EXPLANATORY STATEMENT
Issued by the Minister for Families, Housing, Community Services and Indigenous Affairs
Aboriginal and Torres Strait Islander Act 2005
Torres Strait Regional Authority Section 142S Declaration 2008
The Torres Strait Regional Authority Section 142S Declaration 2008 (the Declaration) is made under subsection 142S of the Aboriginal and Torres Strait Islander Act 2005 (the Act). Subsection 142S(1) provides that the Minister may declare that the Minister is satisfied that the Torres Strait Regional Authority (TSRA) would best be able to represent the Torres Strait Islanders and Aboriginal persons living in the Torres Strait area if it consisted of, or included, persons elected to represent particular communities under the Queensland Act. This declaration is a disallowable instrument.
The definition of the Queensland Act is the Community Services (Torres Strait) Act 1984 of Queensland and includes any law that replaces that Act. On 22 November 2007 the Community Services (Torres Strait) Act 1984 was replaced by amendments to the Local Government Act 1993 (Qld). For the purposes of the Act the relevant provisions of the Local Government Act 1993 are now defined as the Queensland Act.
Subsection 142S(2) of the Act provides that the Minister’s Notice must set out details of how the TSRA is to be constituted and may include provision for some of the members to be elected under the Queensland Act to represent particular communities in the Torres Strait.
Under the existing declaration the TSRA comprises 20 members. Of these 18 hold office because they are elected under the Queensland Act and 2 are elected under the Act to represent the Port Kennedy Ward (which covers the southern half of Thursday Island) and the Horn/Prince of Wales Islands Ward.
The Queensland Local Government Act provides for councillors to be elected to local governments across the State. The Queensland Act provides for the election of councillors to the Torres Strait Island Regional Council (TSIRC) and the Northern Peninsula Aboriginal Regional Council (NPARC). To be eligible to stand for election to the TSIRC a candidate must be an Aboriginal or Torres Strait Islander and have lived in the relevant area for 2 years. There are no corresponding requirements for candidates for election to NPARC which includes the areas Bamaga and Seisia.
In order to give effect to the Act's intention that Aboriginal and Torres Strait Islanders living in the Torres Strait area be represented on the TSRA, this notice revokes the former notice made under s 142S and makes provision for the following:
- 15 members of the TSRA will be those persons representing each of the 15 island regions elected to the newly-created Torres Strait Islands Regional Council (TSIRC) under the Queensland Act, ;
- 2 members will be those persons elected to the newly created Northern Peninsula Aboriginal Regional Council (NPARC), under the Queensland Act representing Bamaga and Seisia (which have links to the Torres Strait); and
- 3 members will be elected under the Act representing the two existing wards of Port Kennedy, Horn/Prince of Wales Islands and the proposed new ward of TRAWQ (being an amalgam of Tamwoy, Rosehill, Aplin, Waiben and Quarantine, which comprises roughly the northern half of Thursday Island).
- If the person elected to represent either Bamaga or Seisia under the Queensland Act is not an Aboriginal or Torres Strait Islander then an election held in accordance with Part 3A, Division 5 of the Act will be conducted to elect the member for the ward of Bamaga or Seisia. This election will be held in accordance with the Act and any rules for elections made under the Act.
Notes on provisions
Rule 1 specifies the name of the Declaration.
Rule 2 provides that the Declaration commences on the day after registration on the Federal Register of Legislative Instruments.
Rule 3 provides definitions for some of the terms and expressions used in the Declaration.
Rule 4 is the Minister’s declaration.
Sub Rule 5(1) revokes the previous notice
Sub Rule 5(2) is a savings provision. This provision ensures the continued operation of the TSRA as constituted before the amendments to the Queensland Act until the election of all the members of the TSRA under this Act and the Queensland Act are concluded. This allows the TRSA to continue to conduct its business during the period of the elections for members. Office holders would continue in office until new elections for office holders under the Act are conducted when the newly constituted TSRA meets for the first time.
Rule 6 provides for the TSRA to constitute members that are determined on the basis of.
- 15 members of the TSRA will be those persons representing each of the 15 island regions elected to the newly-created Torres Strait Islands Regional Council (TSIRC) under the Queensland Act, ;
- 2 members will be those persons elected to the newly-created Northern Peninsula Aboriginal Regional Council (NPARC), under the Qld Act representing Bamaga and Seisia (which have links to the Torres Strait); and
- 3 members elected under the Act representing the two existing wards of Port Kennedy, Horn/Prince of Wales Islands and the proposed new ward of TRAWQ (being an amalgam of Tamwoy, Rosehill, Aplin, Waiben and Quarantine, which comprises roughly the northern half of Thursday Island)
- If the person elected to represent either Bamaga or Seisia under the Queensland Act is not an Aboriginal or Torres Strait Islander then an election held in accordance with Part 3A, Division 5 of the Act will be conducted to elect the member for the ward of Bamaga or Seisia. This election will be held in accordance with the Act and any rules for elections made under the Act.
Rule 7 sets out the method and timing of election of members of the TSRA. This Rule displaces the provision under 142Y of the Act.
Rule 8 provides for the term of office of the TSRA members elected under the Queensland Act and for those members elected under the Act including those elected for Bamaga and Seisia wards if elected under the Act.
Consultation
The Torres Strait Regional Authority and the Australian Electoral Commission have been consulted in the drafting of this declaration.
Regulatory Impact Analysis
Amendments arise as a consequence of changes to Queensland legislation. No changes to substantive obligations under the Act arise.
Overview
The Torres Strait Regional Authority Section 142S Declaration 2008, enacted under the Aboriginal and Torres Strait Islander Act 2005, addresses the need to ensure that the Torres Strait Regional Authority (TSRA) appropriately represents the interests of Torres Strait Islanders and Aboriginal people living in the Torres Strait area. This declaration, made by the Minister for Families, Housing, Community Services and Indigenous Affairs, aims to align the composition of the TSRA with the changes in Queensland's local government legislation, specifically the replacement of the Community Services (Torres Strait) Act 1984 with amendments to the Local Government Act 1993 (Qld). The policy objective is to maintain the representation of Torres Strait Islanders and Aboriginal people on the TSRA, ensuring it reflects the most current electoral structures in Queensland. The Declaration outlines a new constitution for the TSRA, including 15 members elected under the Queensland Act to represent island regions, two members from the Northern Peninsula Aboriginal Regional Council, and three members elected under the Act for specific wards, with provisions for supplementary elections if necessary to meet the eligibility criteria.
This Declaration, a disallowable instrument, provides for the TSRA to continue operating until the new members are elected and the authority meets for the first time, ensuring continuity in its functions. The consultation with the Torres Strait Regional Authority and the Australian Electoral Commission in drafting this declaration underscores the commitment to inclusive and effective representation in the region. The Regulatory Impact Analysis indicates that the amendments are a response to legislative changes in Queensland and do not introduce new obligations under the Act.
Scope and Application
The Torres Strait Regional Authority Section 142S Declaration 2008 pertains to the composition and election of members of the Torres Strait Regional Authority (TSRA) under the Aboriginal and Torres Strait Islander Act 2005. The Declaration applies to the TSRA and its members, ensuring that the authority adequately represents the interests of Torres Strait Islanders and Aboriginal persons living in the Torres Strait area. It is made in response to changes in Queensland legislation, specifically the replacement of the Community Services (Torres Strait) Act 1984 with amendments to the Local Government Act 1993 (Qld), and defines how the TSRA should be constituted to reflect these changes. The Declaration mandates that 15 members of the TSRA will be elected representatives from the Torres Strait Islands Regional Council under the Queensland Act, two members will represent Bamaga and Seisia under the Northern Peninsula Aboriginal Regional Council, and three members will be elected to represent specific wards, including a new ward of TRAWQ. If an elected member from Bamaga or Seisia is not an Aboriginal or Torres Strait Islander, an election will be held under the Act to fill the position. The Declaration also includes provisions for the term of office and the method and timing of elections, thereby ensuring a seamless transition and continued operation of the TSRA during the election period.
Key Provisions
The Torres Strait Regional Authority Section 142S Declaration 2008 (the Declaration) is a legislative instrument made under subsection 142S(1) of the Aboriginal and Torres Strait Islander Act 2005 (the Act). This instrument outlines the composition of the Torres Strait Regional Authority (TSRA) to ensure that it best represents the Torres Strait Islanders and Aboriginal persons living in the Torres Strait area. Specifically, the Declaration stipulates that fifteen members of the TSRA will be individuals representing each of the fifteen island regions, elected to the Torres Strait Islands Regional Council (TSIRC) under the Queensland Act, which is defined as the Local Government Act 1993 (Qld). Additionally, two members will be elected to the Northern Peninsula Aboriginal Regional Council (NPARC) under the Queensland Act, representing Bamaga and Seisia. Finally, three members will be elected under the Act to represent the existing wards of Port Kennedy, Horn/Prince of Wales Islands, and a new ward, TRAWQ, which encompasses Tamwoy, Rosehill, Aplin, Waiben, and Quarantine, covering the northern half of Thursday Island.
Under the Declaration, the TSRA is mandated to consist of members elected under specific conditions outlined in the Queensland Act and the Act itself. The Declaration mandates that if the elected representative for Bamaga or Seisia under the Queensland Act is not an Aboriginal or Torres Strait Islander, an election will be held under Part 3A, Division 5 of the Act to select a suitable member. This ensures that the TSRA comprises representatives who are best suited to advocate for the interests of the Torres Strait Islanders and Aboriginal people in the region. Furthermore, Rule 7 of the Declaration details the method and timing for the election of TSRA members, superseding the previous provision under section 142Y of the Act. Rule 8 specifies the term of office for members elected under the Queensland Act and for those elected under the Act, including those elected for the wards of Bamaga and Seisia if necessary.
The Torres Strait Regional Authority Section 142S Declaration 2008 imposes several obligations on the parties involved. The primary obligation is the constitutional requirement that the TSRA consists of members who can effectively represent the interests of the Torres Strait Islanders and Aboriginal persons. This includes ensuring that members are elected according to the provisions of both the Queensland Act and the Act. Additionally, if an elected representative for Bamaga or Seisia under the Queensland Act is not an Aboriginal or Torres Strait Islander, the TSRA must hold an additional election to fill the position. The Declaration also requires the TSRA to continue its operations without interruption until all members are elected under the new provisions.
Failure to comply with the provisions of the Declaration can result in civil and criminal consequences. However, the Act does not specify particular offences or penalties within the text of the Declaration. Generally, breaches of legislative instruments in Australia can lead to penalties such as fines or imprisonment, depending on the severity of the breach and the specific legislation involved. The consequences for non-compliance would be determined by the courts based on the relevant laws and the nature of the breach.