STRONGER FUTURES IN THE NORTHERN TERRITORY REGULATION 2013 (SLI NO 184 OF 2013) EXPLANATORY STATEMENT

STRONGER FUTURES IN THE NORTHERN TERRITORY REGULATION 2013 (SLI NO 184 OF 2013)

Issued by the authority of the Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform

The Stronger Futures in the Northern Territory Regulation 2013 (the Regulation) is made under the Stronger Futures in the Northern Territory Act 2012 (the Act).

Section 120 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

The Act consists of the tackling alcohol abuse, land reform and food security measures. All measures have been designed as special measures, consistent with the Racial Discrimination Act 1975 (Cth). Part 3 of the Act covers the land reform measures. The object of Part 3 of the Act is to enable special measures to be taken which facilitate the granting of individual rights and interests in town camps and community living areas in the Northern Territory and to promote economic development in town camps and community living areas.

Division 3 of Part 3 of the Act deals with community living areas and it allows regulations to be made to modify particular laws in the Northern Territory to the extent those laws apply to a community living area. Subsection 35(1)(b) of the Act provides that the regulations may modify any law of the Northern Territory relating to dealings in land to the extent that the law applies to a community living area.

Division 2 of Part 3 of the Regulation modifies section 110 of the Associations Act (NT) to enable community living area landowners to grant leases and licences in community living areas in respect of land uses and developments that are currently permitted under the Northern Territory Planning Scheme and to enable such grants for a term of 10 years or less without requiring consent from the relevant Northern Territory Minister.

A community living area is defined in subsection 35(2) of the Act as "an area granted or created as an Aboriginal community living area by or under a law of the Northern Territory".

Subsection 35(2) of the Act provides an example of a community living area being land granted under subsection 46(1A) of the Lands Acquisition Act of the Northern Territory (LAA (NT)).

Subsection 46(1B) of the LAA (NT) provides that the land is granted subject to certain conditions and reservations and becomes "prescribed property" for the purposes of the Associations Act (NT).

Section 110 of the Associations Act (NT) contains provisions relating to dealings in relation to "prescribed property" and which, subject to some limited exceptions, prevent community living area landowners from granting leasehold interests in their land unless Northern Territory Ministerial consent is given to the grant which the Minister is not able to give unless the lease's permitted use relates to the provision of health, education, housing or financial services.

The Regulation modifies section 110 of the Associations Act (NT), as set out in Schedule 7 of the Regulation, and enables community living area landowners (both associations and Aboriginal corporations) to grant leases and licences for purposes consistent with the Northern Territory Planning Scheme without Northern Territory Ministerial consent if the grant is for a term of 10 years or less. Part 6 of the Northern Territory Planning Scheme provides that community living area land may be used or developed without consent of the relevant planning authority for any purpose that is "necessary for, or ancillary to, community life". The land is not to be used or developed without consent for any other purpose, including the keeping of livestock.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth).

(b) if the owner of the land that is the community living area requests to be consulted about the making of regulations for the purposes of subsection (1)--the owner; and

(c) the Land Council (within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976) in whose area the community living area is located; and

For the purposes of the consultation requirements under subsection 35(4) of the Act, the Minister released a Discussion Paper on community living area land reform in the Northern Territory on 15 March 2013, marking the formal commencement of consultations on community living area land reform as part of the Stronger Futures in the Northern Territory commitment. The Discussion Paper outlined issues and ideas relevant to community living area reform.

The Discussion Paper invited submissions from interested stakeholders and members of the public in relation to potential land reform in community living areas. The Minister also wrote to the Northern Land Council, the Central Land Council, the Northern Territory Government and the Northern Territory Cattlemen's Association.

Australian Government officials conducted consultation meetings on possible reforms to community living area land during April and May 2013. This process included meetings in certain community living area communities as well as meetings with cattle station owners and managers. Australian Government officials also met with Northern Territory Government officials and representatives of the Northern Territory Cattlemen's Association during this period.

The Minister released an Outcomes Paper and an exposure draft of the Stronger Futures in the Northern Territory Regulation 2013 (the Regulation)
on 21 June 2013 following consultations and receipt of submissions on the Discussion Paper. The Minister again wrote to the Northern Land Council, the Central Land Council, the Northern Territory Government and the Northern Territory Cattlemen's Association seeking responses to the Outcomes Paper and to the Regulation exposure draft. The Minister also wrote to the Binjari Community Aboriginal Corporation and the Jilkminggan Community Aboriginal Corporation following consultation meetings undertaken at Binjari and Jilkminggan communities and in acknowledgement that these Corporations are not represented by a Land Council.

Responses to the Regulation exposure draft were considered in the finalisation of the Regulation.

This section provides that the name of the Regulation is the Stronger Futures in the Northern Territory Regulation 2013.

This section provides for the Regulation to commence on the day after it is registered.

This section provides that the Regulation is made under the Stronger Futures in the Northern Territory Act 2012.

This section provides for a definition of the term 'Act' which means the Stronger Futures in the Northern Territory Act 2012.

This provides for the future inclusion of town camps under Division 1 of Part 3 of the Regulation.

This section provides for the modification of the Associations Act (NT) as set out in Schedule 7 and as enabled under subsection 35(1)(b) of the Act and only to the extent the Associations Act (NT) applies to a community living area.

This Schedule modifies the Associations Act (NT) to the extent it applies to a community living area.

This item adds a note at the end of subsection 110(1) of the Associations Act (NT) which refers to subsection (6A) for circumstances in which the consent of the NT Minister is not required in relation to certain kinds of leases and licences.

This item inserts "or licence" after "a lease" in subsection 110(6)(d) of the Associations Act (NT). Subsection 110(6) covers community living area landowners that are associations incorporated under the Associations Act (NT).

This item inserts "or licence" after "the lease" in subsection 110(6)(d) of the Associations Act (NT).

This item adds a new subsection 110(6)(e) to the Associations Act (NT) which enables community living area landowners that are associations to grant leases and licences for purposes consistent with the Northern Territory Planning Scheme. These purposes include commercial purposes (including community stores), purposes relating to infrastructure and public purposes (including the provision of essential services). Item 4 also notes that as at June 2013, the Northern Territory Planning Scheme was accessible at http://www.lands.nt.gov.au.

This item inserts a new subsection (6A) after subsection 110(6) of the Associations Act (NT) which provides that the consent of the NT Minister mentioned in subsection (1) is not required for a lease or licence mentioned in paragraph (6)(d) or (e), if the lease or licence is for a term of 10 years or less.

This item adds a note at the end of subsection 110(7) of the Associations Act (NT) which refers to subsection (8A) for circumstances in which the consent of the NT Minister is not required. Subsections 110(1)(7),(8) cover community living area landowners that are Aboriginal corporations administered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

This item inserts "or licence" after "a lease" in subsection 110(8)(d) of the Associations Act (NT).

This item inserts "or licence" after "the lease" in subsection 110(8)(d) of the Associations Act (NT).

This item adds a new subsection 110(8)(e) to the Associations Act (NT) which enables community living area landowners that are Aboriginal corporations to grant leases and licences for purposes consistent with the Northern Territory Planning Scheme. These purposes include commercial purposes (including community stores), purposes relating to infrastructure and public purposes (including the provision of essential services). Item 9 also notes that as at June 2013, the Northern Territory Planning Scheme was accessible at http://www.lands.nt.gov.au.

This item inserts a new subsection (8A) after subsection 110(8) of the Associations Act (NT) which provides that the consent of the NT Minister mentioned in subsection (7) is not required for a lease or licence mentioned in paragraph (8)(d) or (e), if the lease or licence is for a term of 10 years or less.

This item inserts after subsection 110(14) of the Associations Act (NT) a definition of Northern Territory Planning Scheme which means the scheme with that title, published by the Government of the Northern Territory, as in force when the Regulation commences. Item 11 also notes that as at June 2013, the Northern Territory Planning Scheme was accessible at http://www.lands.nt.gov.au.

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

The Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The Regulation is made as part of the land reform measure in Part 3 of the Stronger Futures in the Northern Territory Act 2012 (the Act).

The objective of the land reform measure, in the context of Aboriginal community living areas, is to enable the Commonwealth to make amendments to particular laws of the Northern Territory to:

* facilitate the granting of individual rights or interests in community living areas; and

* promote economic development in community living areas through the lifting of land tenure restrictions.

Northern Territory legislation in relation to community living areas contains restrictions on dealings in land, including leasing, that prevent commercial leasing and leasing for certain public infrastructure and services.

The Regulation removes some of the restrictions, which are peculiar to community living areas and which are provided under section 110 of the Associations Act (NT), by amending the relevant provisions under the Associations Act using the power provided under section 35 of the Act. Before making this Regulation the Minister consulted with the Government of the Northern Territory and other parties.

* allows community living area title holders to grant leases and licences for a broader range of purposes, including for commercial, infrastructure and public purposes; and

* changes the current arrangements in relation to Northern Territory Ministerial consent for leases on community living area land to only require Ministerial consent for leases with a term greater than ten years, rather than 12 months as is currently the case. This consent provision will also apply to licences.

Consultation is mandatory prior to making any regulations under the land reform measure and any regulations made under the legislation are subject to Parliamentary scrutiny and disallowance.[1]

On 15 March 2013, the Australian Government released a Discussion Paper on community living area land reform in the Northern Territory, marking the formal commencement of the Government's consultations in relation to community living area land reform as part of the Stronger Futures in the Northern Territory commitment. The Discussion Paper outlined issues and ideas relevant to community living area land reform. The formal commencement of consultations was preceded by engagement with Northern Territory Government officials and Land Councils from 2012 on the Australian Government's approach to the consultation process.

In addition to consulting with the Northern Territory Government and in accordance with subsection 35 of the Act, Australian Government officials conducted consultation meetings on possible reforms to community living area land during April and May 2013. This process included meetings in community living area communities with community living area land owners, residents and other interested parties. Representatives from the Central Land Council attended community meetings in the Central Land Council region where requested to do so by land owners except on very few occasions where this was not possible due to staff availability. The Northern Land Council attended a number of meetings in the Northern Land Council region. Australian Government officials also met with Northern Territory Government officials, representatives of the Northern Territory Cattlemen's Association, and cattle station owners and managers.

Views provided in consultation meetings are summarised in an Outcomes Paper released by the Australian Government on 21 June 2013. The Outcomes Paper also outlines proposed immediate reforms and options for longer term reforms. Draft Regulations to effect the immediate reforms were released at the same time as the Outcomes Paper. All documents are available on the Department of Families, Housing, Community Services and Indigenous Affairs website.

The Australian Government considered written feedback received on the Draft Regulations before deciding on the final form of these Regulations.

Careful consideration was given to the relevant international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 throughout the development of the Act and in the development of the Regulation including the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The Regulation is designed to begin the process of addressing the disadvantages in community living areas by addressing restrictions in relation to land dealings with the prospect of further measures being introduced in the future subject to further consultations with stakeholders.

The policy intention is that the land reform measure is a 'special measure' within the meaning of article 1(4) of the CERD (and subsection 8(1) of the Racial Discrimination Act 1975 (Cth) (RDA).

The CERD provides that special measures are deemed not to be discrimination. Special measures are designed to 'secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms'.[2] The Regulation is designed to begin achieving this objective in community living areas.

* the right to equal protection and equality before the law (art 26 of the ICCPR); and

* the right to own property as well as in association with others (art 5(d)(v) of the CERD).

The land reform measure under the Act and the Regulation has been designed as a special measure in accordance with article 1(4) of the CERD.

3. requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms; and

Consistent with article 1(4) of the CERD, the Regulation is being made for the sole purpose of securing adequate advancement for residents of Aboriginal community living areas. This Regulation is required as a first step in providing a platform for secure and meaningful land tenure in community living areas so as to assist in securing members of those communities full and equal enjoyment of human rights and fundamental freedoms by removing land tenure impediments that uniquely restrict community living areas.

The regulation making power in the land reform measure under the Act will cease once the special measure objective is achieved. However, in accordance with subsection 35(3)(b) of the Act, the amendments to the Associations Act (NT) effected by this Regulation will remain in force subject to the Northern Territory's concurrent powers under section 35(3)(c) of the Act. The amendments to the Associations Act (NT) remaining in force is necessary to ensure that that the objectives of the special measure are achieved and to ensure that at the time of sunset, the rights titles and interests existing in community living areas are not adversely affected as a result of the Act's sunset.

In accordance with section 117 of the Act, an independent review must be undertaken to assess the effectiveness of the special measures provided for by the Act within 4 years of the Act's commencement with a copy of the report to be published and tabled in Parliament. To ensure that the special measures do not continue beyond their need, the Act will automatically sunset after 10 years of operation.

Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform

[1] Provisions in the Act provide that a failure to consult does not affect the validity of regulations and are consistent with other Commonwealth legislation such as the Legislative Instruments Act 2003 and the Aboriginal Land Rights (Northern Territory) Act 1976.

[2] Committee on the Elimination of Racial Discrimination, General Recommendation No. 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination (August 2009), at Paragraph [11].

Commonwealth Numbered Regulations - Explanatory Statements