Aboriginal Land Rights Amendment Act 2001 (NSW)

Case
No judgment structure available for this case.

An Act to amend the Aboriginal Land Rights Act 1983 to make various amendments relating to the operation and accountability of Aboriginal Land Councils; and for other purposes.

1Name of Act

This Act is the Aboriginal Land Rights Amendment Act 2001.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

3Amendment of Aboriginal Land Rights Act 1983 No 42

The Aboriginal Land Rights Act 1983 is amended as set out in Schedule 1.

4Amendment of other Acts and instruments

The Acts and instruments specified in Schedule 2 are amended as set out in that Schedule.

Schedule 1Amendment of Aboriginal Land Rights Act 1983

(Section 3)

[1]Section 3

Insert after section 2:

3Purpose of Act

The purposes of this Act are as follows:

  • (a)

    to provide land rights for Aboriginal persons in New South Wales,

  • (b)

    to provide for representative Aboriginal Land Councils in New South Wales,

  • (c)

    to vest land in those Councils,

  • (d)

    to provide for the acquisition of land by or for those Councils and the allocation of funds to and by those Councils.

[2]Section 4 Definitions

Omit the definitions of Aboriginal, Aboriginal owners and adult Aboriginal from section 4 (1).

[3]Section 4 (1)

Insert in alphabetical order:

Aboriginal owners of land means the Aboriginal persons whose names are entered on the Register of Aboriginal Owners because of the persons’ cultural association with particular land.

Note—

An Aboriginal person’s name and other relevant information is entered in the Register of Aboriginal Owners.

Aboriginal person means a person who:

  • (a)

    is a member of the Aboriginal race of Australia, and

  • (b)

    identifies as an Aboriginal person, and

  • (c)

    is accepted by the Aboriginal community as an Aboriginal person.

adult Aboriginal person means an Aboriginal person who has attained the age of 18 years.

Alternate Representative, in relation to a Local Aboriginal Land Council, means the First or Second Alternate Representative of the Council.

authority, in Division 5 of Part 10, means the Ombudsman, the Independent Commission Against Corruption, the Commissioner of Police or the Director of Public Prosecutions.

code of conduct means the code of conduct that applies to an Aboriginal Land Council by the operation of this Act.

compliance direction means a direction issued by the Registrar under Part 12.

councillor means a member of the New South Wales Aboriginal Land Council.

Director-General means the Director-General of the Department of Aboriginal Affairs.

land claim means a claim for land made under section 36.

non-voting member, of a Local Aboriginal Land Council, means a member of that Council who does not have voting rights in relation to that Council.

officer, in relation to an Aboriginal Land Council, means the Chairperson, Secretary or Treasurer of the Council.

Pecuniary Interest Tribunal means the Aboriginal Land Councils Pecuniary Interest Tribunal established under Division 3 of Part 10.

records includes any of the following (whether in a written or electronic form):

  • (a)

    financial statements (including statements or lists of assets or liabilities),

  • (b)

    bank statements or other authorised deposit-taking institution statements,

  • (c)

    membership rolls,

  • (d)

    voting rolls,

  • (e)

    minutes of meetings,

  • (f)

    attendance lists of meetings,

  • (g)

    leases, contracts and other documents relating to arrangements to which an Aboriginal Land Council is a party.

Register of Aboriginal Land Claims means the Register of Aboriginal Land Claims established under Division 2 of Part 9.

Register of Aboriginal Owners means the Register of Aboriginal Owners established under Division 3 of Part 9.

relative, in relation to a person, means any of the following:

  • (a)

    the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the person or of the person’s spouse,

  • (b)

    the spouse or de facto partner of the person or of a person referred to in paragraph (a).

rules means the rules of an Aboriginal Land Council that apply to the Council by the operation of this Act.

satisfactory audited financial statements and documents means audited financial statements and documents furnished to the New South Wales Aboriginal Land Council under Division 2 of Part 8 by a Local or Regional Aboriginal Land Council that are determined by the New South Wales Aboriginal Land Council to be satisfactory under the criteria prescribed by the regulations under section 154.

voting member, of a Local Aboriginal Land Council, means a member of that Council who has voting rights in relation to that Council.

voting rights, in relation to a Local Aboriginal Land Council, means the right of a member of the Council to vote in the elections held by, and on any matter to be decided by, the Council.

[4]Parts 2–5

Omit the Parts.

[5]Parts 6–8

Renumber Parts 6, 7 and 8 as Parts 2, 3 and 4, respectively.

[6]Part 2 (as renumbered by item [5]), Division 1

Omit the Division.

[7]Section 36A Special provision concerning certain Crown lands having nature conservation value

Omit “Parts 7 and 8” from section 36A (6). Insert instead “Parts 3 and 4”.

[8]Section 38 Purchase, lease etc of property

Insert after section 38 (1):

(1A)

Despite subsection (1), a Local Aboriginal Land Council may purchase land only if:

  • (a)

    the purchase price for the land is not more than 5% above the assessed market value of the land, or

  • (b)

    the New South Wales Aboriginal Land Council has given its written approval to that purchase.

[9]Section 38 (6)

Insert after section 38 (5):

(6)

In this section, assessed market value of land means the market value of the land as assessed by a registered real estate valuer (within the meaning of the Valuers Registration Act 1975) appointed by the Local Aboriginal Land Council concerned.

[10]Section 40 Disposal of land restricted

Omit “section 29 or 31” from section 40 (3).

Insert instead “section 149 or 152”.

[11]Section 40B Lease, use etc of land

Omit section 40B (2) (a). Insert instead:

  • (a)

    lease land vested in it for a period of 3 or more years (including any option to renew the lease), and

  • (a1)

    change the use of land vested in it, and

    • [12]Section 40B (2A)

    Insert after section 40B (2):

    (2A)

    A Local Aboriginal Land Council may, subject to the provisions of any other Act, lease land vested in it for a period of less than 3 years (including any option to renew the lease), but only if the lease has been approved at a meeting of the Local Aboriginal Land Council specifically called for that purpose at which a quorum was present.

    [13]Section 40C Sale etc of land by New South Wales Aboriginal Land Council

    Omit section 40C (1) (b).

    [14]Section 40D Sale etc of land by Local Aboriginal Land Council

    Omit section 40D (1) (c).

    [15]Section 43

    Omit the section. Insert instead:

    43Exemption of Aboriginal lands from the payment of rates(1)

    The regulations may declare that specified land (being land vested in an Aboriginal Land Council) is exempt from:

    • (a)

      the payment of rates and charges, or from the payment of specified rates and charges, under the Local Government Act 1993, or

    • (b)

      the payment of rates, levies and charges, or from the payment of specified rates, levies and charges, under the Hunter Water Act 1991, or

    • (c)

      the payment of service charges, or the payment of specified service charges, under the following Acts:

      • (i)

        the Sydney Water Act 1994,

      • (ii)

        the Water Management Act 2000.

    (2)

    A regulation made under subsection (1) may provide that the exemption referred to in that subsection is to operate for a limited period of time.

    [16]Section 48 Access permits may be issued by the Court

    Insert after section 48 (8):

    Maximum penalty: 10 penalty units.

    [17]Parts 5–13

    Omit Parts 8A and 9. Insert instead:

    Part 5Local Aboriginal Land CouncilsDivision 1Constitution of Local Aboriginal Land Councils and Local Aboriginal Land Council areas49Constitution of Local Aboriginal Land Council areas(cf former section 5)(1)

    The Minister may, in the manner prescribed by the regulations, constitute an area as a Local Aboriginal Land Council area.

    (2)

    The Governor may make regulations for or with respect to the constitution of Local Aboriginal Land Council areas.

    (3)

    Without affecting the generality of subsection (2), regulations may be made under that subsection for or with respect to the following:

    • (a)

      applications for the constitution of areas as Local Aboriginal Land Council areas,

    • (b)

      the making of recommendations to the Minister with respect to proposals to constitute Local Aboriginal Land Council areas,

    • (c)

      the lodging of objections against:

      • (i)

        the refusal of applications for the constitution of Local Aboriginal Land Council areas or the failure to deal with any such applications, and

      • (ii)

        proposals to constitute Local Aboriginal Land Council areas,

    • (d)

      the reference to the Court of objections of the kind referred to in paragraph (c) and the hearing and determination by the Court of any such objections.

    50Constitution of Local Aboriginal Land Councils(cf former section 6 (1) and (2))(1)

    A Local Aboriginal Land Council is constituted by this Act for each Local Aboriginal Land Council area.

    (2)

    A Local Aboriginal Land Council is a body corporate.

    (3)

    The corporate name of a Local Aboriginal Land Council is “Local Aboriginal Land Council” preceded by the name of the area of the Council.

    51Objects of Local Aboriginal Land Councils(cf clause 5 of Schedule 1 to 1996 Regulation)

    The objects of each Local Aboriginal Land Council are to improve, protect and foster the best interests of all Aboriginal persons within the Council’s area and other persons who are members of the Council.

    52Functions of Local Aboriginal Land Councils(cf former section 12)(1)

    The functions of a Local Aboriginal Land Council are as follows:

    • (a)

      in accordance with any regulations, to acquire land and to use, manage, control, hold or dispose of, or otherwise deal with, land vested in or acquired by the Council,

    • (b)

      to negotiate the acquisition by the Council or by the Council and one or more other Local Aboriginal Land Councils of lands of cultural significance to Aboriginal persons that are listed in Schedule 14 to the NPW Act and the lease of those lands to the Minister administering that Act,

    • (c)

      to submit proposals to the Director-General of National Parks and Wildlife for the listing in that Schedule of other lands of cultural significance to Aboriginal persons that are reserved or dedicated under the NPW Act,

    • (d)

      to negotiate the lease by the Council or by the Council and one or more other Local Aboriginal Land Councils of lands to which section 36A applies to the Minister administering the NPW Act,

    • (e)

      to make applications in writing to the New South Wales Aboriginal Land Council for the acquisition by the New South Wales Aboriginal Land Council of land on behalf of, or to be vested in, the Local Aboriginal Land Council,

    • (f)

      to make applications in writing to the New South Wales Aboriginal Land Council or other persons or bodies for the granting of funds for the payment of the costs and expenses of the Local Aboriginal Land Council,

    • (g)

      to implement the wishes of its members (as decided at a meeting of the Council) with respect to:

      • (i)

        the acquisition, management, use, control and disposal of land, and

      • (ii)

        the acquisition, establishment and operation of enterprises (including enterprises that promote employment and employment training as a means of obtaining self-sufficiency for Aboriginal persons),

    • (h)

      to consider applications to prospect or mine for minerals on its land and to make recommendations to the New South Wales Aboriginal Land Council in respect of such applications,

    • (i)

      to make claims to Crown lands,

    • (j)

      to acquire, construct, upgrade or extend residential accommodation for Aboriginal persons in its area,

    • (k)

      to protect the interests of Aboriginal persons in its area in relation to the acquisition, management, use, control and disposal of its land,

    • (l)

      to negotiate with persons desiring to use, occupy or gain access to any part of its land,

    • (m)

      to promote the protection of Aboriginal culture and the heritage of Aboriginal persons in its area,

    • (n)

      to ensure that no part of the income or property of the Council is transferred directly or indirectly by way of dividend or bonus or otherwise by way of profit to members of the Council (nothing in this paragraph prevents the payment in good faith of remuneration to any officer or member of staff of the Council),

    • (o)

      such other functions as are conferred or imposed on it by or under this or any other Act.

    Note—

    Section 50 of the Interpretation Act 1987 provides for the powers of a statutory corporation.

    (2)

    A Local Aboriginal Land Council must, when exercising its functions with respect to lands that are the subject of a lease, or proposed lease, under Part 4A of the NPW Act, act in the best interests of the Aboriginal owners of the lands concerned.

    Note—

    Part 4A of the NPW Act deals with lands, reserved or dedicated under that Act, that are vested in an Aboriginal Land Council or Councils and are leased by that Council or those Councils to the Minister administering that Act.

    Division 2Membership of Local Aboriginal Land Councils53Membership of Local Aboriginal Land Councils(cf former section 6 (3))

    The members of the Local Aboriginal Land Council for a Local Aboriginal Land Council area are the adult Aboriginal persons who are listed on the Local Aboriginal Land Council membership roll for that area.

    54Local Aboriginal Land Council membership rolls(cf former section 7 (1) and (2))(1)

    The Secretary of a Local Aboriginal Land Council must, in respect of the Local Aboriginal Land Council area, prepare and maintain a Local Aboriginal Land Council membership roll (the membership roll).

    (2)

    The Secretary of a Local Aboriginal Land Council must list on the membership roll for the Local Aboriginal Land Council area the names and addresses of those adult Aboriginal persons:

    • (a)

      who:

      • (i)

        reside within that area, or

      • (ii)

        have an association with that area, and

    • (b)

      who have been accepted by a meeting of that Council as members.

    (3)

    A person seeking to be accepted as a member of a Local Aboriginal Land Council must make and submit to that Council a written application for that membership that:

    • (a)

      declares that the person is an Aboriginal person and that the person:

      • (i)

        resides within that Council’s area, or

      • (ii)

        has an association with that area, and

    • (b)

      sets out the basis on which the person asserts his or her Aboriginal descent and, if the application declares that the person has an association with that Council’s area, the basis of that association, and

    • (c)

      if the person is seeking to be accepted as a voting member of the Council—attaches a notice from the Chief Executive Officer of the New South Wales Aboriginal Land Council declaring that the person is not a voting member of any other Local Aboriginal Land Council.

    Note—

    If a person is a voting member of one Local Aboriginal Land Council and wishes to join and become a voting member of another Local Aboriginal Land Council, the person must first be accepted as a non-voting member of the second Local Aboriginal Land Council under this section. The person must then make a nomination under section 56 to change the Council in which the person intends to have voting rights.

    (4)

    A person must not make an application for membership of an Aboriginal Land Council that the persons knows, or ought reasonably to know, is false or misleading in a material particular.

    Maximum penalty (subsection (4)): 10 penalty units.

    Note—

    An Aboriginal person may request that the Registrar issue a compliance direction under Part 12 if the person believes a Local Aboriginal Land Council has, in contravention of this Act:

    • (a)

      failed or refused to list the person’s name on the membership roll of the Council, or

    • (b)

      removed the person’s name from that roll.

    55Aboriginal persons may be member of more than one Local Aboriginal Land Council(1)

    An Aboriginal person may be a member of more than one Local Aboriginal Land Council.

    (2)

    However, a person is entitled to voting rights in relation to one Local Aboriginal Land Council only at any one time.

    (3)

    The Local Aboriginal Land Council in relation to which the person has voting rights is to be the Council nominated by the person or determined by the Chief Executive Officer of the New South Wales Aboriginal Land Council in accordance with section 56.

    (4)

    A non-voting member of a Local Aboriginal Land Council is not entitled to vote:

    • (a)

      in elections for officers of the Council (including Regional or Alternate Representatives), or

    • (b)

      on any matter to be determined by the Council.

    Note—

    A person is not entitled to vote at an election for a councillor to represent a Regional Aboriginal Land Council area on the New South Wales Aboriginal Land Council unless the person is a voting member of a Local Aboriginal Land Council within the area (see section 119).

    (5)

    A vote by a non-voting member of a Local Aboriginal Land Council in such an election or on such a matter is void.

    56Nomination of voting area(1)

    A person who is a member of more than one Local Aboriginal Land Council may, by notice in writing given to the Chief Executive Officer of the New South Wales Aboriginal Land Council, make a nomination to change the Council in relation to which the person has voting rights (being a Council of which the person is a member).

    (2)

    A person must not make more than one nomination under subsection (1) in any 12 month period.

    (3)

    The Chief Executive Officer of the New South Wales Aboriginal Land Council may at any time, by notice in writing to a person who the Chief Executive Officer believes is a member of 2 or more Local Aboriginal Land Councils, require the person to make a nomination under this section within the time specified in the notice.

    (4)

    If a nomination is not made within the time required under subsection (3), the Chief Executive Officer is to determine the Local Aboriginal Land Council in relation to which the person is to have voting rights (being a Council of which the person is a member).

    (5)

    The Chief Executive Officer is, as soon as practicable, to give notice of the receipt of a nomination or of a determination under this section to the person concerned and to the Secretary of the New South Wales Aboriginal Land Council and the Secretary of each Local Aboriginal Land Council of which the person is a member.

    (6)

    The Secretary of each such Council must record on the membership roll for the Local Aboriginal Land Council the Council in relation to which the person has voting rights.

    57Suspension of members from attending Council meetings(cf clause 10 of Schedule 1 to 1996 Regulation)(1)

    A member of a Local Aboriginal Land Council (other than an officer or Regional or Alternate Representative of that Council) whose conduct the Council decides is detrimental to the best interests of the Council may be suspended by the Council from attending Council meetings for a period of time specified by the Council, but such a period must not be greater than 3 years.

    Note—

    A Local Aboriginal Land Council may remove an officer or Regional or Alternate Representative of the Council from office under section 68.

    (2)

    During any period of suspension, the member is not entitled:

    • (a)

      to attend meetings of that Council, or

    • (b)

      to vote:

      • (i)

        in elections for officers of the Council, or

      • (ii)

        on any matter to be determined by the Council, or

    • (c)

      if the member is also a member of another Local Aboriginal Land Council—to make a nomination to change the Council in relation to which the person has voting rights.

    (3)

    A Local Aboriginal Land Council that has suspended a member under this section may at any time revoke the suspension.

    (4)

    The Secretary of a Local Aboriginal Land Council that has suspended a member under this section must notify the Chief Executive Officer of the New South Wales Aboriginal Land Council of the suspension, and the details of the suspension, and of any revocation of that suspension.

    (5)

    At the end of the period of suspension, the member is entitled to attend Council meetings, vote and make a nomination in relation to voting rights unless the Council, by a further vote, held in accordance with this section, sets another period of suspension.

    58Removal of person’s name from membership roll(cf clause 8 (2) of Schedule 1 to 1996 Regulation)

    The Secretary of a Local Aboriginal Land Council must remove the name of a person from the Council’s membership roll if, and only if:

    • (a)

      the person dies, or

    • (b)

      the person resigns in writing, or

    • (c)

      if the person is a member because the person resided in the Council area—the person no longer resides in the Council area and the Council at a meeting decides that the person does not have a sufficient association with the area to continue as a member.

    59Membership rolls to be sent to NSW Aboriginal Land Council annually(cf clause 8 (3) of Schedule 1 to 1996 Regulation)

    The Secretary of each Local Aboriginal Land Council must:

    • (a)

      not less than 10 weeks before the commencement of each financial year, send a copy of the Council’s membership roll to the Secretary of the New South Wales Aboriginal Land Council, and

    • (b)

      advise the New South Wales Aboriginal Land Council in writing of any changes to the membership roll that have occurred since a copy was last sent to that Council.

    60Regulations concerning membership of Local Aboriginal Land Council and membership rolls(cf former section 7 (3))

    The Governor may make regulations for or with respect to:

    • (a)

      the preparation and maintenance of Local Aboriginal Land Council membership rolls, and

    • (b)

      the particulars to be recorded in Local Aboriginal Land Council membership rolls, and

    • (c)

      the removal of particulars from Local Aboriginal Land Council membership rolls, and

    • (d)

      the procedure to be followed by Local Aboriginal Land Councils when deciding whether to suspend a member from attending Council meetings and voting.

    Division 3Officers and Regional and Alternate Representatives of Local Aboriginal Land Councils61Chairperson, Secretary and Treasurer of Local Aboriginal Land Councils(cf former section 9 (1))

    The members of a Local Aboriginal Land Council are to elect at every second annual meeting:

    • (a)

      a Chairperson, and

    • (b)

      a Secretary, and

    • (c)

      a Treasurer.

    62Term of office of Chairperson, Secretary and Treasurer(cf former section 9 (5) and (6))(1)

    The term of office of a Chairperson, Secretary or Treasurer of a Local Aboriginal Land Council begins on his or her election and expires on his or her re-election for another term, or on the election of his or her successor, at the second annual meeting of the Council following his or her election.

    Note—

    The term of office of Chairperson, Secretary or Treasurer of a Local Aboriginal Land Council is, therefore, approximately two years (depending on the timing of the Council’s annual meeting).

    (2)

    In the event of a vacancy in the office of a Chairperson, Secretary or Treasurer of a Local Aboriginal Land Council, a member of the Council may be elected to fill the vacancy for the remainder of that term of office.

    (3)

    A Chairperson, Secretary or Treasurer of a Local Aboriginal Land Council is eligible for re-election, subject to this Act.

    63Regional Representatives and Alternate Representatives(cf former section 11)(1)

    The members of a Local Aboriginal Land Council are to elect at every second annual meeting:

    • (a)

      2 Regional Representatives, and

    • (b)

      a First Alternate Representative, and

    • (c)

      a Second Alternate Representative.

    (2)

    In the event of a vacancy in the office of a Regional or Alternate Representative, a member of the Council may be elected at a meeting of the Local Aboriginal Land Council of which notice (including notice of the proposed election) has been given in accordance with the regulations to fill the vacancy for the remainder of that term of office.

    (3)

    A Regional Representative, First or Second Alternate Representative of a Local Aboriginal Land Council is eligible for re-election, subject to this Act.

    64Qualification for office

    A person is not qualified to stand and be elected as an officer or Regional or Alternate Representative of a Local Aboriginal Land Council unless the person is a voting member of the Council.

    65Role of officers of Local Aboriginal Land Councils(cf section 232 of Local Government Act 1993)

    The role of an officer of a Local Aboriginal Land Council is:

    • (a)

      to direct and control the affairs of the Council in accordance with this Act and the resolutions and decisions of the members of the Council as expressed through Council meetings, and

    • (b)

      to participate in the allocation of the Council’s resources for the benefit of the Council’s members in accordance with this Act and the resolutions and decisions of the members of the Council as expressed through Council meetings, and

    • (c)

      to represent the interests and respond to the concerns of the Council’s members, and

    • (d)

      to facilitate communication between the Council’s members and the New South Wales Aboriginal Land Council, and

    • (e)

      to participate in the creation and review of Council policies and objectives, and

    • (f)

      to review the performance of the Council in the exercise of its functions and the achievement of its objectives.

    66Role of Alternate Regional Representatives(1)

    An Alternate Representative may, with the written authority of a Regional Representative or the Chairperson of the Local Aboriginal Land Council, act in the place of a Regional Representative during the illness or absence of the Regional Representative.

    (2)

    If a Regional Representative or the Chairperson of a Local Aboriginal Land Council decides to give an authority under subsection (1), the authority must be given to the First Alternate Representative or, in a case where the First Alternate Representative is unable to act in the place of the Regional Representative concerned, to the Second Alternate Representative.

    (3)

    During the illness or absence of both Regional Representatives, an authority under subsection (1) may be given to each of the Alternate Representatives.

    (4)

    An Alternate Representative acting in the place of a member must table his or her authority to act at any meeting of a Regional Aboriginal Land Council attended by him or her.

    (5)

    An Alternate Representative, while acting as a member, may exercise all the functions of the member and is taken to be the member.

    (6)

    For the purposes of subsection (1), a vacancy in the office of a member is taken to be an absence from office of the member.

    (7)

    In the event of a vacancy occurring in the office of a Regional Representative, the Alternate Representative acting in the place of the Regional Representative may continue to act in that place until a person is elected to fill the vacancy.

    (8)

    Nothing in this Act prevents an Alternate Representative being elected at an election to fill a vacancy in the office of the Regional Representative but, in any such case, a further Alternate Representative must then be elected.

    67Disqualification from office(1)

    A person who is convicted of an offence under Part 3 (except section 61), 4, 4A or 5 of the Crimes Act 1900 is disqualified from holding office as an officer or Regional or Alternate Representative of a Local Aboriginal Land Council for 5 years from the date of conviction.

    (2)

    A person who is a councillor is disqualified from holding office as an officer or Regional or Alternate Representative of a Local Aboriginal Land Council while that person is a councillor.

    (3)

    A person who is a member of staff of the New South Wales Aboriginal Land Council is disqualified from holding office as an officer or Regional or Alternate Representative of a Local Aboriginal Land Council while that person is such a staff member.

    68Removal from office(1)

    A Local Aboriginal Land Council may remove an officer or Regional or Alternate Representative of the Council from office for any reason.

    (2)

    The removal from office may only be effected at a Council meeting of which notice (including notice of the motion that the person concerned be removed from office) was given in accordance with this Act and the regulations.

    (3)

    The removal from office may only be effected if the motion for removal is supported:

    • (a)

      if the person to be removed from office is to be removed for a breach of a provision of the Council’s code of conduct (being a provision declared by the code to be a dismissal provision)—by a majority of the voting members who are present and voting, or

    • (b)

      in any other case—by at least 66 per cent of the voting members who are present and voting.

    (4)

    Voting on the motion for removal is to be by secret ballot.

    (5)

    The motion for removal must not be put to the vote of the meeting unless the person concerned has been given a reasonable opportunity to reply to the motion at the meeting, either orally or in writing.

    (6)

    If the person to whom the motion refers does not attend the meeting, a reasonable opportunity to reply to the motion is taken to have been given if the notice required under this Act and the regulations for the meeting has been given.

    69Vacancy in office

    A person who is an officer or Regional or Alternate Representative vacates office if the person:

    • (a)

      dies, or

    • (b)

      completes a term of office and is not re-elected, or

    • (c)

      resigns the office by instrument in writing addressed to the Local Aboriginal Land Council, or

    • (d)

      becomes disqualified from holding office under this Act, or

    • (e)

      is removed from office by the Local Aboriginal Land Council under section 68, or

    • (f)

      becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

    • (g)

      becomes a mentally incapacitated person.

    70ADT may declare particular offices of Local Aboriginal Land Council vacant(cf section 329 of Local Government Act 1993)(1)

    Any person may apply to the Administrative Decisions Tribunal for an order declaring that a particular office of a Local Aboriginal Land Council (including the office of a Regional or Alternate Representative) has become vacant under this Act.

    (2)

    The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this section.

    71Appeals to Supreme Court against order(cf section 330 of Local Government Act 1993)(1)

    A person whose office has been declared vacant by order of the Administrative Decisions Tribunal may appeal against the order, on a question of law, to the Supreme Court.

    (2)

    Such an appeal may not be made more than 28 days after the date on which the order is made.

    72Effect of order declaring vacancy(cf section 331 of Local Government Act 1993)

    An order declaring a vacancy in an office made by the Administrative Decisions Tribunal under this Division takes effect:

    • (a)

      if no appeal to the Supreme Court is made against the order, at the end of the period during which such an appeal may be made, or

    • (b)

      if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or

    • (c)

      if, within that period, the person against whom the order is made serves on the Chief Executive Officer of the New South Wales Aboriginal Land Council written notice of intention not to appeal against the order, when the notice is lodged.

    Division 4Meetings of Local Aboriginal Land Councils73Meetings of Local Aboriginal Land Councils(cf former section 8)(1)

    Subject to subsection (2), a Local Aboriginal Land Council is to hold meetings at such times as the Council determines.

    (2)

    A Local Aboriginal Land Council must:

    • (a)

      hold ordinary meetings at least once in every 3 months, and

    • (b)

      hold annual meetings at the times, or within the periods, prescribed by the regulations.

    74Chairperson to preside at meetings(cf former section 9 (2)–(4))(1)

    Subject to subsection (2), the Chairperson of a Local Aboriginal Land Council is to preside at meetings of the Council.

    (2)

    In the absence of the Chairperson from a meeting of a Local Aboriginal Land Council, the members of the Council are to elect a member to preside at the meeting.

    75General procedure

    The procedure for the calling of meetings of a Local Aboriginal Land Council and for the conduct of business at those meetings is, subject to this Act, the regulations and the rules of the Council, to be determined by the Council.

    76Quorum

    The quorum for a meeting of a Local Aboriginal Land Council is:

    • (a)

      if the total number of voting members of the Council is less than 27—one third of the total number of voting members of the Council plus one (if one third of the number of voting members includes a fraction, ignoring the fraction), or

    • (b)

      if the total number of voting members of the Council is 27 or more—ten.

    77Voting(cf former section 10)

    Subject to this Act, a decision supported by a majority of the votes cast at a meeting of the Council at which a quorum is present is the decision of the Council.

    Division 5Staff of Local Aboriginal Land Councils78Staff(cf former section 12A)

    A Local Aboriginal Land Council may employ such staff, and engage such consultants, as are necessary to enable the Council to exercise its functions.

    79Certain persons must not be employed(1)

    A person who is convicted of an offence under Part 3 (except section 61), 4, 4A or 5 of the Crimes Act 1900 must not be employed as a staff member of, or a consultant to, a Local Aboriginal Land Council for 5 years from the date of conviction.

    (2)

    A person who is a councillor or an officer of a Local or Regional Aboriginal Land Council must not be employed as a member of staff of a Local Aboriginal Land Council while the person is such a councillor or officer.

    (3)

    A person who is a consultant to a Local Aboriginal Land Council must not be employed as a member of staff of that Council while the person is such a consultant.

    (4)

    A member of staff of the New South Wales Aboriginal Land Council must not be employed as a member of staff of a Local Aboriginal Land Council while the person is such a member of staff.

    80Appointments and promotion to be on merit(1)

    Appointments to the staff of a Local Aboriginal Land Council and promotions for members of that staff are to be made on the basis of the merit of the applicants for appointment or promotion.

    (2)

    The merit of persons eligible for appointment or promotion to a vacant position is to be determined having regard to:

    • (a)

      the nature of the duties of the position, and

    • (b)

      the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties.

    81Consultants to be engaged on merit(1)

    A decision by a Local Aboriginal Land Council to engage a consultant is to be made on the basis of merit.

    (2)

    The merit of persons eligible to be engaged as a consultant is to be determined having regard to:

    • (a)

      the nature of the duties of the work required to be done, and

    • (b)

      the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties.

    Division 6Delegations(cf sections 377–381 of Local Government Act 1993)82General power of Local Aboriginal Land Council to delegate

    A Local Aboriginal Land Council may, by resolution, delegate to any person or body any of the functions of the Council, other than the following:

    • (a)

      the acquisition of land and the use, management, control, holding or disposal of, or otherwise dealing with, land vested in or acquired by the Council,

    • (b)

      this power of delegation,

    • (c)

      any function under this or any other Act that is expressly required to be exercised by resolution of the Council.

    83Review of delegations

    Each Local Aboriginal Land Council must, once every year, review all its delegations.

    Division 7Rules of Local Aboriginal Land Councils84Rules of Local Aboriginal Land Councils(cf former section 13)(1)

    The purpose of this section is to provide rules for Local Aboriginal Land Councils relating to those Councils’ functions and operations.

    (2)

    The rules prescribed by the regulations as model rules are the rules for a Local Aboriginal Land Council.

    (3)

    However, a Local Aboriginal Land Council may prepare its own rules and submit them to the Registrar for approval.

    (4)

    On approval by the Registrar, the rules prepared by a Local Aboriginal Land Council, to the extent that they are not inconsistent with this Act or the regulations, become the rules of the Council to the exclusion of the model rules.

    (5)

    A Local Aboriginal Land Council’s rules may, with the approval of the Registrar, be amended, repealed or replaced from time to time.

    (6)

    A Local Aboriginal Land Council may appeal to the Court against the Registrar’s refusal to approve of rules or to approve of an amendment, a repeal or a replacement of its rules.

    (7)

    On the hearing of an appeal under subsection (6), the Court may direct the Registrar to approve of rules, or an amendment, a repeal or a replacement of rules, specified in the direction.

    Part 6Regional Aboriginal Land CouncilsDivision 1Constitution of Regional Aboriginal Land Councils and Regional Aboriginal Land Council areas85Constitution of Regional Aboriginal Land Council areas(cf former section 14)(1)

    The Minister, after considering any recommendation of the Registrar, may, by notice published in the Gazette, constitute an area as a Regional Aboriginal Land Council area.

    (2)

    The boundaries and the name of a Regional Aboriginal Land Council area must be specified in the notice constituting the area.

    86Constitution of Regional Aboriginal Land Councils(cf former section 15 (1) and (2))(1)

    A Regional Aboriginal Land Council is constituted by this Act for each Regional Aboriginal Land Council area.

    (2)

    A Regional Aboriginal Land Council is a body corporate.

    (3)

    The corporate name of a Regional Aboriginal Land Council is “Regional Aboriginal Land Council” preceded by the name of the area of the Council.

    87Objects of Regional Aboriginal Land Councils(cf clause 5 of Schedule 1 to 1996 Regulation)

    The objects of each Regional Aboriginal Land Council are to improve, protect and foster the best interests of all Aboriginal persons within the Council’s area and other persons who are members of Local Aboriginal Land Councils in that area.

    88Functions of Regional Aboriginal Land Councils(cf former section 20)

    The functions of a Regional Aboriginal Land Council are as follows:

    • (a)

      to provide assistance, when requested, to Local Aboriginal Land Councils within its area in the management, acquisition, use, control and disposal of land,

    • (b)

      to promote the protection of Aboriginal culture and the heritage of Aboriginal persons in its area,

    • (c)

      to provide advice and such further assistance as is required from time to time by Local Aboriginal Land Councils within its area,

    • (d)

      to provide advice and such further assistance as is required from time to time by the New South Wales Aboriginal Land Council,

    • (e)

      such other functions as are conferred or imposed on it by or under this or any other Act.

    Note—

    Section 50 of the Interpretation Act 1987 provides for the powers of a statutory corporation.

    Division 2Membership of Regional Aboriginal Land Councils89Members of Regional Aboriginal Land Councils(cf former section 15 (3), (4) and (5))(1)

    The Regional Representatives of each Local Aboriginal Land Council within the Regional Aboriginal Land Council’s area are the members of that Regional Aboriginal Land Council.

    (2)

    Subject to the regulations, the term of office of a member of a Regional Aboriginal Land Council begins on the member’s election as a Regional Representative and expires:

    • (a)

      on the member’s re-election for another term, or

    • (b)

      on the election of the member’s successor.

    Note—

    The election of Regional Representatives is dealt with by section 63.

    (3)

    A member of a Regional Aboriginal Land Council, subject to the regulations, is entitled to receive from the funds of the Council such fees, allowances and expenses as the Council determines in respect of the member.

    Division 3Officers of Regional Aboriginal Land Councils90Chairperson and other officers(cf former section 17 (1))

    The members of a Regional Aboriginal Land Council are at each annual meeting to elect from among its members:

    • (a)

      a Chairperson, and

    • (b)

      a Secretary, and

    • (c)

      a Treasurer.

    91Term of office of Chairperson, Secretary and Treasurer(cf former section 17 (5) and (6))(1)

    Subject to the regulations, the term of office of a Chairperson, Secretary or Treasurer of a Regional Aboriginal Land Council begins on the person’s election to that office and expires on his or her re-election for another term, or on the election of his or her successor, at the annual meeting of the Council next following his or her election.

    (2)

    In the event of there being a vacancy in the office of a Chairperson, Secretary or Treasurer of a Regional Aboriginal Land Council, a member of the Council may be elected to fill the vacancy for the remainder of that term of office.

    92Disqualification from office(1)

    A person who is convicted of an offence under Part 3 (except section 61), 4, 4A or 5 of the Crimes Act 1900 is disqualified from holding any office of a Regional Aboriginal Land Council for 5 years from the date of conviction.

    (2)

    A person who is a councillor is disqualified from holding any office of a Regional Aboriginal Land Council while the person is a councillor.

    (3)

    A member of staff of the New South Wales Aboriginal Land Council is disqualified from holding any office of a Regional Aboriginal Land Council while the person is such a member of staff.

    93Removal from office(1)

    A Regional Aboriginal Land Council may remove an officer of the Council from office for any reason.

    (2)

    The removal from office may only be effected at a Council meeting of which notice (including notice of the motion that the officer be removed from office) was given in accordance with this Act and the regulations.

    (3)

    The removal from office may only be effected if the motion for removal is supported:

    • (a)

      if the officer to be removed from office is to be removed for a breach of a provision of the Council’s code of conduct (being a provision declared by the code to be a dismissal provision)—by a majority of the members who are present and voting, or

    • (b)

      in any other case—by at least 66 per cent of the members who are present and voting.

    (4)

    Voting on the motion for removal is to be by secret ballot.

    (5)

    The motion for removal must not be put to the vote of the meeting unless the officer concerned has been given a reasonable opportunity to reply to the motion at the meeting, either orally or in writing.

    (6)

    If the person to whom the motion refers does not attend the meeting, a reasonable opportunity to reply to the motion is taken to have been given if the notice required under the regulations for the meeting has been given.

    94Vacancy in office

    A person who is an officer of a Regional Aboriginal Land Council vacates office if the person:

    • (a)

      dies, or

    • (b)

      completes a term of office and is not re-elected, or

    • (c)

      resigns the office by instrument in writing addressed to the Regional Aboriginal Land Council, or

    • (d)

      becomes disqualified from holding office under this Act, or

    • (e)

      is removed from office by the Regional Aboriginal Land Council under section 93, or

    • (f)

      becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

    • (g)

      becomes a mentally incapacitated person.

    95ADT may declare particular offices of Regional Aboriginal Land Council vacant(cf section 329 of Local Government Act 1993)(1)

    Any person may apply to the Administrative Decisions Tribunal for an order declaring that a particular office of a Regional Aboriginal Land Council has become vacant under this Act.

    (2)

    The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this section.

    96Appeals to Supreme Court against order(cf section 330 of Local Government Act 1993)(1)

    A person whose office has been declared vacant by order of the Administrative Decisions Tribunal may appeal against the order, on a question of law, to the Supreme Court.

    (2)

    Such an appeal may not be made more than 28 days after the date on which the order is made.

    97Effect of order declaring vacancy(cf section 331 of Local Government Act 1993)

    An order declaring a vacancy in an office made by the Administrative Decisions Tribunal under this Division takes effect:

    • (a)

      if no appeal to the Supreme Court is made against the order, at the end of the period during which such an appeal may be made, or

    • (b)

      if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or

    • (c)

      if, within that period, the person against whom the order is made serves on the Chief Executive Officer of the New South Wales Aboriginal Land Council written notice of intention not to appeal against the order, when the notice is lodged.

    Division 4Meetings of Regional Aboriginal Land Councils98Meetings of Regional Aboriginal Land Councils(cf former section 16)(1)

    Subject to subsection (2), a Regional Aboriginal Land Council is to hold its meetings at such times as the Council determines.

    (2)

    A Regional Aboriginal Land Council must:

    • (a)

      hold ordinary meetings at least once in every 3 months, and

    • (b)

      hold annual meetings at the times, or within the periods, prescribed by the regulations.

    99Chairperson to preside at meetings(cf former section 17 (2)–(4))(1)

    Subject to subsection (2), the Chairperson of a Regional Aboriginal Land Council is to preside at meetings of the Council.

    (2)

    In the absence of the Chairperson from a meeting of a Regional Aboriginal Land Council, the members of the Council are to elect a member to preside at the meeting.

    100General procedure

    The procedure for the calling of meetings of a Regional Aboriginal Land Council and for the conduct of business at those meetings is, subject to this Act, the regulations and the rules of the Council, to be determined by the Council.

    101Quorum

    Subject to this Act, the regulations and the rules of the Council, the quorum for a meeting of a Regional Aboriginal Land Council is one half of the total number of voting members of the Council plus one (if one half of the number of voting members includes a fraction, ignore the fraction).

    102Voting(cf former section 18)

    A decision supported by a majority of the votes cast at a meeting of a Regional Aboriginal Land Council at which a quorum is present is the decision of the Council.

    Division 5Rules of Regional Aboriginal Land Councils103Rules of Regional Aboriginal Land Councils(cf former section 21)(1)

    The purpose of this section is to provide rules for Regional Aboriginal Land Councils relating to those Councils’ functions and operations.

    (2)

    The rules prescribed by the regulations as model rules are the rules for a Regional Aboriginal Land Council.

    (3)

    However, a Regional Aboriginal Land Council may prepare its own rules and submit them to the Registrar for approval.

    (4)

    On approval by the Registrar, the rules prepared by a Regional Aboriginal Land Council, to the extent that they are not inconsistent with this Act or the regulations, become the rules of the Council to the exclusion of the model rules.

    (5)

    A Regional Aboriginal Land Council’s rules may, with the approval of the Registrar, be amended, repealed or replaced from time to time.

    (6)

    A Regional Aboriginal Land Council may appeal to the Court against the Registrar’s refusal to approve of rules or to approve of an amendment, a repeal or a replacement of its rules.

    (7)

    On the hearing of an appeal under subsection (6), the Court may direct the Registrar to approve of rules, or an amendment, a repeal or a replacement of rules, specified in the direction.

    Part 7New South Wales Aboriginal Land CouncilDivision 1Constitution and functions of New South Wales Aboriginal Land Council104Constitution of NSW Aboriginal Land Council(cf former section 22 (1))(1)

    The New South Wales Aboriginal Land Council is constituted by this Act.

    (2)

    The New South Wales Aboriginal Land Council is a body corporate and has the corporate name of the “New South Wales Aboriginal Land Council”.

    105Objects of New South Wales Aboriginal Land Council(cf clause 5 of Schedule 1 to 1996 Regulation)

    The objects of the New South Wales Aboriginal Land Council are:

    • (a)

      to improve, protect and foster the best interests of Aboriginal persons within New South Wales, and

    • (b)

      to relieve poverty, sickness, suffering, distress, misfortune, destitution and helplessness of Aboriginal persons within New South Wales.

    106Functions of the Council(cf former section 23)(1)

    The functions of the New South Wales Aboriginal Land Council are as follows:

    • (a)

      to administer the New South Wales Aboriginal Land Council Account and the Mining Royalties Account established under this Act,

    • (b)

      to grant funds for the payment of the costs and expenses of Local and Regional Aboriginal Land Councils (whether under funding agreements with Local and Regional Aboriginal Land Councils or otherwise),

    • (c)

      to acquire land on its own behalf or on behalf of or to be vested in a Local Aboriginal Land Council and to transfer land acquired on behalf of a Local Aboriginal Land Council to such a Council,

    • (d)

      to negotiate the acquisition by the Council or by one or more Local Aboriginal Land Councils of lands of cultural significance to Aboriginal persons that are listed in Schedule 14 to the NPW Act and the lease of those lands to the Minister administering that Act,

    • (e)

      to submit proposals to the Director-General of National Parks and Wildlife for the listing in that Schedule of other lands of cultural significance to Aboriginal persons that are reserved or dedicated under the NPW Act,

    • (f)

      to negotiate the lease by the Council or by one or more Local Aboriginal Land Councils of lands to which section 36A applies to the Minister administering the NPW Act,

    • (g)

      to determine and approve or disapprove of the terms and conditions of agreements proposed by Local Aboriginal Land Councils to allow mining or mineral exploration on land,

    • (h)

      to make claims to Crown lands, either on its own behalf or, if requested by a Local Aboriginal Land Council, on behalf of that Council,

    • (i)

      with the agreement of a Local Aboriginal Land Council, to manage any of the affairs of that Council,

    • (j)

      to mediate, conciliate and arbitrate disputes relating to the operation of this Act between Aboriginal Land Councils, between those Councils and individuals, or between individual members of those Councils and to refer such disputes to the Registrar or independent mediators, conciliators and arbitrators,

    • (k)

      to make grants or lend money to, or invest money for or on behalf of, Aboriginal persons,

    • (l)

      with the approval of the Minister, to make grants or lend money to a funeral benefits scheme established for the benefit of Aboriginal persons,

    • (m)

      to hold, dispose of, or otherwise deal with land vested in or acquired by it,

    • (n)

      to assist Local and Regional Aboriginal Land Councils in complying with this Act in respect of the establishment and keeping of accounts and the preparation and submission of budgets and financial reports,

    • (o)

      to assist Local and Regional Aboriginal Land Councils in conducting elections in accordance with this Act for Chairpersons and other officers,

    • (p)

      to advise the Minister on matters relating to Aboriginal land rights,

    • (q)

      to compile and maintain a register of all land held by Local Aboriginal Land Councils,

    • (r)

      to compile and maintain a consolidated roll of all members of Local Aboriginal Land Councils,

    • (s)

      to make prescribed information contained in the land register or consolidated membership roll that relates to a Local Aboriginal Land Council available on request to the members of that Local Aboriginal Land Council,

    • (t)

      to promote the protection of Aboriginal culture and the heritage of Aboriginal people in New South Wales,

    • (u)

      to provide or make available appropriate training for staff, officers and members of Aboriginal Land Councils (including but not limited to training in computer, administration, financial, accounting and ethical practice skills),

    • (v)

      to exercise the functions conferred or imposed, by the Commonwealth Native Title Act, on a representative Aboriginal/Torres Strait Islander body (within the meaning of that Act) if the Council is determined to be such a body by the relevant Commonwealth Minister under that Act,

    • (w)

      to ensure that no part of the income or property of the Council is transferred directly or indirectly by way of dividend or bonus or otherwise by way of profit to councillors or members of staff of the Council (but nothing in this paragraph prevents the payment in good faith of remuneration to any councillor or member of staff of the Council),

    • (x)

      to exercise such other functions as are conferred or imposed on it by or under this or any other Act.

    Note—

    Section 50 of the Interpretation Act 1987 provides for the powers of a statutory corporation.

    (2)

    The New South Wales Aboriginal Land Council must, when exercising its functions with respect to lands that are the subject of a lease, or proposed lease, under Part 4A of the NPW Act, act in the best interests of the Aboriginal owners of the lands concerned.

    Note—

    Part 4A of the NPW Act deals with lands, reserved or dedicated under that Act, that are vested in an Aboriginal Land Council or Councils and are leased by that Council or those Councils to the Minister administering that Act.

    Division 2Members of NSW Aboriginal Land Council107Membership of New South Wales Aboriginal Land Council(cf former section 22 (2) and (3))(1)

    The Council is to consist of full-time Aboriginal councillors equal in number to the number of Regional Aboriginal Land Council areas in the State.

    (2)

    Each councillor is to be elected in the manner specified in Division 3 to represent a Regional Aboriginal Land Council area.

    108Role of members of NSW Aboriginal Land Council(cf section 232 of Local Government Act 1993)(1)

    The role of a councillor is, as a member of the governing body of the Council:

    • (a)

      to direct and control the affairs of the Council in accordance with this Act, and

    • (b)

      to participate in the allocation of the Council’s resources for the benefit of Aboriginal people, and

    • (c)

      to participate in the creation and review of the Council’s policies and objectives, and

    • (d)

      to review the performance of the Council in the exercise of its functions and the achievement of its objectives.

    (2)

    The role of a councillor is, as an elected person:

    • (a)

      to represent the interests and respond to the concerns of Local Aboriginal Land Council members, and

    • (b)

      to facilitate communication between the Local Aboriginal Land Council members and the New South Wales Aboriginal Land Council.

    109Term of office(cf former clause 1 of Schedule 5)

    Subject to this Act, the term of office of a councillor begins on the councillor’s election and expires:

    • (a)

      on the councillor’s re-election for another term, or

    • (b)

      on the election of the councillor’s successor.

    Note—

    Elections for councillor are held approximately every 4 years. See section 121 (Timing of elections).

    110Remuneration(cf former clause 2 of Schedule 5)(1)

    A councillor is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975.

    (2)

    A councillor is entitled to be paid such travelling and subsistence allowances as the Minister may from time to time determine in respect of the councillor.

    111Disqualification from office

    A person who is convicted of an offence under Part 3 (except section 61), 4, 4A or 5 of the Crimes Act 1900 is disqualified from holding office as a councillor for 5 years from the date of conviction.

    112Removal of councillors from office(cf clause 85 of 1996 Regulation)(1)

    The Minister is to remove a person from the office of councillor if the Minister receives a valid petition calling for the person’s removal from the office.

    (2)

    In this section:

    eligible person means a person who is entitled to vote at an election for the office of the councillor concerned (if it were vacant).

    valid petition means a petition:

    • (a)

      that contains the signatures of at least 66 per cent of the persons:

      • (i)

        who were eligible persons when they signed the petition, and

      • (ii)

        who were eligible persons on the date of presentation of the petition to the Minister, and

    • (b)

      that sets out legibly:

      • (i)

        the name of each person who has signed the petition, and

      • (ii)

        the date on which the person signed, and

      • (iii)

        an address for the person that is sufficient to identify the place where the person lives, and

    • (c)

      all the signatures to which have been affixed within the period of 6 months immediately preceding the date of presentation of the petition to the Minister.

    (3)

    For the purposes of this section, the Secretary of the New South Wales Aboriginal Land Council must, within 7 days after the presentation of the petition to the Minister, provide the Minister with a copy of the roll for the Regional Aboriginal Land Council area which the person whose removal is sought represents, certified by the Secretary of the New South Wales Aboriginal Land Council as at the date of the presentation.

    (4)

    If the petition calls for the removal of the Secretary of the New South Wales Aboriginal Land Council, the Chairperson (and not the Secretary) of the Council is to perform the functions referred to in subsection (3).

    113Vacancy in office(cf former clause 3 of Schedule 5)

    The office of a councillor becomes vacant if the councillor:

    • (a)

      dies, or

    • (b)

      resigns the office by instrument in writing addressed to the New South Wales Aboriginal Land Council, or

    • (c)

      ceases to be a member of a Local Aboriginal Land Council within the Regional Aboriginal Land Council area the councillor represents, or

    • (d)

      is absent from 2 consecutive meetings of the Council of which written notice has been given in accordance with the regulations and rules to the councillor personally, by post or by facsimile, unless:

      • (i)

        leave was granted by the Council or the councillor is excused by the Council for having been absent from those meetings, or

      • (ii)

        the Administrative Decisions Tribunal, on an application for an order under section 115, declares that the councillor had a reasonable excuse for being absent from those meetings, or

    • (e)

      breaches a provision of the Council’s code of conduct (being a provision declared by the code to be a dismissal provision), or

    • (f)

      becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

    • (g)

      becomes a mentally incapacitated person, or

    • (h)

      is disqualified from holding office as a councillor under this Act, or

    • (i)

      is removed from office by the Minister under section 112, or

    • (j)

      engages in any paid employment outside the duties of his or her office, except with the consent of the Council.

    114Filling of casual vacancy(cf former clause 4 of Schedule 5)

    A person is to be appointed in accordance with the regulations to fill a casual vacancy in the office of a councillor for the remainder of the term of office.

    115Office of particular member of the NSW Aboriginal Land Council may be declared vacant by ADT(cf section 329 of Local Government Act 1993)(1)

    Any person may apply to the Administrative Decisions Tribunal for an order declaring that a particular office of councillor has become vacant under this Act.

    (2)

    The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this section.

    116Appeals to Supreme Court against order(cf section 330 of Local Government Act 1993)(1)

    A person whose office of councillor has been declared vacant by order of the Administrative Decisions Tribunal under this Division may appeal against the order, on a question of law, to the Supreme Court.

    (2)

    Such an appeal may not be made more than 28 days after the date on which the order is made.

    117Effect of order declaring vacancy(cf section 331 of Local Government Act 1993)

    An order declaring a vacancy in an office of a councillor made by the Administrative Decisions Tribunal under this Division takes effect:

    • (a)

      if no appeal to the Supreme Court is made against the order, at the end of the period during which such an appeal may be made, or

    • (b)

      if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or

    A regulation may create an offence punishable by a penalty not exceeding 10 penalty units.

    253Savings, transitional and other provisions(cf former section 71)

    Schedule 4 has effect.

    [18]Schedules 1 and 2

    Omit Schedule 2. Insert instead:

    Schedule 1Provisions relating to the Registrar

    (Section 164 (2))

    1Term of office

    Subject to this Act, the Registrar is to be appointed for such term, not exceeding 7 years, as is specified in the relevant instrument of appointment, but is (if otherwise qualified) eligible for re-appointment.

    2Remuneration

    The Registrar is entitled to be paid:

    • (a)

      remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and

    • (b)

      such travelling and subsistence allowances as the Minister may from time to time determine.

    3Public Sector Management Act 1988 not to apply

    The Public Sector Management Act 1988 (including Part 8) does not apply to or in respect of the appointment of the Registrar and the Registrar is not, in his or her capacity as the Registrar, subject to that Act during his or her term of office.

    4Vacancy in office

    The office of Registrar becomes vacant if the Registrar:

    • (a)

      dies, or

    • (b)

      engages in New South Wales or elsewhere during his or her term of office in any paid employment outside the duties of his or her office without the approval of the Minister, or

    • (c)

      becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration, allowances or estate for their benefit, or

    • (d)

      absents himself or herself from duty for a period exceeding 14 consecutive days, except on leave granted by the Minister, or

    • (e)

      becomes a mentally incapacitated person, or

    • (f)

      is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or

    • (g)

      resigns the office by instrument in writing addressed to the Minister, or

    • (h)

      is removed from office under clause 5.

    5Removal from office

    The Governor may remove the Registrar from office for incapacity, misbehaviour or incompetence.

    6Superannuation and leave—preservation of rights(1)

    In this clause:

    superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under an Act.

    (2)

    A person appointed as Registrar:

    • (a)

      may continue to contribute to any superannuation scheme to which he or she was a contributor immediately before becoming Registrar, and

    • (b)

      is entitled to receive any payment, pension or gratuity accrued or accruing under the scheme,

    as if he or she had continued to be such a contributor during service as Registrar.

    (3)

    Service by a person as Registrar is taken to be service as an officer in his or her previous employment for the purposes of any law under which the member continues to contribute to the scheme or by which an entitlement under the scheme is conferred.

    (4)

    The Registrar is to be regarded as an officer or employee, and the State is to be regarded as the employer, for the purposes of the scheme.

    (5)

    This clause ceases to apply to the Registrar if he or she becomes a contributor to another superannuation scheme, but the Registrar is not prevented from receiving a resignation benefit from the first superannuation scheme.

    (6)

    A person appointed as Registrar retains any rights to annual leave, extended or long service leave and sick leave accrued or accruing in his or her previous employment.

    (7)

    A Registrar is not entitled to claim, under both this Act and any other Act, dual benefits of the same kind for the same period of service.

    Schedule 2Aboriginal Land Councils Pecuniary Interest Tribunal

    (Section 179 (3))

    1Definition

    In this Schedule, the member means the member appointed as the Pecuniary Interest Tribunal under section 179.

    2Deputy member(1)

    The Governor may, from time to time, appoint a person to be the deputy of the member, and the Governor may revoke any such appointment. A person appointed as a deputy must have the same qualifications as those required of a person appointed as the member.

    (2)

    In the absence of the member, the member’s deputy:

    • (a)

      may, if available, act in the place of the member, and

    • (b)

      while so acting, has the functions of the member and is taken to be the member.

    (3)

    A person while so acting in the place of the member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.

    (4)

    For the purposes of this clause, a vacancy in the office of the member is taken to be an absence from office of the member.

    3Term of office of the member

    Subject to this Schedule, the member holds office for such period, not exceeding 5 years, as is specified in the member’s instrument of appointment, and (if otherwise qualified) is eligible for re-appointment.

    4Remuneration of the member

    The member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

    5Vacancy in office of the member(1)

    The office of the member becomes vacant if the member:

    • (a)

      dies, or

    • (b)

      completes a term of office and is not re-appointed, or

    • (c)

      resigns the office by instrument in writing addressed to the Minister, or

    • (d)

      becomes a member of staff of an Aboriginal Land Council, or

    • (e)

      is removed from office by the Governor under this clause or under Part 8 of the Public Sector Management Act 1988, or

    • (f)

      becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

    • (g)

      becomes a mentally incapacitated person, or

    • (h)

      is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.

    (2)

    The Governor may remove the member from office at any time.

    6Filling of vacancy in office of member

    If the office of the member becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.

    7Application of other Acts(1)

    Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of the appointment of the member.

    (2)

    If by or under any Act provision is made:

    • (a)

      requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or

    • (b)

      prohibiting the person from engaging in employment outside the duties of that office,

    that provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as the member.

    [19]Schedule 4 Savings, transitional and other provisions

    Omit “(Section 71)”.

    Insert instead “(Section 253)”.

    [20]Schedule 4, clause 1A

    Insert at the end of clause 1A (1):

    Aboriginal Land Rights Amendment Act 2001

    [21]Schedule 4, Part 5

    Insert after Part 4 of the Schedule:

    Part 5Provisions consequent on the enactment of Aboriginal Land Rights Amendment Act 200118Definition

    In this Part:

    amending Act means the Aboriginal Land Rights Amendment Act 2001.

    19Local and Regional Aboriginal Land Council areas(1)

    A Local Aboriginal Land Council area constituted under section 5 immediately before its repeal is taken to be a Local Aboriginal Land Council area constituted under section 49.

    (2)

    A Regional Aboriginal Land Council area constituted under section 14 immediately its repeal is taken to be a Regional Aboriginal Land Council area constituted under section 85.

    20Aboriginal Land Councils(1)

    A Local Aboriginal Land Council constituted under section 6 before its repeal is taken to have been constituted under section 50.

    (2)

    A Regional Aboriginal Land Council constituted under section 15 before its repeal is taken to have been constituted under section 86.

    (3)

    The New South Wales Aboriginal Land Council constituted under section 22 before its repeal is taken to have been constituted under section 104.

    (4)

    No amendment made by the amending Act affects the continuity of any Aboriginal Land Council in existence immediately before the commencement of the amendment.

    21Existing officers of Aboriginal Land Councils(1)

    A person holding an office as a Chairperson, Secretary, Treasurer, Regional or Alternate Representative of a Local Aboriginal Land Council immediately before the commencement of this clause continues, subject to this Act, to hold that office until the office falls vacant pursuant to subclause (2).

    (2)

    At the first annual meeting of a Local Aboriginal Land Council after the commencement of this clause, the offices of Chairperson, Secretary, Treasurer, Regional and Alternate Representative of the Council become vacant. A person elected to such an office at that annual meeting, subject to this Act, holds office until his or her re-election for another term, or the election of his or her successor, at the second annual meeting of the Council following his or her election.

    (3)

    A person holding an office as a Chairperson, Secretary or Treasurer of a Regional Aboriginal Land Council or the New South Wales Aboriginal Land Council immediately before the commencement of this clause continues, subject to this Act, to hold that office until the next annual meeting after that commencement.

    22Existing members of staff of Aboriginal Land Councils

    Any person employed by an Aboriginal Land Council under this Act immediately before its amendment by the amending Act is taken to be employed by that Council as constituted after that amendment.

    23Existing industrial agreements

    Any agreement entered into with the Public Employment Industrial Relations Authority or the Public Employment Office under section 27D of this Act before its repeal by the amending Act and in force immediately before that repeal is taken to be an agreement entered into with the New South Wales Aboriginal Land Council.

    24Membership rolls

    A roll prepared for the purposes of this Act before its amendment by the amending Act becomes a membership roll for the purposes of this Act until a membership roll is prepared for the purposes of this Act as so amended.

    25Registrar

    The person appointed as Registrar under section 49 before its repeal is, on the commencement of the amending Act, taken to have been appointed as Registrar by the Governor under section 164.

    26Chief Executive Officer of New South Wales Aboriginal Land Council(1)

    The person employed by the New South Wales Aboriginal Land Council as Chief Executive Officer before the commencement of section 138 is taken to have been appointed as Chief Executive Officer by that Council under that section.

    (2)

    Subject to this Act, the terms and conditions of that person’s employment (including the duration of the person’s employment) remain in force.

    27Register of Aboriginal Owners

    The Register of Aboriginal Owners established and kept under section 49B before its repeal by the amending Act is taken to have been established under section 170.

    28Persons who are members of more than one Local Aboriginal Land Council

    A person who, on the commencement of section 56 (as substituted by the amending Act), is a member of more than one Local Aboriginal Land Council must make a nomination under that section within 8 weeks of the commencement of this clause.

    29References to exemptions of Aboriginal lands from payment of rates

    A reference in any Act, instrument or other document to a declaration made under Division 5 of Part 6 is to be taken to be a reference to a declaration made under Division 5 of Part 2.

    30Changing of financial year

    Despite any provision of Division 2 of Part 8, the regulations may make provision for or with respect to the preparation of the first audited financial statements, budgets, quarterly reports and annual reports of an Aboriginal Land Council required under that Division after the change to the financial year of the Council effected by the amending Act.

    31Aboriginal Land Councils Accounts(1)

    A Local Aboriginal Land Council Account established under section 31 before its repeal is taken to have been established under section 152.

    (2)

    A Regional Aboriginal Land Council Account established under section 30 before its repeal is taken to have been established under section 151.

    (3)

    The New South Wales Aboriginal Land Council Account established under section 29 before its repeal is taken to have been established under section 149.

    (4)

    No amendment made by the amending Act affects the continuity of any Aboriginal Land Council Account in existence immediately before the commencement of the amendment.

    32Delegations(1)

    A delegation made by the Minister under section 55 (1) before its repeal is taken to have been made under section 243.

    (2)

    A delegation made by the New South Wales Aboriginal Land Council under section 55 (3) before its repeal is taken to have been made under section 146.

    33Regulations

    A regulation made under section 68 before its repeal is taken to have been made under section 252.

    34Rules of Court

    A rule of Court made under section 27AF before its repeal is taken to have been made under section 127.

    [22]Schedules 5 and 6

    Omit the Schedules.

    Schedule 2Amendment of other Acts and instruments

    (Section 4)

    Adoption Act 2000 No 75

    Omit “as” from the definition of Aboriginal in section 4 (1).

    Insert instead “as Aboriginal person has”.

    Children and Young Persons (Care and Protection) Act 1998 No 157[1]Section 5 Meaning of “Aboriginal” and “Torres Strait Islander”

    Omit “as” from the definition of Aboriginal in section 5 (1).

    Insert instead “as Aboriginal person has”.

    [2]Section 5 (2)

    Omit “Aboriginal” where firstly occurring.

    Insert instead “Aboriginal person”.

    Children (Care and Protection) Act 1987 No 54[1]Section 3 Definitions

    Omit “as it has” from the definition of Aboriginal in section 3 (1).

    Insert instead “as Aboriginal person has”.

    [2]Section 102 Constitution of Child Death Review Team

    Omit “Aboriginal (within” from section 102 (5).

    Insert instead “Aboriginal persons (within”.

    Crimes (Administration of Sentences) Regulation 2001

    Omit “Aboriginal has” from the definition of Aboriginal person in clause 83 (2).

    Defamation Act 1974 No 18[1]Section 17TB

    Insert after section 17TA:

    17TBMatters relating to the Aboriginal Land Councils Pecuniary Interest Tribunal(1)

    There is a defence of absolute privilege for a publication to or by the Aboriginal Land Councils Pecuniary Interest Tribunal constituted under the Aboriginal Land Rights Act 1983 if the publication is made for the purpose of the execution or administration of that Act or if the publication is a publication by that Tribunal of an official report of a decision of that Tribunal or of the reasons of that Tribunal for a decision.

    (2)

    There is a defence of absolute privilege for a publication to or by the Department of Aboriginal Affairs or the Director-General of that Department if the publication is:

    • (a)

      an official report of a decision of the Aboriginal Land Councils Pecuniary Interest Tribunal, or

    • (b)

      a statement of a decision of that Tribunal or of the reasons of that Tribunal for a decision,

    provided or made public by the Tribunal under section 213 (3) of the Aboriginal Land Rights Act 1983.

    [2]Schedule 2 Proceedings of public concern and official and public documents and records

    Insert at the end of clause 2:

    (24)

    without limiting the operation of any other subclause, proceedings of the Aboriginal Land Councils Pecuniary Interest Tribunal under the Aboriginal Land Rights Act 1983.

    [3]Schedule 2, clause 3

    Insert at the end of the clause:

    (9)

    a document that consists of a decision (including reasons given for the decision) made by the Aboriginal Land Councils Pecuniary Interest Tribunal under the Aboriginal Land Rights Act 1983.

    Freedom of Information Regulation 2000

    Insert in alphabetical order in Part 3 of Schedule 3:

    Aboriginal Land Councils Pecuniary Interest Tribunal

    Department of Aboriginal Affairs

    Land and Environment Court Act 1979 No 204[1]Section 19 Class 3—land tenure, valuation, rating and compensation matters

    Omit “section 49F” from section 19 (g2). Insert instead “section 174”.

    [2]Section 19 (g3)

    Omit “section 49G”. Insert instead “section 175”.

    [3]Section 20 Class 4—environmental planning and protection and development contract civil enforcement

    Omit “Division 2B of Part 4” from section 20 (1) (dd) and (3) (a) wherever occurring.

    Insert instead “Division 5 of Part 7”.

    [4]Schedule 2 Proceedings heard and disposed of by Commissioners

    Omit “section 59”. Insert instead “Part 13”.

    Local Government Act 1993 No 30

    Omit “Division 5 of Part 6” from section 555 (1) (g).

    Insert instead “Division 5 of Part 2”.

    National Parks and Wildlife Act 1974 No 80[1]Section 5 Definitions

    Omit “as” from the definition of Aboriginal in section 5 (1).

    Insert instead “as Aboriginal person has”.

    [2]Section 5 (1), note to definition of “Aboriginal owners”

    Omit the note. Insert instead:

    Note—

    The term Aboriginal owners of land is defined in the Aboriginal Land Rights Act 1983 to mean the Aboriginal persons named as having a cultural association with the land in the Register of Aboriginal Owners kept under Division 3 of Part 9 of that Act.

    [3]Section 71B Definitions

    Omit “Part 6” from the note to the definition of ALR Act lands.

    Insert instead “Part 2”.

    [4]Section 71B, definition of “Registrar”

    Omit the definition. Insert instead:

    Registrar means the Registrar appointed under the Aboriginal Land Rights Act 1983.

    [5]Section 71BC Addition of lands not already reserved or dedicated under Act

    Omit “Part 6 of” from section 71BC (5) (b).

    Insert instead “Part 2”.

    Statutory and Other Offices Remuneration Act 1975 (1976 No 4)

    Insert at the end of Part 1 of the Schedule:

    Registrar under the Aboriginal Land Rights Act 1983

    Sydney Water Act 1994 No 88

    Omit “Division 5 of Part 6” from item 13 of Part 1 of the Schedule.

    Insert instead “Division 5 of Part 2”.

    Water Management Act 2000 No 92

    Omit “Division 5 of Part 6” from item (16) of the Schedule.

    Insert instead “Division 5 of Part 2”.

    Actions
    Download as PDF Download as Word Document
    Cases Citing This Decision

    0

    Cases Cited

    0

    Statutory Material Cited

    0