Bills Digest No. 146 1997-98
Aboriginal and Torres Strait Islander Commission Amendment Bill 1997
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
Aboriginal and Torres Strait Islander Commission
Amendment Bill 1997
Date Introduced: 3
December 1997
House: House of Representatives
Portfolio: Aboriginal
and Torres Strait Islander Affairs
Commencement: The
substantive amendments described below commence on Royal Assent.
The Bill amends provisions in the
Aboriginal and Torres Strait Islander Commission Act 1989 (the
Principal Act) relating to the disposal of interests in ATSIC funded property.
The Bill also provides that certain of the Commission's ancillary powers
can be delegated to Regional Councils.
The Aboriginal and Torres Strait Islander Commission
(the Commission) is the principal Commonwealth agency concerned with Aboriginal
and Torres Strait Islander affairs. It is responsible for policy-formulation
and for administering a wide range of Commonwealth programs for Indigenous
Australians.
The Commission also has a representative arm. In 1996-97,
this arm consisted of 35 Regional Councils around Australia. Regional
Councillors are elected by Indigenous Australians. Regional Councils formulate
regional plans to improve the social, economic and cultural life of local
Indigenous people and make decisions about ATSIC expenditure in their
regions. Regional Councillors elect 16 Commissioners-one for each ATSIC
zone.(1) Another Commissioner is elected from the Torres Strait and two
Commissioners are appointed by the Minister for Aboriginal and Torres
Strait Islander Affairs.(2) The Commissioners make up the ATSIC Board
which is the main policy-making body in Indigenous affairs and the main
source of advice to government. The Board also allocates funding according
to national priorities and budgets.
Section 21 of the Principal Act deals with restrictions
on the right to dispose of an interest in land or certain other property
which has been acquired using finance or other assistance from the Commission
or under the Aboriginal Development Commission Act 1980. At present,
an interest cannot be disposed of without the written consent of the Commission.(3)
A disposal effected without such consent is ineffective.(4)
Item 2 of Schedule 1 replaces subsections
21(2) and (3) of the Principal Act with proposed subsections 21(2)-(11).
Proposed subsection 21(2) provides that an interest cannot be disposed
of unless the Commission has consented in writing to the particular disposal
or kind of disposal. Proposed subsection 21(3) provides that this
consent must specify the person or class of person to whom the interest
is to be disposed. Without a written consent, any purported disposal of
the interest is ineffective [proposed subsection 21(5)].
A written consent may be subject to conditions [proposed
subsection 21(6)]. However, contravention of a condition will not
invalidate the disposal of the interest. Proposed subsection 21(8)
provides that, in certain circumstances, if a condition requires that
all or some of the proceeds of the disposal be applied for a purpose specified
by the Commission and that condition is contravened, then the Commission
can require the individual or body to pay it a specified sum of money.
Section 45 of the Principal Act deals with the delegation
of certain of the Commission's functions and powers to its Chief Executive
Officer, a Commission staff member or the Director of Evaluation and Audit.
At present, the Commission cannot delegate its power to consent to the
disposal of property interests.(5)
Item 5 of Schedule 1 repeals and replaces
paragraph 45(1)(a) of the Act. Under proposed paragraph 45(1)(a),
it will be possible for the Commission to delegate its power to consent
to the disposal of property used for residential purposes.(6)
Section 45A of the Principal Act provides that the Commission
can delegate to Regional Councils any or all of its powers under sections
14, 15 or 16 of the Principal Act.(7) These sections relate to the making
of grants and loans to individuals, corporations and unincorporated bodies,
giving guarantees, and to making grants and loans to State and Territory
Governments and authorities. Grants, loans and guarantees can only be
made for the purpose of furthering the social, economic or cultural development
of Indigenous people. The Minister's Second Reading Speech remarks:
There is some doubt that ATSIC's power of delegation to Regional Councils
includes the delegation of ancillary powers.(8)
Item 7 amends subsection 45A(1) of the Principal
Act to enable the Commission to delegate '... any or all of its other
powers ... so far as they relate to a grant, loan or guarantee under section
14, 15 or 16.'(9)
Item 11 deals with the application of the amendments
to section 21 of the Principal Act. It provides that the amendments apply
to disposals of interests made on or after the date on which the Aboriginal
and Torres Strait Islander Commission Amendment Bill 1997 receives Royal
Assent. However, a consent given before the date of Royal Assent will
continue to be effective.
Item 12 provides that the changes to paragraph
45(1)(a) and subsection 45A(1) of the Principal Act will not affect delegations
made before the Bill receives Royal Assent.
- Aboriginal and Torres Strait Islander Commission, Annual Report
1996-97.
- Ibid.
- See subsection 21(2).
- See subsection 21(3).
- See paragraph 45(1)(a).
- A prohibition on the delegation of the power to consent to the disposal
of non-residential property will remain.
- The power of delegation in section 45A was effected by the Aboriginal
and Torres Strait Islander Commission Amendment Act (No.3) 1993.
One of its original purposes was to empower Regional Councils by enabling
the Commission to delegate certain of its powers to them.
- Second Reading Speech, Aboriginal and Torres Strait Islander Commission
Amendment Bill 1997, 1.
- The amendment to subsection 45A(1) does not extend to section 20 of
the Principal Act. Section 20 provides for procedures and consequences
when a person or body breaches the conditions of an ATSIC loan or grant.
Jennifer Norberry
6 March 1998
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and
Members of the Australian Parliament. While great care is taken to ensure
that the paper is accurate and balanced, the paper is written using information
publicly available at the time of production. The views expressed are
those of the author and should not be attributed to the Information and
Research Services (IRS). Advice on legislation or legal policy issues
contained in this paper is provided for use in parliamentary debate and
for related parliamentary purposes. This paper is not professional legal
opinion. Readers are reminded that the paper is not an official parliamentary
or Australian government document.
IRS staff are available to discuss the paper's contents with Senators
and Members
and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 1997
Except to the extent of the uses permitted under the Copyright Act
1968, no part of this publication may be reproduced or transmitted
in any form or by any means, including information storage and retrieval
systems, without the prior written consent of the Parliamentary Library,
other than by Members of the Australian Parliament in the course of their
official duties.
Published by the Department of the Parliamentary Library, 1997.
|
