Aboriginal Land Grant (Jervis Bay Territory) By-Laws 2016 [F2016L00619] -Further response required [2016] AUSStaCSDLM 300 (9 November 2016)

• Further response required

Further response required

The committee requests further explanation or information from relevant ministers or instrument-makers with respect to the following concerns.

Correspondence relating to these matters is included at Appendix 2.

Instrument	Aboriginal Land Grant (Jervis Bay Territory) By-Laws 2016 [F2016L00619]
Purpose	Establishes by-laws pursuant to the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 to conserve biodiversity and control activities on Aboriginal Land in the Jervis Bay Territory
Last day to disallow	9 November 2016
Authorising legislation	Aboriginal Land Grant (Jervis Bay Territory) Act 1986
Department	Prime Minister and Cabinet
Scrutiny principle	Standing Order 23(3)(c)
Previously reported in	Delegated legislation monitor 6 of 2016

Availability of merits review

The committee commented as follows:

Scrutiny principle 23(3)(c) of the committee’s terms of reference requires the committee to ensure that instruments do not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal.

With reference to the above, the committee notes that section 71 of the instrument provides for consideration and review of administrative decisions made by the Wreck Bay Aboriginal Community Council (the council) under Part 7 of the instrument. Subsection 71(7) states:

The Council’s decision following a reconsideration of the initial decision is final.

However, the explanatory statement (ES) does not provide information as to whether decisions made under Part 7 of the instrument possess characteristics that would justify the exclusion of such decisions from merits review.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Indigenous Affairs advised:

In response to the Committee's comments, the exclusion of external merits review for decisions by the Wreck Bay Aboriginal Community Council (WBACC) under section 71 of the Aboriginal Land Grant (Jervis Bay Territory) By-Laws 2016 (the By-Laws) is justified in the context of the purpose of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986
(the Act) and the By-laws.
The Act creates WBACC to hold and exercise the Council's powers as owner of Aboriginal Land in the Jervis Bay Territory for the benefit of the local Indigenous community. In accordance with section 52A of the Act, the By-Laws regulate and manage the use of Aboriginal Land, including providing WBACC with the power to issue certain permits to individuals authorising certain activities that would otherwise be prohibited. External merits review of the Council's decisions in relation to permits would be inconsistent with Council's role as owner of the land in the Jervis Bay Territory.
To address the concerns of the Committee, my Department is consulting with WBACC with a view to lodging a replacement Explanatory Statement in accordance with the process set out in paragraph 15G(4)(b) of the Legislation Act 2003. This Explanatory Statement will include a statement setting out the reasons why external merits review is not justified.

Committee's response

The committee thanks the minister for his response.

The committee also thanks the minister for his advice that the Department of the Prime Minister and Cabinet is consulting with the council with a view to lodging a replacement ES that addresses the committee's concerns.

The committee notes the minister's advice that external merits review of the council's decisions in relation to permits would be inconsistent with the council's role as owner of the land in the Jervis Bay Territory. The committee also notes that section 71(6)(b) of the instrument requires the Council to give to a person who requests reconsideration of an initial decision notice of the result of the reconsideration and of the grounds for the result.

However, in the absence of further information about:

• the characteristics of decisions made under Part 7 of the instrument; and

• how the council's role as owner of the land in the Jervis Bay Territory is inconsistent with merits review of the council's decisions

it remains unclear to the committee whether the exclusion of merits review in this instance is justified.

The committee therefore requests the further advice of the minister in relation to this matter.