Untitled document

Aboriginal Lands (Amendment) Act 2004

Act No. 58/2004

table of provisions

Section  Page

1.Purpose

2.Commencement

3.Principal Act

4.Definitions

5.Committee to act on behalf of Trust

6.Quorum for general meetings

7.New heading and new sections 23A to 23L inserted

Administration of Lake Tyers Aboriginal Trust

23A.Minister may require Lake Tyers Aboriginal Trust to comply with Act

23B.Appointment of Administrator

23C.Appointments must be for specified period which may be extended

23D.Appointment of new Administrator in certain cases

23E.Notice of appointment

23F.Effect of appointment of Administrator

23G.Administrator to establish advisory committee

23H.Functions and powers of Administrator

23I.Administrator not to sell or mortgage Lake Tyers reserve

23J.Immunity

23K.Report to Minister

23L.Committee of management elected at end of period of administration

8.New section 24A inserted

24A.Access to designated places within Lake Tyers reserve

9.New sections 24B to 24E inserted

24B.Survey plan of Lake Tyers reserve roads

24C.Lake Tyers reserve roads to be public roads

24D.Lake Tyers Aboriginal Trust is not liable as an occupier in relation to Lake Tyers reserve roads

24E.Partial abrogation of "ratione tenure" rule for the Lake Tyers reserve roads

10.Offences

═══════════════

Endnotes

Aboriginal Lands (Amendment) Act 2004

[Assented to 12 October 2004]

The Parliament of Victoria enacts as follows:

1.Purpose

The main purpose of this Act is to amend the Aboriginal Lands Act 1970 to—

(a)provide for quorums for general meetings to be one half of members of the Framlingham and Lake Tyers Aboriginal Trusts entitled to vote at meetings who are residents of the relevant reserves on the day a general meeting is called; and

(b)empower the Minister to appoint an Administrator to manage the affairs of the Lake Tyers Aboriginal Trust in place of the committee of management in certain circumstances; and

(c)enable certain persons to enter and remain in designated places within the Lake Tyers reserve to exercise certain functions and powers and provide services to the residents of that reserve; and

(d)provide for certain roads within the Lake Tyers reserve to be public roads for the purposes of the Road Management Act 2004 and for the local municipal council to have care and management of those roads; and

(e)increase the general penalty applying to offences under the Act.

2.Commencement

(1)Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2005, it comes into operation on that day.

3.Principal Act

In this Act, the Aboriginal Lands Act 1970 is called the Principal Act.

4.Definitions

In section 2 of the Principal Act, insert the following definitions—

' "Administrator" means a person appointed under section 23B;

"Lake Tyers reserve roads" means the land referred to in the plan of survey referred to in section 24B(1) and approved under section 24B;'.

5.Committee to act on behalf of Trust

In section 16(1) of the Principal Act, for "The powers" substitute "Subject to this Act, the powers".

6.Quorum for general meetings

In section 23(4) of the Principal Act, after "meeting" (where secondly occurring) insert "who are residents of the reserve on the day the meeting was called in accordance with section 22(4)".

7.New heading and new sections 23A to 23L inserted

After section 23 of the Principal Act insert—

'Administration of Lake Tyers Aboriginal Trust

23A.Minister may require Lake Tyers Aboriginal Trust to comply with Act

If the Minister believes on reasonable grounds that the Lake Tyers Aboriginal Trust has failed to comply with a provision of this Act, the Minister may, by notice served on the Chairman of the Trust, require the committee of management of the Trust to take the action specified in the notice, within a reasonable period of time specified in the notice, for the purpose of complying with this Act.

23B.Appointment of Administrator

(1)In this section—

"relevant grounds" means any one or more of the following—

(a)that the committee of management of the Lake Tyers Aboriginal Trust has—

(i)failed to take the action specified in a notice served under section 23A within the period of time specified in the notice; and

(ii)failed to provide an explanation that is to the reasonable satisfaction of the Minister for its failure to take the action specified in a notice served under section 23A within the period of time specified in the notice;

(b)that the members of the committee of management of the Lake Tyers Aboriginal Trust have acted in the affairs of the Trust in their own interests rather than in the interests of the members of the Trust;

(c)that the appointment of an Administrator is required in the interests of the members of the Lake Tyers Aboriginal Trust or the residents of the Lake Tyers reserve.

(2)If the Minister considers that there may be relevant grounds for appointing an Administrator, the Minister may serve on the Chairman of the Lake Tyers Aboriginal Trust, a notice in writing—

(a)calling on the Trust to show cause, within a reasonable period specified in the notice, why an Administrator should not be appointed; and

(b)setting out the grounds on which the Minister relies for the service of the notice.

(3)The grounds set out in the notice must be relevant grounds.

(4)The Lake Tyers Aboriginal Trust may make representations to the Minister in respect of the relevant grounds set out in the notice within the period specified in the notice.

(5)If the Minister considers it appropriate to do so, the Minister may, within the period specified in the notice—

(a)inform the residents of the Lake Tyers reserve of the service of a notice under this section and the relevant grounds set out in the notice; and

(b)ask for submissions from the residents in respect of those grounds.

(6)After the period specified in the notice, and having considered any representations made by the Lake Tyers Aboriginal Trust and submissions of the residents of the Lake Tyers reserve (if any), the Minister may appoint an Administrator if the Minister is satisfied that any of the relevant grounds have been established.

23C.Appointments must be for specified period which may be extended

(1)An appointment must be for a specified period.

(2)However, the Minister may extend the period of appointment before the expiry of the period for a further specified period.

23D.Appointment of new Administrator in certain cases

(1)The Minister may cancel the appointment of an Administrator and appoint another Administrator if the Minister considers it necessary to do so.

(2)If an Administrator dies or resigns, the Minister may appoint another Administrator.

(3)An Administrator appointed under sub-section (1) or (2) may only be appointed for the balance of the period of appointment of the Administrator whose appointment was cancelled or who resigned or died (as the case requires).

(4)In appointing an Administrator under sub-section (1) or (2), the Minister is not required to comply with section 23B.

23E.Notice of appointment

As soon as practicable after the appointment of an Administrator, the Minister must publish notice of the appointment and the period of the appointment, in—

(a)the Government Gazette; and

(b)a newspaper (if any) circulating generally in the area where the Lake Tyers Aboriginal reserve is located.

23F.Effect of appointment of Administrator

On the appointment of the Administrator all members of the committee of management of the Lake Tyers Aboriginal Trust, including the Chairman, cease to hold office.

23G.Administrator to establish advisory committee

(1)The Administrator must establish an advisory committee which the Administrator must consult in relation to his or her conduct of the affairs of the Lake Tyers Aboriginal Trust.

(2)The advisory committee must be established after the appointment of the Administrator without delay.

(3)The advisory committee must include at least—

(a)3 persons who were members of the committee of management of the Lake Tyers Aboriginal Trust immediately before the appointment of the Administrator; and

(b)2 persons, not being members of the committee of management of the Lake Tyers Aboriginal Trust, who are residents of the reserve.

23H.Functions and powers of Administrator

(1)The Administrator is responsible for the conduct of the affairs of the Lake Tyers Aboriginal Trust.

(2)Without limiting sub-section (1), the Administrator may exercise the powers and functions of the committee of management of the Lake Tyers Aboriginal Trust and Secretary of the Trust under this Act.

(3)In addition, the Administrator may provide assistance and training to the members of the Trust in the proper administration and management of the Trust.

23I.Administrator not to sell or mortgage Lake Tyers reserve

The Administrator must not—

(a)sell, exchange or dispose of any land constituting the Lake Tyers reserve; or

(b)borrow money on the security of a mortgage, charge or other assurance of any land constituting the Lake Tyers reserve.

23J.Immunity

The Administrator is not personally liable for anything done or omitted to be done in good faith—

(a)in the exercise of a power or the discharge of a duty under this Act; or

(b)in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act.

23K.Report to Minister

The Administrator must give the Minister such information as the Minister requires from time to time.

23L.Committee of management elected at end of period of administration

(1)If the Minister intends not to extend the period of appointment of an Administrator, or intends to cancel the appointment of an Administrator under section 23D and not immediately appoint another, the Minister must direct the Administrator to convene a general meeting of the Trust for the purpose of electing 7 persons to form a committee of management of the Trust.

(2)On receiving a direction under sub-section (1), the Administrator must convene and hold a general meeting, in accordance with this Act, of the Lake Tyers Aboriginal Trust for the purpose of electing 7 persons to form a committee of management of the Trust.

(3)At a general meeting convened and held in accordance with sub-section (2), the members of the Lake Tyers Aboriginal Trust shall elect 7 persons to form a committee of management of that Trust.

(4)If at a meeting convened and held in accordance with sub-section (2), 7 persons are not elected to form a committee of management of the Trust, the Minister may direct the Administrator to convene and hold such further general meetings, in accordance with this Act, as are necessary until such time as the members of the Trust elect 7 persons to form a committee of management of that Trust.

(5)Section 15 applies to the persons elected in accordance with this section to form the committee of management of the Lake Tyers Aboriginal Trust as if the meeting at which they were elected was the first meeting of the Trust referred to in section 15(1).

(6)Members of the committee of management of the Lake Tyers Aboriginal Trust elected in accordance with this section take office on the expiration of the period of appointment, or cancellation of the appointment, of the Administrator (as the case requires).'.

8.New section 24A inserted

After section 24 of the Principal Act insert—

'24A.Access to designated places within Lake Tyers reserve

(1)The Minister, by notice published in the Government Gazette, may declare any place within the Lake Tyers reserve that is not a residential premises to be a designated place for the purposes of this section.

(2)The Minister must consult with the members of the Lake Tyers Aboriginal Trust and the residents of the Lake Tyers reserve before declaring a place to be a designated place under sub-section (1).

(3)Despite anything to the contrary in this Act but subject to this section—

(a)a public official exercising or performing a function or power conferred on the person by or under any Act, or regulations made under any Act, or at law, may enter and remain in a designated place within the Lake Tyers reserve;

(b)a non-government health and community service provider providing health and community services to the residents of the Lake Tyers reserve, may enter and remain in a designated place within the Lake Tyers reserve.

(4)A person referred to in sub-section (3) must not remain in a designated place any longer than is reasonably necessary—

(a)in the case of a public official, to exercise or perform the relevant function or power; or

(b)in the case of a non-government health and community service provider, to provide the relevant health and community services to the residents of the Lake Tyers reserve.

(5)In this section—

"designated place" means a place declared under sub-section (1) to be a designated place;

"non-government health and community service provider" means a person who, under an agreement with the Commonwealth, the State or the municipal council in whose municipal district the Lake Tyers reserve is located, provides health and community services to the residents of the Lake Tyers reserve or a class of persons that includes the residents of the Lake Tyers reserve;

"public official" means a person who exercises or performs a function or power conferred on the person by or under any Act, or regulations made under any Act, or at law.'.

9.New sections 24B to 24E inserted

Before section 25 of the Principal Act insert—

'24B.Survey plan of Lake Tyers reserve roads

(1)On receiving a plan of survey, signed by the Surveyor-General, of the land shown hatched on the plan numbered LEGL./04–270 and lodged in the Central Plan Office of the Department of Sustainability and Environment, or that land as nearly as practicable, the Minister may recommend that the Governor in Council approves the plan.

(2)A plan under this section may make any adjustment to boundaries that is necessary because of a defect found on survey.

(3)For the purposes of this section, the Governor in Council, on the Minister's recommendation, may approve a plan by Order published in the Government Gazette.

24C.Lake Tyers reserve roads to be public roads

(1)Despite anything to the contrary in this Act, on and from the date of publication in the Government Gazette of the Order under section 24B(3)—

(a)the Lake Tyers reserve roads—

(i)are deemed to be roads open to and for use by the public, and for passage with vehicles; and

(ii)are deemed to be highways within the meaning of the Road Safety Act 1986; and

(iii)are to be treated, for the purposes of the Road Management Act 2004, as if they were roads declared under section 204(1) of the Local Government Act 1989; and

(b)section 205 of the Local Government Act 1989 applies to the Lake Tyers reserve roads as if they were public highways within the meaning of that Act; and

(c)the municipal council in whose municipal district the Lake Tyers reserve roads are located is deemed to be, in respect of those roads, the coordinating road authority and responsible road authority for the purposes of the Road Management Act 2004.

(2)Despite sub-section (1)(a)(iii) and (1)(b), clause 1(4) of Schedule 5 to the Road Management Act 2004 does not operate to vest, in fee simple, the Lake Tyers reserve roads in the municipal council in whose district the Lake Tyers reserve roads are located.

(3)Despite anything to the contrary in the Local Government Act 1989, the municipal council that is, in respect of the Lake Tyers reserve roads, deemed to be the coordinating road authority and responsible road authority for the purposes of the Road Management Act 2004 must not discontinue the Lake Tyers reserve roads or any part of those roads.

24D.Lake Tyers Aboriginal Trust is not liable as an occupier in relation to Lake Tyers reserve roads

For the avoidance of doubt, it is hereby declared that for the purposes of section 14B of the Wrongs Act 1958—

(a)the Lake Tyers Aboriginal Trust is not an occupier of the Lake Tyers reserve roads; and

(b)the Lake Tyers reserve roads are not premises.

24E.Partial abrogation of "ratione tenure" rule for the Lake Tyers reserve roads

The Lake Tyers Aboriginal Trust is not liable for the maintenance of the Lake Tyers reserve roads only by reason of tenure over the land in those roads.'.

10.Offences

(1)For section 25(1) of the Principal Act substitute—

"(1)A Trust which contravenes this Act in any manner referred to in sub-section (2), and every officer of the Trust who knowingly authorises or permits the contravention, shall be guilty of an offence and liable to a penalty not exceeding 10 penalty units.".

(2)In section 25(2)(b) of the Principal Act, for "keep" substitute "establish or maintain".

═══════════════

Endnotes

Minister's second reading speech—

Legislative Assembly: 26 August 2004

Legislative Council: 5 October 2004

The long title for the Bill for this Act was "to amend the Aboriginal Lands Act 1970 and for other purposes."