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A Bill for an Act relating to the Aboriginal and Torres Strait Islander Commission, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Introduced Senate 23 May 1996

Aboriginal and Torres Strait Islander Commission Amendment Bill 1996
First Reading

1996

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Aboriginal and Torres Strait Islander Commission Amendment Bill 1996

No. , 1996

(Aboriginal and Torres Strait Islander Affairs)

A Bill for an Act relating to the Aboriginal and Torres Strait Islander Commission, and for related purposes

9603120--1,165/20.5.1996--(31/96) Cat. No. 96 4564 0 ISBN 0644 440961

Contents

1       Short title

2       Commencement

3       Schedule(s)

Schedule 1--Amendment of the Aboriginal and Torres Strait Islander Commission Act 1989       

Schedule 2--Amendment of the Aboriginal and Torres Strait Islander Commission Act (No. 3) 1993       

A Bill for an Act relating to the Aboriginal and Torres Strait Islander Commission, and for related purposes

The Parliament of Australia enacts:

1 Short title

        This Act may be cited as the Aboriginal and Torres Strait Islander Commission Amendment Act 1996.

2 Commencement

       (1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

       (2) Item 55 in Schedule 1 commences on the 28th day after the day on which this Act receives the Royal Assent.

3 Schedule(s)

        Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1--Amendment of the Aboriginal and Torres Strait Islander Commission Act 1989
1 Subsection 4(1)

Insert:

Commission Administrator means a person appointed under section 78B.

2 Subsection 4(1)

Insert:

Torres Strait Administrator means a person appointed under section 144ZR.

Note:       A Torres Strait Administrator is different from a TSRA Administrator, who may be appointed under subsection 142R(3) or Division 11 if the number of members of the TSRA falls below 7.

3 Subsection 4(1) (table in definition of prescribed number)

Repeal the table, substitute:

Estimated population of region

Prescribed number

not more than 1,000

8

more than 1,000 but not more than 4,000

9

more than 4,000 but not more than 7,000

10

more than 7,000 but not more than 10,000

11

more than 10,000

12

4
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After section 21

Insert:

21A Commission's interest in land

       (1) Any liability or obligation of an individual, a body corporate or an unincorporated body to the Commission arising:

       (a) under the terms and conditions of a grant or loan referred to in subsection 14(2); or

       (b) under section 20 or 21;

is taken to be an interest of the Commission in the land to which it relates.

       (2) The land is charged with the payment of all costs and expenses incurred by the Commission in respect of its enforcement of the liability or obligation.

5 Subsection 32(1)

Omit "a zone election", substitute "each round of zone elections".

6 At the end of Division 3 of Part 2

Add:

32A Alternate Deputy Chairperson

        If there is a vacancy in the office of alternate of the Deputy Chairperson of the Commission, the Commissioners may, at a meeting of the Commission, elect one of them to be the alternate of the Deputy Chairperson.

7 After subsection 33(1B)

Insert:

       (1BA) The alternate of the Deputy Chairperson of the Commission is to be elected for a period determined by the Commission and holds office until:

       (a) the end of that period; or

       (b) he or she is elected as Deputy Chairperson of the Commission; or

       (c) he or she ceases to be a Commissioner;

whichever happens first. However, if he or she ceases to hold office because of paragraph (a) and is still a Commissioner, he or she may be re-elected.

8 Subsection 35(3)

Omit "(1)", substitute "(1A)".

9 After subsection 36(1)

Insert:

       (1A) If:

       (a) either of the following circumstances exists:

       (i) there is a vacancy in the office of Commission Chairperson, whether or not an appointment has previously been made to the office;

       (ii) the Commission Chairperson is absent from duty or from Australia or is, for any reason unable to perform the duties of the office; and

       (b) either of the following circumstances exists:

       (i) there is a vacancy in the office of Deputy Chairperson of the Commission, whether or not a person has previously been elected as Deputy Chairperson;

       (ii) the Deputy Chairperson is absent from duty or from Australia or is, for any reason, unable to perform the duties of Deputy chairperson;

the alternate of the Deputy Chairperson is to act as the Commission Chairperson.

       (1B) If the alternate of the Deputy Chairperson of the Commission is not acting as the Commission Chairperson under subsection (1A) and either of the following circumstances exists:

       (a) there is a vacancy in the office of Deputy Chairperson;

       (b) the Deputy Chairperson is absent from duty or from Australia or is, for any reason, unable to perform the duties of Deputy Chairperson;

the alternate of the Deputy Chairperson is to act as the Deputy Chairperson.

       (1C) Anything done by or in relation to a person purporting to act under subsection (1), (1A) or (1B) is not invalid merely because the occasion to act had not arisen or had ceased.

10 After subsection 36(2)

Insert:

       (2A) A person appointed to act as the Deputy Chairperson of the Commission may not act if there is an alternate of the Deputy Chairperson.

11 Subsection 36(6)

Repeal the subsection, substitute:

       (6) The Minister may, after consulting the Commission Chairperson, appoint a person to act in the office of a Commissioner

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(other than the Commission Chairperson):

       (a) during a vacancy in the office, whether or not a person has previously been appointed to the office; or

       (b) during any period, or during all periods, when the Commissioner is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

12 Section 38

Repeal the section, substitute:

38 Disclosure of interests

        A Commissioner or acting Commissioner who is not a Regional Councillor must comply with section 119A as if he or she were a Regional Councillor.

13 After subsection 39(1B)

Insert:

       (1C) The alternate of the Deputy Chairperson of the Commission may resign the office of alternate of the Deputy Chairperson by writing signed by him or her and sent to the Commission Chairperson.

14 Subsection 40(2)

Repeal the subsection, substitute:

       (2) The Minister must not suspend a Commissioner from office unless the Minister has, by written notice served on the Commissioner, given the Commissioner 7 days within which to show cause why the Commissioner should not be suspended.

15 After subsection 40(6)

Insert:

       (6A) If a person who is a Commissioner is, because of a decision or order of the Federal Court of Australia, taken not to have been duly elected as a member of a Regional Council, the person ceases, as a result of the decision or order, to be a Commissioner.

16 Subsection 68(4)

Repeal the subsection.

17 After paragraph 76(1)(da)

Insert:

       (db) when requested to do so by the TSRA, to evaluate or audit particular aspects of the operations of the TSRA;

18 Paragraph 78A(1)(a)

After "(ba)", insert "(c), (d), (da), (db),".

19 After Division 9 of Part 2

Insert:

Division 9A--Commission Administrator

78B Appointment of Administrator

       (1) If the Minister is satisfied that:

       (a) the administration by the Commission of the Commission's money has involved fraud or gross mismanagement; or

       (b) the Commission has intentionally failed to comply with a direction in force under section 12 or 74; or

       (c) the Commission has failed to take reasonable steps to prevent a contravention of a direction in force under section 12 or 74;

the Minister may appoint an Administrator for the purposes of this Division.

       (2) Subject to section 78F, the term of appointment of a Commission Administrator is 18 months or a shorter period specified in the instrument of appointment.

       (3) If an appointment of a Commission Administrator would take the continuous period during which there has been a Commission Administrator to more than 18 months, the appointment has no effect after the end of the period of 18 months.

78C Role of Commission Administrator

       (1) The Commission Administrator:

       (a) has control of the Commission's property and affairs; and

       (b) may manage that property and those affairs; and

       (c) may perform any function, and exercise any power, that the Commission could perform or exercise if the Commission Administrator had not been appointed and, in particular, may give a delegation, execute a document, bring or defend proceedings, or do anything else, in the Commission's name and on its behalf.

       (2) When performing a function, or exercising a

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power, under subsection (1), the Commission Administrator is taken to be acting as the Commission's agent.

       (3) If a Commissioner is, ex officio, a member of another body, the Commission Administrator does not become a member of that body by virtue of the appointment as Commission Administrator.

78CA Effect of appointment of Commission Administrator

       (1) While an appointment as Commission Administrator is in force:

       (a) the Commission may not hold any meeting; and

       (b) a person (other than the Commission Administrator) cannot perform or exercise a function or power as a Commissioner (including as the Commission Chairperson); and

       (c) any delegation of any of the Commission's functions or powers that was in force, immediately before the appointment, continues in force unless and until it is revoked by the Commission Administrator; and

       (d) a Commissioner who is, ex officio, a member of another body must not participate as a member of the body except in accordance with a written determination of the Minister; and

       (e) if an office of member of another body is required to be held by a Commissioner (except an office that is held ex officio), a Commissioner who holds the office does not stop being a member of that body because of the appointment of the Commission Administrator except in accordance with a written determination of the Minister.

       (2) If a Commission Administrator is appointed:

       (a) a Commissioner is not entitled to any remuneration or allowances in respect of any period while the appointment is in force, unless the Minister otherwise determines; and

       (b) the Minister may determine in writing that all Commissioners, or specified Commissioners, are entitled to specified remuneration and allowances for all or part of that period (but not more than would otherwise be payable under the Remuneration Tribunal Act 1973 or this Act); and

       (c) remuneration and allowances (if any) provided for in a determination by the Minister are to be paid in accordance with the determination out of money of the Commission that is lawfully available to pay remuneration and allowances to Commissioners.

78D Commission Administrator to investigate Commission's affairs

       (1) The Commission Administrator may review any audits, and any evaluations, previously made under this Act of:

       (a) the affairs and operations of the Commission; and

       (b) the affairs and operations of:

       (i) any person to whom the Commission has made a grant in the period of 3 years immediately before the appointment (or in such earlier period as the Commission Administrator thinks desirable); or

       (ii) any person to whom the Commission has made a loan in the period (or any earlier period) referred to in subparagraph (i) that has not been repaid in full.

       (2) Nothing in this section prevents the Commission Administrator exercising any power of the Commission for the purpose of initiating audits or evaluations.

78E Report by Commission Administrator

        The Commission Administrator may from time to time report to the Minister on any changes that the Commission Administrator considers should be made to the structure and operation of the Commission to ensure:

       (a) the proper provision of services to Aboriginal persons or Torres Strait Islanders, or both; or

       (b) full accountability for the use of the Commission's money in the provision of those services.

78F Terms and conditions of appointment of Commission Administrator

       (1) The Commission Administrator is entitled to remuneration and allowances in accordance with section 194.

       (2) The Commission Administrator may resign from the office of Commission Administrator by giving the Minister a written resignation signed by the Commission Administrator.

       (3) The Minister may by signed writing terminate the appointment of the Commission Administrator if:


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       (a) the Commission Administrator is guilty of misbehaviour or becomes physically or mentally incapable of performing his or her duties; or

       (b) the Commission Administrator becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or

       (c) the Minister thinks that the performance of the Commission Administrator has been unsatisfactory for a significant period of time.

       (4) Section 4A does not apply for the purposes of paragraph (3)(a).

       (5) Subject to subsections (1), (2) and (3), a person appointed as the Commission Administrator holds office on the terms and conditions that the Minister determines in writing.

       (6) The remuneration, allowances and expenses of the Commission Administrator are to be paid out of the Commission's money.

78G Exemption from suit

        No action or proceeding lies against a person who is or has been the Commission Administrator for anything done or omitted to be done by the person in good faith in the performance of his or her powers, functions or duties as Commission Administrator.

20 Paragraph 81(1)(a)

Omit "by the TSRA, by other Commonwealth bodies", substitute "by other Commonwealth bodies (except the TSRA)".

21 Paragraph 81(1)(b)

Omit "by the TSRA, by Regional Councils and by other Commonwealth bodies,", substitute "by Regional Councils and by other Commonwealth bodies (except the TSRA),".

22 Paragraph 81(1)(c)

Omit ", the TSRA".

23 After subsection 90(2)

Insert:

       (2A) Despite subsection (2), a person to whom this section applies may:

       (a) divulge or communicate any information referred to in paragraph (2)(a) to anyone who is authorised in writing by the person to whose affairs the information relates to receive the information; and

       (b) produce a document referred to in paragraph (2)(b) to anyone who is authorised in writing by the person to whose affairs the document relates to receive the document.

24 Paragraph 91(7)(a)

Repeal the paragraph, substitute:

       (a) has effect for the purposes of the first round of Regional Council elections held after the date of the determination; and

25 Application

       The amendment made by item 24 applies to determinations made after the commencement of that item.

26 Paragraph 100A(5)(a)

Repeal the paragraph, substitute:

       (a) have effect for the purposes of the first round of Regional Council elections held after the commencement of the rules; and

27 Application

       The amendment made by item 26 applies to rules made after the commencement of that item.

28 Paragraph 102(1)(c)

Repeal the paragraph, substitute:

       (c) the person:

       (i) is a member of the staff of the Commission or the TSRA; or

       (ii) is a consultant to the Commission or the TSRA; or

       (iii) is a director of, or has a controlling interest in, a body corporate that is a consultant to the Commission or the TSRA;

29 At the end of subsection 102(1A)

Add "or to the Chairperson of a Regional Council covered by a determination in force under subsection 121(1B)".

30 At the end of section 104

Add:

Polling may be deferred if Administrator appointed

       (5) If a Commission Administrator has been appointed for a term that expires on or after 31 December in the third calendar year after the last round of Regional Council elections, the Minister may fix a day or days under subsection (2) that fall after 31 December in that year but on or before 31 December in the following year.

31 After subsection 119(2)


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Insert:

       (2A) The Minister must cause a copy of each determination made under paragraph (2)(a) or (b) to be published in the Gazette.

32 After section 119

Insert:

119A Register of interests

       (1) Each member of a Regional Council must make to the Commission written disclosures of the member's direct or indirect pecuniary interests in accordance with a Ministerial determination under subsection (4).

       (2) The Commission must keep a register of the interests disclosed in accordance with a Ministerial determination under subsection (4).

       (3) The Commission must allow any person to inspect the register at any reasonable time without charge.

       (4) The Minister may make a written determination specifying:

       (a) the kinds of interests to be disclosed; and

       (b) the manner in which, and the times at which, disclosures are to be made; and

       (c) the form in which the register is to be kept.

       (5) A determination under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

33 Subsection 121(3)

Repeal the subsection, substitute:

       (3) If the Commission is satisfied that a member of a Regional Council:

       (a) has become a member of the staff of the Commission or the TSRA; or

       (b) has become a consultant to the Commission or the TSRA; or

       (c) has become a director of, or has acquired a controlling interest in, a body corporate that is a consultant to the Commission or the TSRA; or

       (d) is a director of, or has a controlling interest in, a body corporate that has become a consultant to the Commission or the TSRA;

the Commission must declare, in writing, that it is so satisfied.

34 Paragraphs 122(1)(a) and (b)

Repeal the paragraphs, substitute:

       (a) has been convicted of an offence against a Commonwealth, State or Territory law and sentenced in respect of the offence to imprisonment for one year or longer; or

       (aa) has been convicted of 2 or more offences against a Commonwealth, State or Territory law and sentenced in respect of all the offences to a single penalty of imprisonment for one year or longer; or

       (b) has been convicted of an offence against a Commonwealth, State or Territory law involving dishonesty and sentenced in respect of the offence to imprisonment for 3 months or longer; or

       (ba) has been convicted of 2 or more offences against a Commonwealth, State or Territory law involving dishonesty and sentenced in respect of all the offences to a single penalty of imprisonment for 3 months or longer; or

35 Paragraph 122(1)(c)

Repeal the paragraph, substitute:

       (c) has failed, without reasonable excuse, to comply with section 119 or 119A; or

36 At the end of paragraphs 122(1)(d), (e) and (f)

Add "or".

37 After subsection 127C(6)

Insert:

       (6A) If the person who is the Chairperson of a Regional Council is, because of a decision or order of the Federal Court of Australia, taken not to have been duly elected as a member of the Regional Council, the person ceases, as a result of the decision or order, to be the Chairperson of the Regional Council.

38 Subsection 127E(2)

After "Commissioner", insert "or the Chairperson of the Regional Council".

39 After subsection 127G(6)

Insert:

       (6A) If a person who is the Deputy Chairperson of a Regional Council is, because of a decision or order of the Federal Court of Australia, taken not to have been duly elected as a member of the Regional Council, the person ceases, as a result of the decision or order, to be the Deputy Chairperson of the Regional Council.


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40 Subsection 127J(4)

After "Commissioner,", insert "the Chairperson of the Regional Council or the Deputy Chairperson of the Regional Council".

41 After subsection 128(4)

Insert:

       (4A) When appropriate action has been taken under this section to convene a meeting of a Regional Council, the Chairperson of the Regional Council or, if the Regional Council does not have a Chairperson, the Commission Chairperson must cause notice of the proposed date, time and place of the meeting to be publicly notified, at least 7 days before the proposed date of the meeting, in any manner that the Chairperson concerned thinks appropriate.

       (4B) A Regional Council must make available, at a meeting of the Council, for inspection by any person:

       (a) copies of the agenda for the meeting; and

       (b) copies of any other business papers prepared for the meeting except papers that, in the opinion of the Chairperson of the Council, are likely to be considered by the Council at the meeting at a time when it is closed to the public.

       (4C) A Regional Council must make available at reasonable times during, and at the end of, a meeting of the Council and on the first business day following the day of the meeting, for inspection by any person, any documents presented to the meeting other than documents presented at a time when the meeting was closed to the public.

42 After section 128

Insert:

128A Meeting of Regional Council to be open to the public except in certain circumstances

       (1) Except as provided by this section, anyone is entitled to be present at a meeting of a Regional Council.

       (2) A person (other than a member of the Regional Council concerned) is not entitled to be present at a meeting of a Regional Council if:

       (a) the Council has passed a resolution stating that the person is to be excluded from the meeting; or

       (b) the Council has passed a resolution authorising the member presiding at the meeting to direct that a person or persons be excluded from the meeting and the member presiding has given such a direction in relation to the first-mentioned person.

       (3) A person (other than a member of the Regional Council concerned) is not entitled to be present at a meeting of a Regional Council if:

       (a) the Council is considering an excludable matter; and

       (b) the Council has resolved that the meeting be closed to the public while that matter is being considered.

       (4) A resolution referred to in paragraph (3)(b) must identify the matter concerned and the resolution must be recorded in the minutes of the meeting.

128B Right of public to inspect documents without charge

        A Regional Council must allow any person to inspect, at any reasonable time, without charge, any documents described in the following paragraphs that are in its possession:

       (a) a document setting out a code of conduct to be observed by the Council or its members;

       (b) rules for the conduct of proceedings at meetings of the Council;

       (c) a regional or other plan formulated by the Council;

       (d) a determination of, or any other document relating to, remuneration or allowances for members;

       (e) a document identifying any of the facilities that are provided for members;

       (f) the minutes of proceedings at meetings of the Council other than any part of the minutes that relates to an excludable matter;

       (g) a determination made under subsection 119(2);

       (h) any other document to which the person is entitled to have access under the Freedom of Information Act 1982.

128C Excludable matters

        The following are excludable matters for the purposes of sections 128A and 128B:


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       (a) a matter relating to a member of the staff of the Regional Council or to any other person assisting the Council in the performance of its functions;

       (b) a matter involving personal hardship suffered by a person;

       (c) any of the following:

       (i) a trade secret;

       (ii) other information having a commercial value the disclosure of which would, or could reasonably be expected to, affect a person adversely in respect of the person's lawful business, professional, commercial or financial affairs;

       (iii) information (other than a trade secret or information to which subparagraph (ii) applies) that would, or could reasonably be expected to, confer a financial advantage on a competitor of the Regional Council;

       (d) a proposal for the making of a grant or loan, or the giving of a guarantee, by the Regional Council;

       (e) any matter the divulging of which is prohibited by section 90;

       (f) information the disclosure of which would found an action for breach of confidence;

       (g) information of such a nature that it would be privileged from being disclosed in legal proceedings on the ground of legal professional privilege;

       (h) information the disclosure of which would, or could reasonably be expected to, prejudice the enforcement or proper administration of the law;

       (i) a matter affecting the security of the Regional Council, its members, its staff or its property;

       (j) a motion to close the meeting to the public.

43 At the end of Division 7 of Part 3

Insert:

139A Injunctions

       (1) If a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of, or an offence against, this Act in its application to an election held under this Act, a prescribed court may, on the application of the Australian Electoral Commission, grant an injunction restraining the person from engaging in the conduct and, if in the court's opinion it is desirable to do so, requiring the person to do something.

       (2) If:

       (a) a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do something; and

       (b) the refusal or failure was, is, or would be, a failure to comply with, or an offence against, this Act in its application to an election held under this Act;

a prescribed court may, on the application of the Australian Electoral Commission, grant an injunction requiring the person to do the thing.

       (3) If an application is made to a prescribed court for an injunction under subsection (1), the court may, if in its opinion it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in that subsection pending the determination of the application.

       (4) A prescribed court may discharge or vary an injunction granted under subsection (1), (2) or (3).

       (5) If an application is made to a prescribed court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the power of the court to grant the injunction may be exercised:

       (a) if the court is satisfied that the person has engaged in conduct of that kind--whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

       (b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind--whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to anyone if the person engages in conduct of that kind.

       (6) If an application is made to a prescribed court for the grant of an injunction requiring a person to do something, the power of the court to grant the injunction may be exercised:

       (a) if the court is satisfied that the person has refused or failed to do the thing--whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do the thing; or

       (b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to

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do the thing--whether or not the person has previously refused or failed to do the thing and whether or not there is an imminent danger of substantial damage to anyone if the person refuses or fails to do the thing.

       (7) If the Australian Electoral Commission applies to a prescribed court for the grant of an injunction under this section, the court must not require the applicant or anyone else, as a condition of the granting of an interim injunction, to give any undertakings as to damages.

       (8) The Supreme Court of each State is invested with federal jurisdiction, and, to the extent that the Constitution permits, jurisdiction is conferred on the Supreme Court of each Territory, with respect to all matters arising under this section.

       (9) An appeal lies to the Federal Court of Australia from a judgment or order of a prescribed court exercising jurisdiction under this section.

       (10) The powers conferred on a prescribed court under this section are in addition to, and not in derogation of, any other powers of the court, whether conferred by this Act or otherwise.

       (11) In this section:

prescribed court means the Supreme Court of a State or Territory.

44 After section 142J

Insert:

142JA TSRA's interest in land

       (1) Any liability or obligation of an individual, a body corporate or an unincorporated body to the TSRA arising:

       (a) under the terms and conditions of a grant or loan referred to in subsection 142F(2); or

       (b) under section 142H or 142J;

is taken to be an interest of the TSRA in the land to which it relates.

       (2) The land is charged with the payment of all costs and expenses incurred by the TSRA in respect of its enforcement of the liability or obligation.

45 At the end of section 142Y

Add:

Polling may be deferred if Administrator appointed

       (5) If a Commission Administrator, or a Torres Strait Administrator, has been appointed for a term that expires on or after an anniversary referred to in subsection (3), the Minister may fix a day or days under subsection (2) that fall after that anniversary but on or before the anniversary falling in the next calendar year.

Timing of subsequent elections not affected by deferral

       (6) The deferral of polling in TSRA elections under subsection (5) does not affect the timing of subsequent TSRA elections, which is to be worked out under subsection (3).

46 After Division 11 of Part 3A

Insert:

Division 12--Torres Strait Administrator

144ZR Appointment of Administrator

       (1) If the Minister is satisfied that:

       (a) the administration of the TSRA's money has involved fraud or gross mismanagement; or

       (b) the TSRA has intentionally failed to comply with a direction in force under section 142E or 144ZD; or

       (c) the TSRA has failed to take reasonable steps to prevent a contravention of a direction in force under section 142E or 144ZD;

the Minister may appoint an Administrator for the purposes of this Division.

Note:       This Division operates independently of subsection 142R(3) and Division 11, which deal with the appointment of an administrator (a TSRA Administrator) if the number of members of the TSRA falls below 7.

       (2) Subject to section 144ZW, the term of appointment of a Torres Strait Administrator is 18 months or a shorter period specified in the instrument of appointment.

       (3) If an appointment of a Torres Strait Administrator would take the continuous period during which there has been a Torres Strait Administrator to more than 18 months, the appointment has no effect after the end of the period of 18 months.

144ZS Role of Torres Strait Administrator

       (1) The Torres Strait Administrator:


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       (a) has control of the TSRA's property and affairs; and

       (b) may manage that property and those affairs; and

       (c) may perform any function, and exercise any power, that the TSRA could perform or exercise if the Torres Strait Administrator had not been appointed and, in particular, may give a delegation, execute a document, bring or defend proceedings, or do anything else, in the TSRA's name and on its behalf.

       (2) When performing a function, or exercising a power, under subsection (1), the Torres Strait Administrator is taken to be acting as the TSRA's agent.

       (3) If a member of the TSRA is, ex officio, a member of another body, the Torres Strait Administrator does not become a member of that body by virtue of the appointment as Torres Strait Administrator.

144ZT Effect of appointment of Torres Strait Administrator

       (1) While an appointment as Torres Strait Administrator is in force:

       (a) the TSRA may not hold any meeting; and

       (b) a person (other than the Torres Strait Administrator) cannot perform or exercise a function or power as a member of the TSRA; and

       (c) any delegation of any of the TSRA's functions or powers that was in force, immediately before the appointment, continues in force unless and until it is revoked by the Torres Strait Administrator; and

       (d) a member of the TSRA who is, ex officio, a member of another body must not participate as a member of the body except in accordance with a written determination of the Minister; and

       (e) if an office of member of another body is required to be held by a member of the TSRA (except an office that is held ex officio), a member of the TSRA who holds the office does not stop being a member of that body because of the appointment of the Torres Strait Administrator except in accordance with a written determination of the Minister.

       (2) If a Torres Strait Administrator is appointed:

       (a) a member of the TSRA is not entitled to any remuneration or allowances in respect of any period while the appointment is in force, unless the Minister otherwise determines; and

       (b) the Minister may determine in writing that all members of the TSRA, or specified members, are entitled to specified remuneration and allowances for all or part of that period (but not more than would otherwise be payable under the Remuneration Tribunal Act 1973 or this Act); and

       (c) remuneration and allowances (if any) provided for in a determination by the Minister are to be paid in accordance with the determination out of money of the TSRA that is lawfully available to pay remuneration and allowances to members of the TSRA.

144ZU Torres Strait Administrator to investigate TSRA's affairs

       (1) The Torres Strait Administrator may review any audits, and any evaluations, previously made under this Act of:

       (a) the affairs and operations of the TSRA; and

       (b) the affairs and operations of:

       (i) any person to whom the TSRA has made a grant in the period of 3 years immediately before the appointment (or in such earlier period as the Torres Strait Administrator thinks desirable); or

       (ii) any person to whom the TSRA has made a loan in the period (or any earlier period) referred to in subparagraph (i) that has not been repaid in full.

       (2) Nothing in this section prevents the Torres Strait Administrator exercising any power of the TSRA for the purpose of initiating audits or evaluations.

144ZV Report by Torres Strait Administrator

        The Torres Strait Administrator may from time to time report to the Minister on any changes that the Torres Strait Administrator considers should be made to the structure and operation of the TSRA to ensure:

       (a) the proper provision of services to Aboriginal persons or Torres Strait Islanders, or both; or

       (b) full accountability for the use of the TSRA's money in the provision of those services.


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144ZW Terms and conditions of appointment of Torres Strait Administrator

       (1) The Torres Strait Administrator is entitled to remuneration and allowances in accordance with section 194.

       (2) The Torres Strait Administrator may resign from the office of Torres Strait Administrator by giving the Minister a written resignation signed by the Torres Strait Administrator.

       (3) The Minister may by signed writing terminate the appointment of the Torres Strait Administrator if:

       (a) the Torres Strait Administrator is guilty of misbehaviour or becomes physically or mentally incapable of performing his or her duties; or

       (b) the Torres Strait Administrator becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or

       (c) the Minister thinks that the performance of the Torres Strait Administrator has been unsatisfactory for a significant period of time.

       (4) Section 4A does not apply for the purposes of paragraph (3)(a).

       (5) Subject to subsections (1), (2) and (3), a person appointed as the Torres Strait Administrator holds office on the terms and conditions that the Minister determines in writing.

       (6) The remuneration, allowances and expenses of the Torres Strait Administrator are to be paid out of the TSRA's money.

144ZX Exemption from suit

        No action or proceeding lies against a person who is or has been the Torres Strait Administrator for anything done or omitted to be done by the person in good faith in the performance of his or her powers, functions or duties as Torres Strait Administrator.

47 After section 172

Insert:

172A Disclosure of interests

       (1) The Commercial Development Corporation General Manager must give written notice to the Minister and the Chairperson of the Commercial Development Corporation Board of all direct or indirect pecuniary interests that the General Manager has or acquires in any business or in any body corporate that carries on a business.

       (2) If the Commercial Development Corporation General Manager has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Commercial Development Corporation Board, the General Manager must, as soon as possible after becoming aware of the relevant facts, disclose the nature of the interest to the Chairperson of the Board in writing.

48 Subsection 191(2) (penalty)

Repeal the penalty, substitute:

Penalty:       Imprisonment for 1 year.

49 After section 191S

Insert:

191SA Indigenous Land Corporation's interest in land

       (1) Any liability or obligation of a body corporate to the Indigenous Land Corporation arising:

       (a) under the terms and conditions of a grant, loan or guarantee referred to in subsection 191D(2) or (2A) or 191E(2), (2A) or (2B); or

       (b) under section 191S;

is taken to be an interest of the Corporation in the land to which the liability or obligation relates.

       (2) The land is charged with the payment of all costs and expenses incurred by the Corporation in respect of its enforcement of the liability or obligation.

191SB Interest in land of subsidiary of Indigenous Land Corporation

       (1) Any liability or obligation of a body corporate to a subsidiary of the Indigenous Land Corporation arising:

       (a) under the terms and conditions of a grant, loan or guarantee made or given by the subsidiary under an arrangement referred to

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in subsection 191G(1); or

       (b) under section 191S;

is taken to be an interest of the subsidiary in the land to which the liability or obligation relates.

       (2) The land is charged with the payment of all costs and expenses incurred by the subsidiary in respect of its enforcement of the liability or obligation.

50 Subsection 197(1) (penalty)

Repeal the penalty, substitute:

Penalty:       Imprisonment for 5 years.

51 Subsection 197(2) (penalty)

Repeal the penalty.

52 At the end of section 197

Add:

       (3) A person who contravenes subsection (2) is guilty of an offence punishable on conviction by imprisonment for not more than 6 months.

53 Subsections 198(1) and (2)

Omit "$5,000", substitute "50 penalty units".

54 Subsection 198(3)

Omit "$1,000", substitute "10 penalty units".

55 After subsection 198(3)

Insert:

       (3A) A person must not make a statement to another person, either orally or in writing, as to the other person's right to vote in an election under this Act if the person making the statement knows that the statement is false or misleading in a material particular.

Penalty:       Imprisonment for 6 months.

       (3B) A person must not encourage another person to vote in an election under this Act if the first-mentioned person knows that the other person is not entitled to vote in the election.

Penalty:       Imprisonment for 6 months.

Schedule 2--Amendment of the Aboriginal and Torres Strait Islander Commission Act (No. 3) 1993
1 Part 31

Repeal the Part.

2 Schedule 4

Repeal the Schedule.

3 Application

The Part and Schedule repealed by items 1 and 2 are taken never to have been enacted.