Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Act 2023

No. 57, 2023

An Act to amend the Aboriginal Land Grant (Jervis Bay Territory) Act 1986, and for related purposes

Contents

1 Short title 2

2 Commencement 2

3 Schedules 2

Schedule 1—Amendments 3

Part 1—Amendments 3

Aboriginal Land Grant (Jervis Bay Territory) Act 1986 3

Part 2—Consequential amendments 19

Age Discrimination Act 2004 19

Carbon Credits (Carbon Farming Initiative) Act 2011 19

Crimes Act 1914 19

Environment Protection and Biodiversity Conservation Act 1999 19

Jervis Bay Territory Acceptance Act 1915 19

Native Title Act 1993 20

Protection of Movable Cultural Heritage Act 1986 20

Superannuation Act 1922 20

Part 3—Application and transitional provisions 21

Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Act 2023

No. 57, 2023

An Act to amend the Aboriginal Land Grant (Jervis Bay Territory) Act 1986, and for related purposes

[Assented to 21 August 2023]

The Parliament of Australia enacts:
1 Short title

This Act is the Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Act 2023.
2 Commencement 1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information Commencement information Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. The whole of this Act The day after this Act receives the Royal Assent. 22 August 2023

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Amendments

Aboriginal Land Grant (Jervis Bay Territory) Act 1986

 1 Section 1

Omit “Grant”, substitute “and Waters”.

Note: This item amends the short title of the Act. If another amendment of the Act is described by reference to the Act’s previous short title, that other amendment has effect after the commencement of this item as an amendment of the Act under its amended short title (see Acts Interpretation Act 1901).section 10 of the

2 Subsection 2(1)

Insert:

Chief Executive Officer means the Chief Executive Officer of the Council.

child means an individual who has not reached 18 years.

eligible child means a child with a connection to the Community.

fit and proper person has the meaning given by section 34F.

 3 Section 4A

Repeal the section, substitute:

 4A Accountable authority 1

(1) For the purposes of the Public Governance, Performance and Accountability Act 2013, the accountable authority of the Council consists of:

 a

the executive committee; and

 b

the Chief Executive Officer.

Note: See also subsection 33A(5).

 2

The Chairperson must preside at all meetings of the members of the accountable authority of the Council at which the Chairperson is present.

 3

Where the Chairperson is not present at a meeting of the members of the accountable authority of the Council:

 a

the Deputy Chairperson must preside at the meeting; or

 b

if the Deputy Chairperson is not present at the meeting—the members present must appoint one of their number to preside at the meeting.

 4

At a meeting of the members of the accountable authority of the Council:

 a

questions arising must be determined by a majority of the votes of the members present and voting; and

 b

the person presiding at the meeting has a deliberative vote and, in the case of an equality of votes, also has a casting vote.

 4 Paragraph 6(b)

Omit “the members of the Community”, substitute “registered members and eligible children”.

 5 Paragraph 6(ca)

Omit “the Community” (first occurring), substitute “registered members and eligible children”.

 6 Paragraph 6(ca)

Omit “the members of the Community”, substitute “registered members and eligible children”.

 7 Paragraph 6(cb)

Omit “members of the Community”, substitute “registered members and eligible children”.

 8 Paragraph 6(cf)

Omit “the Community”, substitute “registered members and eligible children”.

 9 Paragraph 6(e)

Omit “the Community”, substitute “registered members and eligible children”.

 10 Subsection 7(3)

Omit “$100,000”, substitute “$1 million”.

 11 Subsection 9A(2)

Repeal the subsection.

 12 Subsection 23(2)

Omit “20”, substitute “10% of the”.

 13 After subsection 23(2)

Insert:

Note: See also subsections 33(3) and (4).

Note: Subsection 29(3A) is about elections to be held following the removal from office of all executive members.

 2A

A registered member may, on receipt of a written request signed by not less than 10% of the registered members, convene a special general meeting of the Council to consider and vote on a motion that all executive members be removed from office.

 2B

If a registered member convenes a special general meeting under subsection (2A):

 a

the registered member must attend the meeting; and

 b

if the registered member does not attend the meeting—a motion that all executive members be removed from office must not be moved at the meeting.

 2C

The Registrar must convene a special general meeting if required to do so by subsection 29(3A).

 14 Section 24

After “A special general meeting”, insert “convened under subsection 23(1) or (2)”.

 15 Subsection 26(1)

Omit “and section 26A”, substitute “, section 26A and subsection 33(4)”.

 16 Paragraph 26A(1)(b)

Omit “40”, substitute “10% of the”.

 17 Paragraph 26A(2)(b)

Omit “40”, substitute “10% of the”.

 18 Subsection 28(2)

Repeal the subsection.

 19 After section 28

Insert:

 28A Functions of the executive committee 1

The functions of the executive committee are such functions as are conferred on it by:

 a

a provision of this Act (other than this subsection); or

 b

the regulations; or

 c

(c) the Public Governance, Performance and Accountability Act 2013.

 2

The executive committee may perform any of the functions, and exercise any of the powers, of the Council.

 3

In performing any of the functions, or exercising any of the powers, of the Council, the executive committee is to act in accordance with any policies determined by the Council.

 4

All acts and things done in the name of, or on behalf of, the Council by the executive committee are to be taken to have been done by the Council.

 5

A policy mentioned in subsection (3) is not a legislative instrument.

 20 Subsection 29(1)

Repeal the subsection, substitute:

Note: Subsection 33(7) deals with the removal from office of an executive member who is not a fit and proper person.

 1

A person is not eligible to be an executive member unless:

 a

the person is a registered member; and

 b

the person is a fit and proper person.

 1A

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.

 21 Subsection 29(2)

Omit “subsection (3)”, substitute “subsections (3) and (3A)”.

 22 After subsection 29(3)

Insert:

 3A

If all executive members are removed from office under subsection 33(3):

 a

the Registrar must convene a special general meeting; and

 b

an election to fill each of the offices of the executive members must be held at that special general meeting; and

 c

that special general meeting must be held:

 i

not earlier than 30 days after the removal from office of the executive members; and

 ii

not later than 60 days after the removal from office of the executive members.

 23 At the end of subsection 30(5)

Add:

; and (d) be accompanied by a declaration signed by the person that the person is a fit and proper person; and

Note: Section 137.1 of the Criminal Code creates an offence of providing false or misleading information.

 e

be accompanied by an undertaking signed by the person that, in the event that the person is elected to the office, the person will notify the Registrar if the person ceases to be a fit and proper person while the person holds the office.

 24 After section 32

Insert:

 32A Leave of absence 1

The executive committee may grant leave of absence to any executive member on the terms and conditions that the executive committee determines.

 2

To avoid doubt, leave may be granted in respect of a period that occurred wholly or partly before the day on which leave was granted.

 25 Paragraph 33(1)(b)

Repeal the paragraph, substitute:

 b

if the executive member is unable to perform the duties of the executive member’s office because of physical or mental incapacity; or

 c

if the executive member ceases to be a registered member.

 26 At the end of section 33

Add:

Note: Leave of absence is granted under section 32A.

Note: Leave of absence is granted under section 32A.

 3

If, at a special general meeting, a motion that all executive members be removed from office is passed in accordance with subsection (4), all executive members are removed from office.

 4

A motion referred to in subsection (3) moved at a special general meeting is taken to be passed only if it is supported by not less than two-thirds of the registered members present at the meeting and voting.

 5

If an executive member (other than the Chairperson) is absent from 3 consecutive meetings of the executive committee without leave of absence and without reasonable excuse, the Chairperson may, by writing signed by the Chairperson, remove the executive member from office.

 6

If the Chairperson is absent from 3 consecutive meetings of the executive committee without leave of absence and without reasonable excuse, the Registrar may, by writing signed by the Registrar, remove the Chairperson from office.

 7

The Registrar must, by writing signed by the Registrar, remove an executive member from office if:

 a

the executive member is not a fit and proper person; or

 b

the executive member was not a fit and proper person at the time when the executive member was nominated for the office of executive member; or

 c

the executive member fails, without reasonable excuse, to comply with a notice under subsection 34G(2) or (4).

 8

If the Registrar removes the Chairperson from office under subsection (6), the Registrar must:

 a

notify the Minister, the Chairperson and the Chief Executive Officer, in writing, of the removal; and

 b

do so as soon as practicable after the removal.

 9

(9) Subsection (7) does not affect the operation of Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).Part VIIC of the

27 After section 33

Insert:

 33A Registrar to be the administrator of the Council if all executive members are removed from office 1

(1) If all executive members are removed from office under subsection 33(3), the Registrar is to be the administrator of the Council during the period (the interim period):

 a

beginning at the time of that removal from office; and

 b

ending at the start of the first meeting of the executive committee that is held after that removal from office.

Note: See also subsection 29(3A), which is about elections to be held following the removal from office of all executive members.

 2

During the interim period, the Registrar may perform any of the functions, and exercise any of the powers, of the Council or the executive committee.

 3

All acts and things done during the interim period in the name of, or on behalf of, the Council by the Registrar are to be taken to have been done by the Council.

 4

All acts and things done during the interim period in the name of, or on behalf of, the executive committee by the Registrar are to be taken to have been done by the executive committee.

 5

During the interim period:

 a

(a) for the purposes of the Public Governance, Performance and Accountability Act 2013, the accountable authority of the Council consists of:

 i

the Registrar; and

 ii

the Chief Executive Officer; and

 b

section 4A of this Act does not apply.

 6

This section does not authorise the Registrar to exercise a power conferred by section 38 or 39.

 28 Subsection 34(6)

Omit “Questions”, substitute “Subject to subsection 34A(4), questions”.

 29 After Division 4 of Part IV

Insert:

 34A Chief Executive Officer 1

There is to be a Chief Executive Officer of the Council.

 2

The Chief Executive Officer is to be a person who is:

 a

appointed, in writing, by the executive committee; and

 b

employed by the Council (otherwise than on a casual basis).

 3

The appointment continues in force despite a change in the membership of the executive committee.

 4

The appointment may be revoked by the executive committee (whether or not there has been a change in the membership of the executive committee) by a unanimous resolution of the executive members present at a meeting of the executive committee.

 34B Functions of the Chief Executive Officer 1

The Chief Executive Officer is responsible for the day-to-day administration of the Council.

 2

The Chief Executive Officer may, on behalf of the Council:

 a

enter into contracts for the purposes of this Act; and

 b

employ staff.

 3

The Chief Executive Officer, on behalf of the Council, has all the rights, duties and powers of an employer in respect of the engagement, and employment, of employees of the Council.

 4

The Chief Executive Officer, on behalf of the Council, has all the rights, duties and powers of the Council in relation to the Council’s capacity as a party to a contract.

 5

The Chief Executive Officer has power to do all things necessary or convenient to be done for or in connection with the performance of the Chief Executive Officer’s duties.

 34C Executive committee may give general directions to the Chief Executive Officer 1

The executive committee may give written directions to the Chief Executive Officer in relation to the performance of the Chief Executive Officer’s functions and the exercise of the Chief Executive Officer’s powers.

 2

However, such a direction can only be of a general nature.

 3

The Chief Executive Officer is to act in accordance with any directions given under subsection (1).

 4

A direction given under subsection (1) is not a legislative instrument.

 34D Acting appointments 1

The executive committee may, by written instrument, appoint a person who is employed by the Council (otherwise than on a casual basis) to act as the Chief Executive Officer:

 a

during a vacancy in the office of Chief Executive Officer (whether or not an appointment has previously been made to the office); or

 b

during any period, or during all periods, when the Chief Executive Officer:

 i

is absent from duty or from Australia; or

 ii

is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

 2

The appointment continues in force despite a change in the membership of the executive committee.

 3

The appointment may be revoked by the executive committee (whether or not there has been a change in the membership of the executive committee).

 34E Delegation by the Chief Executive Officer 1

The Chief Executive Officer may, in writing, delegate all or any of the Chief Executive Officer’s functions or powers under this Act to an employee of the Council.

Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

 2

In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Chief Executive Officer.

 3

The Chief Executive Officer must not delegate a function or power to an employee of the Council unless the Chief Executive Officer is satisfied that the employee has the appropriate training, qualifications, skills or experience to perform the function or exercise the power (as the case requires).

 30 Before section 35

Insert:

 34F Meaning of fit and proper person 1

(1) For the purposes of this Act, a person is a fit and proper person unless:

 a

the following conditions are satisfied:

 i

the person has been convicted of an offence against a law of the Commonwealth, a State or a Territory (not involving dishonesty, violence or an offence against a child) and sentenced to a period of imprisonment of 12 months or more;

 ii

if the person does not serve a term of imprisonment—less than 5 years have elapsed since the day on which the person was convicted;

 iii

if the person serves a term of imprisonment—the person is in prison or less than 5 years have elapsed since the day on which the person was released from prison; or

 b

the following conditions are satisfied:

 i

the person has been convicted of an offence against a law of the Commonwealth, a State or a Territory involving dishonesty, violence or an offence against a child and sentenced to a period of imprisonment of 3 months or more;

 ii

if the person does not serve a term of imprisonment—less than 10 years have elapsed since the day on which the person was convicted;

 iii

if the person serves a term of imprisonment—the person is in prison or less than 10 years have elapsed since the day on which the person was released from prison; or

 c

the following conditions are satisfied:

 i

the person has been convicted of an offence against a law of a foreign country that is punishable by imprisonment for a period of 12 months or more;

 ii

the offence is constituted by conduct that, if engaged in in the Jervis Bay Territory, would constitute an offence against a law of the Commonwealth or that Territory;

 iii

if the person does not serve a term of imprisonment—less than 5 years have elapsed since the day on which the person was convicted;

 iv

if the person serves a term of imprisonment—the person is in prison or less than 5 years have elapsed since the day on which the person was released from prison; or

 d

the person is an undischarged bankrupt under:

 i

a law of the Commonwealth; or

 ii

a law of an external Territory; or

 iii

a law of a foreign country; or

 e

the following conditions are satisfied:

 i

(i) the person has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 or a similar law of an external Territory or a foreign country;

 ii

the terms of the agreement have not been fully complied with; or

 f

(f) the person is disqualified from managing Aboriginal and Torres Strait Islander corporations under Corporations (Aboriginal and Torres Strait Islander) Act 2006; orPart 6-5 of the

g

(g) the person is disqualified from managing corporations under Corporations Act 2001.Part 2D.6 of the

2

(2) This section does not affect the operation of Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).Part VIIC of the

3

(3) The definition of Territory in section 2 does not apply to this section.

 34G Fit and proper person—investigations conducted by the Registrar 1

The Registrar must, if requested to do so by the Minister, the Chief Executive Officer or an executive member:

 a

investigate whether an executive member is a fit and proper person; or

 b

investigate whether a person nominated under subsection 30(4) is a fit and proper person.

Criminal history check

Consent for checking

Other matters

 2

The Registrar may, by written notice given to a person who is the subject of an investigation under subsection (1) request the person to:

 a

obtain a specified kind of criminal history check and give that criminal history check to the Registrar; and

 b

do so within the period specified in the notice.

 3

If a person has been given a notice under subsection (2), the Registrar may vary the notice by extending the period specified in the notice.

 4

The Registrar may, by written notice given to a person who is the subject of an investigation under subsection (1), request the person to give to the Registrar, within the period specified in the notice, a specified kind of written consent that the Registrar requires to enable:

 a

criminal records to be checked for the purposes of the investigation; or

 b

bankruptcy or insolvency records to be checked for the purposes of the investigation.

 5

A period specified in a notice under subsection (2) or (4) must not be shorter than 30 days.

 6

(6) This section does not affect the operation of Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).Part VIIC of the

31 Section 35 (at the end of the heading)

Add “established by the Council”.

 32 After section 35

Insert:

 35A Subcommittees established by the executive committee 1

The executive committee may, from time to time, by resolution establish such subcommittees as the executive committee considers necessary or desirable for the purposes of this Act.

 2

A subcommittee is to be constituted:

 a

by not fewer than 2, nor more than 5, executive members; or

 b

by:

 i

not fewer than 2, nor more than 5, executive members; and

 ii

one or more registered members.

 3

If the Chairperson is a member of a subcommittee, the Chairperson must convene, and preside at, meetings of the subcommittee.

 4

If the Deputy Chairperson is a member of a subcommittee and the Chairperson is not a member of the subcommittee, the Deputy Chairperson is to convene, and preside at, meetings of the subcommittee.

 5

If neither the Chairperson nor the Deputy Chairperson is a member of a subcommittee, the subcommittee must elect a person who is:

 a

a member of the subcommittee; and

 b

an executive member;

to convene, and preside at, meetings of the subcommittee.

 6

A member of a subcommittee may resign by writing signed by the member and given to the Chairperson.

 33 Section 36

Repeal the section, substitute:

 36 Delegation by the executive committee 1

The executive committee may, in writing, delegate all or any of its functions or powers under this Act (other than section 38 or 39) to:

 a

a subcommittee established under section 35A; or

 b

the Chief Executive Officer; or

 c

an employee of the Council.

Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

 2

In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the executive committee.

 3

The delegation continues in force despite a change in the membership of the executive committee.

 4

The delegation may be varied or revoked by the executive committee (whether or not there has been a change in the membership of the executive committee).

 5

The executive committee must not delegate a function or power to an employee of the Council unless the executive committee is satisfied that the employee has the appropriate training, qualifications, skills or experience to perform the function or exercise the power (as the case requires).

 33A After subsection 38(5)

Insert:

 5A

A lease granted under this section must:

 a

be in writing; and

 b

include the term of the lease; and

 c

include the other terms and conditions of the lease.

 34 At the end of section 38

Add:

 7

(7) The Residential Tenancies Act 1997 (ACT) does not apply to a lease granted under this section if:

 a

the lease is a lease to which paragraph (2)(a), (c) or (d) applies; and

 b

the term of the lease is 40 years or more.

 35 Section 52

Omit “executive committee”, substitute “accountable authority”.

Age Discrimination Act 2004

 36 Schedule 1 (table item 3)

Omit “Grant”, substitute “and Waters”.

Carbon Credits (Carbon Farming Initiative) Act 2011

 37 Section 5 (paragraph (b) of the definition of statutory authority)

Omit “Grant”, substitute “and Waters”.

Crimes Act 1914

 38 Paragraph 15AB(3A)(c)

Omit “Grant”, substitute “and Waters”.

 39 Paragraph 16A(2AA)(c)

Omit “Grant”, substitute “and Waters”.

Environment Protection and Biodiversity Conservation Act 1999

 40 Paragraph 363(2)(b)

Omit “Grant”, substitute “and Waters”.

 41 Section 528 (subparagraph (i)(iii) of the definition of Commonwealth agency)

Omit “Grant”, substitute “and Waters”.

Jervis Bay Territory Acceptance Act 1915

 42 Section 5

Omit “Grant”, substitute “and Waters”.

Native Title Act 1993

 43 Paragraph 210(a)

Omit “Grant”, substitute “and Waters”.

 44 Section 253 (subparagraph (a)(i) of the definition of Aboriginal/Torres Strait Islander land or waters)

Omit “Grant”, substitute “and Waters”.

Protection of Movable Cultural Heritage Act 1986

 45 Paragraph 17(1)(c)

Omit “Grant”, substitute “and Waters”.

 46 Subsection 18(2)

Omit “Grant”, substitute “and Waters”.

Superannuation Act 1922

 47 Subsection 4(9)

Omit “Grant”, substitute “and Waters”.

 48 Application—general meetings

The amendment of subsection 23(2) of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 made by this Schedule applies in relation to a request received by the Chairperson after the commencement of this item.

 49 Transitional—executive member 1

This item applies if:

 a

a person held office as an executive member immediately before the commencement of this item; and

 b

the person was elected to that office before the commencement of this item.

 2

While the person holds that office:

 a

(a) paragraph 29(1)(b) of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 (as amended by this Schedule) does not apply to the person; and

 b

the person must not be nominated under subsection 30(4) of that Act unless the person is a fit and proper person.

Note: Subsection 29(4) of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 (as amended by this Schedule) sets out the period during which the person holds that office.

 3

(3) Subitem (2) does not prevent the person from being removed from that office under subsection 33(7) of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 (as amended by this Schedule) if the person is not a fit and proper person.

 4

(4) While the person holds that office, paragraph 33(7)(b) of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 (as amended by this Schedule) does not apply to the person.

 50 Application—removal from office of executive members

Subsections 33(5) and (6) of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 (as amended by this Schedule) apply in relation to a meeting that occurred after the commencement of this item.

 51 Application—fit and proper person 1

(1) Subparagraphs 34F(1)(a)(i), (b)(i) and (c)(i) of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 (as amended by this Schedule) apply in relation to a conviction that occurred before, at or after the commencement of this item.

 2

(2) Subparagraph 34F(1)(e)(i) of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (as amended by this Schedule) applies in relation to an agreement executed before, at or after the commencement of this item.

 52 Application—leases

Subsection 38(7) of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986 (as amended by this Schedule) applies in relation to a lease granted after the commencement of this item.

 53 Transitional—National Cultural Heritage Committee 1

This item applies to a person if:

 a

the person held office as a member of the National Cultural Heritage Committee immediately before the commencement of this item; and

 b

(b) the person is covered by paragraph 17(1)(c) of the Protection of Movable Cultural Heritage Act 1986.

 2

(2) To avoid doubt, the amendment of paragraph 17(1)(c) of the Protection of Movable Cultural Heritage Act 1986 made by this Schedule does not affect the continuity of the person’s appointment to the office.

[Minister’s second reading speech made in—

House of Representatives on 26 October 2022

Senate on 30 November 2022]

(109/22)