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Indigenous Affairs Legislation Amendment Bill 2008

Schedule 1 Land rights

   

Aboriginal Land Rights (Northern Territory) Act 1976

1  Subsection 3(1)

Insert:

Executive Director means the Executive Director of Township Leasing referred to in section 20B.

2  After subsection 19(3)

Insert:

          (3A)  If a Land Trust is considering granting a lease under subsection (3), the relevant Land Council may, by notice in writing given to the Minister, request that, if the Land Trust and the Commonwealth intend to enter into the lease, the Executive Director:

                     (a)  enter into the lease on behalf of the Commonwealth; and

                     (b)  administer the lease.

          (3B)  If the Minister receives a request under subsection (3A), the Minister must, by notice in writing given to the relevant Land Council, agree or refuse to agree to the request.

          (3C)  A notice given under subsection (3A) or (3B) is not a legislative instrument.

3  Subsection 19A(4)

Repeal the subsection, substitute:

Term of lease

             (4)  The term of a lease granted under this section is the term specified in the lease (which must be at least 40 years and no more than 99 years). The term specified in the lease must not be varied. This subsection is subject to subsections (4A) and (5).

          (4A)  A lease granted under this section may provide for the variation of the lease by way of one or more extensions of the term of the lease. The extensions must not result in the term of the lease being more than 99 years.

Interpretation

          (4B)  Subsection (4A) does not limit variations of the lease in relation to other matters.

Operation of Lands Acquisition Act

          (4C)  If an approved entity is the Commonwealth or a Commonwealth authority (within the meaning of the Lands Acquisition Act 1989 ), the Commonwealth or authority is authorised to acquire the interest (within the meaning of that Act) in land that arises under an extension of the term of a lease granted under this section (as mentioned in subsection (4A)).

4  Application—initial term and extension of headleases over townships

The amendment made by item 3 applies in relation to leases granted after the commencement of that item.

5  Subsection 19A(5)

Omit “before the end of the 69th year of the term of a lease (the original lease ) granted under this section”, substitute “at least 20 years before the end of the term of a lease (the original lease ) granted under this section (including that term as extended as mentioned in subsection (4A))”.

Note:       The following heading to subsection 19A(5) is inserted “ Grant of replacement lease ”.

6  After subsection 19A(5)

Insert:

Limitation on grant of replacement lease

          (5A)  The Minister must not, under subsection (1), consent to the grant of another lease as mentioned in subsection (5) unless the Minister is satisfied that the grant of the other lease would not adversely affect a sublease or other right or interest derived from the original lease mentioned in subsection (5).

Note:       The following heading to subsection 19A(6) is inserted “ Payments ”.

7  Application—grant of replacement headleases over townships

(1)        The amendment made by item 5 applies in relation to leases granted after the commencement of that item.

(2)        Subsection 19A(5A) of the Aboriginal Land Rights (Northern Territory) Act 1976 , as inserted by this Schedule, applies in relation to the grant of leases after the commencement of this item (regardless of whether the original lease mentioned in that subsection was granted before or after that commencement).

8  After paragraph 19C(1)(a)

Insert:

                    (aa)  the extension of the term of a lease granted under that section (as mentioned in subsection 19A(4A)) if the lease is held by a Commonwealth entity at the time of the variation mentioned in that subsection; or

9  Subsections 19C(2) and (3)

After “grant”, insert “, extension”.

10  Subsection 20A(1)

Omit “and this section”, substitute “, this section and sections 20SA and 20SB”.

11  Before paragraph 20C(a)

Insert:

                    (aa)  if the Minister has agreed to a request under subsection 19(3A) or 20CA(2) in relation to a lease, and the Commonwealth intends to enter into the lease—to enter into, on behalf of the Commonwealth, the lease; and

                    (ab)  to administer leases covered by paragraph (aa), including administering subleases and other rights and interests derived from such leases, in accordance with their terms and conditions; and

                    (ac)  if the Minister has agreed to a request under subsection 20CA(2) in relation to a sublease, and the Commonwealth intends to enter into the sublease—to enter into, on behalf of the Commonwealth, the sublease; and

                    (ad)  to administer subleases covered by paragraph (ac), including administering other rights and interests derived from such subleases, in accordance with their terms and conditions; and

12  Paragraph 20C(c)

Omit “paragraph (a) or (b)”, substitute “this section”.

13  At the end of Division 2 of Part IIA

Add:

20CA   Executive Director to hold leases and subleases of community living areas, town camps and prescribed land on behalf of the Commonwealth

             (1)  This section applies if:

                     (a)  a proprietor of a community living area is considering granting a lease of some or all of the community living area; or

                     (b)  a proprietor of a lease of a town camp is considering granting a sublease of some or all of the town camp; or

                     (c)  a proprietor of land:

                              (i)  that is prescribed by the regulations for the purposes of this section; and

                             (ii)  that has been granted to the proprietor primarily for the benefit of Aboriginal people in the Northern Territory;

                            is considering granting a lease of some or all of the land; or

                     (d)  a proprietor of a lease of land:

                              (i)  that is prescribed by the regulations for the purposes of this section; and

                             (ii)  that has been leased to the proprietor primarily for the benefit of Aboriginal people in the Northern Territory;

                            is considering granting a sublease of some or all of the land.

             (2)  The proprietor may, by notice in writing given to the Minister, request that, if the proprietor and the Commonwealth intend to enter into the lease or sublease, the Executive Director:

                     (a)  enter into the lease or sublease on behalf of the Commonwealth; and

                     (b)  administer the lease or sublease.

             (3)  If the Minister receives a request under subsection (2), the Minister must, by notice in writing given to the proprietor, agree or refuse to agree to the request.

             (4)  A notice given under subsection (2) or (3) is not a legislative instrument.

             (5)  In this section:

community living area means land granted under subsection 46(1A) of the Lands Acquisition Act of the Northern Territory.

Note:          The reference to the Lands Acquisition Act of the Northern Territory is to be construed as a reference to that Act as originally enacted and as amended from time to time: see section 10A of the Acts Interpretation Act 1901 of the Commonwealth.

town camp means land leased primarily for residential, community or cultural purposes for Aboriginal people under:

                     (a)  the Special Purposes Leases Act of the Northern Territory; or

                     (b)  the Crown Lands Act of the Northern Territory.

Note:          The reference to the Special Purposes Leases Act and the Crown Lands Act of the Northern Territory is to be construed as a reference to that Act as originally enacted and as amended from time to time: see section 10A of the Acts Interpretation Act 1901 of the Commonwealth.

14  Section 20E

Repeal the section, substitute:

20E   Appointment to be full-time or part-time

                   The Executive Director may be appointed on a full-time basis or on a part-time basis.

15  Section 20H

Repeal the section, substitute:

20H   Restrictions on outside employment

Full-time Executive Director

             (1)  If the Executive Director is appointed on a full-time basis, he or she must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

Part-time Executive Director

             (2)  If the Executive Director is appointed on a part-time basis, he or she must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties.

16  Section 20K

Repeal the section, substitute:

20K   Leave of absence

Full-time Executive Director

             (1)  If the Executive Director is appointed on a full-time basis:

                     (a)  he or she has the recreation leave entitlements that are determined by the Remuneration Tribunal; and

                     (b)  the Minister may grant the Executive Director leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

Part-time Executive Director

             (2)  If the Executive Director is appointed on a part-time basis, the Minister may grant leave of absence to the Executive Director on the terms and conditions that the Minister determines.

17  Section 20M

Repeal the section, substitute:

20M   Termination of appointment

             (1)  The Governor-General may terminate the appointment of the Executive Director for misbehaviour or physical or mental incapacity.

             (2)  The Governor-General must terminate the appointment of the Executive Director if:

                     (a)  the Executive Director:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the Executive Director is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the Executive Director is appointed on a full-time basis and engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or

                     (d)  the Executive Director is appointed on a part-time basis and engages in paid employment that conflicts or may conflict with the proper performance of his or her duties; or

                     (e)  the Executive Director fails, without reasonable excuse, to comply with section 20N.

18  Division 6 of Part IIA

Repeal the Division, substitute:

Division 6 Effect on other laws in relation to certain leases or subleases entered into by Executive Director

20S   Operation of Lands Acquisition Act

             (1)  This section applies for the purposes of the Lands Acquisition Act 1989 .

             (2)  The Commonwealth is authorised to acquire a lease or sublease if the Minister has agreed to a request under subsection 20CA(2) in relation to the lease or sublease.

             (3)  The Commonwealth is authorised to dispose (within the meaning of the Lands Acquisition Act 1989 ) of a lease or sublease covered by paragraph 20C(aa) or (ac).

             (4)  The Commonwealth is authorised to grant a sublease, or other right or interest, in relation to a lease covered by paragraph 20C(aa) in accordance with the terms and conditions of the lease.

             (5)  The Commonwealth is authorised to grant a right or interest in relation to a sublease covered by paragraph 20C(ac) in accordance with the terms and conditions of the sublease.

20SA   Modification of certain NT laws in relation to the entry into leases or subleases by Executive Director

             (1)  This section applies to:

                     (a)  the grant of a lease to the Commonwealth if the Minister has agreed to a request under subsection 19(3A) or 20CA(2) in relation to the lease; or

                     (b)  the grant of a sublease to the Commonwealth if the Minister has agreed to a request under subsection 20CA(2) in relation to the sublease.

Taxes

             (2)  No stamp duty or similar tax is payable under a law of the Northern Territory in respect of the grant.

Registration

             (3)  On the application of the Commonwealth, the Registrar-General or other appropriate officer under the law of the Northern Territory relating to the transfer of land must register the instrument of grant as if it were duly executed under that law.

Subdivision of land

             (4)  The procedures for the subdivision of land under the law of the Northern Territory relating to the transfer of land do not apply in respect of the grant.

20SB   Modification of certain NT laws in relation to land the subject of leases or subleases entered into by Executive Director

             (1)  This section applies in relation to:

                     (a)  a lease granted to the Commonwealth if the Minister agreed to a request under subsection 19(3A) or 20CA(2) in relation to the lease; or

                     (b)  a sublease granted to the Commonwealth if the Minister agreed to a request under subsection 20CA(2) in relation to the sublease.

             (2)  The regulations may make modifications of any law of the Northern Territory relating to:

                     (a)  planning; or

                     (b)  infrastructure; or

                     (c)  the subdivision or transfer of land; or

                     (d)  other prescribed matters;

to the extent that the law applies to land the subject of the lease or sublease.

             (3)  In subsection (2):

modifications includes additions, omissions and substitutions.

             (4)  The regulations cease to have effect if the lease or sublease ceases to be held by the Commonwealth.

19  Subsection 20Y(1)

Repeal the subsection, substitute:

             (1)  If a person has the statutory rights under section 20W or 20X:

                     (a)  if the person is the Commonwealth—the Minister may, on behalf of the Commonwealth, permit, in writing, a person or persons to exercise some or all of the statutory rights in relation to the whole or a part of the construction area; or

                     (b)  in any other case—the person may permit, in writing, a person or persons to exercise some or all of the statutory rights in relation to the whole or a part of the construction area.

20  Section 20ZA

Repeal the section, substitute:

20ZA   Variation of initial area

                   If a person has the statutory rights under section 20W or 20X:

                     (a)  if the person is the Commonwealth—the Minister, on behalf of the Commonwealth, and the Land Council concerned may agree in writing to vary the initial area in a specified way; or

                     (b)  in any other case—the person and the Land Council concerned may agree in writing to vary the initial area in a specified way.

21  Subsection 20ZE(1)

Repeal the subsection, substitute:

             (1)  If a person has the statutory rights under section 20W or 20X:

                     (a)  if the person is the Commonwealth—the Minister may, on behalf of the Commonwealth, by writing, determine that the buildings or infrastructure is no longer required by the Commonwealth; or

                     (b)  in any other case—the person may, by writing, determine that the buildings or infrastructure is no longer required by the person.

22  Subsection 20ZJ(1)

Repeal the subsection, substitute:

             (1)  If a person has the statutory rights under section 20ZH or 20ZI:

                     (a)  if the person is the Commonwealth—the Minister may, on behalf of the Commonwealth, permit, in writing, a person or persons to exercise some or all of the statutory rights in relation to the whole or a part of the construction area; or

                     (b)  in any other case—the person may permit, in writing, a person or persons to exercise some or all of the statutory rights in relation to the whole or a part of the construction area.

23  Section 20ZL

Repeal the section, substitute:

20ZL   Variation of initial area

                   If a person has the statutory rights under section 20ZH or 20ZI:

                     (a)  if the person is the Commonwealth—the Minister, on behalf of the Commonwealth, and the Land Council concerned may agree in writing to vary the initial area in a specified way; or

                     (b)  in any other case—the person and the Land Council concerned may agree in writing to vary the initial area in a specified way.

24  Subsection 20ZP(1)

Repeal the subsection, substitute:

             (1)  If a person has the statutory rights under section 20ZH or 20ZI:

                     (a)  if the person is the Commonwealth—the Minister may, on behalf of the Commonwealth, by writing, determine that the buildings or infrastructure is no longer required by the Commonwealth; or

                     (b)  in any other case—the person may, by writing, determine that the buildings or infrastructure is no longer required by the person.

25  At the end of paragraphs 23(1)(a), (b), (ba), (c), (d), (e), (ea), (f) and (fa)

Add “and”.

26  After paragraph 23(1)(fa)

Insert:

                    (fb)  if a lease of land in the area of the Land Council is or has been granted under section 31 of the Northern Territory National Emergency Response Act 2007 by a Land Trust—to represent the Land Trust in relation to negotiations to agree on an amount to be paid to the Land Trust under subsection 62(1G) of that Act in relation to that grant; and

                    (fc)  if a lease of land in the area of the Land Council is or has been granted under section 31 of the Northern Territory National Emergency Response Act 2007 by the relevant owner of the land (within the meaning of paragraph (b) or (f) of the definition of relevant owner in section 3 of that Act)—to represent that relevant owner, if requested to do so, in relation to negotiations to agree on an amount to be paid to that relevant owner under subsection 62(1G) of that Act in relation to that grant; and

                    (fd)  if a lease of land in the area of the Land Council is or has been suspended under section 40 of the Northern Territory National Emergency Response Act 2007 —to represent the holder of the lease, if requested to do so, in relation to negotiations to agree on an amount to be paid to that holder under subsection 62(1G) of that Act in relation to that suspension; and

27  At the end of subsection 23(1)

Add:

              ; and (i)  such other functions as are prescribed by the regulations.

28  After section 33A

Insert:

33B   Land Council may charge other fees

             (1)  A Land Council may charge the Commonwealth a fee for the reasonable expenses incurred by the Council in performing functions referred to in paragraph 23(1)(fb), (fc) or (fd).

             (2)  A Land Council may charge the Commonwealth a fee for the reasonable expenses incurred by the Council in providing services prescribed by the regulations for the purposes of this subsection.

             (3)  A fee under subsection (1) or (2) must not be such as to amount to taxation.

             (4)  Nothing in this section prevents a Land Council charging the Commonwealth a fee under section 33A.

29  Paragraph 34(1A)(a)

After “33A”, insert “or 33B”.

30  Subsection 34(4) (after paragraph (a) of the definition of administrative costs )

Insert:

                    (aa)  expenses for which the Council may charge a fee under section 33B; and

31  Paragraph 35(1)(b)

After “33A”, insert “or 33B”.

32  Subsection 35(4)

Omit “or under a lease or licence under section 19 or 20 but not including a payment under section 64”, substitute “, under a lease or licence under section 19 or 20 or in accordance with section 60 or 62 of the Northern Territory National Emergency Response Act 2007 but not including a payment under section 33A, 33B or 64 of this Act”.

33  At the end of subsection 37(2)

Add:

             ; and (c)  the total fees the Council received under section 33B during that year.

34  Before paragraph 64(4A)(a)

Insert:

                    (aa)  the acquiring of a lease by the Commonwealth if the Minister has agreed to a request under subsection 19(3A) or 20CA(2) in relation to the lease; or

                    (ab)  the administering of a lease covered by paragraph (aa) if the Executive Director entered into the lease on behalf of the Commonwealth; or

                    (ac)  the acquiring of a sublease by the Commonwealth if the Minister has agreed to a request under subsection 20CA(2) in relation to the sublease; or

                    (ad)  the administering of a sublease covered by paragraph (ac) if the Executive Director entered into the sublease on behalf of the Commonwealth; or

35  After subsection 76(1)

Insert:

          (1A)  The Minister may, in writing, delegate any of the Minister’s functions or powers under Part IIB to:

                     (a)  the Secretary of the Department; or

                     (b)  an SES employee or acting SES employee in the Department; or

                     (c)  the Secretary of any other Department of the Commonwealth; or

                     (d)  an SES employee or acting SES employee in any other Department of the Commonwealth; or

                     (e)  the General Manager of Indigenous Business Australia appointed under section 168 of the Aboriginal and Torres Strait Islander Act 2005 .

Northern Territory National Emergency Response Act 2007

36  Subsection 52(8)

Repeal the subsection.

37  At the end of subsection 63(1)

Add:

                    ; (f)  an amount that is payable by the Commonwealth under section 33B of the Aboriginal Land Rights (Northern Territory) Act 1976 .