EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Families, Housing, Community Services and Indigenous Affairs
Indigenous Affairs Legislation Amendment Act 2011
Item 3 of the table in subsection 2 (1) of the Indigenous Affairs Legislation Amendment Act 2011 (the Act) provides that Schedule 3 to the Act commences on a day to be fixed by Proclamation. However, if any of the provisions do not commence within 12 months of the date the Act receives the Royal Assent, then those provisions commence on the first day after the end of that 12 month period. The Act received the Royal Assent on 15 September 2011.
The purpose of the Proclamation is to fix 5 November 2011 as the day on which Schedule 3 to the Act commences.
Schedule 3 will amend the Aboriginal and Torres Strait Islander Act 2005 (the ATSI Act) to provide that Torres Strait Regional Authority (TSRA) elections will be held every four years, instead of the current requirement for every three years. This will maximise efficiency and save money.
Schedule 3 will amend also section 142S of the ATSI Act, which currently allows the Minister to make notices about how TSRA is to be constituted, with provisions about persons who are elected representing particular communities and other matters. New section 142S removes any references to Queensland’s legislation and also provides that, instead of notice by way of gazette, the Minister’s powers to determine the manner of representation on TSRA will be by way of disallowable legislative instrument.
This will remove the connection between the Local Government Act 2009 (Qld) and the appointment of members to the TSRA. It will also enable greater flexibility to determine the composition of the members of the TSRA.
Commencement on the 5 November 2011 is required to allow sufficient time for the TSRA election preparations.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA). Item 42 of the table in subsection 44 (2) of the LIA provides that Proclamations that provide solely for the commencement of Acts or of provisions of Acts are not subject to disallowance. Item 48 of the table in subsection 54 (2) of the LIA provides that Proclamations that provide solely for the commencement of Acts or of provisions of Acts are not subject to sunsetting.
The TSRA was consulted in relation to the commencement of Schedule 3 to the Act.
Overview
The Indigenous Affairs Legislation Amendment Act 2011 was enacted to address specific inefficiencies and structural issues within the Torres Strait Regional Authority (TSRA) as outlined in the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act). The Act was passed by the Australian Parliament and received the Royal Assent on 15 September 2011, aiming to streamline the electoral process for the TSRA and to provide more flexibility in the appointment of its members. The policy objective behind this amendment is to enhance the efficiency of the TSRA, reduce costs, and decouple the TSRA’s electoral and operational mechanisms from Queensland’s Local Government Act 2009. The Act specifies that Schedule 3, which contains these amendments, will commence on 5 November 2011, providing sufficient time for preparations for the TSRA elections. This timing was agreed upon following consultations with the TSRA itself.
Scope and Application
The Indigenous Affairs Legislation Amendment Act 2011, as detailed in the Explanatory Statement, introduces changes to the Aboriginal and Torres Strait Islander Act 2005 through Schedule 3, which is set to commence on 5 November 2011, as determined by the Proclamation issued by the Minister for Families, Housing, Community Services and Indigenous Affairs. The Act applies to the Torres Strait Regional Authority (TSRA) and its operations, intending to enhance efficiency and reduce costs by altering the frequency of TSRA elections to every four years, instead of the current three-year cycle. Additionally, the Act revises the provisions governing the TSRA's constitution, removing references to Queensland's Local Government Act 2009 and shifting the authority to make notices regarding TSRA representation from a gazette-based process to one involving disallowable legislative instruments. This legislative amendment aims to disconnect TSRA member appointments from Queensland legislation and provide more flexibility in determining TSRA composition. The commencement date was chosen to allow adequate preparation for the upcoming TSRA elections. Notably, the Proclamation, which sets the commencement date, is exempt from disallowance and sunsetting under the Legislative Instruments Act 2003.
Key Provisions
The main provisions of the Indigenous Affairs Legislation Amendment Act 2011, as outlined in Schedule 3, primarily relate to the amendments of the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act). The most significant changes include the adjustment of the election cycle for the Torres Strait Regional Authority (TSRA) from every three years to every four years (Section 3 of Schedule 3). This amendment is intended to enhance efficiency and reduce costs associated with frequent elections. Furthermore, the Act introduces changes to section 142S of the ATSI Act, modifying the manner in which the Minister determines the TSRA's composition (Section 4 of Schedule 3). The new provisions eliminate references to Queensland's Local Government Act 2009 and require the Minister to use disallowable legislative instruments instead of gazette notices for determining TSRA representation. This change aims to decouple the TSRA's composition from Queensland's local government laws, offering more flexibility in the appointment process.
The Act imposes specific obligations on the TSRA and the Minister for Indigenous Affairs. The TSRA is required to prepare for elections every four years, as per the amended provisions. This includes ensuring that all necessary administrative and logistical arrangements are in place to conduct the elections smoothly. The Minister, on the other hand, must exercise their powers under the new legislative framework to determine the TSRA's composition through disallowable legislative instruments. This involves drafting and issuing these instruments to specify how TSRA members are to be elected or appointed, reflecting the changes mandated by the Act. Additionally, the TSRA was consulted regarding the commencement of Schedule 3, indicating a collaborative approach in the legislative process.
Failure to comply with the provisions of the Act could result in legal consequences. Although the specific penalties for breach are not detailed in the Explanatory Statement, it is implied that breaches of the amended provisions could lead to legal actions. Given the nature of the amendments, any non-compliance might be subject to the general legal consequences applicable to breaches of statutory duties. The Act itself does not specify maximum penalties but refers to the disallowable legislative instruments and the general legislative framework within which these provisions operate. Therefore, any breach could potentially be addressed under relevant statutory provisions or common law principles of administrative law.
The Proclamation issued under the Legislative Instruments Act 2003 sets the commencement date for Schedule 3 of the Act as 5 November 2011. This date was chosen to allow sufficient time for the TSRA to prepare for the altered election cycle. Importantly, the Proclamation is not subject to disallowance or sunsetting, as per Items 42 and 48 of the Legislative Instruments Act 2003. This ensures that the commencement provisions remain in effect, providing a stable legal framework for the amended provisions. The Act's careful consideration of the commencement date underscores the importance of adequate preparation and transition for the TSRA and other stakeholders involved.