Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 19 (8 February 2023)

• Chapter 2
• Commentary on ministerial responses
• Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022
• No-invalidity clause1
• Broad delegation of administrative powers5

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

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improve the Wreck Bay Aboriginal Community Council's governance and corporate operations, and amend or remove outdated or unclear provisions.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
Bill status	Before the Senate

No-invalidity clause^[1]

2.2 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.

2.3 In Scrutiny Digest 7 of 2022 the committee requested 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.^[3]

Minister's response^[4]

2.4 The minister advised that the Wreck Bay Aboriginal Community Council's (the Council's) functions include holding title to Aboriginal land, exercising powers as a land owner and conducting business enterprises for the economic and social benefit of the community. The minister advised that it is important that parties dealing with the Council have certainty when transacting in good faith with the Council.

2.5 The minister also advised that the no-invalidity clause is necessary to ensure the proper operation of the Council's executive committee. The minister advised that the committee is comprised of nine members and decisions are made by a majority of votes. The minister advised that the

no-invalidity clause ensures that if an individual member of the committee was found not to be fit and proper, then the decisions of the committee as a whole would not be undermined.

2.6 The minister further advised that the executive committee is the accountable authority of the Council and its members must comply with the duties set out in the Public Governance, Performance and Accountability Act 2013 including the duty to act honestly, in good faith and for proper purpose.

2.7 Finally, the minister advised that an additional explanatory memorandum with the above information will be prepared and tabled in the Parliament as soon as practicable.

Committee comment

2.8 The committee thanks the minister for this response.

2.9 The committee welcomes the minister's undertaking to table an addendum to the explanatory memorandum in relation to scrutiny issues raised in Scrutiny Digest 7 of 2022.

2.10 In light of the detailed information provided the committee makes no further comment on this matter.

Broad delegation of administrative powers^[5]

2.11 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 Council.

2.12 In Scrutiny Digest 7 of 2022 the committee requested 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.^[6]

Minister's response^[7]

2.13 The minister agreed with the committee that factors such as the training, qualifications, skills or experience to exercise decision-making powers or carry out administrative functions are relevant to the ability to exercise a delegated power.

2.14 The minister advised that a request to draft an amendment to the bill requested by the committee will be made to the Office of Parliamentary Counsel and a supplementary explanatory memorandum will also be prepared. The minister further advised that the appropriate policy authority will be sought and consultation will be undertaken to progress the amendment to the bill.

Committee comment

2.15 The committee thanks the minister for this response.

2.16 The committee welcomes the minister's undertaking to amend the bill to address the committee's scrutiny concerns relating to the broad delegation of administrative powers.

2.17 In light of the information provided and the minister's undertaking, the committee makes no further comment in relation to this matter.

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[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).

[2] See Schedule 1, item 29, proposed section 34F.

[3] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2022 (23 November 2022) pp. 1–2.

[4] The minister responded to the committee's comments in a letter dated 7 December 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.

[5] 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).

[6] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2022 (23 November 2022) pp. 2–3.

[7] The minister responded to the committee's comments in a letter dated 7 December 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.