Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022 [2022] AUSStaCSBSD 98 (23 November 2022)

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

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Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022

Purpose	This bill seeks to amend the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 to facilitate home ownership style leases, strengthen local decision-making, improve the Wreck Bay Aboriginal Community Council's governance and corporate operations, and amend or remove outdated or unclear provisions.
Portfolio	Indigenous Australians
Introduced	House of Representatives on 26 October 2022

No-invalidity clause^[1]

1.2 This bill seeks to amend the Wreck Bay Aboriginal Community Council's governance and corporate operations in several ways, including by prescribing new eligibility criteria for executive members. The bill seeks to insert proposed subsection 29(1) into the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (the Act) to provide that a person is not eligible to be an executive member unless the person is a registered member and a fit and proper person. Proposed section 34F sets out the meaning of fit and person for the purposes of the Act, including that a person has not been convicted of certain kinds of offences or is not an undischarged bankrupt.^[2] However, proposed subsection 29(1A) provides that anything done by or in relation to a person purporting to hold the office of an executive member is not invalid merely because the person is not a fit and proper person.

1.3 A legislative provision that indicates that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision, may be described as a 'no-invalidity' clause. There are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. Consequently, the committee expects a sound justification for the use of a no-invalidity clause to be provided in the explanatory memorandum. In this instance, the explanatory memorandum provides no explanation, merely restating the effect of the provision.

1.4 As the explanatory materials do not adequately address this issue, the committee requests the minister's advice as to why it is considered necessary and appropriate to include a no-invalidity clause in proposed subsection 29(1A) of the bill.

Broad delegation of administrative powers^[3]

1.5 Item 29 of Schedule 1 to the bill seeks to insert proposed Division 4A into the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 in order to regulate the appointment, functions and powers of the Chief Executive Officer. Proposed subsection 34E(1) provides that the Chief Executive Officer may, in writing, delegate all or any of its functions or powers to an employee of the Wreck Bay Aboriginal Community Council (the Council).

1.6 The bill provides similar powers in relation to the executive committee. Proposed subsection 36(1) of Schedule 1 to the bill provides that the executive committee may, in writing, delegate all or any of its functions or powers, other than the powers set out at sections 38 or 39, to a subcommittee established under section 35A, the Chief Executive Officer or an employee of the Council. Section 38 relates to the granting of a lease of, or a licence to use, Aboriginal Land, while section 39 allows the Council to surrender to the Crown the whole of its estate or interest in any part of Aboriginal Land.

1.7 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation as to why these are considered necessary should be included in the explanatory memorandum.

1.8 In relation to the delegation of powers set out under proposed subsection 34E(1), the explanatory memorandum states:

1.9 An identical explanation has been provided in relation to proposed subsection 36(1).

1.10 The committee acknowledges that it may sometimes be inappropriate to impose stringent seniority limits on delegation powers in relation to agencies with a small number of staff. However, in this case it is not clear to the committee why there could not be some limit on the persons to whom the Chief Executive Officer and the executive committee may delegate their functions or powers. For example, a requirement that the Chief Executive Officer or the executive committee are satisfied that the person has the appropriate training, qualifications, skills or experience to appropriately exercise the delegated powers and functions.

1.11 In light of the above, the committee requests the minister's advice as to whether the bill could be amended to require that the Chief Executive Officer and the executive committee, when exercising the delegation power under proposed subsections 34E(1) and 36(1), must be satisfied that the relevant person has the appropriate training, qualifications, skills or experience to exercise decision-making powers or carry out administrative functions.

[1] Schedule 1, item 20, proposed subsection 29(1A). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[3] Schedule 1, item 29, proposed subsection 34E(1); Schedule 1, item 33, proposed subsection 36(1). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests