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Aboriginal and Torres Strait Islander Commission Amendment Bill 2002

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2002

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION AMENDMENT BILL 2002

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Minister for Immigration and Multicultural and Indigenous Affairs,

The Hon Philip Ruddock MP)

 

 



 

ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION AMENDMENT BILL 2002

 

OUTLINE

 

The Bill amends the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act ).

 

The Bill would

 

·          implement some of the recommendations in the review of the ATSIC Act under s.26 of the ATSIC Act;

 

·          implement some of the recommendations of the Review Panel established by section 141 of the ATSIC Act;

 

·          prevent an ATSIC Commissioner or Regional Councillor who has been removed from office for misbehaviour from standing for the next round of Regional Council elections;

 

·          entitle corporations to appeal to the ATSIC Board and Administrative Appeals Tribunal against refusals of loans for business enterprises ;

 

·          allow the Commission to delegate its power to review delegates’ decisions;

 

·          allow review by the Administrative Appeals Tribunal of the merits of a decision to refuse a loan or guarantee once internal review by the Commission has been exhausted; and

 

·          amend financial provisions of the ATSIC Act to ensure consistency with new accrual budgeting system.

 

The Bill will commence on the day after it receives the Royal Assent. 

 

FINANCIAL IMPACT STATEMENT

 

There are no financial implications arising from this Bill.

 



NOTES ON CLAUSES

 

General

 

1. Unless otherwise indicated any reference to a “section”, “subsection” or “paragraph” in these notes is a reference to a section, subsection or paragraph in the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act).

 

Clause 1 - Short Title

 

2. This clause provides that the Bill when passed may be cited as the Aboriginal and Torres Strait Islander Commission Amendment Act 2002 (the Amendment Act).

 

Clause 2 - Commencement

 

3.  Sections 1 and 3 of the Amendment Act commence on the day it receives the Royal Assent. Section 4 and Schedule 1 of the Amendment Act commence on the 28 th day after the Amendment Act receives the Royal Assent. Anything in the Amendment Act not elsewhere covered, commences on the day on which the Amendment Act receives the Royal Assent.

 

Clause 3 - Schedule(s)

 

4. This clause provides that each Act that is specified in a Schedule to the Amendment Act is amended or repealed as set out in the Schedule and that any other item in the Schedule has effect according to its terms.

 

Clause 4 - Transitional Provisions

 

5. This clause contains provisions enabling a transition from the old provisions of the ATSIC Act.  That is the provisions in relation to multiple convictions apply to convictions during the current term of office of a Regional Councillor or ATSIC Commissioner.  Also, where this Bill gives a corporation the power to seek the review of a decision, any previous reviews and applications for reviews are validated by this clause.

 

Schedule 1 - Amendments

 

Items 1, 3, 6, 8, 28, 30, 33, 34, 40 and 41  - Effect of sentences for multiple criminal offences

 

These items clarify that a person is ineligible to stand for election to the offices of Regional Councillor or ATSIC Commissioner where they have received a single sentence, whether imposed in respect of a single or multiple criminal offences.  Also, the items clarify that a Regional Councillor or ATSIC Commissioner can be removed from office where he/she has received a single sentence, whether imposed in respect of a single or multiple criminal offences.

 

Item 2

 

A technical amendment to paragraph 31(2)(b) consequent upon the addition of a paragraph 31(2((c).

 

Item 4 and 9 - Continuity of office of Commission Chairperson

 

The new paragraph has the effect of extending the Commission Chairperson’s appointment until a new Commission Chairperson is elected following a round of Zone elections.  This will ensure that the Chair continues to be Chair until a new Chair is elected by Commissioners even if he or she is not re-elected as Commissioner in a round of Zone elections. However, item 9 provides that if the Chairperson is not re-elected as a Commissioner then he or she is not entitled to be present at a meeting of the Commission.

 

Items 5 and 7

 

These items correct typographical errors to subsection 40(7).

 

Item 10 -  repeal of paragraph 45(1)(d)

 

This item repeals paragraph 45(1)(d).  The effect of the repeal is to empower the Commission to delegate its power to reconsider matters under section 195.  Section 195 allows the review of delegates’ decisions.

 

Item 11 and 12 - repeal of sections 58 and 59

 

These items repeal redundant provisions.  The organisations referred to in section 58 are subject to their own appropriations.  Section 59 is redundant because the first Regional Councillors have taken office.

 

Items 13, 16, 17, 18, 21, 22 and 23  - accrual accounting amendments

 

These items substitute the words “budget estimates” for the words “estimates of the receipts and expenditure of” in subsection 61(1), “budget estimates” for “detailed estimates of expenditure” in subsection 62(2), “expenses” for “expenditure” in subsection 62(4), “those expenses” for “that expenditure” in subsection 62(4), “budget estimates for” for “estimates of the receipts of, and expenditure from” in subsection 67(4), “budget estimates for” for “estimates of expenditure” in subsection 67(5).  Item 23 removes the words “for Commission expenditure” from paragraph 94(1)(c).  That paragraph refers to section 97 which sets out the procedure for the preparation of a Regional Council draft budget.  There is no change to the effect of the section by the removal of the words. The changes made by these items are to align the terminology in the ATSIC Act with the Commonwealth Accrual-Based Outcomes and Outputs Framework.

 

Items 14, 15, 19 and 20 - repeal of paragraphs 61(7)(c) and 66(2)(c)

 

These items repeal paragraph (c) of the definition of money of the Commission in subsections 61(7) and 66(2) and make the consequential amendment to paragraph (b) of those subsections. Paragraphs 61(7)(c) and 66(2)(c) are redundant because money is directly appropriated to Indigenous Business Australia and Aboriginal Hostels Limited.

 

Items 24, 25 and 26

 

These items correct typographical errors to subsection 102(1).

 

Items 27, 29 and 32

 

These items are consequential on the insertion of the new paragraphs 102(1)(da) and (ea). 

 

Item 31 - Where person has been removed from the office of Regional Councillor he/she is disqualified from standing for election as Regional Councillor until after the next round of elections for Regional Councils

 

Item 31 inserts a new subsection 102(1B). 

The new subsection applies to a person who has ceased to be a Regional Councillor under declaration of the Commission under section 122 or has been removed from office by the Commission under subsection 122A(5).  Such a person is not qualified to stand for election, or to be elected, as a member for a Regional Council ward until after the next round of elections for Regional Councils.

 

Item 35 - nomination fees

 

This item inserts a new paragraph after paragraph 113(2)(c).  The effect of the insertion is to enable Regional Council Election Rules to deal with nomination fees.

 

Item 36

 

This amendment is consequential upon the insertion of the new section 115A.

 

Item 37 - Commissioner to be replaced as Regional Councillor

 

This item inserts a new section 115A which obliges the Minister to appoint an additional member to a Regional Council in circumstances where a Councillor is appointed as a Commissioner.  The Minister is not so obliged where a previous appointment has been made during the current term of the Regional Council.  The Minister must apply the same rules as would apply to filling a casual vacancy in the ward.  A person appointed as a member of a Regional Council under the new section 115A holds office until the end of the next round of Regional Council elections following his or her appointment.

 

Item 38 - Commissioner to be eligible to stand for election as Regional Council Chairperson

 

This item substitutes a new subsection 127(1A).  The new subsection 127(1A) provides that if a Commissioner is elected as Commission Chairperson, the Commissioner immediately ceases to hold office as a Commissioner and ceases to hold office as a person elected under Division 7 to represent a zone.  This is to allow an outgoing Commissioner who has not been re-elected as zone representative to stand for election as incoming Regional Council Chairperson without first resigning as Commissioner.

 

Items 39 and 42 - Term of office of Regional Council Chairperson

 

Item 39 has the effect of extending the Regional Council Chairperson’s appointment until a new Regional Council Chairperson is elected following a round of Regional Council elections.  This will ensure that the Regional Council Chairperson continues to be Regional Council Chairperson until a new Regional Council Chairperson is elected by the Regional Council even if he or she is not re-elected as Regional Councillor.  However, item 42 provides that if the Regional Council Chairperson is not re-elected as a Regional Councillor then he or she is not entitled to be present at a meeting of the Regional Council.

 

Items 43 and 44 - Chairperson of a section 141 Review Panel not to be a Commissioner,  Regional Councillor or member of the TSRA

 

Item 43 substitutes a new paragraph for paragraph 141A(1)(a).  The new 141A(1)(a) replaces the Commission Chairperson as Chairperson of a Review Panel with another person appointed by the Minister, who is an Aboriginal person or a Torres Strait Islander but is not a Commissioner, a member of the TSRA or a Regional Councillor.  Item 44 repeals section 141B which provides that the Commission Chairperson is the Chairperson of a Review Panel.  This is to minimise the risk of a conflict of interest.

 

Item 45 - Chairperson of an Augmented Review Panel not to be a Commissioner, Regional Councillor or member of the TSRA

 

This item substitutes a new paragraph for paragraph 141S(1)(a) which replaces the Commission Chairperson as Chairperson of an Augmented Review Panel with a Chairperson appointed by the Minister, being a person who is an Aboriginal person or a Torres Strait Islander and who is not a Commissioner, a member of the TSRA or a Regional Councillor.  This is to minimise the risk of a conflict of interest.

 

Item 46 - Corporations and unincorporated bodies able to seek internal review

 

This item amends section 195 to entitle a body corporate or an unincorporated body to request reconsideration by the Commission of a decision to refuse a loan or guarantee to that body corporate or that unincorporated body.

 

Item 47 - Only one internal review

 

Item 47 adds subsection 195(3) to section 195 so that internal review by a delegate of the Commission of another delegate’s decision cannot be subject to further internal review by the Board of the Commission.

 

Items 48 and 49 - Corporations and unincorporated bodies to be able to seek review by the Administrative Appeals Tribunal

 

These items amend section 196. The effect of the amendment is that an application may be made to the Administrative Appeals Tribunal for review of a Commission decision to refuse a loan or a guarantee to a body corporate or an unincorporated body.  This follows the amendment to section 195.

 

Item 50 - Internal review of certain decisions before Administrative Appeals Tribunal review

 

This item repeals the definition of “decision made by the Commission” in subsection 196(4) and substitutes a new definition.  The effect of the substitution is that an application may still be made to the Administrative Appeals Tribunal for review of a decision made by the Commission itself.  However, an application may also be made to the Administrative Appeals Tribunal for review of a decision made by a delegate of the Commission where that delegate has reviewed a decision to refuse a loan or guarantee being a refusal by another delegate.