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Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Bill 2011

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2010-2011

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER LEGISLATION AMENDMENT

(BUDGET AND OTHER MEASURES) BILL 2010

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP)

 



FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER LEGISLATION AMENDMENT

(BUDGET AND OTHER MEASURES) BILL 2010

 

OUTLINE

 

Disability support pension

 

These amendments will delay, from 1 January 2011 to 1 July 2011, the commencement of the existing measure in the Bill on residence required to qualify for disability support pension.  This delay will ensure there will be no retrospective commencement, with adverse effect, for people affected by the measure.

 

The amendments also insert into the Bill some amendments providing, from 1 July 2011, an extended portability period for a severely disabled disability support pensioner, if the pensioner accompanies a supporting family member who has been posted or seconded by their employer to work overseas for a period. 

 

Reinsertion of Schedules

 

The amendments also reinsert into the Bill the measures relating to the scheduling of land and the Indigenous Land Corporation, which were removed from the Bill in the House of Representatives for timing reasons.

 

Schedule 3 to the original Bill (on the scheduling of land) was removed from the Bill to allow one of the land area measurements, drawn from the survey plan for the land in question, to be clarified.

 

Schedule 4 to the original Bill (on the Indigenous Land Corporation) was removed from the Bill to allow the inquiry into the measure by the Senate Standing Committee on Legal and Constitutional Affairs (the Committee) to proceed, for report by the start of the 2011 Autumn sittings.

 

It appeared at that time that retaining these two measures in the Bill would prevent the Bill from being passed in the 2010 Spring sittings.  That passage was highly desirable for two important measures in the Bill to commence, as intended at the time, on 1 January 2011.  The two measures were special disability trusts (Schedule 1) and residence required to qualify for disability support pension (Schedule 2).

 

However, the Senate program for the 2010 Spring sittings did not, in the end, allow the Bill to be considered and passed in those sittings.  Given the new timing for the Bill, it is now appropriate to reinsert the two measures (noting that the land area measurement mentioned above has been clarified and a new figure is shown, and also that some drafting clarifications are made to the Indigenous Land Corporation measure as a result of recommendations made by the Committee).

 

Scheduling of land

 

The amendments will reinsert Schedule 3 to the Bill.  This will add further parcels of land to Schedule 1 to the Aboriginal Land Rights (Northern Territory) Act 1976 to enable the land to be granted to relevant Aboriginal Land Trusts.

 

Indigenous Land Corporation

 

The amendments will reinsert Schedule 4 to the Bill.  This will amend the Aboriginal and Torres Strait Islander Act 2005 to include a power for the Minister to make guidelines that the Indigenous Land Corporation must have regard to in deciding whether to perform its functions in support of a native title settlement, and - if it decides to perform its functions in support of a native title settlement - in performing its functions in support of that settlement.

 

Financial impact statement

 

Disability support pension

 

Residence required to qualify for disability support pension (as delayed to 1 July 2011)

 

Total change in resourcing (FaHCSIA and Centrelink)

2010-11

2011-12

2012-13

2013-14

2014-15

$1.6 m

- $2.4 m

- $2.8 m

- $3.1 m

- $3.4 m

 

Extended portability period for a severely disabled disability support pensioner

 

Total change in resourcing (FaHCSIA and Centrelink)

2010-11

2011-12

2012-13

2013-14

2014-15

$0.2 m

$0.1 m

$0.2 m

$0.4 m

$0.6 m

 

Reinsertion of Schedules

 

There is no financial impact from the reinserted measures.

 



FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER LEGISLATION AMENDMENT

(BUDGET AND OTHER MEASURES) BILL 2010

 

Government amendments

 

 

NOTES ON AMENDMENTS

 

Amendment 1 amends the long title of the Bill to restore the references to the Aboriginal land rights (scheduling of land) and Indigenous Land Corporation measures as purposes of the Bill.

 

Amendment 2 amends the commencement clause in the Bill.  Firstly, it provides for the delayed disability support pension residence measure, and the new portability measure, to commence on 1 July 2011.  The beneficial special disability trusts measure in Schedule 1 will continue to commence with effect from 1 January 2011.

 

Secondly, this amendment restores the references to the scheduling of land and Indigenous Land Corporation measures to the commencement clause in the Bill (providing for commencement on the day after Royal Assent).

 

Amendment 3 changes the title of Schedule 2 to reflect the inclusion in the Schedule of the new disability support pension portability measure, along with the original disability support pension residence measure.

 

Amendment 4 inserts ‘, 1218AB’ into a table item substituted by item 7 of Schedule 2.  This is to make sure item 7 still operates correctly in view of the insertion of the new section 1218AB, relating to the disability support pension portability measure. 

 

Amendment 5 inserts section 1218AB into the Social Security Act 1991 .  Subsection 1218AB(1) provides that the Secretary may extend portability for a disability support pensioner who accompanies a family member overseas, provided that the qualifying circumstances set out in the section are met.  The disability support pensioner must be severely disabled, must be wholly or substantially dependent on the family member, and must be living with the family member during the proposed absence from Australia.  The family member must be working in Australia for an employer before working overseas for that employer.  If the Secretary extends portability in these circumstances for a period, the disability support pensioner will continue to be paid the pension during that period.

 

Subsection 1218AB(2) provides for the duration of the extended portability period.  Should any of the qualifying circumstances set out in subsection (1) cease to exist (for example, should the family member cease employment with the employer he or she was working for immediately before the period of absence), the qualifying circumstance set out in paragraph 1218AB(1)(f) would cease to exist, enabling the Secretary to revoke the determination.

 

Subsection 1218AB(3) provides that the Secretary may revoke a determination to extend portability.

 

Subsection 1218AB(4) is for the benefit of readers.  This subsection makes clear that a determination under subsection (1) is not a legislative instrument within the meaning of the Legislative Instruments Act 2003 .

 



Amendment 5 restores Schedule 3 to the Bill, adding further parcels of land to Schedule 1 to the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act) to enable the land to be granted to relevant Aboriginal Land Trusts (noting that the land area measurement mentioned above has been clarified and a new figure is shown) .

 

Background

 

This Schedule will add further parcels of Northern Territory land near Borroloola and also land comprising the Port Patterson Islands to Schedule 1 to the Land Rights Act.  This will allow the land in question to be granted to relevant Aboriginal Land Trusts pursuant to sections 10 and 12 of the Land Rights Act.

 

Government policy is that land should be added to Schedule 1 to the Land Rights Act where agreement to do so has been reached between the Northern Territory Government and the relevant Land Council.  Agreement has been reached between the Commonwealth, the Northern Territory Government and the Northern Land Council that these parcels of land should be granted to relevant Aboriginal Land Trusts as Aboriginal land under the Land Rights Act.

 

The parcels of land near Borroloola are associated with the Borroloola Land Claim, which was the first land claim made under the Land Rights Act.  The parcels of land include Batten Point, North Island and some small islands off the coast of Vanderlin Island.  North Island has been held as Barranyi National Park and previously did not qualify to be granted as part of the land claim.  The small islands, called Rarranggilawunyara, Niwawunala, Wanadjurara and Alolo, were part of the land claim, but were inadvertently omitted from the Aboriginal Land Commissioner’s recommendations.  Two related grants of land have previously been made to the claimants, and, once these particular parcels of land are granted, this land claim will be resolved.

 

The Port Patterson Islands also relate to a long-running land claim, the Kenbi land claim over the Cox Peninsula near Darwin.  After a long and complex process, this land claim is also approaching resolution.  The addition of the Port Patterson Islands to Schedule 1 to the Land Rights Act will enable this land to be included in a grant associated with the Kenbi Land Claim in the near future.

 

The amendments made by this Schedule commence on the day after Royal Assent.

 

Explanation of the changes

 

Item 1 amends Part 4 of Schedule 1 to the Land Rights Act by inserting various portions of land near Borroloola in the Northern Territory as land to be granted as Aboriginal land.

 

Item 2 also amends Part 4 of Schedule 1 to the Land Rights Act by inserting a portion of land in the Northern Territory known as the Port Patterson Islands to be granted as Aboriginal land.

 



Amendment 6 restores Schedule 4 to the Bill, making amendments to the Aboriginal and Torres Strait Islander Act 2005 (the ATSI Act) to include a power for the Minister to make guidelines that the Indigenous Land Corporation must have regard to before deciding to perform its functions in support of a native title settlement, as well as when it decides to perform its functions in support of a native title settlement (noting that some drafting clarifications are made as a result of recommendations made by the Committee).

 

Background

 

The purpose of the Indigenous Land Corporation is to assist Aboriginal people and Torres Strait Islanders to acquire and manage Indigenous-held land so as to provide economic, environmental, social and cultural benefits. 

 

The Indigenous Land Corporation’s functions are set out in sections 191C, 191D and 191E of the ATSI Act.  Its main functions are land acquisition and land management.  These functions can be exercised in support of native title settlements, whether or not the settlement includes a determination of native title.

 

The Government promotes flexible native title settlements that can be sustained over the long term, instead of litigation, wherever possible.  Settlements may provide for a range of practical benefits. 

 

In introducing these amendments, the Government recognises that the Indigenous Land Corporation can assist with the resolution of native title settlements, particularly where connection to the land in question is at issue and native title may not be established.

 

The amendments provide a power for the Minister to make guidelines that the Indigenous Land Corporation must have regard to before deciding to perform its functions in support of a native title settlement, as well as when it decides to perform its functions in support of a native title settlement .  In these instances, the Indigenous Land Corporation will be required to have regard to any guidelines made in the exercise of the Minister’s power.

 

The amendments made by this Schedule commence on the day after Royal Assent.

 

Explanation of the changes

 

Item 1 inserts new subsection 191F(2A), which will require the Indigenous Land Corporation to have regard to guidelines made under new section 191HA in deciding whether to perform its functions in support of a native title settlement, and - if it decides to perform its functions in support of a native title settlement - in performing its functions in support of that settlement.

 

Item 1 also inserts a note to clarify that the Native Title Act 1993 deals with making and resolving native title claims.

 

The Indigenous Land Corporation may perform its functions for any reason covered in its enabling legislation.  The Indigenous Land Corporation must have regard to the guidelines before deciding to perform its functions in support of a native title settlement, as well as when it decides to perform its functions in support of a native title settlement.  It will not be required to have regard to the guidelines when performing its functions in other contexts.

 

Item 2 inserts new section 191HA, which provides that the Minister may make guidelines in the circumstances provided for in new subsection 191F(2A).  Any guidelines made under this provision will be a disallowable legislative instrument.

 

Subsection 191I(1) applies if the Indigenous Land Corporation makes its own guidelines about the performance of a function referred to in paragraph 191D(1)(a), (c) or (d) or paragraph 191E(1)(d), (e) or (f) of the ATSI Act. 

 

New subsection 191I(1A), inserted by item 3 , makes it clear that any guidelines made by the Indigenous Land Corporation will have no effect, to the extent of any inconsistency, if they are inconsistent with any guidelines made by the Minister under new  section 191HA.

 

The heading to section 191I is altered by omitting the word ‘Guidelines’ and substituting ‘Indigenous Land Corporation guidelines’ to describe more accurately the content of the section .

 

Item 4 makes an amendment to subsection 191I(2) required as a consequence of item 3 .