Download Explanatory Memorandum

1996
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION AMENDMENT
BILL 1996
78596
Cat. No. 96 4961 1
ISBN 0644 447044
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and new clauses to be moved on behalf of the Government
(Circulated by the authority of the Minister for Aboriginal and Torres Strait Islander
Affairs Senator the Hon Dr John Herron )
ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION AMENDMENT
BILL 1996
Amendments and new clauses to be moved on behalf of the Government
OUTLINE
The Amendments proposed to be made to the Aboriginal and Torres Strait Islander
Commission Bill 1996 are : enable the provisions in the Bill reducing the size of Regional Councils to take effect
for the 1996 Regional Council elections; and
 provide for the constitution of the Commission as follows:
the Commission consists of a Chairperson and 18 other members all appointed by
the Minister;
the 17 persons elected under Division 7 of Part 3 to represent the various zones
must be appointed by the Minister as members of the Commission;
the Minister may appoint one of those 17 persons, or some other person, to be the
Chairperson;
if the Minister chooses one of the 17 elected zone Commissioners to be
Chairperson, then there will be a casual vacancy in the office of the zone
Commissioner who is appointed as Chairperson. A zone by-election will be held
and the person elected to fill the vacancy will also be appointed as a member of
the Commission; and
one other person will be chosen and appointed by the Minister to be a member of
the Commission.
The ATSIC Amendment Act (No.3) 1993 which came into effect on 1 July 1996 provided
for a Commission of only 17 elected Commissioners. Item 2 of Schedule 2 of the Bill
seeks to restore the number of members of the Commission to 19 as it was before ATSIC
Amendment Act (No.3) 1993 came into effect. Essentially the proposed amendments to the
Bill are to provide that if the Minister appoints a person who is an elected Commissioner
as the Chairperson the person ceases to hold office as elected Commissioner (this will
result in a casual vacancy in the office of the elected Commissioner) and to specify how
the constitution of the Commission will be affected in such circumstances.
 Ensure that the proposed new section 21A does not prevent claims for the relevant land
being made under the Aboriginal Land Rights (Northern Territory) Act 1976.
FINANCIAL IMPACT STATEMENT
The financial impact of the proposed amendments to the Bill will be negligible.
NOTES ON PROPOSED AMENDMENTS TO THE BILL
Amendment No (1)
Formal.
Amendment No (2)
This amendment inserts sub clauses (1A) and (1B) in clause 2.
Sub clause (1A) provides that if the Bill does not receive Royal Assent on or before 12
September 1996, item 3 of Schedule 1 commences on a day to be fixed by Proclamation.
Sub clause (1B) provides that if item 3 of Schedule 1 does not commence within 6 months
after the day on which the Act receives Royal Assent that item commences on the first day
after the end of that period.
Amendment No (3)
This Amendment inserts items 1A, 1B and 1C into Schedule 1 to the Bill. These items are
consequential on Amendment No (3).
Item 1A repeals the definition of Commission Chairperson and inserts a new definition in
its stead.
Item 1B inserts a definition of elected Commissioner.
Item 1C inserts a definition of non elected Commissioner.
Amendment No (4)
This Amendment to the Bill inserts a new transitional provision, item 3A, into Schedule 1
to the Bill. This amendment is designed to ensure that the 1996 Regional Council elections
are held on the basis of the reduced size of Regional Councils effected by the Bill.
Subitem 3A(1) provides that item 3A only applies if the amending Act commences on or
before 12 September 1996. This will ensure that the Australian Electoral Commission has
enough time to follow the procedures prescribed in the Regional Council Election Rules.
Subitem 3A(2) provides that item 3 (the item effecting a reduction in size of Regional
Councils) extends to the 1996 round of Regional Council elections.
Subitem 3A(3) amends the Regional Council Election Rules to provide for new designated
numbers of Regional Council wards as set out in a new Schedule 1 which subitem 3A(3)
inserts in the Regional Council Election Rules.
Subitem 3A(4) provides that the amendments made by subitem 3A(3) are taken to have
been duly made by the Minister under section 113. (Section 113 empowers the Minister to
make rules for the conduct of Regional Council elections.)
Subitem 3A(5) provides that the 1996 Regional Council elections are to be conducted in
accordance with the Regional Council Election Rules as amended by the Bill.
Subitem 3A(6) provides that any declaration (before the commencement of the Bill) of a
number of candidates in a ward for the 1996 elections that is greater than the new
designated number as enacted in the Bill is taken not to have been made and a poll must
be held.
Amendment No (5)
This Amendment amends Schedule 1 item 4 by adding a new subsection (3) at the end of
the proposed section 21A.
The new subsection provides that the land is taken for the purposes of the Aboriginal Land
Rights (Northern Territory) Act 1976 to be alienated Crown Land in which all the estates
and interests not held by the Crown are held on behalf of Aboriginals. This ensures that
land to which the proposed section 21A relates will be available for claim under the
Aboriginal Land Rights (Northern Territory) Act 1976.
Amendment No (6)
The amendment inserts new items 4A to 4E into Schedule 1 to the Bill concerning the
constitution of the Commission.
Subitem 4A(1) repeals section 27 and inserts a new section 27 which provides that the
Commission consists of 19 members as follows:(a) a Chairperson;
(b) 17 members, who are to be the persons elected under Division 1 of Part 3 to
represent the several zones; and
(c) 1 other member.
Subitem 4A(2) provides that the members are to be appointed by the Minister.
Subitem 4A(3) provides that the Chairperson may be, but is not required to be a person
elected under Division 7 of Part 3 to represent a zone.
Subitem 4A(4) provides that the appointed member must not be a person elected under
Division 7 of Part 3 to represent a zone.
Subitem 4A(5) provides that if the Minister appoints as the Chairperson a person elected
under Division 7 of Part 3 to represent a zone, the person ceases to hold office as the
member representing the zone and as a Regional Councillor.
Item 4B repeals section 31A which provides for the election of a Commission
Chairperson.
Item 4C repeals subsection 33(1) and substitutes a new subsection 33(1) which provides
that the Commission Chairperson holds office as Commission Chairperson for such
period, not exceeding 3 years, as is stated in, or worked out under, the instrument of
appointment.
Item 4D inserts a new subsection 33(1C) which provides that the non-elected
Commissioner holds office for such period, not exceeding 3 years, as is stated in, or
worked out under, the instrument of appointment.
Amendment No (7)
This Amendment is consequential on Amendment (No 3).
Amendment No (8)
This Amendment inserts a new item 10A into Schedule 1 to the Bill.
Item 10A inserts a new subsection 36(4) which provides that the Minister; may appoint a
person to act in the office of non elected Commissioner(a) during a vacancy in that office whether or not an appointment has previously
been made to the office; or
(b) during any period, or during all periods, when the non-elected Commissioner is
absent from duty or from Australia, or is, for any reason, unable to perform the
duties of the office.
Item 10A also inserts a new subsection 36(5) which provides that a person appointed to
act during a vacancy in the office of non-elected Commissioner under section (4) (a) must not continue so to act for more than 6 months; and
(b) must not be re-appointed to act during the vacancy for a period that would be
continuous with the period of 6 months from the day when the person first started
acting during that vacancy
Amendment Nos (9) to (14) inclusive
These amendments are consequential on Amendment (No 3).
Amendment No (15)
This Amendment inserts items 15A to 15C into Schedule 1 to the Bill. These items are
consequential on Amendment (No 3).
Item 15A increases the minimum number for a valid request to the Commission
Chairperson for a Commission meeting from 7 to 8.
Item 15B increases the minimum number for a Commission quorum from 11 to 12.
Item 15C increases the minimum number from 7 to 8 for a valid continued quorum for a
Commission meeting when a Commissioner or Commissioners depart the meeting.
Amendment No (16)
This Amendment inserts a new item 30A in Schedule 1 to the Bill.
Item 30A inserts in section 115 of the Act a new subsection (1A) which provides that the
performance of the functions or the exercise of the powers of a Regional Council is not
affected merely because there are more than the prescribed number of members of the
Regional Council provided that the number of members of the Regional Council is not
more than the number that was the prescribed number of members at the beginning of the
election period for the last round of Regional Council elections.
Amendment No (17)
This amendment is consequential on Amendment (No 3).
Amendment No (18)
This amendment inserts a new item 56 into Schedule 1 to the Bill.
Item 56, an application provision, provides that the person who held office as the
Commission Chairperson immediately before the appointment day ceases to hold office on
that day. “Appointment day” is defined to mean the day or the earliest day on which the
Minister appoints a person as Commissioner after the person has been elected in the first
zone election held after the end of the current election period.
Item 56 further provides that amendments made by specified items in Schedule 1 to the
Bill do not apply until the appointment day. These items relate to the new constitution of
the Commission that would be enacted by the Bill.
Amendment No (19)
This Amendment omits Schedule 2 from the Bill. This is consequential on Amendment
(No 3).