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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Aboriginal Land Rights Amendment (Local
Aboriginal Land Councils) Bill 2017
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Repeal of Aboriginal Land Rights Amendment Act 2014 No 75 2
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42 3
Schedule 2 Amendment of Aboriginal Land Rights Regulation 2014 8
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2017
New South Wales
Aboriginal Land Rights Amendment (Local
Aboriginal Land Councils) Bill 2017
Act No , 2017
An Act to amend the Aboriginal Land Rights Act 1983 to provide for the making of performance
improvement orders by the New South Wales Aboriginal Land Council; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Bill 2017 [NSW]
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Aboriginal Land Rights Amendment (Local Aboriginal Land
Councils) Act 2017.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Repeal of Aboriginal Land Rights Amendment Act 2014 No 75
The Aboriginal Land Rights Amendment Act 2014 is repealed.
Page 2
Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Bill 2017 [NSW]
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
Schedule 1 Amendment of Aboriginal Land Rights Act 1983
No 42
[1] Section 52 Functions of Local Aboriginal Land Councils
Omit section 52 (5A) and (5B). Insert instead:
(5A) Corporations
A Local Aboriginal Land Council may establish, acquire, operate or manage
the following:
(a) an Aboriginal and Torres Strait Islander corporation within the meaning
of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 of
the Commonwealth,
(b) a company within the meaning of the Corporations Act 2001 of the
Commonwealth.
[2] Section 222 Administrators--Local Aboriginal Land Councils
Insert "and the Board of the Council" after "the Council" where firstly occurring in
section 222 (4).
[3] Section 223B Interim actions pending appointment of administrator
Insert "and the Board of the Council" after "Council" in section 223B (1) (a).
[4] Section 223B (1) (b)
Omit ", with specified functions,".
[5] Section 223B (1A)
Insert after section 223B (1):
(1A) The interim administrator has, during the period of his or her appointment, to
the exclusion of the Council and the Board of the Council:
(a) all, or such part as is specified in the interim administrator's instrument
of appointment, of the functions of the Board of the Council conferred
or imposed by or under this Act, and
(b) the functions of the Council and the members of the Council exercised
by resolution of the members of the Council that are prescribed by the
regulations (except as provided by the interim administrator's
instrument of appointment).
[6] Section 223B (6)
Insert after section 223B (5):
(6) The interim administrator is to be paid out of the funds of the New South
Wales Aboriginal Land Council and the New South Wales Aboriginal Land
Council may recover that amount from the Local Aboriginal Land Council for
which the interim administrator has been appointed.
[7] Section 231 Minister may amend instrument of appointment of administrator
Omit section 231 (3). Insert instead:
(3) The Minister may, by subsequent instrument of appointment, vary the
functions that may be exercised by an administrator during the extension of the
administrator's term of appointment.
Page 3
Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Bill 2017 [NSW]
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
[8] Section 234 Appointment of advisors
Omit the section.
[9] Part 11, Division 4
Insert after Division 3:
Division 4 Performance improvement orders for Local Aboriginal
Land Councils
234A Performance improvement orders
(1) The New South Wales Aboriginal Land Council may make a performance
improvement order in respect of a Local Aboriginal Land Council if the New
South Wales Aboriginal Land Council reasonably considers that action must
be taken to improve the performance of the Local Aboriginal Land Council.
(2) In determining whether to make a performance improvement order, the New
South Wales Aboriginal Land Council:
(a) must consider the performance improvement criteria prescribed by the
regulations (if any), and
(b) may consider any previous communication between the Local
Aboriginal Land Council concerned and the New South Wales
Aboriginal Land Council in relation to the Local Aboriginal Land
Council's performance.
(3) Without limiting subsection (2), the New South Wales Aboriginal Land
Council may consider any other matter that the Council considers to be
appropriate when determining whether to make a performance improvement
order.
(4) A performance improvement order must specify:
(a) the reason for making the order, and
(b) the actions that are required to be taken to improve the performance of
the Local Aboriginal Land Council.
(5) Actions to improve the performance of a Local Aboriginal Land Council may
include any actions that the New South Wales Aboriginal Land Council
considers necessary to improve or restore the proper or effective functioning
of the Local Aboriginal Land Council.
(6) The performance improvement order may require action to be taken by any or
all of the following:
(a) the Local Aboriginal Land Council,
(b) the Board or individual Board members of the Local Aboriginal Land
Council,
(c) the chief executive officer of the Local Aboriginal Land Council.
(7) A performance improvement order may provide for the appointment of an
advisor in accordance with this Division.
(8) A copy of the performance improvement order, or the variation of a
performance improvement order, is to be served on the Local Aboriginal Land
Council.
(9) A performance improvement order takes effect on the day on which it is served
on the Local Aboriginal Land Council concerned, or such later date as may be
specified in the order.
Page 4
Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Bill 2017 [NSW]
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
(10) The making of a performance improvement order, or the fact that any such
order is in force, does not derogate from any power of the New South Wales
Aboriginal Land Council or any other person to make any order or take any
other action under this Act.
(11) A performance improvement order in respect of a Local Aboriginal Land
Council ceases to be in force if the Minister appoints an administrator or
interim administrator for the Local Aboriginal Land Council.
(12) In relation to a performance improvement order, a reference to an action, or
the taking of any action, includes a reference to doing any thing or refraining
from doing any thing.
(13) A Local Aboriginal Land Council must provide a copy of a performance
improvement order to the members of the Council at the first meeting of the
Council held after the performance improvement order is made in respect of
the Council.
234B Compliance with performance improvement order
(1) The Board of a Local Aboriginal Land Council is responsible for ensuring the
Council's compliance with a performance improvement order.
(2) A Local Aboriginal Land Council complies with a performance improvement
order only if any action required to be taken by the performance improvement
order (including any actions required to be taken by individual Board members
or the chief executive officer) is taken to the satisfaction of the New South
Wales Aboriginal Land Council.
234C Compliance report
(1) A Local Aboriginal Land Council must provide the New South Wales
Aboriginal Land Council with written reports on its compliance with a
performance improvement order as required by the order (a compliance
report).
(2) A compliance report must specify any actions taken that demonstrate
compliance with the performance improvement order.
(3) A compliance report must comply with any requirements for the report
specified in the performance improvement order.
(4) A Local Aboriginal Land Council must provide a copy of a compliance report
to the members of the Council at the first meeting of the Council held after the
report is provided to the New South Wales Aboriginal Land Council.
234D Appointment of advisors
(1) If the New South Wales Aboriginal Land Council makes a performance
improvement order in respect of a Local Aboriginal Land Council, the New
South Wales Aboriginal Land Council may appoint one or more persons as
advisors to the Local Aboriginal Land Council.
(2) An advisor may be appointed at the same time as the New South Wales
Aboriginal Land Council makes the performance improvement order or at any
time while the order remains in force.
(3) An advisor may be appointed on the recommendation of the Local Aboriginal
Land Council or on the New South Wales Aboriginal Land Council's own
initiative.
Page 5
Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Bill 2017 [NSW]
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
(4) An advisor has, subject to any limitations specified in the advisor's instrument
of appointment, the following functions:
(a) to advise and assist the Board of the Local Aboriginal Land Council and
the Council in the exercise of their functions,
(b) to advise and assist the Board of the Local Aboriginal Land Council and
the Council in complying with the performance improvement order,
(c) to monitor compliance with the performance improvement order.
(5) An advisor's appointment to a Local Aboriginal Land Council ends on the
earlier of the following:
(a) the end of the term specified in the advisor's instrument of appointment,
(b) the day on which the performance improvement order for the Local
Aboriginal Land Council expires, is revoked or otherwise ceases to be
in force.
(6) The New South Wales Aboriginal Land Council may terminate an advisor's
appointment at any time.
(7) The advisor is to be paid a salary determined by the New South Wales
Aboriginal Land Council out of the funds of the New South Wales Aboriginal
Land Council and the New South Wales Aboriginal Land Council may recover
that amount from the Local Aboriginal Land Council for which the advisor has
been appointed.
234E Co-operation with advisor
(1) If an advisor is appointed to a Local Aboriginal Land Council, the Council and
its Board members and staff are required to co-operate with the advisor and
provide any information or assistance the advisor reasonably requires to
exercise his or her functions.
(2) In particular, the Local Aboriginal Land Council must give the advisor an
opportunity to review a compliance report at least 14 days before providing the
report to the New South Wales Aboriginal Land Council and must include a
copy of the advisor's comments (if any) when providing the compliance report
to the New South Wales Aboriginal Land Council.
(3) If a Local Aboriginal Land Council fails to give an advisor an opportunity to
comment on a compliance report, the advisor is to:
(a) inform the New South Wales Aboriginal Land Council of that fact, and
(b) give the New South Wales Aboriginal Land Council a report on the
Local Aboriginal Land Council's compliance with the performance
improvement order.
(4) If a Local Aboriginal Land Council fails to provide a compliance report to the
New South Wales Aboriginal Land Council in accordance with a performance
improvement order, the advisor must, as soon as practicable after becoming
aware of that fact:
(a) prepare a compliance report on behalf of the Local Aboriginal Land
Council, and
(b) provide the report to the New South Wales Aboriginal Land Council.
(5) A contravention of this section by a Local Aboriginal Land Council is, for the
purposes of this Division, a failure to comply with a performance
improvement order.
Page 6
Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Bill 2017 [NSW]
Schedule 1 Amendment of Aboriginal Land Rights Act 1983 No 42
[10] Schedule 4 Savings, transitional and other provisions
Insert at the end of clause 61:
(3) This clause ceases to have effect on the amendment of section 52 by the
Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Act
2017.
Page 7
Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Bill 2017 [NSW]
Schedule 2 Amendment of Aboriginal Land Rights Regulation 2014
Schedule 2 Amendment of Aboriginal Land Rights
Regulation 2014
[1] Part 7, heading
Insert "and performance improvement orders" after "Councils"
[2] Part 7, Division 1, heading
Insert before clause 95:
Division 1 Administration of Councils
[3] Clause 95 Functions that may be exercised by administrator or interim administrator
Insert at the end of the clause:
(2) For the purposes of section 223B (1A) (b) of the Act, an interim administrator
of an Aboriginal Land Council may exercise all of the functions of the Council
and the members of the Council exercised by resolution of the Council.
Note. Under section 223B (1A) (b) of the Act, the interim administrator's instrument of
appointment may limit the functions that may be exercised.
[4] Part 7, Division 2
Insert after clause 97:
Division 2 Performance improvement orders
97A Performance improvement criteria
For the purposes of section 234A (2) (a) of the Act, the performance
improvement criteria that the New South Wales Aboriginal Land Council
must consider before making a performance improvement order in respect of
a Local Aboriginal Land Council are:
(a) whether the Local Aboriginal Land Council has failed to comply with
the Act, this Regulation or any policy of the New South Wales
Aboriginal Land Council, and
(b) whether meetings of the Local Aboriginal Land Council or Board of the
Local Aboriginal Land Council are being conducted in accordance with
the Act and this Regulation, and
(c) whether the appointment of an advisor is reasonably likely to assist the
Board of the Local Aboriginal Land Council to restore, improve or
develop the capacity for the proper and effective functioning of the
Council, and
Page 8
Aboriginal Land Rights Amendment (Local Aboriginal Land Councils) Bill 2017 [NSW]
Schedule 2 Amendment of Aboriginal Land Rights Regulation 2014
(d) whether the behaviour of one or more Board members, or members of
staff, of the Local Aboriginal Land Council has adversely affected the
Council's performance of its functions under the Act and the Council's
response to that behaviour, and
(e) whether there are significant risks facing the Local Aboriginal Land
Council that are not being addressed.
Page 9
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