Queensland Numbered Acts Queensland Numbered ActsPart 8—
omit, insert—
'A land trust for an area of Torres Strait Islander land consists of all the members for the time being of the land trust.
'(1) A land trust—
(a) is a body corporate with perpetual succession; and
(b) has a seal; and
(c) may sue and be sued in its corporate name.
'(2) A land trust has all the powers of an individual and may, for example—
(a) acquire, hold and dispose of property; and
(b) borrow, receive and spend money; and
(c) employ staff, and engage consultants, necessary for the performance of its function.
'(3) The land trust's seal—
(a) is effective only if the land trust's name is inscribed on the seal in legible characters, but the seal may include other words; and
(b) is to be kept by a person who is authorised by the land trust for that purpose; and
(c) may be attached to a document only with the written authority signed by—
(i) if the land trust consists of 1 member—the member; or
(ii) if the land trust consists of no more than 3 members—the chairperson of the land trust and at least 1 other member; or
(iii) in any other case—
(A) the chairperson and at least 2 other members; or
(B) at least 3 members.
'(4) Judicial notice must be taken of the seal on a document.
'(5) A document marked with the seal must be presumed to have been properly sealed, unless the contrary is proved.
'(1) The function of a land trust is to provide a legal entity by which the members of the land trust may perform functions under this Act.
'(2) A land trust may exercise all powers necessary or convenient to perform its function.
Note—
Also see section 106 (Application of Trusts Act 1973).
'(1) The Minister may, by written notice given to a land trust, appoint a person to be a member of the land trust if—
(a) the rules of the land trust do not provide for the appointment of members; or
(b) because of any circumstances affecting the operation of the land trust, the land trust can not appoint a member and a majority of members of the land trust have asked the Minister in writing to appoint the person as a member; or
Example of circumstances affecting the operation of a land trust—
A land trust can not form a quorum for a meeting of the land trust to appoint a member.
(c) the Minister considers it appropriate to appoint the member to ensure the land trust can carry out its functions under this Act.
Example—
The Minister might appoint a member to replace a member removed by the Minister under this division.
'(2) Before acting under subsection (1), the Minister must—
(a) consult with the land trust; and
(b) if the Minister considers it appropriate in the circumstances—consult with, and consider the views of, Torres Strait Islanders particularly concerned with the Torres Strait Islander land held by the land trust.
'(3) The Minister must not appoint a person under subsection (1) without the person's consent.
'(4) The Minister must give the person a copy of the notice mentioned in subsection (1) when the notice is given to the land trust.
'(5) A person appointed as a member of a land trust under this section becomes a member on the day stated in the notice.
'(6) In acting under this section, the Minister must have regard to any Island custom applicable to the Torres Strait Islander land held by the land trust.
'Each of the following is a ground for removing or suspending a member—
(a) if the member is a member of the executive committee of the land trust, the member—
(i) in performing the member's functions as a member of the committee, has contravened or is contravening a provision of this Act; or
(ii) is carrying on, or has carried on, the business of the land trust in a fraudulent or improper way;
(b) the member has stolen, misappropriated or improperly applied trust property;
(c) the member is acting, or has acted, towards the land trust or another member in a fraudulent or improper way;
(d) if the rules of the land trust do not provide for the removal or suspension of members—
(i) the land trust has asked the Minister in writing to remove or suspend the member; and
(ii) a ground mentioned in paragraph (a), (b) or (c) exists in relation to the member;
(e) because of any circumstances affecting the operation of the land trust—
(i) the land trust can not remove or suspend a member and a majority of members of the land trust have asked the Minister in writing to remove or suspend the member; and
(ii) a ground mentioned in paragraph (a), (b) or (c) exists in relation to the member.
Example of circumstances affecting the operation of a land trust—
A land trust can not form a quorum for a meeting of the land trust to remove or suspend a member.
'(1) This section applies if the Minister believes a ground exists to remove or suspend a member of a land trust.
'(2) The Minister must give the member and the land trust a notice (a show cause notice).
'(3) The show cause notice must state the following—
(a) the action the Minister proposes to take under this subdivision (the proposed action);
(b) the ground for the proposed action;
(c) an outline of the facts and circumstances forming the basis for the ground;
(d) if the proposed action is suspension of the member—the proposed suspension period;
(e) that the member and the land trust may, within a stated period (the show cause period), make written representations to the Minister to show why the proposed action should not be taken.
'(4) The show cause period must end at least 1 month after the show cause notice is given.
'(1) The member or land trust may make written representations about the show cause notice to the Minister during the show cause period.
'(2) The Minister must consider all representations (the accepted representations) made under subsection (1).
'If, after considering the accepted representations for the show cause notice, the Minister no longer believes a ground exists to remove or suspend the member, the Minister must—
(a) take no further action about the show cause notice; and
(b) give the member and the land trust a notice that no further action is to be taken about the show cause notice.
'(1) This section applies if—
(a) there are no accepted representations about the show cause notice; or
(b) after considering the accepted representations about the show cause notice, the Minister—
(i) still believes a ground exists to remove or suspend the member; and
(ii) believes removal or suspension of the member is warranted.
'(2) The Minister may—
(a) if the proposed action was to remove the member—remove the member; or
(b) if the proposed action was to suspend the member—suspend the member for not longer than the proposed suspension period.
'(3) Before acting under subsection (2), the Minister must, if the Minister considers it appropriate in the circumstances, consult with and consider the views of Torres Strait Islanders particularly concerned with the Torres Strait Islander land held by the land trust.
'(4) In acting under this section, the Minister must have regard to any Island custom applicable to the Torres Strait Islander land held by the land trust.
'(5) If the Minister decides to take action under subsection (2), the Minister must as soon as practicable give—
(a) the person an information notice for the decision; and
(b) the land trust written notice of the decision.
'(6) The decision takes effect on the later of the following—
(a) the day the information notice is given to the person;
(b) the day stated in the information notice for that purpose.
'(7) In this section—
information notice, for a decision of the Minister, means a notice stating all of the following—
(a) the decision;
(b) the reasons for the decision;
(c) that the person to whom the notice is given may appeal against the decision within 28 days after the person receives the notice;
(d) how the person may appeal.
'(1) The Minister may remove or suspend a member immediately if the Minister believes—
(a) a ground exists for removing or suspending the member; and
(b) it is necessary to remove or suspend the member immediately because there is an immediate and serious risk to the proper operation of the land trust or proper dealing with trust property.
'(2) The removal or suspension under this section—
(a) can be effected only by the Minister—
(i) giving an information notice to the member about the decision to remove or suspend the member, together with a show cause notice; and
(ii) giving notice of the removal or suspension to the land trust when the notices under subparagraph (i) are given to the member; and
(b) operates immediately the notices are given to the member; and
(c) continues to operate until the earlier of the following happens—
(ii) the show cause notice is finally dealt with;
(iii) 60 days have passed since the notices were given to the member.
'(1) This section applies to a land trust that, under its rules, may appoint, remove or suspend members of the land trust.
'(2) The land trust can not—
(a) appoint a person as a member of the land trust if the person has been removed as a member by the Minister under this division; or
(b) end the suspension of a person from membership of the land trust if the suspension is imposed by the Minister under this division.
'(1) The chief executive must, for each land trust and each financial year, record in the Torres Strait Islander land holding entity register whether or not the land trust has, for the financial year, operated in compliance with the Act.
'(2) In deciding whether or not a land trust has operated in compliance with the Act, the chief executive must have regard to any minimum requirements, prescribed under a regulation, that a land trust must meet to be compliant.
'In this division—
information includes a document.
'(1) The chief executive may, by written notice, require a land trust to give the chief executive stated information, or stated types of information, in its possession or control that is, or are, relevant to the operation of the land trust or the conduct of its business.
Examples of information—
information about how a land trust made a particular decision
accounts, bank statements and other financial information
minutes of meetings
'(2) The notice must state a reasonable period to comply with the requirement.
'(3) The land trust must comply with the requirement unless complying with the notice would place the land trust in contravention of a law.
'In this division—
account, of a land trust, means—
(a) an account, with a financial institution, in the land trust's name or in which the land trust has an interest; or
(b) another account to which trust money is deposited.
holder, of a land trust's account, means the land trust or other person authorised to operate the account.
trust money means any amount that is trust property.
'(1) The chief executive may give a direction under subsection (2) if, on considering a report on an audit of a land trust's accounts, it appears to the chief executive that—
(a) the land trust, a member of the land trust or another person has, or may have, stolen, misappropriated or misapplied trust money; or
(b) the accounts of the land trust are not being kept appropriately.
'(2) The chief executive may direct, by a written notice, that—
(a) an amount must not be drawn from a stated account other than with the chief executive's approval; or
(b) a stated account may be operated only under stated conditions.
'(3) The direction must—
(a) be given to the holder of the account and the financial institution where the account is kept; and
(b) state the account to which it relates; and
(c) if it includes a direction under subsection (2)(b), state the conditions under which the account may be operated.
'(1) After the direction is given to a financial institution, and until it is withdrawn, the financial institution must not—
(a) pay a cheque or other instrument drawn on the account stated in the direction unless the cheque or instrument is also signed by the chief executive; or
(b) give effect to another transaction on the account that is not authorised because of the direction.
Maximum penalty—100 penalty units.
'(2) For section 101(2)(a), the chief executive's signature on a cheque or instrument is sufficient evidence of the chief executive's approval to draw an amount from the account to honour the cheque or instrument.
'(1) The chief executive may withdraw a direction given under section 101 at any time.
'(2) If the direction is withdrawn, the chief executive must immediately give all persons who were given the direction a written notice, signed by the chief executive, that the direction has been withdrawn.
'(3) A direction stops having effect when it is withdrawn.
'(1) The chief executive may prepare model rules for land trusts.
'(2) In adopting changes to its rules, or adopting new rules, a land trust must have regard to the model rules prepared under subsection (1).
'(3) If the chief executive prepares model rules under subsection (1), the chief executive must give a copy of the model rules to each land trust.
'(1) If Torres Strait Islander land is held by a land trust, the land is taken to have been vested in the land trust.
'(2) Subsection (1) applies to Torres Strait Islander land whether or not the land was first held by the land trust before the commencement of this section.
'(1) The Trusts Act 1973 applies to a land trust and its members in relation to dealings with Torres Strait Islander land only to the extent prescribed under this part.
'(2) To the extent that the Trusts Act 1973 does apply to a land trust and its members in relation to dealings with Torres Strait Islander land, it applies with the changes prescribed under this part.
'(3) To remove any doubt, it is declared that the Trusts Act 1973 applies, without changes, to a land trust and its members in relation to dealings with trust property that is not Torres Strait Islander land.
'(1) Subject to subsection (2), the jurisdiction of the Supreme Court under the Trusts Act 1973 includes matters arising under this Act.
'(2) The powers of the Supreme Court under the Trusts Act 1973 are to be exercised—
(a) if provision is made in this part for a matter—in accordance with this part; or
(b) otherwise—in a way that is consistent with, and best achieves, the purposes of this Act.
'(1) This section applies if it appears to the Supreme Court that a member of a land trust is or may be personally liable for a breach of trust by the member, another member or the land trust.
'(2) If it appears to the court that the member—
(a) has acted honestly and reasonably; and
(b) ought fairly to be excused for the breach of trust or for omitting to obtain the directions of the court in the matter in which the member, the other member or the land trust committed the breach;
the court may relieve the member wholly or partly from personal liability for the breach.
'(1) This section applies if a land trust or a member of a land trust commits a breach of trust at the instigation or request of, or with the written consent of, a beneficiary.
'(2) The Supreme Court may, as it considers just, order that all or part of the interest of the beneficiary in the trust property is impounded to indemnify the land trust, the member or persons claiming through the land trust or member.
'(1) A land trust or member of a land trust may apply to the Supreme Court for directions in relation to—
(a) the trust property of the land trust or its management or administration; or
(b) the exercise of a power of the land trust or a member of the land trust.
'(2) The application must be served on, and the hearing of the application may be attended by—
(a) all persons interested in the application; or
(b) the persons interested in the application, or their representatives, that the court considers appropriate.
'(1) This section applies if, in the Supreme Court's opinion, a disposition or transaction—
(a) is expedient for the management or administration of trust property by a land trust or members of a land trust; or
(b) would be in the best interest of the Torres Strait Islanders, or a majority of the Torres Strait Islanders, for whose benefit the property is held;
but—
(c) it is inexpedient, difficult or impractical to effect the disposition or transaction without the assistance of the Supreme Court; or
(d) the land trust or members do not have power under the Act to effect the disposition or transaction.
'(2) The Supreme Court may—
(a) confer on the land trust or members the necessary power for the purpose of effecting the disposition or transaction (other than a power to sell or mortgage Torres Strait Islander land), on such terms and subject to any conditions, as the court considers appropriate; and
(b) direct the way that—
(i) any amount authorised to be spent, and the costs of the disposition or transaction, are to be paid or borne from trust property; and
(ii) the amount is to be apportioned between the capital and income of the trust property.
'(3) The Supreme Court may—
(a) rescind or vary an order under this section; or
(b) make a new or further order.
'(4) The recision or variation of an order does not affect anything done by a person relying on the order before the person became aware of the application to the court to rescind or vary the order.
'(5) An application to the court under this section may be made by—
(a) a land trust; or
(b) a member of a land trust; or
(c) a person for whose benefit the trust property is held.
'(6) In this section—
disposition means a sale, lease, mortgage, surrender, release or another type of disposition.
transaction means a purchase, investment, acquisition, retention, expenditure or another type of transaction.
'(1) If a land trust or member of a land trust acts under direction of the Supreme Court, the land trust or member is to be taken to have discharged the duty as trustee in the subject matter of the direction.
'(2) Subsection (1) applies even if the direction is subsequently declared invalid, overruled, set aside or otherwise rendered of no effect or varied.
'(3) This section does not indemnify a land trust or member of a land trust in relation to an act done in accordance with a direction of the court obtained by the land trust or member by fraud, wilful concealment or misrepresentation or in acquiescence in the fraud, wilful concealment or misrepresentation.
'(1) If, in a proceeding under this Act, the Supreme Court is satisfied that—
(a) a diligent search has been made for a member of a land trust who is named as a party in an action; and
(b) the member can not be found to serve the member with a process of the court;
the court may hear and decide the proceeding and give judgment against the member as if the member had been served or had entered an appearance in the action, and had also appeared by counsel or solicitor at the hearing.
'(2) Subsection (1) applies without prejudice to any interest the member may have in the matter in question in the proceeding in any other capacity.
'(3) If a member, at the time of the proceeding—
(a) is not within the jurisdiction; or
(b) is under a disability; or
(c) can not be found;
the court may appoint a person to represent the member and may proceed in the absence of the member, and all orders made in the proceeding are binding on the member as if the member had been present and of full capacity.
'The Supreme Court may order the cost and expenses of, and incidental to, an application for an order or direction under this part—
(a) to be paid or raised out of the trust property (other than Torres Strait Islander land) as the court considers appropriate; or
(b) to be borne and paid in the way and by the persons as the court considers just.
'(1) A person who made representations to the Minister under part 2, division 3A about a proposed declaration under section 13B(1)(d) may appeal to the Land Court against the decision to make the declaration.
'(2) A lessee of a residential lease the subject of a decision under section 76B to not renew the lease may appeal to the Land Court against the decision.
'(3) A person the subject of a decision under section 77A about an amount payable to the person for forfeiture or non-renewal of a residential lease may appeal to the Land Court against the decision.
'(4) A member of a land trust who is given, or is entitled to be given, an information notice under part 8, division 2 about a decision to remove or suspend the member from the land trust may appeal to the Land Court against the decision.
'(1) An appeal is started by filing written notice of appeal with the registrar of the Land Court.
'(2) The notice of appeal must be filed within 28 days after the person receives the notice of the decision or information notice about the decision.
'(3) However, the Land Court may, at any time within the 28 days, extend the period for making the appeal.
'The appeal is by way of rehearing, unaffected by the decision, on the material before the decision-maker and any further evidence allowed by the Land Court.
'A person who appeals against a decision under this part must give a copy of the notice of appeal to—
(a) for a decision mentioned in section 115(1), (2) or (3)—the decision-maker; or
(b) for a decision mentioned in section 115(4)—the decision-maker and the land trust.
'(1) In deciding the appeal, the Land Court has the same powers as the decision-maker.
'(2) The Land Court may—
(a) confirm the decision; or
(b) set aside the decision and substitute another decision; or
(c) set aside the decision and return the issue to the decision-maker with directions the court considers appropriate.
'(3) If the Land Court substitutes another decision, the substituted decision is, other than for the purpose of an appeal under this part, taken to be the decision of the decision-maker.'.