers should be reported to the Minister.

(5)       The Secretary and the Auditor-General may, in discharging their obligations under this item, rely on accounts and records of the Commission that are in the possession of the Commonwealth or to which the Secretary is allowed access, and on any other information provided to a person who was a member of the Commission or who was a member of the staff of the Commission.

(6)       The Minister must cause copies of the reports and financial reports, together with a copy of the report to the Auditor-General, to be laid before each House of the Parliament within 15 sittings days of that House after the receipt by the Minister.

196  Certificates relating to assets, liabilities and instruments

(1)       An authorised officer may certify, in writing, that:

                     (a)  an asset or liability specified in the certificate becomes or became, because of item 191 of this Schedule, an asset or liability of the Commonwealth, of Indigenous Business Australia or of the Indigenous land Corporation; or

                     (b)  an instrument specified in the certificate is a Commission instrument; or

                     (c)  an instrument specified in the certificate is a class A or class B exempted instrument; or

                     (d)  an instrument specified in the certificate is a business loan instrument.

(2)       The certificate is, in all courts and for all purposes, prima facie evidence of the matter stated in the certificate.

(3)       If:

                     (a)  under item 191 of this Part, an estate or interest in land becomes an asset of the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation; and

                     (b)  a certificate under subitem (1) to that effect is lodged with the Registrar-General, Registrar of Titles or other proper officer of the State or Territory in which the land is situated;

the officer with whom the certificate is lodged may deal with and give effect to the certificate as if it were a grant, conveyance, memorandum or instrument of transfer of the estate or interest to the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation, as the case may be, duly executed under the laws in force in that state or Territory.

(4)       If a document purports to be a certificate under subitem (1) or (3) signed by a person purporting to be an authorised officer, judicial notice must be taken of the signature of the person and of the fact that the person is or was an authorised officer.

197  Exemption from taxation

            Any transfer or other dealing under this Part, and any instrument facilitating or evidencing such a transfer or other dealing, is not subject to stamp duty or other tax under a law of the Commonwealth or of a State or Territory if an authorised officer certifies, in writing:

                     (a)  that the transfer or dealing is a transfer or dealing for a purpose connected with, or arising out of, the operation of this Part; or

                     (b)  that the instrument facilitating or evidencing a transfer or dealing is an instrument made or given because of, or for a purpose connected with, or arising out of, the operation of this Part.

198  Repayment of grants and loans

(1)       If, before the transfer day, the Commission had made a grant to a person or body under Part 2 of the ATSIC Act (other than a grant that is, on the transfer day, declared to be a class A exempted asset or a class B exempted asset) on particular terms and conditions:

                     (a)  the Commonwealth is treated, on and after that day, as if it had made the grant on the same terms and conditions; and

                     (b)  if the Minister is satisfied that the person or body has failed to fulfil such a term or condition—the Minister may, on behalf of the Commonwealth, give notice to the person or body receiving the grant that the Minister is so satisfied; and

                     (c)  if the Commission had, before the transfer day, given a notice under section 20 of the ATSIC Act to the effect that the Commission was satisfied that the person or body receiving the grant had failed to fulfil a term or condition of the grant—that notice has effect, on and after the transfer day, as if it had been given by the Minister under paragraph (b).

(2)       A person or body to whom a notice is given, or treated as having been given, by the Commonwealth under subitem (1) is liable to pay to the Commonwealth, immediately, an amount equal to:

                     (a)  the amount of the grant; or

                     (b)  so much of the amount of the grant as was specified in the notice.

(3)       If, before the transfer day, the Commission had made a loan to a person or body under Part 2 of the ATSIC Act (other than a loan that is, on the transfer day, declared to be a class A exempted asset) on particular terms and conditions:

                     (a)  the Commonwealth is treated, on and after that day, as if it had made the loan on the same terms and conditions; and

                     (b)  if the Minister is satisfied that the person or body has failed to fulfil such a term or condition—the Minister may, on behalf of the Commonwealth, give notice to the person or body receiving the loan that the Minister is so satisfied; and

                     (c)  if the Commission had, before the transfer day, given a notice under section 20 of the ATSIC Act to the effect that the Commission was satisfied that the person or body receiving the loan had failed to fulfil a term or condition of the loan—that notice has effect, on and after the transfer day, as if it had been given by the Minister under paragraph (b).

(4)       A person or body to whom a notice is given, or treated as having been given, by the Commonwealth under subitem (3) is liable to pay to the Commonwealth, immediately, an amount equal to the sum of:

                     (a)  so much of the amount of the loan as has not yet been repaid; and

                     (b)  any accrued interest that has not been paid;

or so much of that amount as was specified in the notice.

(5)       If:

                     (a)  the Commission had, before the transfer day, made a grant or loan under Part 2 of the ATSIC Act to a person or body on particular terms and conditions; and

                     (b)  on the transfer day the grant or loan is declared to be a class A exempted asset;

then:

                     (c)  Indigenous Business Australia is to be treated, on and after that day, as if it had made the grant or loan on the same terms and conditions, and, in the case of a housing loan, as if it had made the loan from the New Housing Fund; and

                     (d)  if Indigenous Business Australia is satisfied that the person or body has failed to fulfil such a term or condition—Indigenous Business Australia may give notice to the person or body receiving the grant or loan that it is so satisfied; and

                     (e)  if the Commission had, before the transfer day, given a notice under section 20 of the ATSIC Act to the effect that the Commission was satisfied that the person or body receiving the grant or loan had failed to fulfil a term or condition of the grant or loan—that notice has effect, on and after the transfer day, as if it had been given by Indigenous Business Australia under paragraph (d) of this item.

(6)       A person or body to whom a notice is given, or treated as having been given, by Indigenous Business Australia under subitem (5) is liable to pay to Indigenous Business Australia, immediately, an amount equal to the sum of:

                     (a)  in the case of a grant:

                              (i)  the amount of the grant; or

                             (ii)  so much of the amount of the grant as was specified in the notice; and

                     (b)  in the case of a loan:

                              (i)  so much of the amount of the loan as has not yet been repaid; and

                             (ii)  any accrued interest that has not been paid;

                            or so much of that amount as was specified in the notice.

(7)       If:

                     (a)  before the transfer day, the Commission had made a grant under section 14 of the ATSIC Act to a person or body from the Regional Land Fund on particular terms and conditions; and

                     (b)  on the transfer day the grant is declared to be a class B exempted asset;

then:

                     (c)  the Indigenous Land Corporation is treated, on and after that day, as if it had made the grant on the same terms and conditions; and

                     (d)  if the Indigenous Land Corporation is satisfied that the person or body has failed to fulfil such a term or condition—the Corporation may give notice to the person or body receiving the grant that the Corporation is so satisfied; and

                     (e)  if the Commission had, before the transfer day, given a notice under section 20 of the ATSIC Act to the effect that the Commission was satisfied that the person or body receiving the grant had failed to fulfil a term or condition of the grant—that notice has effect, on and after the transfer day, as if it had been given by the Indigenous Land Corporation under paragraph (d).

(8)       A person or body to whom a notice is given, or treated as having been given, by the Indigenous Land Corporation under subitem (7) is liable to pay to the Corporation, immediately, an amount equal to:

                     (a)  the amount of the grant; or

                     (b)  so much of the amount of the grant as was specified in the notice.

(9)       This item does not affect the availability to the Commonwealth, to Indigenous Business Australia or to the Indigenous Land Corporation, of any legal or equitable remedy for a failure to fulfil a term or condition of a grant or loan that was made by the Commission before the transfer day under Part 2 of the ATSIC Act.

199  Restrictions on right to dispose of certain property

(1)       This item applies if an individual or body has acquired an interest in land and any of the following applies:

                     (a)  the interest was acquired using money granted to the individual or body by the Commission before the transfer day under paragraph 14(1)(a) of the ATSIC Act;

                     (b)  the interest was acquired from the Commission before the transfer day under paragraph 14(1)(b) of the ATSIC Act;

                     (c)  the acquisition of the interest was financed by a loan that was guaranteed by the Commission before the transfer day under section 15 of the ATSIC Act.

(2)       The individual or body must not dispose of the interest without the appropriate consenting authority giving written consent to that disposal.

(3)       The consent must specify the disposal it covers by identifying the person or class of persons to whom the interest is to be disposed of.

(4)       Subitem (3) does not prevent a consent from further specifying a particular disposal in other ways.

(5)       A purported disposal of the interest by the individual or body has no effect unless it is covered by the consent.

(6)       The appropriate consenting authority may attach a condition to a consent by specifying the condition in the document setting out the consent.

(7)       Contravention of a condition does not affect the disposal of the interest by the individual or body.

(8)       The appropriate consenting authority may give the individual or body written notice requiring the individual or body to pay to the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation, as the case requires, the amount specified in the notice if:

                     (a)  the interest disposed of was acquired by the individual or body either:

                              (i)  using money granted by the Commission to the individual or body under paragraph 14(1)(a) of the ATSIC Act; or

                             (ii)  by way of a grant of that interest in land from the Commission under paragraph 14(1)(b) of that Act; and

                     (b)  the condition attached to the consent to the disposal of that interest was that some or all of the proceeds of the disposal be applied for a purpose specified by the appropriate consenting authority; and

                     (c)  the appropriate consenting authority is satisfied that the condition was not complied with.

(9)       The appropriate consenting authority must not specify in a notice under subitem (8) an amount greater than the amount of the grant made to the individual or body under paragraph 14(1)(a) or (b) of the ATSIC Act.

(10)     An individual or body that is given a notice is liable to pay to the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation, as the case requires, the amount specified in the notice.

(11)     Subitems (8), (9) and (10) do not affect the availability to the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation, of any legal or equitable remedy for contravention of a condition attached to the consent.

(12)     In this item:

appropriate consenting authority means:

                     (a)  unless paragraph (b) or (c) applies—the Secretary; and

                     (b)  if the interest in land to which the consent relates:

                              (i)  was acquired using money made available to the individual or body by means of a grant made by the Commission before the transfer day under section 14 of the ATSIC Act and the grant is declared to be a class A exempted asset; or

                             (ii)  was acquired using money made available to the individual or body by means of a loan that was guaranteed by the Commission before the transfer day under section 15 of the ATSIC Act and the guarantee is declared to be a class A exempted liability;

                            Indigenous Business Australia; and

                     (c)  if the interest in land to which the consent relates:

                              (i)  was acquired using money made available to the individual or body by means of a grant made by the Commission before the transfer day under paragraph 14(1)(a) of the ATSIC Act from the Regional Land Fund; or

                             (ii)  was granted to the individual or body by the Commission before the transfer day after the Commission acquired the interest using money from the Regional Land Fund; or

                            (iii)  was acquired using money made available to the individual or body by means of a loan that was guaranteed by the Commission before the transfer day under section 15 of the ATSIC Act and the guarantee is declared to be a class B exempted liability;

                            the Indigenous Land Corporation.

200  Liabilities taken to be interests in land

(1)       Any liability of an individual, a body corporate or an unincorporated body to the Commission (other than a liability arising under subitem (2) or (3)) arising:

                     (a)  under the terms and conditions of a grant or loan referred to in subsection 14(2) of the ATSIC Act; or

                     (b)  under section 20 or 21 of the ATSIC Act in relation to such a grant or loan;

is taken, on and after the transfer day, to be an interest of the Commonwealth in the land to which it relates.

(2)       Any liability 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) of the ATSIC Act that is, on the transfer day, declared to be a class A exempted asset; or

                     (b)  under section 20 or 21 of the ATSIC Act in relation to such a grant or loan;

is taken, on and after the transfer day, to be an interest of Indigenous Business Australia in the land to which it relates.

(3)       Any liability of an individual, a body corporate or an unincorporated body to the Commission arising:

                     (a)  under the terms and conditions of a grant referred to in subsection 14(2) of the ATSIC Act that is, on the transfer day, declared to be a class B exempted asset; or

                     (b)  under section 20 or 21 of the ATSIC Act in relation to such a grant;

is taken, on and after the transfer day, to be an interest of the Indigenous Land Corporation in the land to which it relates.

(4)       Any liability of an individual, a body corporate or an unincorporated body to the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation arising under item 198 or 199 of this Schedule is taken to be an interest of the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation in the land to which the liability relates.

(5)       The land is charged with a payment of all costs and expenses incurred by the Commission, the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation in respect of its enforcement of the liability.

(6)       The land referred to in subitem (1), (2), (3) or (4) is taken, for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976 to be alienated Crown land in which all estates or interests not held by the Crown are held on behalf of Aboriginals.

(7)       This item does not apply to a liability arising under subsection 21(10) of the ATSIC Act or under subitem 199(10) of this Schedule.

201  Preservation of model rules

Despite the repeal of subsection 128(12) of the ATSIC Act, the model rules formulated by the Commission under that subsection and in force immediately before the transfer day have effect, on and after that day, as if they were model rules formulated by the Registrar of Aboriginal Corporations under subsection 128(12) of the Aboriginal and Torres Strait Islander Act 2004 .

202  Transitional provision—Suspension of Regional Councillors before transfer day

If, before the transfer day:

                     (a)  the Commission had suspended a Regional Councillor under section 122A of the ATSIC Act; and

                     (b)  the Commission had caused a statement in relation to that suspension to be laid before each House of the Parliament in accordance with the requirements of that section; and

                     (c)  neither House of the Parliament had, before that day, passed a resolution declaring that the Regional Councillor ought to be restored to office; and

                     (d)  the period within which such a resolution could be passed had not, as at the transfer day, finally elapsed;

section 123A of the ATSIC Act as amended by this Act applies, on and after the transfer day, in relation to that suspension as if:

                     (e)  that section as so amended had been in force at the time when the Regional Councillor had been suspended; and

                      (f)  the actions of the Commission before the transfer day had been actions of the Minister.

203  Transitional provision—Petitions for suspension of Regional Council received by the Commission

If:

                     (a)  at any time within the period of 6 months before the transfer day, the Commission had received a petition under section 123 of the ATSIC Act calling for the suspension of a Regional Council; and

                     (b)  the Commission had not, by notice published in the Gazette , taken action to remove the members of the Regional Council from office or to appoint an administrator to administer the affairs of the Regional Council;

then section 123 of the ATSIC Act as amended by this Act has effect, on and after the transfer day, as if:

                     (c)  that section as so amended had been in force at the time when the Commission had received the petition; and

                     (d)  the petition received by the Commission had been received by the Minister.

204  Former Commissioners on Board of Directors of Indigenous Business Australia or on Board of Indigenous Land Corporation

(1)       A person who was a Commissioner at any time on or after 14 April 2004 and who is, immediately before the transfer day, a member of the Board of Directors of Indigenous Business Australia, ceases on the transfer day, by force of this subitem, to hold office as such a member.

(2)       A person who was a Commissioner at any time on or after 14 April 2004 and who is, immediately before the transfer day, a member of the Board of the Indigenous Land Corporation, ceases on the transfer day, by force of this subitem, to hold office as such a member.

205  Saving provision—Rights of internal review of decisions made before transfer day

(1)       If, before the transfer day, an agent or delegate of the Commission had refused to make a housing loan under section 14 of the ATSIC Act from the Housing Fund:

                     (a)  that refusal is to be treated, on and after that day, as a refusal to make that loan by a delegate of Indigenous Business Australia; and

                     (b)  the notice of that refusal given by the agent or delegate of the Commission is to be treated as if it were a notice given by a delegate of Indigenous Business Australia; and

                     (c)  the person or body refused that loan may, within 30 days after being notified of the refusal, request that Indigenous Business Australia reconsider that refusal.

(2)       If a request is made in the circumstances set out in subitem (1), Indigenous Business Australia must reconsider the refusal and decide whether to make the loan.

(3)       If, before the transfer day:

                     (a)  an agent or delegate of the Commission refused to make a housing loan to a person or body under section 14 of the ATSIC Act from the Housing Fund; and

                     (b)  that person or body had requested the Commission to reconsider the refusal; and

                     (c)  that reconsideration had not been completed;

Indigenous Business Australia must reconsider the refusal and decide whether to make the loan.

206  Saving provision—Rights of review of decisions made before transfer day

(1)       For the purpose of this item, and without limiting the effect of item 192 of this Schedule, each decision of a kind referred to in section 196 of the ATSIC Act that was made by the Aboriginal and Torres Strait Islander Commission before the transfer day has effect, on and after that day:

                     (a)  unless paragraph (b) or (c) applies—as a decision of the Commonwealth; and

                     (b)  if the decision related to a grant or loan that is, on the transfer day, declared to be a class A exempted asset, or to a guarantee in respect of a loan that is so declared—as a decision of Indigenous Business Australia; and

                     (c)  if the decision related to a grant that is, on the transfer day, declared to be a class B exempted asset—as a decision of the Indigenous Land Corporation.

(2)       Despite the amendment of section 196 of the ATSIC Act, that section continues in force, on and after the transfer day, for the purpose of enabling persons or bodies to seek review of decisions referred to in that section that were made before that day as if:

                     (a)  the amendments made by those items had not been made; and

                     (b)  each reference in that section, as so continued in force, to a decision of the Commission were a reference to a like decision made by the Commonwealth, Indigenous Business Australia or the Indigenous Land Corporation, as the case requires.

207  Rights of review of certain repayment decisions made on or after transfer day

(1)       An application may be made on or after the transfer day to the Administrative Appeals Tribunal for a review of:

                     (a)  a decision to give notice to a person or body that is made by the Minister on or after that day under subitem 198(1) or (3); or

                     (b)  a decision to give notice to a person or body that is made by Indigenous Business Australia on or after that day under subitem 198(5); or

                     (c)  a decision to give notice to a person or body that is made by the Indigenous Land Corporation on or after that day under subitem 198(7).

(2)       In this item:

decision made by the Minister means:

                     (a)  a decision made by the Minister; or

                     (b)  a decision made by a delegate of the Minister on a reconsideration of a decision made by another delegate of the Minister.

208  Offences in relation to guarantees given by Commission before transfer day

A person must not, in or in connection with a claim under a guarantee given by the Commission under Part 2 of the ATSIC Act, make a statement that the person knows to be false or misleading in a material particular or present a document that, to the person’s knowledge, contains information that is false or misleading in a material particular.

Penalty:  Imprisonment for 5 years or 100 penalty units.

209  Transitional provision—Notices under section 124H or 124J of ATSIC Act

Any notice published by the Commission in the Gazette under section 124H or 124J of the ATSIC Act and in force immediately before the transfer day, has effect, on and after that day, as if it were a notice to the same effect published by the Minister under that section of that Act as amended by this Act.

210  Transitional provision—Determinations in force under subsection 127D(2) of ATSIC Act

Any determination of leave entitlements, other than recreation leave, made by the Commission and in force under subsection 127D(2) of the ATSIC Act as in force before the transfer day, has effect, on and after that day, as if it were a determination to the same effect made by the Minister under that subsection of that Act as amended by this Act.

211  Saving provision—Conferral of functions under subsection 143AA(1) of ATSIC Act

If the Prime Minister had conferred a departmental function on the TSRA under subsection 143AA(1) of the ATSIC Act as in force before the transfer day, that conferral continues to have effect, on and after that day, as if it were a conferral of that function under that subsection of that Act as amended by this Act.

212  Delegation of powers and functions conferred under this Part

(1)       The Minister may, by written instrument, delegate to:

                     (a)  the Secretary or any other agency head within the meaning of the Public Service Act 1999 ; or

                     (b)  an SES employee or acting SES employee; or

                     (c)  the Chief Executive Officer of a Commonwealth authority or an employee of a Commonwealth authority of equivalent rank to an SES employee;

all or any of the powers and functions conferred on or acquired by the Minister under this Part, other than the power to declare a program of expenditure to be a business loans program, or the power to make a declaration under subitem 191(5) or 192(5).

(2)       The Secretary may, by written instrument, delegate to:

                     (a)  an SES employee or acting SES employee; or

                     (b)  an employee of a Commonwealth authority of equivalent rank to an SES employee;

the powers and functions of the Secretary under this Part.

(3)       An agency head, within the meaning of the Public Service Act 1999 , to whom a power or function is delegated under subitem (1) may, by written instrument, delegate that power to:

                     (a)  an SES employee or acting SES employee; or

                     (b)  an employee of a Commonwealth authority of equivalent rank to an SES employee.

Note 1:    The expressions SES employee , and acting SES employee are defined in section 17AA of the Acts Interpretation Act 1901 .

Note 2:    See also sections 34AA and 34AB of the Acts Interpretation Act 1901 .