2022-2023

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

ABORIGINAL LAND GRANT (JERVIS BAY TERRITORY) AMENDMENT (STRENGTHENING LAND AND GOVERNANCE PROVISIONS) BILL 2022

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Indigenous Australians,

the Honourable Linda Burney MP)

ABORIGINAL LAND GRANT (JERVIS BAY TERRITORY) AMENDMENT (STRENGTHENING LAND AND GOVERNANCE PROVISIONS) BILL 2022

 

OUTLINE

1.       The schedule of amendments to the Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022 (the Bill) described as amendment 1 and amendment 2 in this supplementary explanatory memorandum responds to the following recommendation of the Scrutiny of Bills Committee in Scrutiny Digest 7 of 2022 dated 23 November 2022:

·          1.11  The committee requests the minister's advice as to whether the bill could be amended to require that the Chief Executive Officer and the executive committee, when exercising the delegation power under proposed subsections 34E(1) and 36(1), must be satisfied that the relevant person has the appropriate training, qualifications, skills or experience to exercise decision-making powers or carry out administrative functions.

2.       The schedule of amendments to the Bill described as amendment 3 and amendment 4 in this supplementary explanatory memorandum are proposed Government amendments moved in the course of debate about the Bill.

3.       The proposed schedule of amendments to the Bill includes:

·          Schedule 1, item 29, at the end of section 34E [delegation by the Chief Executive Officer] - insert criteria that must be considered by the Chief Executive Officer before exercising the delegation power under subsection 34E(1).

·          Schedule 1, item 33, at the end of section 36 [delegation by the executive committee] - insert criteria that must be considered by the executive committee before exercising the delegation power under section 36(1).

·          Schedule 1, item 33A, after subsection 38(5) [dealings in Aboriginal Land by Council] - insert requirements for the form of a lease granted under section 38(5).

·          Schedule 1, item 52, the Application provision for new section 38(7) [dealings in Aboriginal Land by Council] - omit “before, at or” in relation to the application of the Residential Tenancies Act 1997 (ACT) to certain leases granted under section 38.

FINANCIAL IMPACT STATEMENT

4.       The schedule of amendments has no financial impact.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

5.       The schedule of amendments to the Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

6.       The Statement of Compatibility with Human Rights is provided at the end of this supplementary explanatory memorandum.

NOTES ON CLAUSES - AMENDMENTS TO SCHEDULE 1 OF THE BILL

Amendment 1: item 29 (section 34E) - Delegation by Chief Executive Officer

1.       This amendment requires the Chief Executive Officer (CEO) to be satisfied that an employee has the appropriate training, qualifications, skills or experience to perform the function or exercise the power that has been delegated to them (as the case requires).

 

2.       The effect of this amendment is that the CEO will turn their mind to factors relevant to the appropriate exercise of delegated powers under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (the Act).

 

3.       To reflect this proposed amendment, paragraphs 33(v) and (vi) from the notes on clauses in the explanatory memorandum are removed and replaced with:

 

v.       Section 34E provides that the CEO may, in writing, delegate all or any of the CEO’s functions or powers to an employee of the Council. For the reader’s convenience, the Note says that sections 34AA to 34A of the AI Act contain provisions relating to delegations. The delegate must comply with any written directions of the CEO. The CEO must not delegate a function or power to an employee of the Council unless the CEO is satisfied that the employee has the appropriate training, qualifications, skills or experience to perform the function or exercise the power (as the case requires). Section 34E is an express power of delegation and the employees to whom the CEO’s functions and powers are delegated must use their own discretion in exercising that power or function whilst also complying with any written direction from the CEO. It is important to note that the power to delegate cannot be delegated further.

 

vi.      The proposed delegation power is necessary and appropriate given the broad remit of the CEO’s functions and powers. The powers and functions can be delegated to employees of the Council with appropriate training, qualifications, skills and experience. In delegating powers and functions, the CEO must turn their mind to factors relevant to the appropriate exercise of delegated powers under the Act. It would not be appropriate to impose seniority or other limits on the CEO’s discretion to delegate given the small size of the Council and its employee base. In practice, the CEO delegates to employees with specific expertise for each task at hand. Given the employee must comply with any written direction from the CEO, the CEO retains strategic control over their operations.

 

4.       This amendment responds to the Scrutiny of Bills Committee’s Scrutiny Digest 7 of 2022 dated 23 November 2022. The amendment aligns with the Committee’s preference to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated.

 

Amendment 2: item 33 (section 36) - Delegation by the executive committee

5.       This amendment requires the executive committee to be satisfied that an employee has the appropriate training, qualifications, skills or experience to perform the function or exercise the power that has been delegated to them (as the case requires).

 

6.       The effect of this amendment is that the executive committee will turn their minds to factors relevant to the appropriate exercise of delegated powers under the Act.

 

7.       To reflect this proposed amendment, paragraph 39(v) from the notes on clauses in the explanatory memorandum is removed and replaced with:

 

v.       Subsection (5) requires the executive committee to be satisfied that the employee has the appropriate training, qualifications, skills or experience to perform the function or exercise the power (as the case requires), before delegating a function or power.

 

vi.     The proposed delegation power is necessary and appropriate given the broad remit of the executive committee’s functions and powers. The powers and functions can be delegated to a subcommittee, the CEO or an employee of the Council with appropriate training, qualifications, skills and experience. In delegating these powers, the executive committee must turn their mind to factors relevant to the appropriate exercise of delegated powers under the Act. It would not be appropriate to impose seniority or other limits on the executive committee’s discretion to delegate given the small size of the Council and its employee base. In practice, the executive committee delegates to those with specific expertise for the task at hand. Given the delegate must comply with any written direction from the executive committee, the executive committee retains strategic control over their operations.

 

8.       This amendment responds to the Scrutiny of Bills Committee’s Scrutiny Digest 7 of 2022 dated 23 November 2022. The amendment acknowledges the Committee’s comment that prior to amendment, the Act allowed the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications. The amendment aligns with the Committee’s preference to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated.

 

Amendment 3: item 33A (section 38) - Dealings in Aboriginal Land by Council

9.       This amendment requires that leases granted by the Wreck Bay Aboriginal Community Council (the Council) under section 38 of the Act be in a certain form.

 

10.   The effect of this amendment is that all leases granted by the Council must be in writing, include the term of the lease, and include the terms and conditions of the lease.

 

11.   This will help to ensure clarity of lease holders’ rights and Wreck Bay Aboriginal Community Council’s obligations under the leases. This amendment is necessary and appropriate as the Act as currently drafted does not require a lease to be in a certain form.

 

Amendment 4: item 52 (Application of section 38(7))

12.   This amendment ensures that new subsection 38(7) of the Act will only apply in relation to leases granted under section 38 after the commencement of the Bill.

 

13.   The effect of this amendment is that new subsection 38(7) operates so the Residential Tenancies Act 1997 (ACT) does not apply to the leases specified in subsection 38(7) where those leases are granted after commencement of the Bill.

 

14.   To reflect this proposed amendment, paragraph 63 from the notes on clauses in the explanatory memorandum is removed and replaced with:

 

63.   The application item confirms that subsection 38(7) of the Act (as amended by this Schedule) applies in relation to a lease granted after the commencement of this item. Subsection 38(7) says that the RTA does not apply to a lease granted under this section if the lease is a lease to which paragraphs 38(2)(a), (c) or (d) applies and the term of the lease is 40 years or more. The particular leases are those leases granted to:

 

                                                i.              a registered member or registered members for use for domestic purposes;

 

                                              ii.             a registered member or registered members for use for the benefit of members, or of a significant number of the members, of the Community;

 

                                            iii.              with the consent in writing of the Minister - to a person other than a registered member, or to persons at least one of whom is not a registered member, for use for domestic purposes.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

1.       The schedule of amendments to Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview

2.       The schedule of amendments is made in response to the following recommendation of the Scrutiny of Bills Committee in Scrutiny Digest 7 of 2022 dated 23 November 2022:

·          1.11  The committee requests the minister's advice as to whether the bill could be amended to require that the Chief Executive Officer and the executive committee, when exercising the delegation power under proposed subsections 34E(1) and 36(1), must be satisfied that the relevant person has the appropriate training, qualifications, skills or experience to exercise decision-making powers or carry out administrative functions.

3.       The proposed schedule of amendments to the Bill includes:

·          Schedule 1, item 29, at the end of section 34E [delegation by the Chief Executive Officer] - insert criteria that must be considered by the Chief Executive Officer before exercising the delegation power under subsection 34E(1).

·          Schedule 1, item 33, at the end of section 36, [delegation by the executive committee] - insert criteria that must be considered by the executive committee before exercising the delegation power under subsection 36(1).

4.       The schedule of amendments also includes proposed Government amendments moved in the course of debate about the Bill. These amendments are:

·          Schedule 1, item 33A, after subsection 38(5) [dealings in Aboriginal Land by Council] - insert requirements for the form of a lease granted under section 38(5).

·          Schedule 1, item 52, the Application provision for new section 38(7) [dealings in Aboriginal Land by Council] - omit “before, at or” in relation to the application of the Residential Tenancies Act 1997 (ACT) to certain leases granted under section 38.

Human rights implications

5.       The schedule of amendments does not engage any human rights issues beyond those identified in the original Statement of Compatibility with Human Rights prepared for the Bill.