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ABORIGINAL AND TORRES STRAIT ISLANDER LAND (PROVIDING FREEHOLD) AND OTHER LEGISLATION AMENDMENT BILL 2014

           Queensland



Aboriginal and Torres Strait
Islander Land (Providing
Freehold) and Other
Legislation Amendment Bill
2014

 


 

 

Queensland Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents Page Chapter 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 4 Amendment of s 10 (Lands that are transferable lands) . . . . . . . 15 5 Insertion of new pt 2A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Part 2A Providing freehold Division 1 Preliminary 32A Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Division 2 Basic concepts 32B Definitions for pt 2A . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Division 3 Approval for grant of available land 32C Approval for grant of available land . . . . . . . . . . . . . . 19 Division 4 Freehold instruments Subdivision 1 Trustee may make freehold instrument 32D Trustee may make freehold instrument . . . . . . . . . . . 21 32E Trustee may have only 1 freehold instrument. . . . . . . 22 Subdivision 2 Making, amending or repealing freehold instruments 32F Definition for sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 32G Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 23 32H Minister to make and publish guideline . . . . . . . . . . . 23 32I Trustee to consult . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents 32J Trustee to give freehold instrument to Minister or local government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 32K Local government to follow process in guideline . . . . 25 32L Minister may approve . . . . . . . . . . . . . . . . . . . . . . . . . 26 32M Amending or repealing freehold instrument . . . . . . . . 27 Subdivision 3 Other provisions about freehold instruments 32N Effect of freehold instrument . . . . . . . . . . . . . . . . . . . 27 32O Relationship with planning scheme . . . . . . . . . . . . . . 27 Division 5 Allocation process for available land--interest holder 32P Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 32Q Application for available land . . . . . . . . . . . . . . . . . . . 28 32R Dwelling on available land . . . . . . . . . . . . . . . . . . . . . 28 32S Decision on application . . . . . . . . . . . . . . . . . . . . . . . 29 32T Offer to allocate available land . . . . . . . . . . . . . . . . . . 30 32U Acceptance and refusal of offer . . . . . . . . . . . . . . . . . 31 32V Cooling-off period to apply to acceptance . . . . . . . . . 31 32W When offer ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 32X Allocation of available land to eligible person . . . . . . . 33 Division 6 Allocation process for available land if no interest holder 32Y Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 32Z Public notice of intention to allocate available land . . 34 32ZA Information to be included in allocation notice . . . . . . 34 32ZB Probity advisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 32ZC Decision on application to participate in allocation process .............................. 36 32ZD Notice of allocation of available land . . . . . . . . . . . . . 36 32ZE How and when trustee may allocate. . . . . . . . . . . . . . 37 32ZF Allocation of available land . . . . . . . . . . . . . . . . . . . . . 37 32ZG Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Division 7 Miscellaneous 32ZH Continuation of mortgages and easements . . . . . . . . 38 32ZI Cancellation of deeds of grant in trust, reserves etc. . 38 6 Amendment of s 81 (Resource reservations under other Acts) . . 39 7 Amendment of s 97 (Power to deal with Aboriginal land) . . . . . . . 39 Page 2

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents 8 Amendment of pt 9, div 1, hdg (Trustee's power to deal with Aboriginal land and Ministerial consent). . . . . . . . . . . . . . . . . . . . 39 9 Omission of ss 98 and 99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 10 Omission of pt 9, div 3 (Grant of licences) . . . . . . . . . . . . . . . . . . 40 11 Amendment of s 116 (Particular dealings in Aboriginal land void) 40 12 Replacement of pt 10 (Leasing of Aboriginal Land) . . . . . . . . . . . 40 Part 10 Leasing of Aboriginal land Division 1 Definitions 119 Definitions for pt 10. . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Division 2 Grant of leases for Aboriginal land 120 Grant of lease by trustee of Aboriginal land . . . . . . . . 41 121 Grant of lease by lessee of townsite lease . . . . . . . . . 42 Division 3 Common provisions for part 10 leases 122 General conditions of particular leases . . . . . . . . . . . 43 123 Option to renew particular lease. . . . . . . . . . . . . . . . . 43 124 Transfer of lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 125 Lease etc. to be registered. . . . . . . . . . . . . . . . . . . . . 44 Division 4 Home ownership leases Subdivision 1 Conditions and requirements 126 General conditions and requirements . . . . . . . . . . . . 44 127 Additional requirement if dwelling situated on land . . 46 128 Additional conditions and requirements for social housing dwelling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Subdivision 2 Forfeiture 129 Grounds for forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . 47 130 Referral to Land Court for forfeiture . . . . . . . . . . . . . . 48 131 Lessor's options if Land Court decides lease may be forfeited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 132 Notice and effect of forfeiture . . . . . . . . . . . . . . . . . . . 49 133 Extension of term of lease if proposed forfeiture . . . . 50 Subdivision 3 Renewal 134 Application to renew lease . . . . . . . . . . . . . . . . . . . . . 51 135 Notice of expiry of lease . . . . . . . . . . . . . . . . . . . . . . . 51 136 Lessor to consider and decide application . . . . . . . . . 51 137 Decision to renew lease . . . . . . . . . . . . . . . . . . . . . . . 51 138 Lessor may decide not to renew lease . . . . . . . . . . . . 52 139 Notice about decision not to renew lease. . . . . . . . . . 52 Page 3

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents 140 Extension of term of lease if application for renewal . 52 Subdivision 4 General matters about forfeiture or non-renewal of home ownership leases 141 Right to remove improvements if lease forfeited or not renewed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 142 Payment by lessor if lease forfeited or not renewed . . 53 143 Unclaimed amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 144 Amount owing to lessor or mortgagee . . . . . . . . . . . . 55 145 Payment of amount to mortgagee in discharge of mortgage ............................ 55 Subdivision 5 Miscellaneous 146 Exemption from fees and charges . . . . . . . . . . . . . . . 56 147 Beneficiary to home ownership lease. . . . . . . . . . . . . 57 Division 5 Townsite leases Subdivision 1 Restriction on grant 148 Minister's consent for grant of townsite lease. . . . . . . 57 Subdivision 2 Requirements for Minister's consent 149 General requirements for Minister's consent . . . . . . . 58 Subdivision 3 Provisions about dealing with townsite leases 150 Transfer or amendment of townsite lease. . . . . . . . . . 59 151 Surrender of townsite lease . . . . . . . . . . . . . . . . . . . . 60 152 No forfeiture of townsite lease . . . . . . . . . . . . . . . . . . 60 Subdivision 4 Effect of townsite lease on existing interests 153 Lessee of townsite lease taken to be lessor of existing leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 13 Amendment of s 179 (Decision-making by trustee) . . . . . . . . . . . 62 14 Amendment of s 180 (Definitions for pt 14) . . . . . . . . . . . . . . . . . 62 15 Amendment of s 182 (Provision about entering into possession of, and selling, lease) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 16 Amendment of s 186 (Trustee (Aboriginal) leases) . . . . . . . . . . . 63 17 Omission of pt 15, div 3 (Other matters) . . . . . . . . . . . . . . . . . . . 63 18 Amendment of s 196 (Application of provisions for grant of land) 64 19 Amendment of s 198 (Application of particular provisions) . . . . . 64 20 Amendment of s 199 (Use of Aboriginal land preserved). . . . . . . 65 21 Amendment of s 277 (Who may appeal) . . . . . . . . . . . . . . . . . . . 65 22 Amendment of s 280 (Notice of appeal). . . . . . . . . . . . . . . . . . . . 66 23 Amendment of s 288 (Dealing with particular trust property) . . . . 66 Page 4

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents 24 Omission of s 289 (Application of Residential Tenancies and Rooming Accommodation Act 2008) . . . . . . . . . . . . . . . . . . . . . . 66 25 Insertion of new pt 25, div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Division 5 Transitional provisions for Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Act 2014 307 Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 308 Provision for existing leases . . . . . . . . . . . . . . . . . . . . 67 309 Provision for existing applications . . . . . . . . . . . . . . . 68 26 Amendment of sch 1 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 68 Part 2 Amendment of Aboriginal Land Regulation 2011 27 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 28 Omission of pt 3 (Code of conduct about mining leases) . . . . . . . 72 29 Amendment of s 50 (Application of provisions for particular land) 72 30 Insertion of new s 50B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 50B Land for model freehold schedule . . . . . . . . . . . . . . . 73 Part 3 Amendment of Land Act 1994 31 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 32 Amendment of s 14 (Governor in Council may grant land) . . . . . 73 Part 4 Amendment of Torres Strait Islander Land Act 1991 33 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 34 Amendment of s 9 (Lands that are transferable lands) . . . . . . . . 74 35 Insertion of new pt 2A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Part 2A Providing freehold Division 1 Preliminary 28A Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Division 2 Basic concepts 28B Definitions for pt 2A . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Division 3 Approval for grant of available land 28C Approval for grant of available land . . . . . . . . . . . . . . 79 Division 4 Freehold instruments Subdivision 1 Trustee may make freehold instrument 28D Trustee may make freehold instrument . . . . . . . . . . . 80 28E Trustee may have only 1 freehold instrument. . . . . . . 81 Subdivision 2 Making, amending or repealing freehold instruments Page 5

 


 

28F Definition for sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 28G Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 82 28H Minister to make and publish guideline . . . . . . . . . . . 82 28I Trustee to consult . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 28J Trustee to give freehold instrument to Minister or local government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 28K Local government to follow process in guideline . . . . 84 28L Minister may approve . . . . . . . . . . . . . . . . . . . . . . . . . 85 28M Amending or repealing freehold instrument . . . . . . . . 86 Subdivision 3 Other provisions about freehold instruments 28N Effect of freehold instrument . . . . . . . . . . . . . . . . . . . 86 28O Relationship with planning scheme . . . . . . . . . . . . . . 87 Division 5 Allocation process for available land--interest holder 28P Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 28Q Application for available land . . . . . . . . . . . . . . . . . . . 87 28R Dwelling on available land . . . . . . . . . . . . . . . . . . . . . 88 28S Decision on application . . . . . . . . . . . . . . . . . . . . . . . 88 28T Offer to allocate available land . . . . . . . . . . . . . . . . . . 90 28U Acceptance and refusal of offer . . . . . . . . . . . . . . . . . 90 28V Cooling-off period to apply to acceptance . . . . . . . . . 91 28W When offer ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 28X Allocation of available land to eligible person . . . . . . . 92 Division 6 Allocation process for available land if no interest holder 28Y Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 28Z Public notice of intention to allocate available land . . 93 28ZA Information to be included in allocation notice . . . . . . 94 28ZB Probity advisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 28ZC Decision on application to participate in allocation process .............................. 95 28ZD Notice of allocation of available land . . . . . . . . . . . . . 95 28ZE How and when trustee may allocate. . . . . . . . . . . . . . 96 28ZF Allocation of available land . . . . . . . . . . . . . . . . . . . . . 97 28ZG Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Division 7 Miscellaneous 28ZH Continuation of mortgages and easements . . . . . . . . 97 28ZI Cancellation of deeds of grant in trust, reserves etc. . 97 36 Amendment of s 64 (Power to deal with Torres Strait Islander land) 98 37 Replacement of pt 7, div 1, hdg (Trustees power to deal with Torres Strait Islander land and Ministerial consent) . . . . . . . . . . . . . . . . 98

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents Division 1 Trustee's power to deal with Torres Strait Islander land 38 Omission of ss 65 and 66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 39 Omission of pt 7, div 3 (Grant of licences) . . . . . . . . . . . . . . . . . . 99 40 Amendment of s 82 (Particular dealings in Torres Strait Islander land void) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 41 Replacement of pt 8 (Leasing of Torres Strait Islander land) . . . . 99 Part 8 Leasing of Torres Strait Islander land Division 1 Definitions 84 Definitions for pt 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Division 2 Grant of leases for Torres Strait Islander land 85 Grant of lease by trustee of Torres Strait Islander land 101 86 Grant of lease by lessee of townsite lease . . . . . . . . . 102 Division 3 Common provisions for part 8 leases 87 General conditions of particular leases . . . . . . . . . . . 102 88 Option to renew particular lease. . . . . . . . . . . . . . . . . 103 89 Transfer of lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 90 Lease etc. to be registered. . . . . . . . . . . . . . . . . . . . . 103 Division 4 Home ownership leases Subdivision 1 Conditions and requirements 91 General conditions and requirements . . . . . . . . . . . . 104 92 Additional requirement if dwelling situated on land . . 105 93 Additional conditions and requirements for social housing dwelling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Subdivision 2 Forfeiture 94 Grounds for forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . 107 95 Referral to Land Court for forfeiture . . . . . . . . . . . . . . 107 96 Lessor's options if Land Court decides lease may be forfeited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 97 Notice and effect of forfeiture . . . . . . . . . . . . . . . . . . . 109 98 Extension of term of lease if proposed forfeiture . . . . 109 Subdivision 3 Renewal 99 Application to renew lease . . . . . . . . . . . . . . . . . . . . . 110 100 Notice of expiry of lease . . . . . . . . . . . . . . . . . . . . . . . 110 101 Lessor to consider and decide application . . . . . . . . . 111 102 Decision to renew lease . . . . . . . . . . . . . . . . . . . . . . . 111 103 Lessor may decide not to renew lease . . . . . . . . . . . . 111 Page 7

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents 104 Notice about decision not to renew lease. . . . . . . . . . 112 105 Extension of term of lease if application for renewal . 112 Subdivision 4 General matters about forfeiture or non-renewal of home ownership leases 106 Right to remove improvements if lease forfeited or not renewed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 107 Payment by lessor if lease forfeited or not renewed . . 113 108 Unclaimed amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 109 Amount owing to lessor or mortgagee . . . . . . . . . . . . 114 110 Payment of amount to mortgagee in discharge of mortgage ............................ 114 Subdivision 5 Miscellaneous 111 Exemption from fees and charges . . . . . . . . . . . . . . . 115 112 Beneficiary to home ownership lease. . . . . . . . . . . . . 116 Division 5 Townsite leases Subdivision 1 Restriction on grant 113 Minister's consent for grant of townsite lease. . . . . . . 116 Subdivision 2 Requirements for Minister's consent 114 General requirements for Minister's consent . . . . . . . 117 Subdivision 3 Provisions about dealing with townsite leases 115 Transfer or amendment of townsite lease. . . . . . . . . . 118 116 Surrender of townsite lease . . . . . . . . . . . . . . . . . . . . 119 117 No forfeiture of townsite lease . . . . . . . . . . . . . . . . . . 119 Subdivision 4 Effect of townsite lease on existing interests 118 Lessee of townsite lease taken to be lessor of existing leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 42 Amendment of s 135 (Decision-making by trustee) . . . . . . . . . . . 120 43 Amendment of s 136 (Definitions for pt 10) . . . . . . . . . . . . . . . . . 121 44 Amendment of s 138 (Provisions about entering into possession, and selling, lease) . . . . . . . . . . . . . . . . . . . . . . . . . . 121 45 Amendment of s 142 (Trustee (Torres Strait Islander) leases) . . . 122 46 Omission of pt 11, div 3 (Other matters) . . . . . . . . . . . . . . . . . . . 122 47 Amendment of s 148 (Use of Torres Strait Islander land preserved) 123 48 Amendment of s 182 (Who may appeal) . . . . . . . . . . . . . . . . . . . 123 49 Amendment of s 185 (Notice of appeal). . . . . . . . . . . . . . . . . . . . 123 50 Amendment of s 192 (Dealing with particular trust property) . . . . 124 51 Omission of s 193 (Application of Residential Tenancies and Rooming Accommodation Act 2008) . . . . . . . . . . . . . . . . . . . . . . 124 Page 8

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents 52 Insertion of new pt 19, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Division 4 Transitional provisions for Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Act 2014 205 Definitions for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 206 Provision for existing leases . . . . . . . . . . . . . . . . . . . . 125 207 Provision for existing applications . . . . . . . . . . . . . . . 126 53 Amendment of sch 1 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 126 Part 5 Amendment of Torres Strait Islander Land Regulation 2011 54 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 55 Omission of pt 3 (Code of conduct about mining leases) . . . . . . . 130 56 Insertion of new pt 4B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Part 4B Miscellaneous 35B Land for model freehold schedule . . . . . . . . . . . . . . . 130 Part 6 Repeal 57 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Part 7 Minor and consequential amendments 58 Legislation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Chapter 3 Amendment of Land Act 1994 59 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 60 Amendment of s 13B (Power to declare and deal with former watercourse land) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 61 Insertion of new ch 7, pt 3B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Part 3B Making land available for public use as beach 431O Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 431P References to a lot . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 431Q Regulation may declare area of seashore to be a declared beach area. . . . . . . . . . . . . . . . . . . . . . . . . . 133 431R Declared beach area and lot boundaries . . . . . . . . . . 134 431S Compensation not payable for declared beach area . 135 431T Management of declared beach area and conditions of use ............................... 135 431U Notice to owner before making of regulation . . . . . . . 137 431V Consultation before registration of declaration and plan of survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 431W Status of declared beach area . . . . . . . . . . . . . . . . . . 138 431X Exemption from contravention of use condition . . . . . 139 Page 9

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents 431Y Obstruction of use or enjoyment . . . . . . . . . . . . . . . . 140 431Z Other Acts not affected. . . . . . . . . . . . . . . . . . . . . . . . 140 62 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 140 Chapter 4 Amendment of Land Valuation Act 2010 63 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 64 Insertion of new s 262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 262 Limited application of Act to particular land . . . . . . . . 142 65 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 142 Schedule 1 Minor and consequential amendments . . . . . . . . . . . . . . . . . . 144 Part 1 Amendments commencing on 1 January 2015 Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Aboriginal and Torres Strait Islander Land Holding Act 2013 . . . . 144 Aboriginal Land Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Building Boost Grant Act 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Cape York Peninsula Heritage Act 2007 . . . . . . . . . . . . . . . . . . . 149 Duties Act 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Land Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Land Court Act 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Nature Conservation Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 Nature Conservation (Protected Areas Management) Regulation 2006 ........................................ 152 Nature Conservation (Wildlife Management) Regulation 2006 . . 152 Public Service Act 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Sustainable Planning Regulation 2009. . . . . . . . . . . . . . . . . . . . . 153 Torres Strait Islander Land Act 1991 . . . . . . . . . . . . . . . . . . . . . . 154 Part 2 Amendments commencing by proclamation Aboriginal Land Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Animal Care and Protection Act 2001 . . . . . . . . . . . . . . . . . . . . . 156 Auditor-General Act 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Cape York Peninsula Heritage Act 2007 . . . . . . . . . . . . . . . . . . . 156 Environmental Protection Act 1994 . . . . . . . . . . . . . . . . . . . . . . . 157 Fire and Rescue Service Regulation 2011. . . . . . . . . . . . . . . . . . 157 Geothermal Energy Act 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Greenhouse Gas Storage Act 2009 . . . . . . . . . . . . . . . . . . . . . . . 158 Information Privacy Act 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Page 10

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Contents Mineral Resources Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Petroleum Act 1923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Petroleum and Gas (Production and Safety) Act 2004. . . . . . . . . 159 Survey and Mapping Infrastructure Act 2003 . . . . . . . . . . . . . . . . 160 Vegetation Management Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . 160 Page 11

 


 

 

2014 A Bill for An Act to amend the Aboriginal Land Act 1991, the Aboriginal Land Regulation 2011, the Land Act 1994, the Land Valuation Act 2010, the Torres Strait Islander Land Act 1991 and the Torres Strait Islander Land Regulation 2011 for particular purposes, to repeal the Aurukun and Mornington Shire Leases Act 1978, and to make minor and consequential amendments of other legislation as stated in schedule 1

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Chapter 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Aboriginal and Torres Strait 4 Islander Land (Providing Freehold) and Other Legislation 5 Amendment Act 2014. 6 Clause 2 Commencement 7 (1) Chapter 2, other than part 6, and schedule 1, part 1, commence 8 on 1 January 2015. 9 (2) Chapter 2, part 6, and schedule 1, part 2, commence on a day 10 to be fixed by proclamation. 11 Chapter 2 Aboriginal and Torres Strait 12 Islander Land amendments 13 Part 1 Amendment of Aboriginal Land 14 Act 1991 15 Clause 3 Act amended 16 This part amends the Aboriginal Land Act 1991. 17 Note-- 18 See also the amendments in schedule 1, parts 1 and 2. 19 Page 14

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 4] Clause 4 Amendment of s 10 (Lands that are transferable lands) 1 (1) Section 10(2)-- 2 insert-- 3 (d) is not transferable land if it is available land 4 the subject of an allocation notice under 5 section 32Z. 6 (2) Section 10-- 7 insert-- 8 (3) Also, if land mentioned in subsection (1) is the 9 subject of an offer to allocate under section 32T, 10 the land is not transferable land while the offer is 11 in force. 12 Clause 5 Insertion of new pt 2A 13 After part 2-- 14 insert-- 15 Part 2A Providing freehold 16 Division 1 Preliminary 17 32A Overview 18 This part-- 19 (a) allows available land to be granted in 20 freehold under the Land Act to an eligible 21 person for the available land; and 22 (b) requires-- 23 (i) the trustee of freehold option land to 24 consult on and make a freehold 25 instrument; and 26 Page 15

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (ii) the local government for the area in 1 which the land is situated to attach the 2 freehold instrument to its planning 3 scheme; and 4 (c) sets out how, and to whom, the trustee may 5 allocate available land depending on 6 whether the person is an eligible person for 7 the land. 8 Division 2 Basic concepts 9 32B Definitions for pt 2A 10 In this part-- 11 allocation method, for available land, means-- 12 (a) the auction, ballot or tender to be used to 13 allocate the available land; and 14 (b) the conditions of the auction, ballot or 15 tender. 16 allocation notice see section 32Z(1)(a). 17 allocation process, for available land, means-- 18 (a) if there is an interest holder for the available 19 land--the process stated in division 5; or 20 (b) otherwise--the process stated in division 6. 21 appeal period, for available land, means the 22 period starting on the day a person receives an 23 information notice in relation to the available 24 land and ending-- 25 (a) if no notice of appeal is filed in relation to 26 the available land--on the last day for 27 making an appeal; or 28 Page 16

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (b) if a notice of appeal is filed in relation to the 1 available land--when the appeal is finally 2 decided. 3 available land see section 32D(3). 4 closing day, for division 6, see section 5 32ZA(1)(d). 6 eligibility criteria see section 32D(6)(a). 7 eligible person, for available land, means a 8 person who meets the eligibility criteria for the 9 land and is-- 10 (a) an Aboriginal person or Torres Strait 11 Islander; or 12 (b) the spouse or former spouse of-- 13 (i) a person mentioned in paragraph (a); or 14 (ii) an Aboriginal person or Torres Strait 15 Islander who is deceased. 16 freehold instrument means a freehold schedule 17 and the freehold policy for the freehold schedule. 18 freehold option land means land in the Aurukun 19 Shire Council's area, the Mornington Shire 20 Council's area or an indigenous local 21 government's area if-- 22 (a) any of the following entities are the trustee 23 of the land-- 24 (i) the Aurukun Shire Council; 25 (ii) the Mornington Shire Council; 26 (iii) an indigenous local government; 27 (iv) a land trust; 28 (v) another entity holding the land under 29 this Act; and 30 (b) the land is in an urban area. 31 Page 17

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] freehold policy, for a freehold schedule, see 1 section 32D(5). 2 freehold schedule-- 3 (a) means a schedule made as mentioned in 4 section 32D(1) by the trustee of freehold 5 option land; and 6 (b) includes a model freehold schedule. 7 indigenous local government see the Local 8 Government Act 2009, schedule 4. 9 interest holder, for available land, means a 10 person who holds any of the following interests 11 in the land-- 12 (a) a registered lease granted under this Act or 13 the Land Act, other than a townsite lease; 14 (b) a lease entitlement under the new Land 15 Holding Act; 16 (c) a 1985 Act granted lease or a new Act 17 granted lease under the new Land Holding 18 Act; 19 (d) a registered sublease, including a registered 20 lease of a townsite lease; 21 (e) a residential tenancy agreement for a social 22 housing dwelling situated on the available 23 land; 24 (f) a right to occupy or use the available land 25 under section 199. 26 model freehold instrument, for division 4, 27 subdivision 2, see section 32F. 28 model freehold schedule see section 32D(4). 29 native title holder has the same meaning as it has 30 in the Commonwealth Native Title Act. 31 Page 18

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] offer means an offer to an eligible person by a 1 trustee to allocate available land to the person 2 under section 32T. 3 planning scheme see the Sustainable Planning 4 Act 2009, section 79. 5 probity advisor see section 32ZB(1). 6 urban area means an area identified as an area 7 intended specifically for urban purposes, 8 including future urban purposes (but not rural 9 residential or future rural residential purposes) on 10 a map in a planning scheme that-- 11 (a) identifies the areas using cadastral 12 boundaries; and 13 (b) is used exclusively or primarily to assess 14 development applications under the 15 Sustainable Planning Act 2009. 16 Example of a map-- 17 a zoning map 18 urban purposes means purposes for which land 19 is used in cities or towns, including residential, 20 industrial, sporting, recreation and commercial 21 purposes. 22 Division 3 Approval for grant of 23 available land 24 32C Approval for grant of available land 25 (1) The trustee of freehold option land may apply to 26 the chief executive, in the approved form, for 27 available land to be granted in fee simple under 28 the Land Act to the eligible person who has been 29 allocated the available land under this part. 30 (2) The trustee may make the application only if-- 31 Page 19

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (a) there is a freehold instrument for the 1 available land; and 2 (b) the trustee has followed the allocation 3 process for the available land. 4 (3) Information in the application must, if the 5 approved form requires, be verified by a statutory 6 declaration. 7 (4) In deciding the application, the chief executive-- 8 (a) must be reasonably satisfied-- 9 (i) agreements or arrangements 10 appropriate to granting the available 11 land as freehold have been entered into 12 or are in place, including, for example, 13 in relation to the following-- 14 (A) native title; 15 (B) any social housing dwelling on 16 the available land; 17 (C) road access to the available land; 18 and 19 (ii) there is a lot on plan description for the 20 available land; and 21 (iii) if the available land is allocated under 22 section 32ZF--a probity advisor has 23 certified the probity of the allocation 24 process for the available land; and 25 (b) may consider any other matter the chief 26 executive reasonably considers relevant. 27 (5) If the chief executive approves the application, 28 the Governor in Council may grant the land in fee 29 simple under the Land Act. 30 Note-- 31 See the Land Act, section 14. 32 Page 20

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] Division 4 Freehold instruments 1 Subdivision 1 Trustee may make freehold 2 instrument 3 32D Trustee may make freehold instrument 4 (1) The trustee of freehold option land may, by 5 resolution, make a schedule identifying the 6 freehold option land available to be granted in 7 freehold. 8 (2) The freehold schedule must identify the freehold 9 option land so the boundaries of the land are 10 capable of being decided. 11 (3) Freehold option land identified in a freehold 12 schedule is available land. 13 (4) A freehold schedule that only identifies freehold 14 option land of a type prescribed by regulation for 15 this subsection is a model freehold schedule. 16 (5) If the trustee makes a freehold schedule, the 17 trustee must, by resolution, make a policy (a 18 freehold policy) at the same time to help the 19 trustee in implementing the freehold schedule. 20 (6) The freehold policy must be in the approved form 21 and state-- 22 (a) the criteria (the eligibility criteria) for 23 participating in the allocation process for 24 available land; and 25 (b) if there is no interest holder for available 26 land--the allocation method for available 27 land; and 28 (c) the sale price of available land and the costs 29 to be recovered from the sale price; and 30 Page 21

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (d) how the community will be consulted about 1 the allocation process for available land; and 2 (e) how the trustee will deal with interests in, or 3 in relation to, available land, before it is 4 allocated; and 5 (f) the social and financial implications for the 6 community in providing freehold; and 7 (g) the social and financial implications for any 8 eligible person who is granted freehold; and 9 (h) the potential to attract investment and new 10 members into the community; and 11 (i) any other matter prescribed by regulation. 12 32E Trustee may have only 1 freehold instrument 13 (1) The trustee of freehold option land may have 14 only 1 freehold instrument for the land. 15 (2) However, if the trustee is an indigenous regional 16 council, the trustee may have more than 1 17 freehold instrument only if the freehold 18 instruments do not overlap in relation to available 19 land. 20 (3) In this section-- 21 indigenous regional council see the Local 22 Government Act 2009, schedule 4. 23 Subdivision 2 Making, amending or 24 repealing freehold 25 instruments 26 32F Definition for sdiv 2 27 In this subdivision-- 28 Page 22

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] model freehold instrument means a model 1 freehold schedule and the freehold policy for the 2 model freehold schedule. 3 32G Application of sdiv 2 4 This subdivision states how a freehold instrument may 5 be made, amended or repealed. 6 32H Minister to make and publish guideline 7 (1) The Minister must make, and publish on the 8 department's website, a guideline about the 9 process for-- 10 (a) attaching a freehold instrument to a local 11 government's planning scheme; and 12 (b) amending or repealing a freehold 13 instrument. 14 (2) The guideline must make provision for a local 15 government to do all of the following things 16 before attaching a freehold instrument to its 17 planning scheme-- 18 (a) publish a notice about the freehold 19 instrument in a newspaper or other 20 publication circulating generally in the local 21 government's area at least once; 22 (b) carry out public consultation about the 23 freehold instrument; 24 (c) give the Minister a notice summarising the 25 matters raised during the public consultation 26 and stating how the local government or the 27 trustee dealt with the matters. 28 Page 23

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] 32I Trustee to consult 1 (1) Before the trustee of freehold option land starts 2 the process for making a freehold instrument in 3 relation to freehold option land, the trustee must 4 decide on the way (the decided way) in which the 5 trustee will consult about the making of the 6 freehold instrument. 7 Note-- 8 See section 179. 9 (2) The purpose of the consultation is to enable the 10 trustee to be reasonably satisfied it is appropriate 11 for the freehold option land to be granted in 12 freehold. 13 (3) The decided way must-- 14 (a) require the trustee to consult with the native 15 title holders for the freehold option land 16 proposed to be included in the freehold 17 schedule; and 18 (b) include how the trustee will notify the 19 community about the freehold instrument; 20 and 21 (c) allow a suitable and sufficient opportunity 22 for each person the trustee consults to 23 express their views about the freehold 24 instrument. 25 (4) The trustee must-- 26 (a) consult on the freehold instrument in the 27 decided way; and 28 (b) keep records about the consultation showing 29 the consultation was consistent with the 30 decided way. 31 Page 24

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] 32J Trustee to give freehold instrument to Minister 1 or local government 2 (1) This section applies if, after consulting on a 3 proposed freehold instrument, the trustee decides 4 to continue to make a freehold instrument. 5 (2) The trustee must-- 6 (a) for a model freehold instrument--give the 7 model freehold instrument to the Minister 8 for approval; or 9 (b) otherwise--ask, by notice, the local 10 government for the area in which the 11 proposed freehold option land is situated to 12 attach the freehold instrument to the local 13 government's planning scheme. 14 (3) In this section-- 15 proposed freehold option land means freehold 16 option land proposed to be included in a freehold 17 schedule. 18 32K Local government to follow process in 19 guideline 20 (1) This section applies if a local government 21 receives a notice under section 32J(2)(b) in 22 relation to a freehold instrument. 23 (2) The local government must follow the process 24 stated in the guideline made by the Minister 25 under section 32H. 26 (3) After the process is completed, the local 27 government must give the freehold instrument to 28 the Minister for approval. 29 Page 25

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] 32L Minister may approve 1 (1) If the Minister is given a freehold instrument for 2 approval, the Minister may-- 3 (a) approve the freehold instrument; or 4 (b) approve the freehold instrument on the 5 condition the local government or trustee for 6 the available land amends the freehold 7 instrument in the way the Minister directs; 8 or 9 (c) refuse to approve the freehold instrument. 10 (2) In making a decision under subsection (1) about a 11 freehold instrument, other than a model freehold 12 instrument, the Minister must have regard to 13 information given to the Minister by the local 14 government for the freehold instrument after the 15 local government has completed the process 16 under section 32K. 17 (3) The Minister may approve a freehold instrument 18 if reasonably satisfied-- 19 (a) for a model freehold instrument--the model 20 freehold schedule only includes freehold 21 option land of a type prescribed by 22 regulation for section 32D(4); and 23 (b) the trustee has consulted with the native title 24 holders for the freehold option land 25 proposed to be included in the freehold 26 schedule; and 27 (c) the consultation was consistent with the way 28 decided by the trustee under section 32I. 29 (4) The Minister must give notice of the decision 30 under subsection (1) to the local government and 31 the trustee for the freehold instrument. 32 (5) If the Minister approves a freehold instrument, 33 the local government must-- 34 Page 26

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (a) attach the freehold instrument to its 1 planning scheme; and 2 (b) publish, in a newspaper or other publication 3 circulating generally in the local 4 government's area at least once, a notice 5 stating the freehold instrument is approved 6 and attached to its planning scheme. 7 32M Amending or repealing freehold instrument 8 A freehold instrument attached to a local 9 government's planning scheme may be amended or 10 repealed by a trustee only by following the process 11 stated in the guideline made by the Minister under 12 section 32H. 13 Subdivision 3 Other provisions about 14 freehold instruments 15 32N Effect of freehold instrument 16 A freehold instrument has effect on and after the day 17 the local government for the area in which the 18 available land is situated attaches the freehold 19 instrument to the local government's planning scheme. 20 32O Relationship with planning scheme 21 (1) Attaching a freehold instrument to a planning 22 scheme is not an amendment of the planning 23 scheme. 24 (2) A freehold instrument attached to a planning 25 scheme-- 26 (a) does not form part of the planning scheme; 27 and 28 Page 27

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (b) is the responsibility of the trustee for the 1 available land; and 2 (c) if the planning scheme is amended or 3 repealed and remade (with or without 4 modification)--may be attached without 5 amendment by the local government to the 6 amended or remade planning scheme. 7 Division 5 Allocation process for 8 available land--interest 9 holder 10 32P Application of div 5 11 This division states the allocation process for available 12 land if there is an interest holder for the available land. 13 32Q Application for available land 14 A person who is an eligible person and an interest 15 holder for available land may apply, in the approved 16 form, to the trustee of the land for the land to be 17 granted to the person. 18 32R Dwelling on available land 19 (1) This section applies if a dwelling is situated on 20 available land the subject of the application. 21 (2) The trustee must give notice about the application 22 to the housing chief executive. 23 (3) Within 28 days after receiving the notice, the 24 housing chief executive must give the trustee a 25 notice (a dwelling notice) stating whether-- 26 (a) the dwelling is a social housing dwelling; 27 and 28 Page 28

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (b) if the dwelling is a social housing 1 dwelling--the housing chief executive 2 consents to the applicant making the 3 application. 4 (4) In deciding whether to consent to the applicant 5 making the application, the housing chief 6 executive must have regard to whether it would 7 be more appropriate in the circumstances for the 8 dwelling to continue to be social housing. 9 (5) If the dwelling notice states the housing chief 10 executive consents to the applicant making the 11 application, the trustee must decide the value of 12 the dwelling by using the valuation methodology 13 agreed between the trustee and the housing chief 14 executive. 15 (6) The housing chief executive must, if asked, give a 16 person a copy of the valuation methodology. 17 32S Decision on application 18 (1) The trustee must consider the application and 19 decide to approve or refuse the application. 20 (2) However, if a dwelling is situated on the available 21 land the subject of the application, the trustee-- 22 (a) must not decide the application until the 23 trustee receives a notice from the housing 24 chief executive under section 32R(3); and 25 (b) must refuse the application if the notice 26 states the dwelling is a social housing 27 dwelling and the housing chief executive 28 does not consent to the applicant making the 29 application. 30 (3) The trustee may approve the application only if 31 the trustee is reasonably satisfied-- 32 Page 29

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (a) the applicant is an eligible person for the 1 available land the subject of the application; 2 and 3 (b) if there is more than 1 interest holder for the 4 available land, either-- 5 (i) all interest holders for the available 6 land have made the application; or 7 (ii) all interest holders for the available 8 land have consented to the applicant 9 making the application; and 10 (c) if there is a mortgage over the available 11 land--the mortgagee has consented to the 12 applicant making the application. 13 (4) If the trustee is reasonably satisfied of the matters 14 mentioned in subsection (3), the trustee must 15 approve the application. 16 (5) If the trustee decides to refuse the application, the 17 trustee must give the applicant an information 18 notice for the decision. 19 32T Offer to allocate available land 20 (1) If the trustee approves the eligible person's 21 application, the trustee must offer, in writing, to 22 allocate the available land to the eligible person. 23 (2) However, the trustee may make the offer only 24 after the appeal period for the available land. 25 (3) If there is a social housing dwelling on the 26 available land, the trustee must make the offer 27 subject to a condition that the eligible person 28 must purchase the dwelling at the value decided 29 under section 32R(5). 30 Page 30

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (4) The trustee may make the offer subject to any 1 other conditions the trustee reasonably considers 2 necessary. 3 (5) In deciding whether to impose conditions on the 4 offer under subsection (4), the trustee must have 5 regard to the freehold instrument. 6 (6) If the trustee decides to impose conditions on the 7 offer, other than a condition mentioned in 8 subsection (3), the trustee must give the eligible 9 person an information notice for the decision. 10 (7) The trustee must give notice to the chief 11 executive in the approved form about the offer. 12 32U Acceptance and refusal of offer 13 (1) On receipt of the trustee's offer, the eligible 14 person may accept or refuse the offer by notice 15 given to the trustee. 16 (2) However, if the eligible person does not give 17 notice to the trustee within 45 days after the 18 eligible person receives the offer, the eligible 19 person is taken to have refused the offer. 20 (3) If the eligible person refuses the offer, the trustee 21 must give notice about the refusal to the chief 22 executive. 23 32V Cooling-off period to apply to acceptance 24 (1) A cooling-off period, for accepting an offer, is a 25 period of 5 business days-- 26 (a) starting on the day the eligible person gives 27 notice about accepting the offer to the 28 trustee; and 29 (b) ending at 5p.m. on the fifth business day 30 after the day mentioned in paragraph (a). 31 Page 31

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (2) An eligible person who accepts, or proposes to 1 accept, an offer may give written notice to the 2 trustee-- 3 (a) waiving the cooling-off period for accepting 4 the offer; or 5 (b) shortening the cooling-off period for 6 accepting the offer. 7 (3) An eligible person who has not waived the 8 cooling-off period for accepting an offer may 9 rescind or revoke the acceptance by giving a 10 signed notice of rescission or revocation to the 11 trustee at any time during-- 12 (a) the cooling-off period; or 13 (b) if the period has been shortened under 14 subsection (2)(b), the shortened period. 15 (4) If the acceptance is rescinded or revoked under 16 subsection (3), the trustee must, within 14 days, 17 refund any deposit paid under the acceptance to 18 the eligible person. 19 (5) An amount payable to the eligible person under 20 subsection (4) is recoverable from the trustee as a 21 debt. 22 32W When offer ends 23 An offer ends when the first of the following 24 happens-- 25 (a) the eligible person refuses the offer under 26 section 32U; 27 (b) the eligible person gives notice of rescission 28 or revocation of acceptance to the trustee 29 under section 32V; 30 (c) the eligible person dies; 31 Page 32

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (d) the eligible person is no longer an interest 1 holder for the available land; 2 (e) if the offer includes a condition about when 3 the offer ends--the day the offer ends under 4 the condition. 5 32X Allocation of available land to eligible person 6 (1) After complying with all conditions of the offer, 7 the eligible person must give notice to the trustee. 8 (2) If, after receiving the notice, the trustee is 9 reasonably satisfied the eligible person has 10 complied with all conditions of the offer, the 11 trustee must allocate the available land to the 12 eligible person. 13 Note-- 14 Available land may be granted in freehold to an eligible 15 person who is allocated the available land. See section 16 32C. 17 Division 6 Allocation process for 18 available land if no interest 19 holder 20 32Y Application of div 6 21 This division states the allocation process for available 22 land if there is no interest holder for the available land. 23 Note-- 24 A freehold instrument states the allocation method for 25 available land. See section 32D(6). 26 Page 33

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] 32Z Public notice of intention to allocate available 1 land 2 (1) Before allocating available land, the trustee of the 3 available land must publish notice of the trustee's 4 intention to allocate the available land-- 5 (a) by gazette notice (the allocation notice); 6 and 7 (b) in a newspaper or other publication 8 circulating generally in the area in which the 9 land is situated at least once. 10 (2) The trustee may act under subsection (1) only 11 if-- 12 (a) there is a lot on plan description for the 13 available land; and 14 (b) there is dedicated access to the available 15 land; and 16 (c) native title over the available land has been, 17 or will be, surrendered or extinguished; and 18 (d) the trustee has given notice to the chief 19 executive about the trustee's intention to 20 allocate the available land. 21 32ZA Information to be included in allocation 22 notice 23 (1) The allocation notice must include the following 24 information for the available land-- 25 (a) the eligibility criteria; 26 (b) the allocation method; 27 (c) the conditions applying to an offer of the 28 available land; 29 (d) the day (the closing day) applications to 30 participate in the allocation process close; 31 Page 34

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (e) the time and place for making applications; 1 (f) the reserve or purchase price; 2 (g) the deposit, if any, to be paid to participate 3 in the allocation process and the proposed 4 date, time and place for payment of the 5 deposit; 6 (h) the proposed date, time and place where the 7 available land will be allocated; 8 Note-- 9 After the appeal period for the available land, the 10 trustee must give notice of the date, time and place 11 where the available land will be allocated. See 12 section 32ZD. 13 (i) the name and contact details of the probity 14 advisor appointed. 15 (2) The closing day must be at least 30 days after the 16 allocation notice is gazetted. 17 32ZB Probity advisor 18 (1) The trustee must appoint an appropriately 19 qualified and independent person (a probity 20 advisor) to ensure the probity of the allocation 21 process for the available land. 22 (2) The probity advisor must-- 23 (a) monitor the allocation process for the 24 available land; and 25 (b) advise the trustee on matters relating to the 26 probity of the allocation process; and 27 (c) prepare and give to the trustee a report about 28 the probity of the allocation process and, if 29 reasonably satisfied the allocation process 30 was undertaken correctly, certify that fact. 31 Page 35

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] 32ZC Decision on application to participate in 1 allocation process 2 (1) As soon as practicable after the closing day, the 3 trustee must decide whether each applicant is an 4 eligible person for the available land and give 5 each applicant a notice about the decision. 6 (2) If the trustee decides an applicant is an eligible 7 person for the available land, the trustee must 8 allow the applicant to participate in the allocation 9 process for the available land. 10 (3) If the trustee decides the applicant is not an 11 eligible person for the available land, the 12 trustee-- 13 (a) must give the applicant an information 14 notice for the decision; and 15 (b) must not allow the applicant to participate in 16 the allocation process for the available land. 17 32ZD Notice of allocation of available land 18 (1) After the appeal period for the available land, the 19 trustee must give each applicant who is able to 20 participate in the allocation process for the 21 available land a notice stating-- 22 (a) the date, time and place where the available 23 land will be allocated (the allocation date); 24 and 25 (b) if the allocation notice requires a deposit to 26 be paid--the date by which the deposit must 27 be paid; and 28 (c) the applicant must give notice to the trustee 29 before the allocation date if the applicant no 30 longer wishes to participate in the allocation 31 process. 32 Page 36

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] (2) The date mentioned in subsection (1)(b) must 1 be-- 2 (a) at least 30 days after the notice under this 3 section is given; and 4 (b) before the allocation date. 5 (3) If the applicant does not pay the deposit by the 6 date mentioned in subsection (1)(b), the applicant 7 must not participate in the allocation process. 8 32ZE How and when trustee may allocate 9 The trustee may allocate the available land only-- 10 (a) after the end of the appeal period; and 11 (b) by using the allocation method consistent 12 with all of the following for the available 13 land-- 14 (i) the freehold instrument; 15 (ii) the allocation notice; 16 (iii) the probity advisor's advice. 17 32ZF Allocation of available land 18 The trustee must allocate the available land to the 19 eligible person who is the winner under the allocation 20 method used to allocate the available land. 21 Note-- 22 Available land may be granted in freehold to an eligible 23 person who is allocated the available land. See section 24 32C. 25 Page 37

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 5] 32ZG Deposits 1 The trustee must refund the deposit of each 2 unsuccessful applicant after the trustee allocates the 3 available land. 4 Division 7 Miscellaneous 5 32ZH Continuation of mortgages and easements 6 A deed of grant for available land approved to be 7 granted in fee simple under section 32C is subject to 8 all registered mortgages and easements to which the 9 available land was subject immediately before it was 10 granted, and in the same priorities. 11 32ZI Cancellation of deeds of grant in trust, 12 reserves etc. 13 (1) This section applies if-- 14 (a) available land is subject to any of the 15 following (each an old tenure) when the 16 trustee for the land applies for the land to be 17 granted in fee simple under section 32C-- 18 (i) a deed of grant in trust; 19 (ii) a reserve dedicated under the Land 20 Act; 21 (iii) a townsite lease; 22 (iv) a lease granted to the Aurukun Shire 23 Council or the Mornington Shire 24 Council under the Aurukun and 25 Mornington Shire Leases Act 1978; 26 (v) an interest mentioned in section 32B, 27 definition interest holder; and 28 Page 38

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 6] (b) a deed of grant in fee simple (a new tenure) 1 for the available land is registered. 2 (2) The old tenure is cancelled to the extent of the 3 new tenure. 4 Clause 6 Amendment of s 81 (Resource reservations under other 5 Acts) 6 Section 81, `and an Aboriginal lease'-- 7 omit. 8 Clause 7 Amendment of s 97 (Power to deal with Aboriginal land) 9 (1) Section 97, from `Subject' to `part 10, the'-- 10 omit, insert-- 11 (2) The 12 (2) Section 97-- 13 (1) This section applies subject to this part and parts 14 2A and 10. 15 (3) The lessee of a townsite lease may grant a licence 16 for the use of all or a part of the lease land. 17 Clause 8 Amendment of pt 9, div 1, hdg (Trustee's power to deal 18 with Aboriginal land and Ministerial consent) 19 Part 9, division 1, heading, `and Ministerial consent'-- 20 omit. 21 Clause 9 Omission of ss 98 and 99 22 Sections 98 and 99-- 23 omit. 24 Page 39

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 10] Clause 10 Omission of pt 9, div 3 (Grant of licences) 1 Part 9, division 3-- 2 omit. 3 Clause 11 Amendment of s 116 (Particular dealings in Aboriginal 4 land void) 5 (1) Section 116(1), `part 10'-- 6 omit, insert-- 7 part 2A or 10 8 (2) Section 116(1), note-- 9 omit. 10 Clause 12 Replacement of pt 10 (Leasing of Aboriginal Land) 11 Part 10-- 12 omit, insert-- 13 Part 10 Leasing of Aboriginal 14 land 15 Division 1 Definitions 16 119 Definitions for pt 10 17 In this part-- 18 home ownership lease see sections 120(2) and 19 121(2). 20 lessee means-- 21 (a) for a part 10 lease granted under a townsite 22 lease--the sublessee under the townsite 23 lease; or 24 Page 40

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (b) for another part 10 lease--the lessee under 1 the lease. 2 lessor means-- 3 (a) for a part 10 lease granted under a townsite 4 lease--the lessee of the townsite lease; or 5 (b) for another part 10 lease--the trustee of the 6 lease land. 7 part 10 lease means a lease granted under this 8 part. 9 townsite lease see section 120(3). 10 Division 2 Grant of leases for 11 Aboriginal land 12 120 Grant of lease by trustee of Aboriginal land 13 (1) The trustee of Aboriginal land may grant a lease 14 over all or a part of the land for not more than 99 15 years. 16 (2) Without limiting subsection (1), the trustee of 17 Aboriginal land may grant a lease (a home 18 ownership lease) over all or a part of the land for 19 99 years to any of the following for residential 20 use-- 21 (a) an Aboriginal person; 22 (b) a person who is not an Aboriginal person 23 if-- 24 (i) the person is the spouse or former 25 spouse of-- 26 (A) a person mentioned in paragraph 27 (a); or 28 Page 41

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (B) a person mentioned in paragraph 1 (a) who is deceased; or 2 (ii) the lease supports another part 10 lease 3 granted to the person. 4 (3) The trustee of Aboriginal land may grant a 5 perpetual lease (a townsite lease) over all or a 6 part of the land if-- 7 (a) the land or part is township land; and 8 (b) the lease is granted to a local government. 9 121 Grant of lease by lessee of townsite lease 10 (1) The lessee of a townsite lease may grant a lease 11 for not more than 99 years over all or a part of the 12 lease land. 13 (2) Without limiting subsection (1), the lessee of a 14 townsite lease may grant a lease (also a home 15 ownership lease) over all or a part of the lease 16 land for 99 years to any of the following for 17 residential use-- 18 (a) an Aboriginal person; 19 (b) a person who is not an Aboriginal person 20 if-- 21 (i) the person is the spouse or former 22 spouse of-- 23 (A) a person mentioned in paragraph 24 (a); or 25 (B) a person mentioned in paragraph 26 (a) who is deceased; or 27 (ii) the lease supports another part 10 lease 28 granted to the person. 29 Page 42

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] Division 3 Common provisions for 1 part 10 leases 2 122 General conditions of particular leases 3 (1) A part 10 lease, other than a townsite lease, may 4 include any of the following conditions-- 5 (a) a stated standard terms document under the 6 Land Title Act forms part of the lease; 7 (b) the lease must not be transferred without the 8 lessor's prior written consent; 9 (c) an interest under the lease, other than a 10 mortgage of the lease, must not be created 11 without the lessor's prior written consent. 12 (2) If a part 10 lease includes a condition mentioned 13 in subsection (1)(b) or (c), the lessor must not 14 unreasonably withhold consent to the transfer or 15 the creation of an interest under the lease. 16 (3) A part 10 lease may be mortgaged without the 17 consent of the lessor. 18 (4) Subject to subsection (3), this section does not 19 limit the conditions that may be imposed on a 20 part 10 lease. 21 123 Option to renew particular lease 22 (1) A part 10 lease granted under section 120(1) or 23 121(1) may include an option to renew the lease. 24 (2) The term of the renewed lease must not be more 25 than the initial term of the lease. 26 Page 43

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] 124 Transfer of lease 1 A part 10 lease must not be transferred to a person 2 who, under this Act, would not be entitled to a grant of 3 the lease. 4 125 Lease etc. to be registered 5 (1) The lessee of a part 10 lease must register the 6 lease and an amendment, surrender or transfer of 7 the lease. 8 (2) Despite the Land Title Act, section 65(2), an 9 instrument of lease for Aboriginal land must 10 include a plan of survey identifying the lease 11 land. 12 (3) Subsection (2) does not apply to a lease entered 13 into only in relation to an area completely within 14 a building. 15 Division 4 Home ownership leases 16 Subdivision 1 Conditions and 17 requirements 18 126 General conditions and requirements 19 (1) A home ownership lease is subject to all of the 20 following conditions-- 21 (a) the annual rental under the lease is the 22 amount, of not more than $1, decided by the 23 lessor; 24 (b) the consideration payable for the lease must 25 include, as a lump sum payment, an amount 26 equal to the value of the lease land as 27 Page 44

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] decided by the lessor using at least 1 of the 1 following-- 2 (i) a valuation methodology decided by 3 the chief executive; 4 (ii) the benchmark purchase price, as 5 prescribed by regulation, for land in the 6 part of the State in which the lease land 7 is situated; 8 (c) the lease land must be used primarily for 9 residential use; 10 (d) if a dwelling for residential use is not 11 situated on the lease land when the lease is 12 granted--the lessee must ensure a dwelling 13 for residential use is built on the land within 14 8 years after the lease is granted. 15 (2) A lessor may grant a home ownership lease only 16 if the amount equal to the value of the lease land 17 decided under subsection (1)(b) has been paid to 18 the lessor. 19 (3) The chief executive-- 20 (a) must, if asked, give a person a copy of the 21 valuation methodology mentioned in 22 subsection (1)(b)(i); and 23 (b) may make the valuation methodology 24 available for inspection on the department's 25 website. 26 (4) However, the value of the lease land under 27 subsection (1)(b) must be taken to be nil if-- 28 (a) the lessee is the recipient of a hardship 29 certificate under the new Land Holding Act; 30 and 31 (b) the certificate has not previously been used 32 under this section, whether or not the land 33 Page 45

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] identified in the certificate is the same as the 1 lease land. 2 127 Additional requirement if dwelling situated on 3 land 4 (1) This section applies if-- 5 (a) a lessor proposes to grant a home ownership 6 lease; and 7 (b) a dwelling is situated on the lease land. 8 (2) The lessor must give the housing chief executive 9 notice of the lessor's intention to grant the lease. 10 (3) Within 28 days after receiving the notice, the 11 housing chief executive must give the lessor a 12 notice stating whether or not the dwelling is a 13 social housing dwelling. 14 (4) The lessor must not grant the lease before 15 receiving the notice under subsection (3). 16 (5) This section and section 128 do not limit section 17 126. 18 128 Additional conditions and requirements for 19 social housing dwelling 20 (1) This section applies if the notice under section 21 127(3) states the dwelling is a social housing 22 dwelling. 23 (2) Before the lease is granted, the lessor must 24 decide the value of the dwelling by using a 25 valuation methodology agreed between the lessor 26 and the housing chief executive. 27 (3) The consideration payable for the lease must 28 include, as a lump sum payment, an amount 29 equal to the value of the dwelling decided under 30 subsection (2). 31 Page 46

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (4) The lessor may grant the lease only if-- 1 (a) the housing chief executive has given 2 written approval that the grant may include 3 the sale of the dwelling; and 4 (b) the amount equal to the value of the 5 dwelling decided under subsection (2) has 6 been paid to the lessor. 7 (5) In considering whether to give the approval 8 mentioned in subsection (4)(a), the housing chief 9 executive must have regard to whether it would 10 be more appropriate in the circumstances for the 11 dwelling to continue to be social housing. 12 (6) If the lessor grants the lease, and within 28 days 13 after the lease is registered, the lessor must give 14 the housing chief executive-- 15 (a) a notice stating-- 16 (i) the day the lease was registered; and 17 (ii) the names of the parties to the lease; 18 and 19 (b) evidence showing the consideration for the 20 lease under subsection (3) and section 21 126(1)(b) has been paid to the lessor. 22 Note-- 23 An amount paid under subsection (3) for the value of a 24 dwelling must be used by the lessor as required under 25 section 288. 26 Subdivision 2 Forfeiture 27 129 Grounds for forfeiture 28 A home ownership lease may be forfeited only if-- 29 Page 47

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (a) the lessee breaches either of the following 1 conditions and fails to remedy the breach 2 within 6 months after receiving notice of the 3 breach from the lessor-- 4 (i) a condition of the lease mentioned in 5 section 126(1)(d); 6 (ii) another condition if the lessor 7 reasonably considers a breach of the 8 condition is of a serious nature and 9 warrants forfeiture of the lease; or 10 (b) the lessee acquired the lease by fraud. 11 130 Referral to Land Court for forfeiture 12 (1) Before a home ownership lease is forfeited, the 13 lessor must refer the proposed forfeiture to the 14 Land Court to decide whether the lease may be 15 forfeited. 16 (2) At least 28 days before the lessor refers the 17 proposed forfeiture to the Land Court, the lessor 18 must give notice of the proposed referral to the 19 lessee and any mortgagee of the lease. 20 (3) The notice must state the grounds on which the 21 lessor reasonably considers the lease may be 22 forfeited. 23 (4) If the lessor refers the proposed forfeiture to the 24 Land Court, the lessor must file a copy of the 25 notice in the court. 26 (5) In deciding whether the lease may be forfeited, 27 the Land Court must have regard to-- 28 (a) the grounds stated in the notice under 29 subsection (3); and 30 (b) if the proposed forfeiture is because of a 31 breach of a condition of the lease--whether 32 Page 48

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] the court considers the breach is of a serious 1 nature and warrants forfeiture of the lease. 2 (6) A decision by the Land Court that the lease may 3 be forfeited may be subject to conditions. 4 131 Lessor's options if Land Court decides lease 5 may be forfeited 6 (1) If the Land Court decides a home ownership 7 lease may be forfeited, the lessor may-- 8 (a) if the proposed forfeiture is subject to 9 conditions decided by the court--forfeit the 10 lease under this subdivision if the conditions 11 of forfeiture are satisfied; or 12 (b) otherwise--forfeit the lease under this 13 subdivision. 14 (2) If the proposed forfeiture is because of a breach 15 of a lease condition, the lessor may decide not to 16 forfeit the lease and instead allow the lease to 17 continue subject to the lease being amended to 18 include conditions agreed between the lessor and 19 the lessee. 20 132 Notice and effect of forfeiture 21 (1) If the lessor forfeits a home ownership lease, the 22 lessor must, within 60 days after the Land Court 23 makes its decision about forfeiture of the lease, 24 give notice that the lease is forfeited to-- 25 (a) the lessee and any mortgagee of the lease; 26 and 27 (b) the registrar of titles. 28 (2) On receiving the notice, the registrar must record 29 the forfeiture of the lease in the appropriate 30 register. 31 Page 49

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (3) The forfeiture of the lease takes effect on the day 1 the registrar acts under subsection (2). 2 (4) On forfeiture of the lease-- 3 (a) the lease ends; and 4 (b) the lessee is divested of any interest in the 5 lease; and 6 (c) any person occupying the lease land must 7 immediately vacate the land. 8 133 Extension of term of lease if proposed 9 forfeiture 10 (1) This section applies to a home ownership lease 11 if-- 12 (a) a proposed forfeiture of the lease has been 13 referred to the Land Court; and 14 (b) after the referral but before the Land Court 15 decides on the matter, the term of the lease 16 would, but for subsection (2), end. 17 (2) The term of the lease is taken to continue until-- 18 (a) if the lease is forfeited--the forfeiture of the 19 lease takes effect as mentioned in section 20 132(3); or 21 (b) otherwise--the end of 60 days after the 22 Land Court makes its decision. 23 (3) Subsection (2) applies to the lease despite the 24 provisions of the lease and any other provision of 25 this Act. 26 Page 50

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] Subdivision 3 Renewal 1 134 Application to renew lease 2 (1) The lessee under a home ownership lease may 3 apply in writing to the lessor to renew the lease. 4 (2) The application must-- 5 (a) state the name of the lessee; and 6 (b) include information to identify the lease. 7 135 Notice of expiry of lease 8 (1) This section applies if the lessee under a home 9 ownership lease has not, under section 134, 10 applied for renewal of the lease at least 2 years 11 before the term of the lease ends. 12 (2) At least 1 year before the term of the lease ends, 13 the lessor must give the lessee notice stating-- 14 (a) the day the term of the lease ends; and 15 (b) that the lessee may apply under this 16 subdivision for renewal of the lease; and 17 (c) how the lessee may apply. 18 136 Lessor to consider and decide application 19 Within 6 months after an application is made under 20 section 134, the lessor must consider the application 21 and decide to renew or not to renew the home 22 ownership lease. 23 137 Decision to renew lease 24 (1) If the lessor decides to renew the home 25 ownership lease, the lessor must give the lessee-- 26 Page 51

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (a) notice of the decision; and 1 (b) a copy of the renewed lease. 2 (2) The renewed lease-- 3 (a) has effect immediately after the lease it 4 replaces (the replaced lease) ends; and 5 (b) is subject to all the conditions to which the 6 replaced lease was subject immediately 7 before it ended. 8 (3) No amount is payable under section 126(1)(b) for 9 the renewed lease. 10 138 Lessor may decide not to renew lease 11 The lessor may decide not to renew the home 12 ownership lease only if the lessor is reasonably 13 satisfied-- 14 (a) the lease land is not being used primarily for 15 residential use; or 16 (b) the lessee acquired the lease by fraud. 17 139 Notice about decision not to renew lease 18 If the lessor decides not to renew the home ownership 19 lease, the lessor must give the lessee an information 20 notice for the decision. 21 140 Extension of term of lease if application for 22 renewal 23 (1) This section applies to a home ownership lease 24 if-- 25 (a) the lessee has applied to renew the lease 26 under section 134; and 27 Page 52

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (b) before the lessor decides the application, the 1 term of the lease would, but for subsection 2 (2), end. 3 (2) The term of the lease is taken to continue until 4 notice of the lessor's decision is given to the 5 lessee under this subdivision. 6 (3) Subsection (2) applies to the lease despite the 7 provisions of the lease and any other provision of 8 this Act. 9 Subdivision 4 General matters about 10 forfeiture or non-renewal 11 of home ownership leases 12 141 Right to remove improvements if lease 13 forfeited or not renewed 14 (1) If the lessor forfeits or decides not to renew a 15 home ownership lease, the lessor must allow the 16 lessee to remove the lessee's improvements on 17 the lease land within a reasonable period of at 18 least 28 days decided by the lessor. 19 (2) If the improvements are not removed within the 20 period, they become the property of the lessor. 21 142 Payment by lessor if lease forfeited or not 22 renewed 23 (1) If the lessor forfeits or decides not to renew a 24 home ownership lease, the lessor must pay to the 25 person who was the lessee the amount decided by 26 the lessor under subsection (2) (the required 27 amount). 28 (2) The required amount is the amount equal to the 29 combined value of the following (the maximum 30 Page 53

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] amount) less any amounts deducted from the 1 maximum amount under section 144-- 2 (a) the value of the lease land on the day the 3 lease is forfeited or ends; 4 (b) the value of the lessee's improvements on 5 the land that become the property of the 6 lessor. 7 (3) The value of the lease land must be the amount 8 decided by the lessor using the valuation 9 methodology mentioned in section 126(1)(b)(i). 10 (4) The value of any improvements on the lease land 11 must be decided by the lessor based on the 12 market value of the improvements in a sale of a 13 lease of the same term and tenure as the forfeited 14 or non-renewed lease. 15 (5) The lessor must decide the required amount as 16 soon as practicable after giving the person notice 17 that the lease is forfeited or not renewed. 18 (6) On deciding the required amount, the lessor must 19 give the person an information notice for the 20 decision. 21 (7) This section is subject to section 143. 22 143 Unclaimed amount 23 If the lessor can not find the person entitled to receive 24 the required amount, or the person does not collect the 25 amount from the lessor within 9 years after the day the 26 lease is forfeited or not renewed, the required amount 27 is forfeited to the lessor. 28 Page 54

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] 144 Amount owing to lessor or mortgagee 1 If the lessor forfeits or decides not to renew a home 2 ownership lease, the lessor may deduct the following 3 amounts from the maximum amount-- 4 (a) an amount in payment of all costs properly 5 incurred by the lessor in forfeiting or not 6 renewing the lease; 7 (b) an amount in payment of expenses incurred 8 by the lessor to rectify damage caused to the 9 lease land by the person who was the lessee; 10 (c) any amount owing to the lessor by the 11 person under the lease; 12 (d) any amount owing to a mortgagee of the 13 lease by the person under a mortgage of the 14 lease. 15 145 Payment of amount to mortgagee in discharge 16 of mortgage 17 (1) This section applies if-- 18 (a) the lessor forfeits or decides not to renew a 19 home ownership lease; and 20 (b) under a mortgage of the lease, an amount is 21 owing to a mortgagee of the lease by the 22 person who was the lessee. 23 (2) The lessor must pay to the mortgagee-- 24 (a) if the amount that may be deducted from the 25 maximum amount under section 144(d) is 26 less than the difference between the 27 maximum amount and the amounts 28 deducted under section 144(a), (b) and 29 (c)--the amount that may be deducted from 30 the maximum amount under section 144(d); 31 or 32 Page 55

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (b) otherwise--the amount equal to the 1 difference between the maximum amount 2 and the amounts deducted under section 3 144(a), (b) and (c). 4 (3) The lessor must pay the amount payable under 5 subsection (2) to the mortgagee-- 6 (a) if no appeal is made to the Land Court about 7 the required amount payable to the person 8 who was the lessee--within 28 days after 9 the time for making an appeal ends; or 10 (b) if an appeal is made to the Land Court about 11 the required amount payable to the person 12 who was the lessee--within 28 days after 13 the appeal is finally decided. 14 (4) If the lessor pays an amount to the mortgagee in 15 relation to a mortgage of the lease, the mortgagee 16 must use the amount in discharge of the 17 mortgage. 18 Subdivision 5 Miscellaneous 19 146 Exemption from fees and charges 20 (1) This section applies to an instrument of lease for 21 a home ownership lease. 22 (2) No fee or charge is payable for-- 23 (a) the lodgement and registration of the 24 instrument in the land registry; or 25 (b) the provision by the registrar of titles of 26 other services for the lodgement and 27 registration of the instrument. 28 Page 56

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] 147 Beneficiary to home ownership lease 1 (1) A person who is beneficially entitled under a will 2 to a home ownership lease may ask the lessor-- 3 (a) to give the person a notice stating whether or 4 not the person is entitled to a grant of the 5 lease under this Act; and 6 (b) if, under a condition of the lease, the lease 7 can not be transferred without the lessor's 8 written consent--for the lessor's written 9 consent to the transfer of the lease. 10 Note-- 11 Under section 122, a home ownership lease may include 12 a condition that it must not be transferred without the 13 lessor's prior written consent. 14 (2) The lessor must comply with a request under 15 subsection (1) as soon as practicable after 16 receiving the request. 17 Division 5 Townsite leases 18 Subdivision 1 Restriction on grant 19 148 Minister's consent for grant of townsite lease 20 (1) A townsite lease may be granted only with the 21 Minister's prior written consent. 22 (2) The Minister may consent to the grant of a 23 townsite lease only if-- 24 (a) the lease is over an entire lot as shown in the 25 appropriate register; and 26 (b) the Minister is reasonably satisfied that any 27 existing interests in the proposed lease land 28 are not inconsistent with the lease. 29 Page 57

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] Subdivision 2 Requirements for 1 Minister's consent 2 149 General requirements for Minister's consent 3 (1) A person seeking the Minister's prior written 4 consent to the grant of a townsite lease must give 5 the Minister the information or documents 6 reasonably required by the Minister to show-- 7 (a) the purpose of the lease; and 8 (b) the grant of the lease is for the benefit of 9 persons for whom the trustee holds the lease 10 land; and 11 (c) the grant of the lease-- 12 (i) will facilitate the continued operation 13 of a township on the lease land; and 14 (ii) will not prevent residents of the 15 township land from continuing to live 16 on and access the land, or from 17 obtaining tenure over the land under 18 this Act. 19 (2) In considering whether to give the consent, the 20 Minister-- 21 (a) must have regard to the information or 22 documents given to the Minister under 23 subsection (1); and 24 (b) may have regard to other information the 25 Minister reasonably considers relevant to 26 the proposed lease. 27 (3) Also, before giving the consent, the Minister 28 must be reasonably satisfied-- 29 (a) the Aboriginal people particularly 30 concerned with the lease land are generally 31 in agreement with the grant of the lease; and 32 Page 58

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (b) the grant of the lease-- 1 (i) will facilitate the continued operation 2 of a township on the lease land; and 3 (ii) will not prevent residents of the 4 township land from continuing to live 5 on and access the land, or from 6 obtaining tenure over the land under 7 this Act. 8 Subdivision 3 Provisions about dealing 9 with townsite leases 10 150 Transfer or amendment of townsite lease 11 (1) A townsite lease must not be transferred or 12 amended without-- 13 (a) the agreement of both the trustee and the 14 lessee of the lease land; and 15 (b) the Minister's prior written consent. 16 (2) A person seeking the Minister's prior written 17 consent to the transfer or amendment of a 18 townsite lease must give the Minister the 19 information or documents relevant to the 20 proposed transfer or amendment reasonably 21 required by the Minister. 22 (3) In considering whether to consent to the transfer 23 of a townsite lease, the Minister must consider 24 whether the proposed transferee is capable of 25 complying with the conditions of the lease. 26 (4) The Minister may consent to the amendment of a 27 townsite lease only if reasonably satisfied-- 28 (a) the amendment does not significantly 29 change the conditions of the townsite lease; 30 and 31 Page 59

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (b) the amendment will not diminish the 1 purpose of the lease. 2 (5) A townsite lease must not be transferred to a 3 person who, under this Act, would not be entitled 4 to a grant of the lease. 5 151 Surrender of townsite lease 6 A townsite lease must not be surrendered without the 7 Minister's prior written consent. 8 152 No forfeiture of townsite lease 9 A townsite lease can not be forfeited. 10 Subdivision 4 Effect of townsite lease on 11 existing interests 12 153 Lessee of townsite lease taken to be lessor of 13 existing leases 14 (1) Subsection (2) applies if a townsite lease is 15 granted over Aboriginal land that is, immediately 16 before the grant of the townsite lease, the subject 17 of a following lease (each a continued lease)-- 18 (a) a 1985 Act granted lease or a new Act 19 granted lease under the new Land Holding 20 Act; 21 (b) a lease under the Land Act; 22 (c) a trustee (Aboriginal) lease. 23 (2) On the grant of the townsite lease-- 24 (a) the continued lease continues in force and is 25 taken to be-- 26 Page 60

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 12] (i) if the continued lease is primarily for 1 residential use--a home ownership 2 lease for the same term for which the 3 continued lease was granted; or 4 (ii) otherwise--a lease granted under 5 section 121(1); and 6 (b) the lessee of the townsite lease is substituted 7 for the lessor as a party to the continued 8 lease. 9 Note-- 10 Under section 45(2), the trustee of the Aboriginal land is 11 the lessor of the continued lease. 12 (3) Subsection (4) applies if lease land for a townsite 13 lease is the subject of a lease (also a continued 14 lease) in the form of a sublease granted under the 15 Aurukun and Mornington Shire Leases Act 1978. 16 (4) On the grant of the townsite lease-- 17 (a) a sublease mentioned in subsection (3) 18 continues in force and is taken to be-- 19 (i) if the sublease is primarily for 20 residential use--a home ownership 21 lease for the same term for which the 22 sublease was granted; or 23 (ii) otherwise--a lease granted under 24 section 121(1); and 25 (b) the lessee for the townsite lease is 26 substituted for the lessor as a party to the 27 lease mentioned in paragraph (a)(i) or (ii). 28 (5) Section 45(3) applies to a continued lease as if 29 the reference in that subsection to the trustee of 30 the land were a reference to the lessee of the 31 townsite lease. 32 Page 61

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 13] Clause 13 Amendment of s 179 (Decision-making by trustee) 1 Section 179(1), from `about whether'-- 2 omit, insert-- 3 about any of the following-- 4 (a) the way in which the trustee will consult 5 about the making of a freehold instrument 6 for the land; 7 (b) whether to grant an interest in the land; 8 (c) whether to consent to the creation of a 9 mining interest in the land; 10 (d) whether to enter into an agreement about the 11 land. 12 Clause 14 Amendment of s 180 (Definitions for pt 14) 13 (1) Section 180, definitions lease and lessor-- 14 omit. 15 (2) Section 180-- 16 insert-- 17 lease means a part 10 lease, other than a townsite 18 lease. 19 lessor means-- 20 (a) for a lease granted under a townsite 21 lease--the lessee of the townsite lease; or 22 (b) for another lease--the trustee of the lease 23 land. 24 Clause 15 Amendment of s 182 (Provision about entering into 25 possession of, and selling, lease) 26 Section 182(9), definition lessee, paragraphs (a) and (b)-- 27 omit, insert-- 28 Page 62

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 16] (a) for a lease granted under a townsite 1 lease--the lessee under the lease; or 2 (b) for another lease--the lessee under the 3 lease. 4 Clause 16 Amendment of s 186 (Trustee (Aboriginal) leases) 5 (1) Section 186(2)-- 6 omit, insert-- 7 (2) For subsection (1), part 10 applies in relation to 8 the leasing of Aboriginal trust land-- 9 (a) as if a reference in the part to Aboriginal 10 land were a reference to Aboriginal trust 11 land; and 12 (b) as if the reference in section 122(1)(a) to a 13 stated standard terms document under the 14 Land Title Act were a reference to a stated 15 mandatory standard terms document under 16 the Land Act. 17 (2) Section 186(3), (4) and (7)-- 18 omit. 19 (3) Section 186(6), `Subsection (5)'-- 20 omit, insert-- 21 Subsection (3) 22 (4) Section 186(5) and (6)-- 23 renumber as section 186(3) and (4). 24 Clause 17 Omission of pt 15, div 3 (Other matters) 25 Part 15, division 3-- 26 omit. 27 Page 63

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 18] Clause 18 Amendment of s 196 (Application of provisions for grant 1 of land) 2 (1) Section 196(2)(c) and (f)-- 3 omit. 4 (2) Section 196(2)(g), `section 127'-- 5 omit, insert-- 6 section 149 7 (3) Section 196(2)(d) to (l)-- 8 renumber as section 196(2)(c) to (j). 9 (4) Section 196(4) and (5)-- 10 omit, insert-- 11 (4) The following provisions apply in relation to the 12 land as if a reference in the provisions to an 13 Aboriginal person includes a reference to a 14 Torres Strait Islander-- 15 (a) section 41; 16 (b) sections 120(2) and 121(2). 17 (5) Section 196(6)-- 18 renumber as section 196(5). 19 (6) Section 196(7)-- 20 omit. 21 Clause 19 Amendment of s 198 (Application of particular 22 provisions) 23 (1) Section 198, `Sections 119 and 141'-- 24 omit, insert-- 25 Sections 120 and 121 26 (2) Section 198, `Aborigine'-- 27 Page 64

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 20] omit, insert-- 1 Aboriginal person 2 Clause 20 Amendment of s 199 (Use of Aboriginal land preserved) 3 Section 199(5)(a)-- 4 omit, insert-- 5 (a) it is subject to a home ownership lease; or 6 Clause 21 Amendment of s 277 (Who may appeal) 7 (1) Section 277(2) and (3), `residential'-- 8 omit, insert-- 9 home ownership 10 (2) Section 277(2), `section 156'-- 11 omit, insert-- 12 section 136 13 (3) Section 277(3), `section 162'-- 14 omit, insert-- 15 section 142 16 (4) Section 277(2) to (4)-- 17 renumber as section 277(3) to (5). 18 (5) Section 277-- 19 insert-- 20 (2) A person who is given, or is entitled to be given, 21 an information notice for a decision under part 22 2A may appeal to the Land Court against the 23 decision. 24 Page 65

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 22] Clause 22 Amendment of s 280 (Notice of appeal) 1 (1) Section 280(a), `or (3)'-- 2 omit, insert-- 3 , (3) or (4) 4 (2) Section 280(b), `section 277(4)'-- 5 omit, insert-- 6 section 277(5) 7 Clause 23 Amendment of s 288 (Dealing with particular trust 8 property) 9 (1) Section 288(1) and (3), `section 143'-- 10 omit, insert-- 11 section 128 12 (2) Section 288(5)-- 13 renumber as section 288(7). 14 (3) Section 288-- 15 insert-- 16 (5) Subsection (6) applies to the trustee of available 17 land if the trustee receives an amount for a social 18 housing dwelling situated on the available land. 19 (6) The trustee must ensure an amount equal to the 20 amount received is used by the trustee for 21 housing services for Aboriginal people 22 concerned with the land held by the trustee. 23 Clause 24 Omission of s 289 (Application of Residential Tenancies 24 and Rooming Accommodation Act 2008) 25 Section 289-- 26 omit. 27 Page 66

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 25] Clause 25 Insertion of new pt 25, div 5 1 Part 25-- 2 insert-- 3 Division 5 Transitional provisions for 4 Aboriginal and Torres 5 Strait Islander Land 6 (Providing Freehold) and 7 Other Legislation 8 Amendment Act 2014 9 307 Definitions for div 5 10 In this division-- 11 commencement means the commencement of 12 this section. 13 pre-amended Act means this Act as in force 14 before its amendment by the Aboriginal and 15 Torres Strait Islander Land (Providing Freehold) 16 and Other Legislation Amendment Act 2014, 17 section 12. 18 308 Provision for existing leases 19 (1) This section applies to a lease under the 20 pre-amended Act in effect immediately before 21 the commencement. 22 (2) A standard lease under the pre-amended Act is 23 taken to be a part 10 lease for the same term for 24 which the standard lease was granted. 25 (3) A townsite lease under the pre-amended Act is 26 taken to be a townsite lease. 27 (4) A lease for private residential purposes under the 28 pre-amended Act is taken to be a home 29 Page 67

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 26] ownership lease for the same term for which the 1 lease for private residential purposes was granted. 2 309 Provision for existing applications 3 (1) This section applies to an application under the 4 pre-amended Act that, before the 5 commencement, had not been granted or refused. 6 (2) An application for a lease under the pre-amended 7 Act is taken to be-- 8 (a) if the application is for a lease for private 9 residential purposes under the pre-amended 10 Act--an application for a home ownership 11 lease; or 12 (b) otherwise--an application for a part 10 13 lease for the same term and purpose as the 14 term and purpose for which the application 15 was made. 16 (3) An application to renew a lease under the 17 pre-amended Act is taken to be an application to 18 renew a part 10 lease. 19 Clause 26 Amendment of sch 1 (Dictionary) 20 (1) Schedule 1, definitions decision-maker, lease, lessee, lessor, 21 native title holder, residential lease, standard lease, townsite 22 sublease and trustee-- 23 omit. 24 (2) Schedule 1-- 25 insert-- 26 allocation method, for available land, for part 27 2A, see section 32B. 28 allocation notice, for part 2A, see section 29 32Z(1)(a). 30 Page 68

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 26] allocation process, for available land, for part 1 2A, see section 32B. 2 appeal period, for available land, for part 2A, see 3 section 32B. 4 available land see section 32D(3). 5 closing day, for part 2A, division 6, see section 6 32ZA(1)(d). 7 decision-maker, for part 22, means-- 8 (a) for a decision mentioned in section 277(1) 9 or (5)--the Minister; or 10 (b) for a decision mentioned in section 11 277(2)--the trustee of the available land to 12 which the decision relates; or 13 (c) for a decision mentioned in section 277(3) 14 or (4) about forfeiture or non-renewal of a 15 lease--the lessor of the lease land. 16 eligibility criteria, for part 2A, see section 17 32D(6)(a). 18 eligible person, for available land, for part 2A, 19 see section 32B. 20 freehold instrument see section 32B. 21 freehold option land see section 32B. 22 freehold policy, for a freehold schedule, for part 23 2A, see section 32D(5). 24 freehold schedule, for part 2A, see section 32B. 25 home ownership lease see sections 120(2) and 26 121(2). 27 housing chief executive means the chief 28 executive of the department in which the Housing 29 Act 2003 is administered. 30 Page 69

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 26] indigenous local government, for part 2A, see 1 section 32B. 2 interest holder, for available land, for part 2A, 3 see section 32B. 4 lease-- 5 (a) generally, does not include a residential 6 tenancy agreement; and 7 (b) for part 14, see section 180. 8 lessee, for part 10, see section 119. 9 lessor-- 10 (a) for part 10, see section 119; or 11 (b) for part 14, see section 180. 12 model freehold instrument, for part 2A, division 13 4, subdivision 2, see section 32F. 14 model freehold schedule, for part 2A, see section 15 32D(4). 16 native title holder-- 17 (a) for part 2A, see section 32B; or 18 (b) otherwise--in relation to land held, or to be 19 held, by a registered native title body 20 corporate, means-- 21 (i) if the registered native title body 22 corporate holds the native title in 23 relation to the land, or part of the land, 24 on trust--the persons on whose behalf 25 the registered native title body 26 corporate holds the native title; or 27 (ii) if subparagraph (i) does not apply--the 28 persons who hold the native title in 29 relation to the land or part of the land. 30 offer, for part 2A, see section 32B. 31 Page 70

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 1 Amendment of Aboriginal Land Act 1991 [s 26] part 10 lease see section 119. 1 planning scheme, for part 2A, see section 32B. 2 probity advisor, for part 2A, see section 32ZB(1). 3 reasonably considers means considers on 4 grounds that are reasonable in the circumstances. 5 reasonably satisfied means satisfied on grounds 6 that are reasonable in the circumstances. 7 social housing means housing that-- 8 (a) is being used to provide subsidised housing 9 for residential use; or 10 (b) has been used to provide subsidised housing 11 for residential use and for which an amount, 12 payable under either of the following 13 sections for the value of the dwelling, has 14 not been paid to the trustee-- 15 (i) section 128; 16 (ii) section 143 as in force before the 17 commencement of the Aboriginal and 18 Torres Strait Islander Land (Providing 19 Freehold) and Other Legislation 20 Amendment Act 2014, section 12. 21 social housing dwelling means a dwelling the 22 housing chief executive reasonably considers to 23 be social housing. 24 trustee, in relation to land, is the entity that-- 25 (a) holds, as trustee, the land under this Act; or 26 (b) is the trustee of the land under the Land Act. 27 urban area, for part 2A, see section 32B. 28 urban purposes, for part 2A, see section 32B. 29 (3) Schedule 1, definition maximum amount, `section 162(2)'-- 30 Page 71

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 2 Amendment of Aboriginal Land Regulation 2011 [s 27] omit, insert-- 1 section 142(2) 2 (4) Schedule 1, definition required amount, `section 162(1)'-- 3 omit, insert-- 4 section 142(1) 5 (5) Schedule 1, definition townsite lease, `section 119(3)'-- 6 omit, insert-- 7 section 120(3) 8 Part 2 Amendment of Aboriginal Land 9 Regulation 2011 10 Clause 27 Regulation amended 11 This part amends the Aboriginal Land Regulation 2011. 12 Clause 28 Omission of pt 3 (Code of conduct about mining leases) 13 Part 3-- 14 omit. 15 Clause 29 Amendment of s 50 (Application of provisions for 16 particular land) 17 (1) Section 50(2), `, 22 and 36'-- 18 omit, insert-- 19 and 22 20 (2) Section 50(2)(c) and (d)-- 21 omit. 22 Page 72

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 3 Amendment of Land Act 1994 [s 30] Clause 30 Insertion of new s 50B 1 Part 7-- 2 insert-- 3 50B Land for model freehold schedule 4 For section 32D(4) of the Act, freehold option land for 5 which there is an interest holder on the 6 commencement of this section is prescribed as a type 7 of freehold option land. 8 Part 3 Amendment of Land Act 1994 9 Clause 31 Act amended 10 This part amends the Land Act 1994. 11 Note-- 12 See also the amendments in chapter 3 and schedule 1, part 1. 13 Clause 32 Amendment of s 14 (Governor in Council may grant land) 14 (1) Section 14(1), `or rail land'-- 15 omit, insert-- 16 , rail land or approved land 17 (2) Section 14-- 18 insert-- 19 (6) A grant of approved land under subsection (1) 20 may be made only to the person the subject of the 21 application. 22 (7) In this section-- 23 approved land means land the subject of an 24 application approved by the chief executive under 25 Page 73

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 33] the Aboriginal Land Act 1991, section 32C or the 1 Torres Strait Islander Land Act 1991, section 2 28C. 3 Part 4 Amendment of Torres Strait 4 Islander Land Act 1991 5 Clause 33 Act amended 6 This part amends the Torres Strait Islander Land Act 1991. 7 Note-- 8 See also the amendments in schedule 1, part 1. 9 Clause 34 Amendment of s 9 (Lands that are transferable lands) 10 (1) Section 9(2)-- 11 insert-- 12 (d) is not transferable land if it is available land 13 the subject of an allocation notice under 14 section 28Z. 15 (2) Section 9-- 16 insert-- 17 (3) Also, if land mentioned in subsection (1) is the 18 subject of an offer to allocate under section 28T, 19 the land is not transferable land while the offer is 20 in force. 21 Clause 35 Insertion of new pt 2A 22 After part 2-- 23 insert-- 24 Page 74

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] Part 2A Providing freehold 1 Division 1 Preliminary 2 28A Overview 3 This part-- 4 (a) allows available land to be granted in 5 freehold under the Land Act to an eligible 6 person for the available land; and 7 (b) requires-- 8 (i) the trustee of freehold option land to 9 consult on and make a freehold 10 instrument; and 11 (ii) the local government for the area in 12 which the land is situated to attach the 13 freehold instrument to its planning 14 scheme; and 15 (c) sets out how, and to whom, the trustee may 16 allocate available land depending on 17 whether the person is an eligible person. 18 Division 2 Basic concepts 19 28B Definitions for pt 2A 20 In this part-- 21 allocation method, for available land, means-- 22 (a) the auction, ballot or tender to be used to 23 allocate the available land; and 24 (b) the conditions of the auction, ballot or 25 tender. 26 Page 75

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] allocation notice see section 28Z(1)(a). 1 allocation process, for available land, means-- 2 (a) if there is an interest holder for the available 3 land--the process stated in division 5; or 4 (b) otherwise--the process stated in division 6. 5 appeal period, for available land, means the 6 period starting on the day a person receives an 7 information notice in relation to the available 8 land and ending-- 9 (a) if no notice of appeal is filed in relation to 10 the available land--on the last day for 11 making an appeal; or 12 (b) if a notice of appeal is filed in relation to the 13 available land--when the appeal is finally 14 decided. 15 available land see section 28D(3). 16 closing day, for division 6, see section 17 28ZA(1)(d). 18 eligibility criteria see section 28D(6)(a). 19 eligible person, for available land, means a 20 person who meets the eligibility criteria for the 21 land and is-- 22 (a) a Torres Strait Islander or Aboriginal 23 person; or 24 (b) the spouse or former spouse of-- 25 (i) a person mentioned in paragraph (a); or 26 (ii) a Torres Strait Islander or Aboriginal 27 person who is deceased. 28 freehold instrument means a freehold schedule 29 and the freehold policy for the freehold schedule. 30 Page 76

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] freehold option land means land in an 1 indigenous local government's area if-- 2 (a) any of the following entities are the trustee 3 of the land-- 4 (i) an indigenous local government; 5 (ii) a land trust; 6 (iii) another entity holding the land under 7 this Act; and 8 (b) the land is in an urban area. 9 freehold policy, for a freehold schedule, see 10 section 28D(5). 11 freehold schedule-- 12 (a) means a schedule made as mentioned in 13 section 28D(1) by the trustee of freehold 14 option land; and 15 (b) includes a model freehold schedule. 16 indigenous local government see the Local 17 Government Act 2009, schedule 4. 18 interest holder, for available land, means a 19 person who holds any of the following interests 20 in the land-- 21 (a) a registered lease granted under this Act or 22 the Land Act, other than a townsite lease; 23 (b) a lease entitlement under the new Land 24 Holding Act; 25 (c) a 1985 Act granted lease or a new Act 26 granted lease under the new Land Holding 27 Act; 28 (d) a registered sublease, including a registered 29 lease of a townsite lease; 30 Page 77

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (e) a residential tenancy agreement for a social 1 housing dwelling situated on the available 2 land; 3 (f) a right to occupy or use the available land 4 under section 148. 5 model freehold instrument, for division 4, 6 subdivision 2, see section 28F. 7 model freehold schedule see section 28D(4). 8 native title holder has the same meaning as it has 9 in the Commonwealth Native Title Act. 10 offer means an offer to an eligible person by a 11 trustee to allocate available land to the person 12 under section 28T. 13 planning scheme see the Sustainable Planning 14 Act 2009, section 79. 15 probity advisor see section 28ZB(1). 16 urban area means an area identified as an area 17 intended specifically for urban purposes, 18 including future urban purposes (but not rural 19 residential or future rural residential purposes) on 20 a map in a planning scheme that-- 21 (a) identifies the areas using cadastral 22 boundaries; and 23 (b) is used exclusively or primarily to assess 24 development applications under the 25 Sustainable Planning Act 2009. 26 Example of a map-- 27 a zoning map 28 urban purposes means purposes for which land 29 is used in cities or towns, including residential, 30 industrial, sporting, recreation and commercial 31 purposes. 32 Page 78

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] Division 3 Approval for grant of 1 available land 2 28C Approval for grant of available land 3 (1) The trustee of freehold option land may apply to 4 the chief executive, in the approved form, for 5 available land to be granted in fee simple under 6 the Land Act to the eligible person who has been 7 allocated the available land under this part. 8 (2) The trustee may make the application only if-- 9 (a) there is a freehold instrument for the 10 available land; and 11 (b) the trustee has followed the allocation 12 process for the available land. 13 (3) Information in the application must, if the 14 approved form requires, be verified by a statutory 15 declaration. 16 (4) In deciding the application, the chief executive-- 17 (a) must be reasonably satisfied-- 18 (i) agreements or arrangements 19 appropriate to granting the available 20 land as freehold have been entered into 21 or are in place, including, for example, 22 in relation to the following-- 23 (A) native title; 24 (B) any social housing dwelling on 25 the available land; 26 (C) road access to the available land; 27 and 28 (ii) there is a lot on plan description for the 29 available land; and 30 Page 79

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (iii) if the available land is allocated under 1 section 28ZF--a probity advisor has 2 certified the probity of the allocation 3 process for the available land; and 4 (b) may consider any other matter the chief 5 executive reasonably considers relevant. 6 (5) If the chief executive approves the application, 7 the Governor in Council may grant the land in fee 8 simple under the Land Act. 9 Note-- 10 See the Land Act, section 14. 11 Division 4 Freehold instruments 12 Subdivision 1 Trustee may make freehold 13 instrument 14 28D Trustee may make freehold instrument 15 (1) The trustee of freehold option land may, by 16 resolution, make a schedule identifying the 17 freehold option land available to be granted in 18 freehold. 19 (2) The freehold schedule must identify the freehold 20 option land so the boundaries of the land are 21 capable of being decided. 22 (3) Freehold option land identified in a freehold 23 schedule is available land. 24 (4) A freehold schedule that only identifies freehold 25 option land of a type prescribed by regulation for 26 this subsection is a model freehold schedule. 27 (5) If the trustee makes a freehold schedule, the 28 trustee must, by resolution, make a policy (a 29 Page 80

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] freehold policy) at the same time to help the 1 trustee in implementing the freehold schedule. 2 (6) The freehold policy must be in the approved form 3 and state-- 4 (a) the criteria (the eligibility criteria) for 5 participating in the allocation process for 6 available land; and 7 (b) if there is no interest holder for available 8 land--the allocation method for available 9 land; and 10 (c) the sale price of available land and the costs 11 to be recovered from the sale price; and 12 (d) how the community will be consulted about 13 the allocation process for available land; and 14 (e) how the trustee will deal with interests in, or 15 in relation to, available land, before it is 16 allocated; and 17 (f) the social and financial implications for the 18 community in providing freehold; and 19 (g) the social and financial implications for any 20 eligible person who is granted freehold; and 21 (h) the potential to attract investment and new 22 members into the community; and 23 (i) any other matter prescribed by regulation. 24 28E Trustee may have only 1 freehold instrument 25 (1) The trustee of freehold option land may have 26 only 1 freehold instrument for the land. 27 (2) However, if the trustee is an indigenous regional 28 council, the trustee may have more than 1 29 freehold instrument only if the freehold 30 instruments do not overlap in relation to available 31 land. 32 Page 81

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (3) In this section-- 1 indigenous regional council see the Local 2 Government Act 2009, schedule 4. 3 Subdivision 2 Making, amending or 4 repealing freehold 5 instruments 6 28F Definition for sdiv 2 7 In this subdivision-- 8 model freehold instrument means a model 9 freehold schedule and the freehold policy for the 10 model freehold schedule. 11 28G Application of sdiv 2 12 This subdivision states how a freehold instrument may 13 be made, amended or repealed. 14 28H Minister to make and publish guideline 15 (1) The Minister must make, and publish on the 16 department's website, a guideline about the 17 process for-- 18 (a) attaching a freehold instrument to a local 19 government's planning scheme; and 20 (b) amending or repealing a freehold 21 instrument. 22 (2) The guideline must make provision for the local 23 government to do all of the following things 24 before attaching a freehold instrument to its 25 planning scheme-- 26 Page 82

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (a) publish a notice about the freehold 1 instrument in a newspaper or other 2 publication circulating generally in the local 3 government's area at least once; 4 (b) carry out public consultation about the 5 freehold instrument; 6 (c) give the Minister a notice summarising the 7 matters raised during the public consultation 8 and stating how the local government or the 9 trustee dealt with the matters. 10 28I Trustee to consult 11 (1) Before the trustee of freehold option land starts 12 the process for making a freehold instrument in 13 relation to freehold option land, the trustee must 14 decide on the way (the decided way) in which the 15 trustee will consult about the making of the 16 freehold instrument. 17 Note-- 18 See section 135. 19 (2) The purpose of the consultation is to enable the 20 trustee to be reasonably satisfied it is appropriate 21 for the freehold option land to be granted in 22 freehold. 23 (3) The decided way must-- 24 (a) require the trustee to consult with the native 25 title holders for the freehold option land 26 proposed to be included in the freehold 27 schedule; and 28 (b) include how the trustee will notify the 29 community about the freehold instrument; 30 and 31 (c) allow a suitable and sufficient opportunity 32 for each person the trustee consults to 33 Page 83

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] express their views about the freehold 1 instrument. 2 (4) The trustee must-- 3 (a) consult on the freehold instrument in the 4 decided way; and 5 (b) keep records about the consultation showing 6 the consultation was consistent with the 7 decided way. 8 28J Trustee to give freehold instrument to Minister 9 or local government 10 (1) This section applies if, after consulting on a 11 proposed freehold instrument, the trustee decides 12 to continue to make a freehold instrument. 13 (2) The trustee must-- 14 (a) for a model freehold instrument--give the 15 model freehold instrument to the Minister 16 for approval; or 17 (b) otherwise--ask, by notice, the local 18 government for the area in which the 19 proposed freehold option land is situated to 20 attach the freehold instrument to the local 21 government's planning scheme. 22 (3) In this section-- 23 proposed freehold option land means freehold 24 option land proposed to be included in a freehold 25 schedule. 26 28K Local government to follow process in 27 guideline 28 (1) This section applies if a local government 29 receives a notice under section 28J(2)(b) in 30 relation to a freehold instrument. 31 Page 84

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (2) The local government must follow the process 1 stated in the guideline made by the Minister 2 under section 28H. 3 (3) After the process is completed, the local 4 government must give the freehold instrument to 5 the Minister for approval. 6 28L Minister may approve 7 (1) If the Minister is given a freehold instrument for 8 approval, the Minister may-- 9 (a) approve the freehold instrument; or 10 (b) approve the freehold instrument on the 11 condition the trustee or local government for 12 the available land amends the freehold 13 instrument in the way the Minister directs; 14 or 15 (c) refuse to approve the freehold instrument. 16 (2) In making a decision under subsection (1) about a 17 freehold instrument, other than a model freehold 18 instrument, the Minister must have regard to 19 information given to the Minister by the local 20 government for the freehold instrument after the 21 local government has completed the process 22 under section 28K. 23 (3) The Minister may approve a freehold instrument 24 if reasonably satisfied-- 25 (a) for a model freehold instrument--the model 26 freehold schedule only includes freehold 27 option land of a type prescribed by 28 regulation for section 28D(4); and 29 (b) the trustee has consulted with the native title 30 holders for the freehold option land 31 proposed to be included in the freehold 32 schedule; and 33 Page 85

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (c) the consultation was consistent with the way 1 decided by the trustee under section 28I. 2 (4) The Minister must give notice of the decision 3 under subsection (1) to the trustee and the local 4 government for the freehold instrument. 5 (5) If the Minister approves a freehold instrument, 6 the local government must-- 7 (a) attach the freehold instrument to its 8 planning scheme; and 9 (b) publish, in a newspaper or other publication 10 circulating generally in the local 11 government's area at least once, a notice 12 stating the freehold instrument is approved 13 and attached to its planning scheme. 14 28M Amending or repealing freehold instrument 15 A freehold instrument attached to a local 16 government's planning scheme may be amended or 17 repealed by a trustee only by following the process 18 stated in the guideline made by the Minister under 19 section 28H. 20 Subdivision 3 Other provisions about 21 freehold instruments 22 28N Effect of freehold instrument 23 A freehold instrument has effect on and after the day 24 the local government for the area in which the 25 available land is situated attaches the freehold 26 instrument to the local government's planning scheme. 27 Page 86

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] 28O Relationship with planning scheme 1 (1) Attaching a freehold instrument to a planning 2 scheme is not an amendment of the planning 3 scheme. 4 (2) A freehold instrument attached to a planning 5 scheme-- 6 (a) does not form part of the planning scheme; 7 and 8 (b) is the responsibility of the trustee for the 9 available land; and 10 (c) if the planning scheme is amended or 11 repealed and remade (with or without 12 modification)--may be attached without 13 amendment by the local government to the 14 amended or remade planning scheme. 15 Division 5 Allocation process for 16 available land--interest 17 holder 18 28P Application of div 5 19 This division states the allocation process for available 20 land if there is an interest holder for the available land. 21 28Q Application for available land 22 A person who is an eligible person and an interest 23 holder for available land may apply, in the approved 24 form, to the trustee of the land for the land to be 25 granted to the person. 26 Page 87

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] 28R Dwelling on available land 1 (1) This section applies if a dwelling is situated on 2 available land the subject of the application. 3 (2) The trustee must give notice about the application 4 to the housing chief executive. 5 (3) Within 28 days after receiving the notice, the 6 housing chief executive must give the trustee a 7 notice (a dwelling notice) stating whether-- 8 (a) the dwelling is a social housing dwelling; 9 and 10 (b) if the dwelling is a social housing 11 dwelling--the housing chief executive 12 consents to the applicant making the 13 application. 14 (4) In deciding whether to consent to the applicant 15 making the application, the housing chief 16 executive must have regard to whether it would 17 be more appropriate in the circumstances for the 18 dwelling to continue to be social housing. 19 (5) If the dwelling notice states the housing chief 20 executive consents to the applicant making the 21 application, the trustee must decide the value of 22 the dwelling by using the valuation methodology 23 agreed between the trustee and the housing chief 24 executive. 25 (6) The housing chief executive must, if asked, give a 26 person a copy of the valuation methodology. 27 28S Decision on application 28 (1) The trustee must consider the application and 29 decide to approve or refuse the application. 30 (2) However, if a dwelling is situated on the available 31 land the subject of the application, the trustee-- 32 Page 88

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (a) must not decide the application until the 1 trustee receives a notice from the housing 2 chief executive under section 28R(3); and 3 (b) must refuse the application if the notice 4 states the dwelling is a social housing 5 dwelling and the housing chief executive 6 does not consent to the applicant making the 7 application. 8 (3) The trustee may approve the application only if 9 the trustee is reasonably satisfied-- 10 (a) the applicant is an eligible person for the 11 available land the subject of the application; 12 and 13 (b) if there is more than 1 interest holder for the 14 available land and all interest holders are 15 eligible persons, either-- 16 (i) all interest holders for the available 17 land have made the application; or 18 (ii) all interest holders for the available 19 land have consented to the applicant 20 making the application; and 21 (c) if there is more than 1 interest holder for the 22 available land and paragraph (b) does not 23 apply--all interest holders for the available 24 land have consented to the applicant making 25 the application; and 26 (d) if there is a mortgage over the available 27 land--the mortgagee has consented to the 28 applicant making the application. 29 (4) If the trustee is reasonably satisfied of the matters 30 mentioned in subsection (3), the trustee must 31 approve the application. 32 Page 89

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (5) If the trustee decides to refuse the application, the 1 trustee must give the applicant an information 2 notice for the decision. 3 28T Offer to allocate available land 4 (1) If the trustee approves the eligible person's 5 application, the trustee must offer, in writing, to 6 allocate the available land to the eligible person. 7 (2) However, the trustee may make the offer only 8 after the appeal period for the available land. 9 (3) If there is a social housing dwelling on the 10 available land, the trustee must make the offer 11 subject to a condition that the eligible person 12 must purchase the dwelling at the value decided 13 under section 28R(5). 14 (4) The trustee may make the offer subject to any 15 other conditions the trustee reasonably considers 16 necessary. 17 (5) In deciding whether to impose conditions on the 18 offer under subsection (4), the trustee must have 19 regard to the freehold instrument. 20 (6) If the trustee decides to impose conditions on the 21 offer, other than a condition mentioned in 22 subsection (3), the trustee must give the eligible 23 person an information notice for the decision. 24 (7) The trustee must give notice to the chief 25 executive in the approved form about the offer. 26 28U Acceptance and refusal of offer 27 (1) On receipt of the trustee's offer, the eligible 28 person may accept or refuse the offer by notice 29 given to the trustee. 30 Page 90

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (2) However, if the eligible person does not give 1 notice to the trustee within 45 days after the 2 eligible person receives the offer, the eligible 3 person is taken to have refused the offer. 4 (3) If the eligible person refuses the offer, the trustee 5 must give notice about the refusal to the chief 6 executive. 7 28V Cooling-off period to apply to acceptance 8 (1) A cooling-off period, for accepting an offer, is a 9 period of 5 business days-- 10 (a) starting on the day the eligible person gives 11 notice about accepting the offer to the 12 trustee; and 13 (b) ending at 5p.m. on the fifth business day 14 after the day mentioned in paragraph (a). 15 (2) An eligible person who accepts, or proposes to 16 accept, an offer may give written notice to the 17 trustee-- 18 (a) waiving the cooling-off period for accepting 19 the offer; or 20 (b) shortening the cooling-off period for 21 accepting the offer. 22 (3) An eligible person who has not waived the 23 cooling-off period for accepting an offer may 24 rescind or revoke the acceptance by giving a 25 signed notice of rescission or revocation to the 26 trustee at any time during-- 27 (a) the cooling-off period; or 28 (b) if the period has been shortened under 29 subsection (2)(b), the shortened period. 30 (4) If the acceptance is rescinded or revoked under 31 subsection (3), the trustee must, within 14 days, 32 Page 91

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] refund any deposit paid under the acceptance to 1 the eligible person. 2 (5) An amount payable to the eligible person under 3 subsection (4) is recoverable from the trustee as a 4 debt. 5 28W When offer ends 6 An offer ends when the first of the following 7 happens-- 8 (a) the eligible person refuses the offer under 9 section 28U; 10 (b) the eligible person gives notice of rescission 11 or revocation of acceptance to the trustee 12 under section 28V; 13 (c) the eligible person dies; 14 (d) the eligible person is no longer an interest 15 holder for the available land; 16 (e) if the offer includes a condition about when 17 the offer ends--the day the offer ends under 18 the condition. 19 28X Allocation of available land to eligible person 20 (1) After complying with all conditions of the offer, 21 the eligible person must give notice to the trustee. 22 (2) If, after receiving the notice, the trustee is 23 reasonably satisfied the eligible person has 24 complied with all conditions of the offer, the 25 trustee must allocate the available land to the 26 eligible person. 27 Note-- 28 Available land may be granted in freehold to an eligible 29 person who is allocated the available land. See section 30 28C. 31 Page 92

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] Division 6 Allocation process for 1 available land if no interest 2 holder 3 28Y Application of div 6 4 This division states the allocation process for available 5 land if there is no interest holder for the available land. 6 Note-- 7 A freehold instrument states the allocation method for 8 available land. See section 28D(6). 9 28Z Public notice of intention to allocate available 10 land 11 (1) Before allocating available land, the trustee of the 12 available land must publish notice of the trustee's 13 intention to allocate the available land-- 14 (a) by gazette notice (the allocation notice); 15 and 16 (b) in a newspaper or other publication 17 circulating generally in the area in which the 18 land is situated at least once. 19 (2) The trustee may act under subsection (1) only 20 if-- 21 (a) there is a lot on plan description for the 22 available land; and 23 (b) there is dedicated access to the available 24 land; and 25 (c) native title over the available land has been, 26 or will be, surrendered or extinguished; and 27 (d) the trustee has given notice to the chief 28 executive about the trustee's intention to 29 allocate the available land. 30 Page 93

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] 28ZA Information to be included in allocation 1 notice 2 (1) The allocation notice must include the following 3 information for the available land-- 4 (a) the eligibility criteria; 5 (b) the allocation method; 6 (c) the conditions applying to an offer of the 7 available land; 8 (d) the day (the closing day) applications to 9 participate in the allocation process close; 10 (e) the time and place for making applications; 11 (f) the reserve or purchase price; 12 (g) the deposit, if any, to be paid to participate 13 in the allocation process and the proposed 14 date, time and place for payment of the 15 deposit; 16 (h) the proposed date, time and place where the 17 available land will be allocated; 18 Note-- 19 After the appeal period for the available land, the 20 trustee must give notice of the date, time and place 21 where the available land will be allocated. See 22 section 28ZD. 23 (i) the name and contact details of the probity 24 advisor appointed. 25 (2) The closing day must be at least 30 days after the 26 allocation notice is gazetted. 27 28ZB Probity advisor 28 (1) The trustee must appoint an appropriately 29 qualified and independent person (a probity 30 advisor) to ensure the probity of the allocation 31 process for the available land. 32 Page 94

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (2) The probity advisor must-- 1 (a) monitor the allocation process for the 2 available land; and 3 (b) advise the trustee on matters relating to the 4 probity of the allocation process; and 5 (c) prepare and give to the trustee a report about 6 the probity of the allocation process and, if 7 reasonably satisfied the allocation process 8 was undertaken correctly, certify that fact. 9 28ZC Decision on application to participate in 10 allocation process 11 (1) As soon as practicable after the closing day, the 12 trustee must decide whether each applicant is an 13 eligible person for the available land and give 14 each applicant a notice about the decision. 15 (2) If the trustee decides an applicant is an eligible 16 person for the available land, the trustee must 17 allow the applicant to participate in the allocation 18 process for the available land. 19 (3) If the trustee decides an applicant is not an 20 eligible person for the available land, the 21 trustee-- 22 (a) must give the applicant an information 23 notice for the decision; and 24 (b) must not allow the applicant to participate in 25 the allocation process for the available land. 26 28ZD Notice of allocation of available land 27 (1) After the appeal period for the available land, the 28 trustee must give each applicant who is able to 29 participate in the allocation process for the 30 available land a notice stating-- 31 Page 95

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] (a) the date, time and place where the available 1 land will be allocated (the allocation date); 2 and 3 (b) if the allocation notice requires a deposit to 4 be paid--the date by which the deposit must 5 be paid; and 6 (c) the applicant must give notice to the trustee 7 before the allocation date if the applicant no 8 longer wishes to participate in the allocation 9 process. 10 (2) The date mentioned in subsection (1)(b) must 11 be-- 12 (a) at least 30 days after the notice under this 13 section is given; and 14 (b) before the allocation date. 15 (3) If the applicant does not pay the deposit by the 16 date mentioned in subsection (1)(b), the applicant 17 must not participate in the allocation process. 18 28ZE How and when trustee may allocate 19 The trustee may allocate the available land only-- 20 (a) after the end of the appeal period; and 21 (b) by using the allocation method consistent 22 with all of the following for the available 23 land-- 24 (i) the freehold instrument; 25 (ii) the allocation notice; 26 (iii) the probity advisor's advice. 27 Page 96

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 35] 28ZF Allocation of available land 1 The trustee must allocate the available land to the 2 eligible person who is the winner under the allocation 3 method used to allocate the available land. 4 Note-- 5 Available land may be granted in freehold to an eligible 6 person who is allocated the available land. See section 7 28C. 8 28ZG Deposits 9 The trustee must refund the deposit of each 10 unsuccessful applicant after the trustee allocates the 11 available land. 12 Division 7 Miscellaneous 13 28ZH Continuation of mortgages and easements 14 A deed of grant for available land approved to be 15 granted in fee simple under section 28C is subject to 16 all registered mortgages and easements to which the 17 available land was subject immediately before it was 18 granted, and in the same priorities. 19 28ZI Cancellation of deeds of grant in trust, 20 reserves etc. 21 (1) This section applies if-- 22 (a) available land is subject to any of the 23 following (each an old tenure) when the 24 trustee for the land applies for the land to be 25 granted in fee simple under section 28C-- 26 (i) a deed of grant in trust; 27 Page 97

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 36] (ii) a reserve dedicated under the Land 1 Act; 2 (iii) a townsite lease; 3 (iv) a lease granted to the Aurukun Shire 4 Council or the Mornington Shire 5 Council under the Aurukun and 6 Mornington Shire Leases Act 1978; 7 (v) an interest mentioned in section 28B, 8 definition interest holder; and 9 (b) a deed of grant in fee simple (a new tenure) 10 for the available land is registered. 11 (2) The old tenure is cancelled to the extent of the 12 new tenure. 13 Clause 36 Amendment of s 64 (Power to deal with Torres Strait 14 Islander land) 15 (1) Section 64, from `Subject' to `part 8, the'-- 16 omit, insert-- 17 (2) The 18 (2) Section 64-- 19 insert-- 20 (1) This section applies subject to this part and parts 21 2A and 8. 22 (3) The lessee of a townsite lease may grant a licence 23 for the use of all or a part of the lease land. 24 Clause 37 Replacement of pt 7, div 1, hdg (Trustees power to deal 25 with Torres Strait Islander land and Ministerial consent) 26 Part 7, division 1, heading-- 27 omit, insert-- 28 Page 98

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 38] Division 1 Trustee's power to deal 1 with Torres Strait Islander 2 land 3 Clause 38 Omission of ss 65 and 66 4 Sections 65 and 66-- 5 omit. 6 Clause 39 Omission of pt 7, div 3 (Grant of licences) 7 Part 7, division 3-- 8 omit. 9 Clause 40 Amendment of s 82 (Particular dealings in Torres Strait 10 Islander land void) 11 Section 82(1), `this division'-- 12 omit, insert-- 13 this part or part 2A or 8 14 Clause 41 Replacement of pt 8 (Leasing of Torres Strait Islander 15 land) 16 Part 8-- 17 omit, insert-- 18 Page 99

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] Part 8 Leasing of Torres Strait 1 Islander land 2 Division 1 Definitions 3 84 Definitions for pt 8 4 In this part-- 5 home ownership lease see sections 85(2) and 6 86(2). 7 lessee means-- 8 (a) for a part 8 lease granted under a townsite 9 lease--the sublessee under the townsite 10 lease; or 11 (b) for another part 8 lease--the lessee under 12 the lease. 13 lessor means-- 14 (a) for a part 8 lease granted under a townsite 15 lease--the lessee of the townsite lease; or 16 (b) for another part 8 lease--the trustee of the 17 lease land. 18 part 8 lease means a lease granted under this 19 part. 20 townsite lease see section 85(3). 21 Page 100

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] Division 2 Grant of leases for Torres 1 Strait Islander land 2 85 Grant of lease by trustee of Torres Strait 3 Islander land 4 (1) The trustee of Torres Strait Islander land may 5 grant a lease over all or a part of the land for not 6 more than 99 years. 7 (2) Without limiting subsection (1), the trustee of 8 Torres Strait Islander land may grant a lease (a 9 home ownership lease) over all or a part of the 10 land for 99 years to any of the following for 11 residential use-- 12 (a) a Torres Strait Islander; 13 (b) a person who is not a Torres Strait Islander 14 if-- 15 (i) the person is the spouse or former 16 spouse of-- 17 (A) a person mentioned in paragraph 18 (a); or 19 (B) a person mentioned in paragraph 20 (a) who is deceased; or 21 (ii) the lease supports another part 8 lease 22 granted to the person. 23 (3) The trustee of Torres Strait Islander land may 24 grant a perpetual lease (a townsite lease) over all 25 or a part of the land if-- 26 (a) the land or part is township land; and 27 (b) the lease is granted to a local government. 28 Page 101

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] 86 Grant of lease by lessee of townsite lease 1 (1) The lessee of a townsite lease may grant a lease 2 for not more than 99 years over all or a part of the 3 lease land. 4 (2) Without limiting subsection (1), the lessee of a 5 townsite lease may grant a lease (also a home 6 ownership lease) over all or a part of the lease 7 land for 99 years to any of the following for 8 residential use-- 9 (a) a Torres Strait Islander; 10 (b) a person who is not a Torres Strait Islander 11 if-- 12 (i) the person is the spouse or former 13 spouse of-- 14 (A) a person mentioned in paragraph 15 (a); or 16 (B) a person mentioned in paragraph 17 (a) who is deceased; or 18 (ii) the lease supports another part 8 lease 19 granted to the person. 20 Division 3 Common provisions for 21 part 8 leases 22 87 General conditions of particular leases 23 (1) A part 8 lease, other than a townsite lease, may 24 include any of the following conditions-- 25 (a) a stated standard terms document under the 26 Land Title Act forms part of the lease; 27 (b) the lease must not be transferred without the 28 lessor's prior written consent; 29 Page 102

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (c) an interest under the lease, other than a 1 mortgage of the lease, must not be created 2 without the lessor's prior written consent. 3 (2) If a part 8 lease includes a condition mentioned in 4 subsection (1)(b) or (c), the lessor must not 5 unreasonably withhold consent to the transfer or 6 creation of an interest under the lease. 7 (3) A part 8 lease may be mortgaged without the 8 consent of the lessor. 9 (4) Subject to subsection (3), this section does not 10 limit the conditions that may be imposed on a 11 part 8 lease. 12 88 Option to renew particular lease 13 (1) A part 8 lease granted under section 85(1) or 14 86(1) may include an option to renew the lease. 15 (2) The term of the renewed lease must not be more 16 than the initial term of the lease. 17 89 Transfer of lease 18 A part 8 lease must not be transferred to a person who, 19 under this Act, would not be entitled to a grant of the 20 lease. 21 90 Lease etc. to be registered 22 (1) The lessee of a part 8 lease must register the lease 23 and an amendment, surrender or transfer of the 24 lease. 25 (2) Despite the Land Title Act, section 65(2), an 26 instrument of lease for Torres Strait Islander land 27 must include a plan of survey identifying the 28 lease land. 29 Page 103

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (3) Subsection (2) does not apply to a lease entered 1 into only in relation to an area completely within 2 a building. 3 Division 4 Home ownership leases 4 Subdivision 1 Conditions and 5 requirements 6 91 General conditions and requirements 7 (1) A home ownership lease is subject to all of the 8 following conditions-- 9 (a) the annual rental under the lease is the 10 amount, of not more than $1, decided by the 11 lessor; 12 (b) the consideration payable for the lease must 13 include, as a lump sum payment, an amount 14 equal to the value of the lease land as 15 decided by the lessor using at least 1 of the 16 following-- 17 (i) a valuation methodology decided by 18 the chief executive; 19 (ii) the benchmark purchase price, as 20 prescribed by regulation, for land in the 21 part of the State in which the lease land 22 is situated; 23 (c) the lease land must be used primarily for 24 residential use; 25 (d) if a dwelling for residential use is not 26 situated on the lease land when the lease is 27 granted--the lessee must ensure a dwelling 28 for residential use is built on the land within 29 8 years after the lease is granted. 30 Page 104

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (2) A lessor may grant a home ownership lease only 1 if the amount equal to the value of the lease land 2 decided under subsection (1)(b) has been paid to 3 the lessor. 4 (3) The chief executive-- 5 (a) must, if asked, give a person a copy of the 6 valuation methodology mentioned in 7 subsection (1)(b)(i); and 8 (b) may make the valuation methodology 9 available for inspection on the department's 10 website. 11 (4) However, the value of the lease land under 12 subsection (1)(b) must be taken to be nil if-- 13 (a) the lessee is the recipient of a hardship 14 certificate under the new Land Holding Act; 15 and 16 (b) the certificate has not previously been used 17 under this section, whether or not the land 18 identified in the certificate is the same as the 19 lease land. 20 92 Additional requirement if dwelling situated on 21 land 22 (1) This section applies if-- 23 (a) a lessor proposes to grant a home ownership 24 lease; and 25 (b) a dwelling is situated on the lease land. 26 (2) The lessor must give the housing chief executive 27 notice of the lessor's intention to grant the lease. 28 (3) Within 28 days after receiving the notice, the 29 housing chief executive must give the lessor a 30 notice stating whether or not the dwelling is a 31 social housing dwelling. 32 Page 105

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (4) The lessor must not grant the lease before 1 receiving the notice under subsection (3). 2 (5) This section and section 93 do not limit section 3 91. 4 93 Additional conditions and requirements for 5 social housing dwelling 6 (1) This section applies if the notice under section 7 92(3) states the dwelling is a social housing 8 dwelling. 9 (2) Before the lease is granted, the lessor must 10 decide the value of the dwelling by using a 11 valuation methodology agreed between the lessor 12 and the housing chief executive. 13 (3) The consideration payable for the lease must 14 include, as a lump sum payment, an amount 15 equal to the value of the dwelling decided under 16 subsection (2). 17 (4) The lessor may grant the lease only if-- 18 (a) the housing chief executive has given 19 written approval that the grant may include 20 the sale of the dwelling; and 21 (b) the amount equal to the value of the 22 dwelling decided under subsection (2) has 23 been paid to the lessor. 24 (5) In considering whether to give the approval 25 mentioned in subsection (4)(a), the housing chief 26 executive must have regard to whether it would 27 be more appropriate in the circumstances for the 28 dwelling to continue to be social housing. 29 (6) If the lessor grants the lease, and within 28 days 30 after the lease is registered, the lessor must give 31 the housing chief executive-- 32 (a) a notice stating-- 33 Page 106

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (i) the day the lease was registered; and 1 (ii) the names of the parties to the lease; 2 and 3 (b) evidence showing the consideration for the 4 lease under subsection (3) and section 5 91(1)(b) has been paid to the lessor. 6 Note-- 7 An amount paid under subsection (3) for the value of a 8 dwelling must be used by the lessor as required under 9 section 192. 10 Subdivision 2 Forfeiture 11 94 Grounds for forfeiture 12 A home ownership lease may be forfeited only if-- 13 (a) the lessee breaches either of the following 14 conditions and fails to remedy the breach 15 within 6 months after receiving notice of the 16 breach from the lessor-- 17 (i) a condition of the lease mentioned in 18 section 91(1)(d); 19 (ii) another condition if the lessor 20 reasonably considers a breach of the 21 condition is of a serious nature and 22 warrants forfeiture of the lease; or 23 (b) the lessee acquired the lease by fraud. 24 95 Referral to Land Court for forfeiture 25 (1) Before a home ownership lease is forfeited, the 26 lessor must refer the proposed forfeiture to the 27 Land Court to decide whether the lease may be 28 forfeited. 29 Page 107

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (2) At least 28 days before the lessor refers the 1 proposed forfeiture to the Land Court, the lessor 2 must give notice of the proposed referral to the 3 lessee and any mortgagee of the lease. 4 (3) The notice must state the grounds on which the 5 lessor considers the lease may be forfeited. 6 (4) If the lessor refers the proposed forfeiture to the 7 Land Court, the lessor must file a copy of the 8 notice in the court. 9 (5) In deciding whether the lease may be forfeited, 10 the Land Court must have regard to-- 11 (a) the grounds stated in the notice under 12 subsection (3); and 13 (b) if the proposed forfeiture is because of a 14 breach of a condition of the lease--whether 15 the court considers the breach is of a serious 16 nature and warrants forfeiture of the lease. 17 (6) A decision by the Land Court that the lease may 18 be forfeited may be subject to conditions. 19 96 Lessor's options if Land Court decides lease 20 may be forfeited 21 (1) If the Land Court decides a home ownership 22 lease may be forfeited, the lessor may-- 23 (a) if the proposed forfeiture is subject to 24 conditions decided by the court--forfeit the 25 lease under this subdivision if the conditions 26 of forfeiture are satisfied; or 27 (b) otherwise--forfeit the lease under this 28 subdivision. 29 (2) If the proposed forfeiture is because of a breach 30 of a lease condition, the lessor may decide not to 31 forfeit the lease and instead allow the lease to 32 continue subject to the lease being amended to 33 Page 108

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] include conditions agreed between the lessor and 1 the lessee. 2 97 Notice and effect of forfeiture 3 (1) If the lessor forfeits a home ownership lease, the 4 lessor must, within 60 days after the Land Court 5 makes its decision about forfeiture of the lease, 6 give notice that the lease is forfeited to-- 7 (a) the lessee and any mortgagee of the lease; 8 and 9 (b) the registrar of titles. 10 (2) On receiving the notice, the registrar must record 11 the forfeiture of the lease in the appropriate 12 register. 13 (3) The forfeiture of the lease takes effect on the day 14 the registrar acts under subsection (2). 15 (4) On forfeiture of the lease-- 16 (a) the lease ends; and 17 (b) the lessee is divested of any interest in the 18 lease; and 19 (c) any person occupying the lease land must 20 immediately vacate the land. 21 98 Extension of term of lease if proposed 22 forfeiture 23 (1) This section applies to a home ownership lease 24 if-- 25 (a) a proposed forfeiture of the lease has been 26 referred to the Land Court; and 27 (b) after the referral but before the Land Court 28 decides on the matter, the term of the lease 29 would, but for subsection (2), end. 30 Page 109

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (2) The term of the lease is taken to continue until-- 1 (a) if the lease is forfeited--the forfeiture of the 2 lease takes effect as mentioned in section 3 97(3); or 4 (b) otherwise--the end of 60 days after the 5 Land Court makes its decision. 6 (3) Subsection (2) applies to the lease despite the 7 provisions of the lease and any other provision of 8 this Act. 9 Subdivision 3 Renewal 10 99 Application to renew lease 11 (1) The lessee under a home ownership lease may 12 apply in writing to the lessor to renew the lease. 13 (2) The application must-- 14 (a) state the name of the lessee; and 15 (b) include information to identify the lease. 16 100 Notice of expiry of lease 17 (1) This section applies if the lessee under a home 18 ownership lease has not, under section 99, 19 applied for renewal of the lease at least 2 years 20 before the term of the lease ends. 21 (2) At least 1 year before the term of the lease ends, 22 the lessor must give the lessee notice stating-- 23 (a) the day the term of the lease ends; and 24 (b) that the lessee may apply under this 25 subdivision for renewal of the lease; and 26 (c) how the lessee may apply. 27 Page 110

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] 101 Lessor to consider and decide application 1 Within 6 months after an application is made under 2 section 99, the lessor must consider the application 3 and decide to renew or not to renew the home 4 ownership lease. 5 102 Decision to renew lease 6 (1) If the lessor decides to renew the home 7 ownership lease, the lessor must give the lessee-- 8 (a) notice of the decision; and 9 (b) a copy of the renewed lease. 10 (2) The renewed lease-- 11 (a) has effect immediately after the lease it 12 replaces (the replaced lease) ends; and 13 (b) is subject to all the conditions to which the 14 replaced lease was subject immediately 15 before it ended. 16 (3) No amount is payable under section 91(1)(b) for 17 the renewed lease. 18 103 Lessor may decide not to renew lease 19 The lessor may decide not to renew the home 20 ownership lease only if the lessor is reasonably 21 satisfied-- 22 (a) the lease land is not being used primarily for 23 residential use; or 24 (b) the lessee acquired the lease by fraud. 25 Page 111

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] 104 Notice about decision not to renew lease 1 If the lessor decides not to renew the home ownership 2 lease, the lessor must give the lessee an information 3 notice for the decision. 4 105 Extension of term of lease if application for 5 renewal 6 (1) This section applies to a home ownership lease 7 if-- 8 (a) the lessee has applied to renew the lease 9 under section 99; and 10 (b) before the lessor decides the application, the 11 term of the lease would, but for subsection 12 (2), end. 13 (2) The term of the lease is taken to continue until 14 notice of the lessor's decision is given to the 15 lessee under this subdivision. 16 (3) Subsection (2) applies to the lease despite the 17 provisions of the lease and any other provision of 18 this Act. 19 Subdivision 4 General matters about 20 forfeiture or non-renewal 21 of home ownership leases 22 106 Right to remove improvements if lease 23 forfeited or not renewed 24 (1) If the lessor forfeits or decides not to renew a 25 home ownership lease, the lessor must allow the 26 lessee to remove the lessee's improvements on 27 the lease land within a reasonable period of at 28 least 28 days decided by the lessor. 29 Page 112

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (2) If the improvements are not removed within the 1 period, they become the property of the lessor. 2 107 Payment by lessor if lease forfeited or not 3 renewed 4 (1) If the lessor forfeits or decides not to renew a 5 home ownership lease, the lessor must pay to the 6 person who was the lessee the amount decided by 7 the lessor under subsection (2) (the required 8 amount). 9 (2) The required amount is the amount equal to the 10 combined value of the following (the maximum 11 amount) less any amounts deducted from the 12 maximum amount under section 109-- 13 (a) the value of the lease land on the day the 14 lease is forfeited or ends; 15 (b) the value of the lessee's improvements on 16 the land that become the property of the 17 lessor. 18 (3) The value of the lease land must be the amount 19 decided by the lessor using the valuation 20 methodology mentioned in section 91(1)(b)(i). 21 (4) The value of any improvements on the lease land 22 must be decided by the lessor based on the 23 market value of the improvements in a sale of a 24 lease of the same term and tenure as the forfeited 25 or non-renewed lease. 26 (5) The lessor must decide the required amount as 27 soon as practicable after giving the person notice 28 that the lease is forfeited or not renewed. 29 (6) On deciding the required amount, the lessor must 30 give the person an information notice for the 31 decision. 32 (7) This section is subject to section 108. 33 Page 113

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] 108 Unclaimed amount 1 If the lessor can not find the person entitled to receive 2 the required amount, or the person does not collect the 3 amount from the lessor within 9 years after the day the 4 lease is forfeited or not renewed, the required amount 5 is forfeited to the lessor. 6 109 Amount owing to lessor or mortgagee 7 If the lessor forfeits or decides not to renew a home 8 ownership lease, the lessor may deduct the following 9 amounts from the maximum amount-- 10 (a) an amount in payment of all costs properly 11 incurred by the lessor in forfeiting or not 12 renewing the lease; 13 (b) an amount in payment of expenses incurred 14 by the lessor to rectify damage caused to the 15 lease land by the person who was the lessee; 16 (c) any amount owing to the lessor by the 17 person under the lease; 18 (d) any amount owing to a mortgagee of the 19 lease by the person under a mortgage of the 20 lease. 21 110 Payment of amount to mortgagee in discharge 22 of mortgage 23 (1) This section applies if-- 24 (a) the lessor forfeits or decides not to renew a 25 home ownership lease; and 26 (b) under a mortgage of the lease, an amount is 27 owing to a mortgagee of the lease by the 28 person who was the lessee. 29 (2) The lessor must pay to the mortgagee-- 30 Page 114

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (a) if the amount that may be deducted from the 1 maximum amount under section 109(d) is 2 less than the difference between the 3 maximum amount and the amounts 4 deducted under section 109(a), (b) and 5 (c)--the amount that may be deducted from 6 the maximum amount under section 109(d); 7 or 8 (b) otherwise--the amount equal to the 9 difference between the maximum amount 10 and the amounts deducted under section 11 109(a), (b) and (c). 12 (3) The lessor must pay the amount payable under 13 subsection (2) to the mortgagee-- 14 (a) if no appeal is made to the Land Court about 15 the required amount payable to the person 16 who was the lessee--within 28 days after 17 the time for making an appeal ends; or 18 (b) if an appeal is made to the Land Court about 19 the required amount payable to the person 20 who was the lessee--within 28 days after 21 the appeal is finally decided. 22 (4) If the lessor pays an amount to the mortgagee in 23 relation to a mortgage of the lease, the mortgagee 24 must use the amount in discharge of the 25 mortgage. 26 Subdivision 5 Miscellaneous 27 111 Exemption from fees and charges 28 (1) This section applies to an instrument of lease for 29 a home ownership lease. 30 (2) No fee or charge is payable for-- 31 Page 115

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (a) the lodgement and registration of the 1 instrument in the land registry; or 2 (b) the provision by the registrar of titles of 3 other services for the lodgement and 4 registration of the instrument. 5 112 Beneficiary to home ownership lease 6 (1) A person who is beneficially entitled under a will 7 to a home ownership lease may ask the lessor-- 8 (a) to give the person a notice stating whether or 9 not the person is entitled to a grant of the 10 lease under this Act; and 11 (b) if, under a condition of the lease, the lease 12 can not be transferred without the lessor's 13 written consent--for the lessor's written 14 consent to the transfer of the lease. 15 Note-- 16 Under section 87, a home ownership lease may include 17 a condition that it must not be transferred without the 18 lessor's prior written consent. 19 (2) The lessor must comply with a request under 20 subsection (1) as soon as practicable after 21 receiving the request. 22 Division 5 Townsite leases 23 Subdivision 1 Restriction on grant 24 113 Minister's consent for grant of townsite lease 25 (1) A townsite lease may be granted only with the 26 Minister's prior written consent. 27 Page 116

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (2) The Minister may consent to the grant of a 1 townsite lease only if-- 2 (a) the lease is over an entire lot as shown in the 3 appropriate register; and 4 (b) the Minister is reasonably satisfied that any 5 existing interests in the proposed lease land 6 are not inconsistent with the lease. 7 Subdivision 2 Requirements for 8 Minister's consent 9 114 General requirements for Minister's consent 10 (1) A person seeking the Minister's prior written 11 consent to the grant of a townsite lease must give 12 the Minister the information or documents 13 reasonably required by the Minister to show-- 14 (a) the purpose of the lease; and 15 (b) the grant of the lease is for the benefit of 16 persons for whom the trustee holds the lease 17 land; and 18 (c) the grant of the lease-- 19 (i) will facilitate the continued operation 20 of a township on the lease land; and 21 (ii) will not prevent residents of the 22 township land from continuing to live 23 on and access the land, or from 24 obtaining tenure over the land under 25 this Act. 26 (2) In considering whether to give the consent, the 27 Minister-- 28 Page 117

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] (a) must have regard to the information or 1 documents given to the Minister under 2 subsection (1); and 3 (b) may have regard to other information the 4 Minister reasonably considers relevant to 5 the proposed lease. 6 (3) Also, before giving the consent, the Minister 7 must be reasonably satisfied-- 8 (a) the Torres Strait Islanders particularly 9 concerned with the lease land are generally 10 in agreement with the grant of the lease; and 11 (b) the grant of the lease-- 12 (i) will facilitate the continued operation 13 of a township on the lease land; and 14 (ii) will not prevent residents of the 15 township land from continuing to live 16 on and access the land, or from 17 obtaining tenure over the land under 18 this Act. 19 Subdivision 3 Provisions about dealing 20 with townsite leases 21 115 Transfer or amendment of townsite lease 22 (1) A townsite lease must not be transferred or 23 amended without-- 24 (a) the agreement of both the trustee and the 25 lessee of the lease land; and 26 (b) the Minister's prior written consent. 27 (2) A person seeking the Minister's prior written 28 consent to the transfer or amendment of a 29 townsite lease must give the Minister the 30 Page 118

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 41] information or documents relevant to the 1 proposed transfer or amendment reasonably 2 required by the Minister. 3 (3) In considering whether to consent to the transfer 4 of a townsite lease, the Minister must consider 5 whether the proposed transferee is capable of 6 complying with the conditions of the lease. 7 (4) The Minister may consent to the amendment of a 8 townsite lease only if reasonably satisfied-- 9 (a) the amendment does not significantly 10 change the conditions of the townsite lease; 11 and 12 (b) the amendment will not diminish the 13 purpose of the lease. 14 (5) A townsite lease must not be transferred to a 15 person who, under this Act, would not be entitled 16 to a grant of the lease. 17 116 Surrender of townsite lease 18 A townsite lease must not be surrendered without the 19 Minister's prior written consent. 20 117 No forfeiture of townsite lease 21 A townsite lease can not be forfeited. 22 Subdivision 4 Effect of townsite lease on 23 existing interests 24 118 Lessee of townsite lease taken to be lessor of 25 existing leases 26 (1) Subsection (2) applies if a townsite lease is 27 granted over Torres Strait Islander land that is, 28 Page 119

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 42] immediately before the grant of the townsite 1 lease, the subject of a following lease (each a 2 continued lease)-- 3 (a) a 1985 Act granted lease or a new Act 4 granted lease under the new Land Holding 5 Act; 6 (b) a lease under the Land Act; 7 (c) a trustee (Torres Strait Islander) lease. 8 (2) On the grant of the townsite lease-- 9 (a) the continued lease continues in force and is 10 taken to be-- 11 (i) if the continued lease is primarily for 12 residential use--a home ownership 13 lease for the same term for which the 14 continued lease was granted; or 15 (ii) otherwise--a lease granted under 16 section 86(1); and 17 (b) the lessee of the townsite lease is substituted 18 for the lessor as a party to the continued 19 lease. 20 Note-- 21 Under section 41(2), the trustee of the Torres Strait 22 Islander land is the lessor of the continued lease. 23 (3) Section 41(3) applies to the continued lease as if 24 the reference in that subsection to the trustee of 25 the land were a reference to the lessee of the 26 townsite lease. 27 Clause 42 Amendment of s 135 (Decision-making by trustee) 28 Section 135(1), from `about whether'-- 29 omit, insert-- 30 about any of the following-- 31 Page 120

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 43] (a) the way in which the trustee will consult 1 about the making of a freehold instrument 2 for the land; 3 (b) whether to grant an interest in the land; 4 (c) whether to consent to the creation of a 5 mining interest in the land; 6 (d) whether to enter into an agreement about the 7 land. 8 Clause 43 Amendment of s 136 (Definitions for pt 10) 9 (1) Section 136, definitions lease and lessor-- 10 omit. 11 (2) Section 136-- 12 insert-- 13 lease means a part 8 lease, other than a townsite 14 lease. 15 lessor means-- 16 (a) for a lease granted under a townsite 17 lease--the lessee of the townsite lease; or 18 (b) for another lease--the trustee of the lease 19 land. 20 Clause 44 Amendment of s 138 (Provisions about entering into 21 possession, and selling, lease) 22 Section 138(9), definition lessee, paragraphs (a) and (b)-- 23 omit, insert-- 24 (a) for a lease granted under a townsite 25 lease--the lessee under the lease; or 26 (b) for another lease--the lessee under the 27 lease. 28 Page 121

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 45] Clause 45 Amendment of s 142 (Trustee (Torres Strait Islander) 1 leases) 2 (1) Section 142(2) to (5)-- 3 omit, insert-- 4 (2) For subsection (1), part 8 applies in relation to the 5 leasing of Torres Strait Islander trust land-- 6 (a) as if a reference in the part to Torres Strait 7 Islander land were a reference to Torres 8 Strait Islander trust land; and 9 (b) as if the reference in section 87(1)(a) to a 10 stated standard terms document under the 11 Land Title Act were a reference to a stated 12 mandatory standard terms document under 13 the Land Act. 14 (3) Also, for subsection (1), sections 85(2) and 86(2) 15 apply in relation to the leasing of Torres Strait 16 Islander trust land that is prescribed DOGIT land 17 as if a reference in those sections to a Torres 18 Strait Islander includes a reference to an 19 Aboriginal person. 20 (2) Section 142(7), `Subsection (6)'-- 21 omit, insert-- 22 Subsection (4) 23 (3) Section 142(8)-- 24 omit. 25 (4) Section 142(6) and (7)-- 26 renumber as section 142(4) and (5). 27 Clause 46 Omission of pt 11, div 3 (Other matters) 28 Part 11, division 3-- 29 omit. 30 Page 122

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 47] Clause 47 Amendment of s 148 (Use of Torres Strait Islander land 1 preserved) 2 Section 148(5)(a)-- 3 omit, insert-- 4 (a) it is subject to a home ownership lease; or 5 Clause 48 Amendment of s 182 (Who may appeal) 6 (1) Section 182(2) and (3), `residential'-- 7 omit, insert-- 8 home ownership 9 (2) Section 182(2), `section 121'-- 10 omit, insert-- 11 section 101 12 (3) Section 182(3), `section 127'-- 13 omit, insert-- 14 section 107 15 (4) Section 182(2) to (4)-- 16 renumber as section 182(3) to (5). 17 (5) Section 182-- 18 insert-- 19 (2) A person who is given, or is entitled to be given, 20 an information notice for a decision under part 21 2A may appeal to the Land Court against the 22 decision. 23 Clause 49 Amendment of s 185 (Notice of appeal) 24 (1) Section 185(a), `or (3)'-- 25 omit, insert-- 26 Page 123

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 50] , (3) or (4) 1 (2) Section 185(b), `section 182(4)'-- 2 omit, insert-- 3 section 182(5) 4 Clause 50 Amendment of s 192 (Dealing with particular trust 5 property) 6 (1) Section 192(1) and (3), `section 108'-- 7 omit, insert-- 8 section 93(3) 9 (2) Section 192(5)-- 10 renumber as section 192(7). 11 (3) Section 192-- 12 insert-- 13 (5) Subsection (6) applies to the trustee of available 14 land if the trustee receives an amount for a social 15 housing dwelling situated on the available land. 16 (6) The trustee must ensure an amount equal to the 17 amount received is used by the trustee for 18 housing services for Torres Strait Islanders 19 concerned with the land held by the trustee. 20 Clause 51 Omission of s 193 (Application of Residential Tenancies 21 and Rooming Accommodation Act 2008) 22 Section 193-- 23 omit. 24 Clause 52 Insertion of new pt 19, div 4 25 Part 19-- 26 insert-- 27 Page 124

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 52] Division 4 Transitional provisions for 1 Aboriginal and Torres 2 Strait Islander Land 3 (Providing Freehold) and 4 Other Legislation 5 Amendment Act 2014 6 205 Definitions for div 4 7 In this division-- 8 commencement means the commencement of 9 this section. 10 pre-amended Act means this Act as in force 11 before its amendment by the Aboriginal and 12 Torres Strait Islander Land (Providing Freehold) 13 and Other Legislation Amendment Act 2014, 14 section 41. 15 206 Provision for existing leases 16 (1) This section applies to a lease under the 17 pre-amended Act in effect immediately before 18 the commencement. 19 (2) A standard lease under the pre-amended Act is 20 taken to be a part 8 lease for the same term for 21 which the standard lease was granted. 22 (3) A townsite lease under the pre-amended Act is 23 taken to be a townsite lease. 24 (4) A lease for private residential purposes under the 25 pre-amended Act is taken to be a home 26 ownership lease for the same term for which the 27 lease for private residential purposes was granted. 28 Page 125

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 53] 207 Provision for existing applications 1 (1) This section applies to an application under the 2 pre-amended Act that, before the 3 commencement, had not been granted or refused. 4 (2) An application for a lease under the pre-amended 5 Act is taken to be-- 6 (a) if the application is for a lease for private 7 residential purposes under the pre-amended 8 Act--an application for a home ownership 9 lease; or 10 (b) otherwise--an application for a part 8 lease 11 for the same term and purpose as the term 12 and purpose for which the application was 13 made. 14 (3) An application to renew a lease under the 15 pre-amended Act is taken to be an application to 16 renew a part 8 lease. 17 Clause 53 Amendment of sch 1 (Dictionary) 18 (1) Schedule 1, definitions decision-maker, lease, lessee, lessor, 19 management plan, native title holder, residential lease, 20 standard lease, townsite sublease and trustee-- 21 omit. 22 (2) Schedule 1-- 23 insert-- 24 allocation method, for available land, for part 25 2A, see section 28B. 26 allocation notice, for part 2A, see section 27 28Z(1)(a). 28 allocation process, for available land, for part 29 2A, see section 28B. 30 appeal period, for part 2A, see section 28B. 31 Page 126

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 53] available land see section 28D(3). 1 closing day, for part 2A, division 6, see section 2 28ZA(1)(d). 3 decision-maker, for part 16, means-- 4 (a) for a decision mentioned in section 182(1) 5 or (5)--the Minister; or 6 (b) for a decision mentioned in section 7 182(2)--the trustee of the available land to 8 which the decision relates; or 9 (c) for a decision mentioned in section 182(3) 10 or (4) about forfeiture or non-renewal of a 11 lease--the lessor of the lease land. 12 eligibility criteria, for part 2A, see section 13 28D(6)(a). 14 eligible person, for available land, for part 2A, 15 see section 28B. 16 freehold instrument see section 28B. 17 freehold option land see section 28B. 18 freehold policy, for a freehold schedule, for part 19 2A, see section 28D(5). 20 freehold schedule, for part 2A, see section 28B. 21 home ownership lease see sections 85(2) and 22 86(2). 23 housing chief executive means the chief 24 executive of the department in which the Housing 25 Act 2003 is administered. 26 indigenous local government, for part 2A, see 27 section 28B. 28 interest holder, for available land, for part 2A, 29 see section 28B. 30 Page 127

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 53] lease-- 1 (a) generally, does not include a residential 2 tenancy agreement; and 3 (b) for part 10, see section 136. 4 lessee, for part 8, see section 84. 5 lessor-- 6 (a) for part 8, see section 84; or 7 (b) for part 10, see section 136. 8 model freehold instrument, for part 2A, division 9 4, subdivision 2, see section 28F. 10 model freehold schedule, for part 2A, see section 11 28D(4). 12 native title holder-- 13 (a) for part 2A, see section 28B; or 14 (b) otherwise--in relation to land held, or to be 15 held, by a registered native title body 16 corporate, means-- 17 (i) if the registered native title body 18 corporate holds the native title in 19 relation to the land, or part of the land, 20 on trust--the persons on whose behalf 21 the registered native title body 22 corporate holds the native title; or 23 (ii) if subparagraph (i) does not apply--the 24 persons who hold the native title in 25 relation to the land or part of the land. 26 offer, for part 2A, see section 28B. 27 part 8 lease see section 84. 28 planning scheme, for part 2A, section 28B. 29 probity advisor, for part 2A, see section 28ZB(1). 30 Page 128

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 4 Amendment of Torres Strait Islander Land Act 1991 [s 53] reasonably considers means considers on 1 grounds that are reasonable in the circumstances. 2 reasonably satisfied means satisfied on grounds 3 that are reasonable in the circumstances. 4 social housing means housing that-- 5 (a) is being used to provide subsidised housing 6 for residential use; or 7 (b) has been used to provide subsidised housing 8 for residential use and for which an amount, 9 payable under either of the following 10 sections for the value of the dwelling, has 11 not been paid to the trustee-- 12 (i) section 93; 13 (ii) section 108 as in force before the 14 commencement of the Aboriginal and 15 Torres Strait Islander Land (Providing 16 Freehold) and Other Legislation 17 Amendment Act 2014, section 41. 18 social housing dwelling means a dwelling the 19 housing chief executive reasonably considers to 20 be social housing. 21 trustee, in relation to land, is the entity that-- 22 (a) holds, as trustee, the land under this Act; or 23 (b) is the trustee of the land under the Land Act. 24 urban area, for part 2A, see section 28B. 25 urban purposes, for part 2A, see section 28B. 26 (3) Schedule 1, definition maximum amount, `section 127(2)'-- 27 omit, insert-- 28 section 107(2) 29 (4) Schedule 1, definition required amount, `section 127(1)'-- 30 Page 129

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 2 Aboriginal and Torres Strait Islander Land amendments Part 5 Amendment of Torres Strait Islander Land Regulation 2011 [s 54] omit, insert-- 1 section 107(1) 2 (5) Schedule 1, definition townsite lease, `section 84(3)'-- 3 omit, insert-- 4 section 85(3) 5 Part 5 Amendment of Torres Strait 6 Islander Land Regulation 2011 7 Clause 54 Regulation amended 8 This part amends the Torres Strait Islander Land Regulation 9 2011. 10 Clause 55 Omission of pt 3 (Code of conduct about mining leases) 11 Part 3-- 12 omit. 13 Clause 56 Insertion of new pt 4B 14 After part 4A-- 15 insert-- 16 Part 4B Miscellaneous 17 35B Land for model freehold schedule 18 For section 28D(4) of the Act, freehold option land for 19 which there is an interest holder on the 20 commencement of this section is prescribed as a type 21 of freehold option land. 22 Page 130

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 57] Part 6 Repeal 1 Clause 57 Repeal 2 The Aurukun and Mornington Shire Leases Act 1978, No. 6 is 3 repealed. 4 Part 7 Minor and consequential 5 amendments 6 Clause 58 Legislation amended 7 Schedule 1 amends the legislation it mentions. 8 Chapter 3 Amendment of Land Act 9 1994 10 Clause 59 Act amended 11 This chapter amends the Land Act 1994. 12 Clause 60 Amendment of s 13B (Power to declare and deal with 13 former watercourse land) 14 Section 13B(11), definition ambulatory boundary principles-- 15 omit. 16 Clause 61 Insertion of new ch 7, pt 3B 17 Chapter 7-- 18 insert-- 19 Page 131

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 61] Part 3B Making land available 1 for public use as beach 2 431O Definitions 3 In this part-- 4 declared beach area means an area of a lot 5 declared by regulation to be a declared beach 6 area. 7 foreshore means land between the high-water 8 mark and low-water mark. 9 lot includes a lot under the Land Title Act 1994. 10 manager, of a declared beach area, means the 11 State or a local government, as provided for in 12 this part. 13 owner, of a lot, means-- 14 (a) if the lot is land granted in trust under this 15 Act--the trustee of the lot; or 16 (b) if the lot is non-freehold land under this 17 Act--the lessee or licensee of the lot; or 18 (c) if the lot is a lot under the Land Title Act 19 1994--the registered owner of the lot. 20 public use includes public enjoyment. 21 registrar means the Registrar of Titles or the 22 chief executive, as may be appropriate. 23 seashore means-- 24 (a) any land that is foreshore; and 25 (b) any land that is-- 26 (i) above the high-water mark; and 27 (ii) ordinarily covered only by sand or 28 shingle. 29 use conditions see section 431T. 30 Page 132

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 61] 431P References to a lot 1 For a reference in this part to a lot, it does not matter 2 whether the lot has 1 or more tidal boundaries or has 3 right line boundaries for all its boundaries. 4 431Q Regulation may declare area of seashore to 5 be a declared beach area 6 (1) A regulation may declare a part of a lot to be a 7 declared beach area. 8 (2) The part of the lot declared under subsection (1) 9 must essentially be seashore and must, if 10 practicable, extend to include a natural feature 11 that is-- 12 (a) suitable for physically delineating the extent 13 of the declared beach area; and 14 (b) capable of being regarded as being 15 ambulatory in nature. 16 Examples of a natural feature-- 17 · the top of a bank 18 · the toe of a dune 19 (3) The declared beach area must be shown, in the 20 way the registrar requires, on a plan of survey 21 identified in the regulation. 22 (4) Until the plan of survey is registered as provided 23 for under this section, a copy of the plan of 24 survey must be held by the chief executive and be 25 available for inspection. 26 (5) The declaration of a part of a lot as a declared 27 beach area does not affect the rights or 28 obligations of any person in relation to the part 29 until, on a request from the chief executive in the 30 approved form, the following are registered for 31 the lot in the appropriate register for the lot-- 32 (a) the declaration; 33 Page 133

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 61] (b) the plan of survey. 1 (6) The plan of survey may be registered without the 2 consent of anyone whose consent would 3 otherwise have been required under this Act or 4 the Land Title Act 1994 if the plan otherwise 5 complies with this Act or the Land Title Act 1994 6 and has been endorsed with the consent of the 7 chief executive or the Minister. 8 (7) If the declaration of a part of a lot as a declared 9 beach area is repealed-- 10 (a) the part ceases to be a declared beach area; 11 and 12 (b) the registrar, on a request from the chief 13 executive in the approved form, must cancel 14 the registration of the declaration. 15 (8) No fee is payable in relation to the lodgement or 16 registration of a request or other document under 17 subsection (5) or (7). 18 431R Declared beach area and lot boundaries 19 (1) If a natural feature chosen to delineate the extent 20 of a declared beach area is capable of being 21 regarded as being ambulatory in nature, it must 22 be shown on the plan of survey as ambulatory. 23 (2) It is the intention of this part that the ambulatory 24 boundary principles are to be taken to apply to a 25 natural feature shown as being ambulatory to the 26 greatest practicable extent. 27 (3) The declaration of a part of a lot as a declared 28 beach area does not affect the location at law of 29 any external boundary of the lot, whether a right 30 line boundary or a tidal boundary. 31 Page 134

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 61] 431S Compensation not payable for declared 1 beach area 2 A person is not entitled to relief or compensation from 3 the State or anyone else under this Act, the Land Title 4 Act compensation provisions, the Property Law Act 5 relief provisions, the provisions of any other Act or 6 otherwise for deprivation of an interest of any type in 7 land, or for loss or damage of any kind, arising out of a 8 part of a lot becoming a declared beach area. 9 431T Management of declared beach area and 10 conditions of use 11 (1) A regulation may state whether the manager of a 12 declared beach area is the State or the local 13 government in whose local government area the 14 declared beach area is located. 15 (2) If no manager is stated, the State is the manager. 16 (3) A regulation may state conditions of use (use 17 conditions) to apply to-- 18 (a) a particular declared beach area; or 19 (b) some or all declared beach areas generally. 20 (4) Use conditions may apply to a declared beach 21 area whether or not the State is the manager of 22 the area. 23 (5) A regulation may include a penalty for 24 contravention of a use condition stated in the 25 regulation. 26 Note-- 27 Under section 448, a regulation may prescribe a penalty 28 of not more than 100 penalty units for an offence created 29 under the regulation. 30 (6) A local government may make a local law that 31 states conditions of use (also use conditions) to 32 apply to-- 33 Page 135

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 61] (a) a particular declared beach area for which it 1 is the manager; or 2 (b) some or all declared beach areas generally 3 for which it is the manager. 4 (7) A local law mentioned in subsection (6) may 5 include a penalty for contravention of a use 6 condition stated in the local law, but the penalty 7 must not be more than 100 penalty units. 8 (8) Use conditions for a declared beach area as stated 9 in a local law apply subject to use conditions 10 applying to the declared beach area as stated in a 11 regulation. 12 (9) Without limiting subsection (3) or (6), use 13 conditions may include conditions about any of 14 the following-- 15 (a) limiting access to the declared beach area to 16 particular times, including, for example, by 17 limiting access to daylight hours or to 18 particular hours according to the season; 19 (b) whether vehicles are permitted on the 20 declared beach area; 21 (c) whether any activities are prohibited on the 22 declared beach area, including, for example, 23 whether camping is prohibited; 24 (d) whether dogs or other animals are permitted 25 on the declared beach area; 26 (e) whether fires may be lit on the declared 27 beach area; 28 (f) the nature and legal effect of signs erected 29 on the declared beach area by the manager 30 of the area. 31 (10) Without limiting the issues that may be 32 considered, the Minister or a local government 33 may, in devising use conditions, consider the 34 following issues-- 35 Page 136

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 61] (a) safety of the public; 1 (b) the particular circumstances of the owner of 2 the lot of which the declared beach area 3 forms a part; 4 (c) particular issues raised by members of the 5 public, including, for example, whether the 6 use of a vehicle on the declared beach area 7 may be necessary for accessing another 8 area; 9 (d) environmental issues, including, for 10 example, turtle-breeding habitat 11 requirements; 12 (e) the location of relevant existing 13 infrastructure. 14 431U Notice to owner before making of regulation 15 (1) The Minister may recommend to the Governor in 16 Council the making of a regulation declaring a 17 part of a lot to be a declared beach area only if the 18 Minister is reasonably satisfied notice has been 19 given as required under this section. 20 (2) The Minister must give the owner of the lot a 21 written notice stating the intention to declare a 22 part of the lot a declared beach area. 23 (3) The notice must include a reasonably 24 approximate indication of the boundaries of the 25 proposed declared beach area. 26 431V Consultation before registration of 27 declaration and plan of survey 28 (1) The Minister may proceed to the registration 29 under this part of a declaration or plan of survey 30 only if the Minister is reasonably satisfied 31 consultation has been undertaken as required 32 under this section. 33 Page 137

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 61] (2) The Minister must consult with the local 1 government in whose local government area the 2 declared beach area is located about whether it 3 wishes to be the manager of the declared beach 4 area. 5 (3) If the local government wishes to be the manager, 6 it must take reasonable steps to consult with the 7 owner of the lot and the public generally about 8 the use conditions that are to apply to the 9 declared beach area under a local law. 10 (4) If the local government does not wish to be the 11 manager, the Minister must take reasonable steps 12 to consult with the owner of the lot and the public 13 generally about the use conditions that are to 14 apply to the declared beach area under a 15 regulation. 16 431W Status of declared beach area 17 (1) Subject to this part and to use conditions for a 18 declared beach area, the area is open to public 19 use. 20 (2) The manager of a declared beach area-- 21 (a) has control of the area subject to this part 22 and any regulation under this Act relating to 23 the area; and 24 (b) has responsibility for maintaining the area in 25 a safe condition. 26 (3) Control under subsection (2)(a) includes the right 27 to take necessary steps for maintaining the 28 declared beach area as mentioned in subsection 29 (2)(b). 30 (4) The owner of a lot of which a declared beach area 31 forms a part, and any other person having an 32 interest in the lot-- 33 Page 138

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 61] (a) is not required, and can not be required, to 1 maintain, or to contribute to the 2 maintenance of, any part of the declared 3 beach area; and 4 (b) is not, and can not be made, civilly liable for 5 an act done, or omission made, honestly and 6 without negligence in relation to the 7 declared beach area. 8 (5) If subsection (4)(b) prevents civil liability 9 attaching to a person, the liability attaches 10 instead to the State. 11 (6) Despite this Act or the Local Government Act 12 2009, an officer or employee of the manager of a 13 declared beach area may enter the area at any 14 time without notice to any other person if the 15 entry-- 16 (a) is authorised by the manager, whether 17 generally or otherwise; and 18 (b) the entry relates to the enforcement of the 19 use conditions for the area or to fulfilling the 20 manager's responsibilities as the entity in 21 control of the area. 22 431X Exemption from contravention of use 23 condition 24 (1) A person is taken not to contravene a use 25 condition for a declared beach area if the person 26 is-- 27 (a) a police officer acting in the performance of 28 the police officer's functions or powers; or 29 (b) a person acting in the performance of 30 functions or powers-- 31 (i) under an Act; or 32 Page 139

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 62] (ii) as authorised or directed by the 1 manager of the declared beach area. 2 (2) Subsection (1) does not limit the extent to which 3 a use condition may provide for circumstances 4 under which a person may be taken not to 5 contravene the condition. 6 431Y Obstruction of use or enjoyment 7 A person must not obstruct another person-- 8 (a) in the other person's exercise of the right of 9 public use of a declared beach area; or 10 (b) in the other person's performance of 11 functions or powers in a declared beach 12 area. 13 Maximum penalty--50 penalty units. 14 431Z Other Acts not affected 15 (1) This part does not affect the operation of any 16 other provision of this Act, or any provision of 17 another Act, in relation to a declared beach area. 18 (2) Without limiting subsection (1), a person's 19 exercise of a right of public use of a declared 20 beach area under this part, including under use 21 conditions applying to the declared beach area, is 22 subject to the operation any other provision of 23 this Act, or any provision of another Act, 24 applying to the area. 25 Clause 62 Amendment of sch 6 (Dictionary) 26 (1) Schedule 6, definitions owner and right line boundary-- 27 omit. 28 (2) Schedule 6-- 29 Page 140

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 3 Amendment of Land Act 1994 [s 62] insert-- 1 ambulatory boundary principles see the Survey 2 and Mapping Infrastructure Act 2003, part 7. 3 declared beach area, for chapter 7, part 3B, see 4 section 431O. 5 foreshore, for chapter 7, part 3B, see section 6 431O. 7 Land Title Act compensation provisions means 8 the Land Title Act 1994, sections 188 and 188A. 9 low-water mark means the ordinary low-water 10 mark at spring tides. 11 manager, for chapter 7, part 3B, see section 12 431O. 13 owner-- 14 (a) for chapter 6, part 4, division 8C, see section 15 373R; or 16 (b) for chapter 7, part 3B, see section 431O. 17 Property Law Act relief provisions means the 18 Property Law Act 1974, part 11. 19 public use, for chapter 7, part 3B, see section 20 431O. 21 registrar, for chapter 7, part 3B, see section 22 431O. 23 right line boundary see section 8. 24 seashore, for chapter 7, part 3B, see section 25 431O. 26 use conditions, for chapter 7, part 3B, see section 27 431T. 28 (3) Schedule 6, definition lot, after `subdivision'-- 29 insert-- 30 and for chapter 7, part 3B, see section 431O 31 Page 141

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 4 Amendment of Land Valuation Act 2010 [s 63] Chapter 4 Amendment of Land 1 Valuation Act 2010 2 Clause 63 Act amended 3 This chapter amends the Land Valuation Act 2010. 4 Clause 64 Insertion of new s 262 5 Chapter 9, part 6-- 6 insert-- 7 262 Limited application of Act to particular land 8 (1) This Act does not apply to an indigenous local 9 government area until 30 June 2016. 10 (2) Despite subsection (1), on or before 30 June 11 2016, the valuer-general may do all things 12 necessary or convenient to be done for the 13 purposes of-- 14 (a) applying this Act to an indigenous local 15 government area on and after 30 June 2016; 16 and 17 (b) complying with a requirement of the Act 18 that takes effect on and after 30 June 2016. 19 (3) In this section-- 20 indigenous local government area means land in 21 the area of an indigenous local government under 22 the Local Government Act 2009. 23 Clause 65 Amendment of schedule (Dictionary) 24 Schedule, definition local government area-- 25 omit, insert-- 26 Page 142

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Chapter 4 Amendment of Land Valuation Act 2010 [s 65] local government area, for a provision about 1 land, means the local government area in which 2 the land is located. 3 Page 143

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 Schedule 1 Minor and consequential 1 amendments 2 section 58 3 Part 1 Amendments commencing on 4 1 January 2015 5 Aboriginal and Torres Strait Islander Communities 6 (Justice, Land and Other Matters) Act 1984 7 1 Section 27, definition tenant, paragraph (b), `private 8 residential purposes'-- 9 omit, insert-- 10 residential use 11 2 Section 28(7)(b)(i), `private residential purposes'-- 12 omit, insert-- 13 residential use 14 Aboriginal and Torres Strait Islander Land Holding Act 15 2013 16 1 Section 26(2), note, `section 142(4) and TSILA, section 17 107(4)'-- 18 omit, insert-- 19 section 126(4) and TSILA, section 91(4) 20 Page 144

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 2 Section 62(3)(a), `section 143(6) or TSILA, section 1 108(6)'-- 2 omit, insert-- 3 section 128(2) or TSILA, section 93(2) 4 3 Section 69(2)-- 5 omit, insert-- 6 (2) Before the term of the lease has expired, the 7 holder of the lease may apply to the following 8 person to be granted a lease under ALA over the 9 lease land for the 1985 Act granted lease or new 10 Act granted lease-- 11 (a) if subsection (1)(a) or (b) applies--the 12 trustee of the trust area; 13 (b) if subsection (1)(c) applies--the lessee of 14 the townsite lease. 15 4 Section 69(3) and (6), `or townsite sublease'-- 16 omit. 17 5 Section 69(5)-- 18 omit, insert-- 19 (5) Before the term of the lease has expired, the 20 holder of the lease may apply to the following 21 person to be granted a lease under TSILA over 22 the lease land for the 1985 Act granted lease or 23 new Act granted lease-- 24 (a) if subsection (4)(a) or (b) applies--the 25 trustee of the trust area; 26 (b) if subsection (4)(c) applies--the lessee of 27 the townsite lease. 28 Page 145

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 6 Section 72-- 1 omit. 2 7 Section 73, heading, from `div 6' 3 omit, insert-- 4 div 4 (Home ownership leases) 5 8 Section 73(1)-- 6 omit, insert-- 7 (1) ALA, part 10, division 4, subdivisions 2 and 4 8 apply to a lease to which this division applies as 9 if the lease were a home ownership lease under 10 ALA. 11 9 Section 73(2), `residential purposes'-- 12 omit, insert-- 13 residential use 14 10 Section 73(3), `section 149'-- 15 omit, insert-- 16 section 129 17 11 Section 73(4), `sections 150(2) and 152(1)(a)'-- 18 omit, insert-- 19 sections 130(2) and 132(1)(a) 20 12 Section 73(5) and (6), `division 6'-- 21 omit, insert-- 22 division 4 23 Page 146

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 13 Section 73(7), `section 162(3)'-- 1 omit, insert-- 2 section 142(3) 3 14 Section 74(2)(a) and (b)-- 4 omit, insert-- 5 (a) if the lease is granted for residential use--a 6 home ownership lease under ALA; or 7 (b) otherwise--a lease granted under ALA, 8 section 120(1) or 121(1). 9 15 Section 79-- 10 omit. 11 16 Section 80, heading, from `div 6'-- 12 omit, insert-- 13 div 4 (Home ownership leases) 14 17 Section 80(1)-- 15 omit, insert-- 16 (1) TSILA, part 8, division 4, subdivisions 2 and 4 17 apply to a lease to which this division applies as 18 if the lease were a home ownership lease under 19 TSILA. 20 18 Section 80(2), `residential purposes'-- 21 omit, insert-- 22 residential use 23 19 Section 80(3), `section 114'-- 24 omit, insert-- 25 Page 147

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 section 94 1 20 Section 80(4), `sections 115(2) and 117(1)(a)'-- 2 omit, insert-- 3 sections 95(2) and 97(1)(a) 4 21 Section 80(5) and (6), `division 6'-- 5 omit, insert-- 6 division 4 7 22 Section 80(7), `section 127(3)'-- 8 omit, insert-- 9 section 107(3) 10 23 Section 81(2)(a) and (b)-- 11 omit, insert-- 12 (a) if the lease is granted for residential use--a 13 home ownership lease under TSILA; or 14 (b) otherwise--a lease granted under TSILA, 15 section 85(1) or 86(1). 16 Aboriginal Land Act 1991 17 1 Section 184, definition trustee-- 18 omit. 19 Page 148

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 Building Boost Grant Act 2011 1 1 Section 9(1)(g)(i), `section 119(1)(a)'-- 2 omit, insert-- 3 section 120(1) or (2) 4 2 Section 9(1)(g)(ii), `section 84(1)(a)'-- 5 omit, insert-- 6 section 85(1) or (2) 7 Cape York Peninsula Heritage Act 2007 8 1 Schedule, definition Aboriginal land, `section 10'-- 9 omit, insert-- 10 section 8 11 2 Schedule, definition Aurukun Shire lease land, `section 12 15'-- 13 omit, insert-- 14 section 13 15 3 Schedule, definition DOGIT land, `section 13'-- 16 omit, insert-- 17 section 11 18 Page 149

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 Duties Act 2001 1 1 Section 131(b)-- 2 omit, insert-- 3 (b) the issue of a lease prepared for the 4 Aboriginal Land Act 1991, section 287 or 5 the Torres Strait Islander Land Act 1991, 6 section 191; 7 2 Section 131(d), `section 84'-- 8 omit, insert-- 9 section 199 10 3 Section 131(d), `section 81'-- 11 omit, insert-- 12 section 148 13 Land Act 1994 14 1 Section 57(11), note, from `part 5F'-- 15 omit, insert-- 16 part 15 and the Torres Strait Islander Land Act 1991, 17 part 11. 18 Page 150

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 Land Court Act 2000 1 1 Section 17(1)(a), `each land tribunal'-- 2 omit, insert-- 3 the land tribunal 4 2 Sections 17(1)(b), (2) and (3), 59(1) and 60(1), `a land 5 tribunal'-- 6 omit, insert-- 7 the land tribunal 8 3 Sections 59, heading and 60, heading, `a land tribunal'-- 9 omit, insert-- 10 land tribunal 11 4 Section 60(4), definition presiding member, from `of a 12 land tribunal'-- 13 omit, insert-- 14 of the land tribunal, see the Aboriginal Land Act 1991, 15 schedule 1. 16 5 Schedule 2, definition land tribunal, `or the Torres Strait 17 Islander Land Act 1991'-- 18 omit. 19 Page 151

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 Nature Conservation Act 1992 1 1 Schedule, definition Torres Strait Islander land, `section 2 9'-- 3 omit, insert-- 4 section 7 5 Nature Conservation (Protected Areas Management) 6 Regulation 2006 7 1 Schedule 9, definitions Aboriginal people particularly 8 concerned with land and Torres Strait Islanders 9 particularly concerned with land, `section 4'-- 10 omit, insert-- 11 section 3 12 Nature Conservation (Wildlife Management) 13 Regulation 2006 14 1 Schedule 5, definitions Aboriginal people particularly 15 concerned with the land and Torres Strait Islanders 16 particularly concerned with land, `section 4'-- 17 omit, insert-- 18 section 3 19 Page 152

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 Public Service Act 2008 1 1 Schedule 1, entry for Land Tribunal under Torres Strait 2 Islander Land Act 1991-- 3 omit. 4 Sustainable Planning Regulation 2009 5 1 Schedule 26, definition residential lease-- 6 omit, insert-- 7 residential lease means-- 8 (a) a lease granted under the Aboriginal Land 9 Act 1991 to an Aboriginal person for 10 residential use; or 11 (b) a lease granted under the Torres Strait 12 Islander Land Act 1991 to a Torres Strait 13 Islander for residential use. 14 2 Schedule 26, definition social housing lease, paragraph 15 (a)-- 16 omit, insert-- 17 (a) a lease granted to the State under the 18 Aboriginal Land Act 1991 or the Torres 19 Strait Islander Land Act 1991 for the 20 purpose of providing subsidised housing for 21 residential use; or 22 Page 153

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 Torres Strait Islander Land Act 1991 1 1 Section 140, definition trustee-- 2 omit. 3 Part 2 Amendments commencing by 4 proclamation 5 Aboriginal Land Act 1991 6 1 Section 10(1)(c) and (d)-- 7 omit. 8 2 Sections 13 and 14-- 9 omit. 10 3 Section 15, definition relevant land, paragraphs (c) and 11 (d)-- 12 omit. 13 4 Section 32ZI(1)(a)(iv)-- 14 omit. 15 5 Section 32ZI(1)(a)(v)-- 16 renumber as section 32ZI(1)(a)(iv). 17 Page 154

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 6 Section 40(2)(c) and (d)-- 1 omit. 2 7 Section 40(9)-- 3 omit. 4 8 Section 45(2)(d)-- 5 omit. 6 9 Section 45(3), `, section 46'-- 7 omit. 8 10 Section 45(7), definitions Aurukun Shire lease and 9 Mornington Shire lease-- 10 omit. 11 11 Sections 46 and 48-- 12 omit. 13 12 Section 153(3) and (4)-- 14 omit. 15 13 Section 153(5)-- 16 renumber as section 153(4). 17 14 Schedule 1, definitions Aurukun Shire lease land and 18 Mornington Shire lease land-- 19 omit. 20 Page 155

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 Animal Care and Protection Act 2001 1 1 Section 41A(1)(b)(iv)-- 2 omit. 3 Auditor-General Act 2009 4 1 Schedule, definition appropriate Minister, paragraph (e)-- 5 omit. 6 2 Schedule, definition appropriate Minister, paragraph (f), 7 `for another'-- 8 omit, insert-- 9 for a 10 3 Schedule, definition appropriate Minister, paragraphs (f) 11 to (i)-- 12 renumber as paragraphs (e) to (h). 13 Cape York Peninsula Heritage Act 2007 14 1 Section 14(1) and 18(1)(a), `, Aurukun Shire lease land'-- 15 omit. 16 2 Section 26(2), definition relevant land, paragraph (b)-- 17 omit. 18 Page 156

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 3 Section 26(2), definition relevant land, paragraph (c)-- 1 renumber as paragraph (b). 2 4 Schedule, definition Aurukun Shire lease land-- 3 omit. 4 5 Schedule, definition landholder for the land, paragraph 5 (b)-- 6 omit. 7 6 Schedule, definition landholder for the land, paragraph 8 (c)-- 9 renumber as paragraph (b). 10 Environmental Protection Act 1994 11 1 Section 38(2)(h)-- 12 omit. 13 2 Section 579(6), definition owner, paragraph (b)-- 14 omit. 15 Fire and Rescue Service Regulation 2011 16 1 Section 7A(2), definition indigenous land, paragraph (c)-- 17 omit. 18 Page 157

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 2 Section 7A(2), definition indigenous land, paragraphs (d) 1 and (e)-- 2 renumber as paragraphs (c) and (d). 3 Geothermal Energy Act 2010 4 1 Schedule 2, definition owner, item 1(j)-- 5 omit. 6 Greenhouse Gas Storage Act 2009 7 1 Schedule 2, definition owner, item 1(j)-- 8 omit. 9 Information Privacy Act 2009 10 1 Section 126(3), definition responsible Minister, paragraph 11 (c)-- 12 omit. 13 2 Section 126(3), definition responsible Minister, paragraph 14 (d), `to another'-- 15 omit, insert-- 16 to a 17 Page 158

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 3 Section 126(3), definition responsible Minister, 1 paragraphs (d) to (h)-- 2 renumber as paragraphs (c) to (g). 3 Mineral Resources Act 1989 4 1 Schedule 2, definition owner, paragraph (a)(iv)-- 5 omit. 6 2 Schedule 2, definition reserve, paragraph (b)-- 7 omit. 8 3 Schedule 2, definition reserve, paragraph (c)-- 9 renumber as paragraph (b). 10 Petroleum Act 1923 11 1 Section 2, definition owner, item 1(j)-- 12 omit. 13 Petroleum and Gas (Production and Safety) Act 2004 14 1 Schedule 2, definition owner, item 1(j)-- 15 omit. 16 Page 159

 


 

Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Bill 2014 Schedule 1 Survey and Mapping Infrastructure Act 2003 1 1 Section 62, definition indigenous land, paragraph (b)-- 2 omit, insert-- 3 (b) land that is the subject of a deed of grant in 4 trust under the Land Act 1994, granted for 5 the benefit of Aboriginal or Torres Strait 6 Islander inhabitants or for Aboriginal or 7 Torres Strait Islander purposes; or 8 Vegetation Management Act 1999 9 1 Schedule, definition indigenous land, paragraph (a)-- 10 omit. 11 2 Schedule, definition indigenous land, paragraphs (b) to 12 (d)-- 13 renumber as paragraphs (a) to (c). 14 © State of Queensland 2014 Authorised by the Parliamentary Counsel Page 160

 


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