NORTHERN TERRITORY NATIONAL EMERGENCY RESPONSE BILL 2007 Explanatory Memorandum
NORTHERN TERRITORY NATIONAL EMERGENCY RESPONSE BILL 2007
2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NORTHERN TERRITORY NATIONAL EMERGENCY RESPONSE
BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Community Services and Indigenous Affairs,
the Hon Mal Brough MP)
NORTHERN TERRITORY NATIONAL EMERGENCY RESPONSE
BILL 2007
OUTLINE
This bill will provide new principal legislation for the Australian Government's
response to the national emergency confronting the welfare of Aboriginal
children in the Northern Territory.
Part 1 deals with introductory matters including commencement dates,
definitional matters and sunsetting.
Part 2 introduces measures to modify the Northern Territory Liquor Act in
order to give effect to restrictions on the possession, consumption, sale and
transportation of liquor in the Northern Territory, particularly on land in areas
prescribed in this bill.
Part 3 introduces a scheme of accountability intended to prevent, and detect,
misuse of publicly funded computers located in the prescribed areas within
the Northern Territory.
The scheme comprises five requirements applicable to the person in control
of a publicly funded computer:
· installing, and keeping in place, a content filter designed to prevent,
and record, access to illegal material;
· maintaining an acceptable use policy covering all users and confirming
that all use will be audited;
· keeping records that identify each user;
· undertaking six monthly audits of material on, or accessed by, the
computer; and
· providing to the Australian Crime Commission the outcome of any audit
undertaken.
The computers will be audited to determine whether they contain, or have
been used to access, illegal material. In addition to banned sexually explicit
material, illegal material may include instances of other misuse, such as
stalking, fraud, breaches of privacy or breaches of copyright. The outcome of
an audit of a publicly funded computer will be provided to the Australian Crime
Commission and it may be used either by the Australian Crime Commission
itself, or passed on to a relevant law enforcement agency.
Part 4 of the bill provides for the immediate and later acquisition of five-year
leases over certain Aboriginal townships in the Northern Territory for the
purposes of the emergency response. The underlying tenure will be
preserved, compensation will be paid for any acquisition of property including
an option of paying rent, existing interests will be generally preserved or
excluded, and provision will be made for early termination of the lease
including when a township lease is granted. Part 4 also provides for the
Australian Government to exercise the powers of the Northern Territory
Government to forfeit or resume certain leases known as town camps during
the five-year period of the emergency response and the option of acquiring a
freehold interest over these areas.
Part 5 of the bill recognises that continuing and improving services that are
provided by community services entities in those areas defined in this bill to
be business management areas is a necessary step towards effectively
addressing other problems experienced in these areas. These services
include basic community needs such as housing construction and
maintenance, community services and various types of municipal services
such as waste collection and road maintenance. Part 5 of the bill provides
powers that should assist in the Australian Government being able to flexibly
allocate resources including government funds and the assets used to provide
services and, where required, effectively address the performance of those
entities required to deliver those services.
Part 6 amends Northern Territory law to prohibit the relevant authority, when
exercising bail or sentencing discretion in relation to Northern Territory
offences, from taking into consideration any form of customary law or cultural
practice to lessen or aggravate the seriousness of the criminal behaviour of
offenders and alleged offenders. Part 6 also strengthens Northern Territory
bail provisions to better secure the safety of victims and witnesses in remote
communities.
Part 7 introduces a new licensing regime that will apply to persons who
operate community stores in Indigenous communities. The new licence will
be called a `community store licence'. The introduction of the community
store licence is intended to address a number of concerns and ensure the
proper delivery of the income management regime.
There are long-standing concerns that some stores in Indigenous
communities are poorly managed and have low quality goods sold at high
prices. Many Indigenous communities in the Northern Territory have only one
community store. In very remote communities there may be no other store
within hundreds of kilometres and even these may not be accessible during
the wet season. Hence, the way community stores operate and the quality of
the food that they provide are critical to the Australian Government's efforts to
improve the lives of Indigenous people in the Northern Territory.
The quality and integrity of community stores is also important in the context
of the introduction of income management for welfare recipients. This
measure, which will ensure that funding is available to meet the basic needs
of families, including for food and basic consumables, will involve the
disbursement of some proportion of funds to community stores. Where stores
will have a flow of income from welfare payments, it is important to ensure
that they have sound financial management practices, are supported by high
quality governance and the range and quality of goods is of a reasonable
standard.
Part 8 deals with a number of miscellaneous matters.
Financial impact statement
Total resourcing for the measures in the bill for 2007-08 is $72.5 m.
NORTHERN TERRITORY NATIONAL EMERGENCY RESPONSE
BILL 2007
NOTES ON CLAUSES
This explanatory memorandum uses the following abbreviations:
· Land Rights Act means the Aboriginal Land Rights (Northern Territory)
Act 1976;
· Legislative Instruments Act means the Legislative Instruments
Act 2003.
Part 1 - Preliminary
Clause 1 sets out how the Act is to be cited, that is, the Northern Territory
National Emergency Response Act 2007.
Clause 2 provides when various Parts and clauses of the bill will commence.
Items 1, 2, 5 and 6 of the table at subclause 2(1) provide that Parts 1
(Preliminary), 2 (Alcohol), 3 (Requirements for publicly funded computers), 5
(Business management areas) and 8 (Miscellaneous), clauses 31 (Grant of
lease for five years), 34 (Preserving any existing right, title or other interest)
and 64 (Modification of Part 4 of Schedule 1 by the regulations), Schedules 1
(Property descriptions), 2 (Business management areas), 3 (Funding
agreements) and 4 (Commonwealth management in business management
areas: modification of Northern Territory laws), and anything in the bill not
otherwise referred to in the table, will commence the day after the day on
which the bill receives the Royal Assent.
Items 3 and 4 of the table at subclause 2(1) provide that clauses 32
(Commencement of certain leases) and 33 (Commencement of certain other
leases) commence on a day to be fixed by Proclamation, or, if they do not
commence within 6 months from when the Act receives the Royal Assent, on
the first day after that 6 month period.
Clause 3 defines a number of terms used generally in the bill.
assessable matters This term has the meaning given by clause 93, and is
defined to include matters such as the quality, quantity
and range of food and drinks available at the community
store, the price of goods, the financial integrity of the
store and remuneration practices of the store, and the
capacity of the store to participate in the requirements of
the income management regime.
1
Associations Act This term means the Associations Act of the Northern
Territory. A note provides that the reference to the
Associations Act is to be construed as a reference to
that Act as originally enacted and as amended from time
to time (see section 10A of the Acts Interpretation Act
1901 of the Commonwealth).
authorised officer This term means the Secretary of the Department with
responsibility for this Act or a person appointed by the
Secretary under clause 116. The Secretary may appoint
an appropriately qualified officer to be an authorised
officer for the purposes of performing the functions of
Part 7 (Licensing of community stores). An officer is an
Australian Public Service employee in the Department or
any other person engaged by the Department under
contract or otherwise to exercise powers or to perform
functions or duties under Part 7.
bail authority This term means a court or a person authorised to grant
bail under a law of the Northern Territory. Under the Bail
Act 2007 (Northern Territory), bail can be granted by
either a member of the police force (who holds the rank
of Sergeant, or higher rank, or any other member of the
police force who is for the time being in charge of a police
station), or by the court (by either a justice or a
magistrate).
business management This term means an area of land:
area
· that is covered by a five year lease granted under
paragraph 31(1)(b);
· that is referred to in Parts 1 to 3 of Schedule 1 to
this bill;
· or a place in the Northern Territory that is specified
in Schedule 2;
· or a place in the Northern Territory that is declared
by legislative instrument to be a business
management area.
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civil penalty provision This term means a subsection, or section that is not
divided into subsections, that has set out at its foot the
words `civil penalty' and one or more amounts in penalty
units.
A civil penalty provision is set out in a similar way to an
offence and is subject to proceedings in court. However,
it is enforced by civil proceedings that are subject to the
procedures and rules of evidence in civil cases. Proof is
on the balance of probabilities. A civil penalty provision
only carries a financial penalty, not an imprisonment
penalty. The imposition of a civil penalty does not
constitute a criminal conviction.
Commonwealth This term means the rights, titles and interests in land
interest vested in the Commonwealth under clause 47, excluding
certain rights, titles and interests relating to minerals,
petroleum and gas identified in subclause 47(9) and
those rights, titles and interests preserved under clause
48.
Commonwealth This term means the Minister administering the Act.
Minister
community services This term means:
entity
· a community government council within the
meaning of the Local Government Act (Northern
Territory);
· an incorporated association within the meaning of
the Associations Act;
· an Aboriginal and Torres Strait Islander corporation
within the meaning of the Corporations (Aboriginal
and Torres Strait Islander) Act 2006; and
· any other person or entity that performs functions
or provides services in a business management
area and that is specified by the Minister (whether
by reference to a class of person or entity or
otherwise), by legislative instrument.
Where a community services entity has been funded to
provide services in a business management area, the
powers set out at Part 5 of the bill may be applied to that
entity.
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community store This term has the meaning given by clause 92, which
essentially provides that it means a business with
premises in a prescribed area in the Northern Territory or
premises in an area in the Northern Territory specified by
the Minister which has as one of its main purposes the
provision of grocery items and drinks.
community store This term means a licence to operate a community
licence store.
criminal behaviour This term includes anything that forms part of the
physical element of a particular offence; and any fault
element relating to a physical element.
The physical element of an offence includes such things
as conduct, circumstances and results constituting the
offence.
The Criminal Code provides for four types of fault:
intention, knowledge, recklessness and negligence.
Crown Lands Act This term means the Crown Lands Act of the Northern
Territory. A note provides that the reference to the
Crown Lands Act is to be construed as a reference to
that Act as originally enacted and as amended from time
to time (see section 10A of the Acts Interpretation Act
1901 of the Commonwealth).
disallowance period For the purposes of regulations, this term means the
period during which regulations made under this bill may
be disallowed by Parliament. This period is calculated:
· beginning on the earliest day on which the
regulations are laid before a House of the
Parliament in accordance with section 38 of the
Legislative Instruments Act; and
· ending on the day on which 15 sitting days of each
House of Parliament have passed since the
regulations were laid before the particular House of
Parliament.
funding agreement This term means a written agreement or arrangement
between the Commonwealth and a community services
entity under which the entity is provided with funding to
provide services in a business management area
(whether or not the agreement or arrangement also
makes provision in relation to other matters).
income management This term means the legislative scheme established
4
regime under what will be the Social Security and Other
Legislation Amendment (Welfare Payment Reform) Act
2007.
Liquor Act This term means the Liquor Act of the Northern Territory.
A note provides that the reference to the Liquor Act is to
be construed as a reference to that Act as originally
enacted and as amended from time to time (see section
10A of the Acts Interpretation Act 1901 of the
Commonwealth).
Liquor Regulations This term means the Liquor Regulations of the Northern
Territory. A note provides that the reference to the Liquor
Regulations is to be construed as a reference to those
Regulations as originally enacted and as amended from
time to time (see section 10A of the Acts Interpretation
Act 1901 of the Commonwealth).
Local Government Act This term means the Local Government Act of the
Northern Territory. A note provides that the reference to
the Local Government Act is to be construed as a
reference to that Act as originally enacted and as
amended from time to time (see section 10A of the Acts
Interpretation Act 1901 of the Commonwealth).
local government This term means a body established for the purposes of
authority local government by or under a law of the Northern
Territory or a Land Council (within the meaning of the
Land Rights Act). It includes an incorporated association
declared by the Minister under section 101 of the
Associations Act and a person or body declared by the
Minister under section 128 of the Local Government Act.
5
native title rights and This term has the same meaning as in the Native Title
interests Act 1993, where the expression native title or native
title rights and interests means the communal, group or
individual rights and interests of Aboriginal peoples or
Torres Strait Islanders in relation to land or waters,
where:
· the rights and interests are possessed under the
traditional laws acknowledged, and the traditional
customs observed, by the Aboriginal peoples or
Torres Strait Islanders;
· the Aboriginal peoples or Torres Strait Islanders, by
those laws and customs, have a connection with
the land or waters, and
· the rights and interests are recognised by the
common law of Australia.
Northern Territory This definition provides that the relevant Northern
Minister Territory Minister for Part 4 is the Minister administering
the Crown Lands Act or the Special Purposes Leases
Act, as the case may be.
The relevant Northern Territory Minister for Part 5 is
the Minister administering the Local Government Act.
operator This term, when it is used in relation to a community
store, means the person who is responsible for the
overall management and administration of the store. If
the person is a body corporate, the operator will usually
be the body corporate that owns the community store
business concerned.
penalty unit In relation to a civil penalty provision, this term has the
same meaning as in section 4AA of the Crimes Act 1914,
which defines the dollar value of a penalty unit.
Police Administration This term means the Police Administration Act of the
Act Northern Territory. A note provides that the reference to
the Police Administration Act is to be construed as a
reference to that Act as originally enacted and as
amended from time to time (see section 10A of the Acts
Interpretation Act 1901 of the Commonwealth).
prescribed area This term has the meaning given by clause 4.
6
publicly funded This term means a computer acquired by an individual or
computer body who receives public funding from the
Commonwealth, a State or Territory or local government
authority.
It includes computers acquired prior to the Act coming
into effect, as long as the individual or body received
public funds.
The term funding is used according to its general
meaning, and includes money provided for a project or
program, which may have been provided, for example,
under statute, a contract, an arrangement or other form
of agreement. Funding may be provided under a
funding agreement or arrangement that is specifically
for the purchase of computers or more generally to
provide a program of services or infrastructure during the
course of which computers are acquired. Funding may
also include annual grants or loans to individuals or
bodies to perform their usual administrative functions.
The term funding does not include income from
governments in the form of salary and wages paid to an
individual employee, income support payments made to
individuals, reimbursement for expenses incurred,
Medicare payments to doctors and other income of this
nature.
To come within the definition, a publicly funded computer
must be ordinarily located in the Northern Territory but it
may have been bought or leased using funds provided by
a government outside the Northern Territory.
relevant owner This definition is for the purpose of identifying the
persons who, by force of clause 31, grant to the
Commonwealth a lease of land for five years. The
relevant owner in relation to land is identified by
reference to the land over which the Commonwealth is
granted its leasehold interest, as the holder of the estate
in fee simple in that land, or in the case of certain
leasehold land, the Northern Territory.
7
responsible person This term means the individual or head of a body with the
custody and control of a publicly funded computer. This
person, in relation to a company would be the chief
executive officer, in relation to a school the principal, and
in relation to an unincorporated association the president.
If the computer is owned, or in the custody or control of
an individual, that individual would be the person who is
required to comply with the obligations under Part 3.
Special Purposes This term means the Special Purposes Leases Act of the
Leases Act Northern Territory.
Telecommunications This term means the Minister who administers the
Minister Telecommunications Act 1997.
working day This term means a day that is not a Saturday or a
Sunday or a public holiday in the Northern Territory.
Subclause 4(1) provides for prescribed areas of the Northern Territory.
There are four types of areas that can be prescribed areas. Under
paragraph 4(2)(a) prescribed areas are areas being Aboriginal land under the
Land Rights Act. Under paragraph 4(2)(b), roads, rivers, streams, estuaries
or other areas are included, as often such areas are excluded from the
statutory definition of Aboriginal land but need to be included for the purposes
of prescribed areas. Paragraph 4(2)(c) makes areas normally referred to as
community living areas prescribed areas. Paragraph 4(2)(d) and
subclause 4(3) provide for areas known as town camps to be included as
prescribed areas.
Subclause 4(4) provides that the Minister can either include or exclude areas
as prescribed areas for the purposes of subclause 4(2). It is intended that
the Minister have the power to respond quickly to the emergency situation by
prescribing areas or removing an area from the prescribed area as required.
This also provides a mechanism where the areas covered by prescribed areas
need to be adjusted because of any issues around precise boundaries or
locations.
Subclause 4(5) provides that a declaration by the Commonwealth Minister
under subclause 4(3) or (4) is a legislative instrument.
Clause 5 provides that the object of this Act is to improve the well-being of
certain communities in the Northern Territory.
Clause 6 provides that this Act (other than Parts 1, 4, 6 and 8 and
Schedule 1) ceases to have effect at the end of the period of five years
beginning on the day after the day on which this Act received the Royal
Assent.
8
Part 2 - Alcohol
The Northern Territory Board of Inquiry into the Protection of Aboriginal
Children from Sexual Abuse (the Inquiry) found a strong association between
alcohol misuse and the sexual abuse of children in the Northern Territory.
The Inquiry did not suggest that alcohol is directly involved in, or responsible
for, all instances of sexual abuse of children. However, the Inquiry did find the
negative impacts of alcohol abuse result in environments where children are
not safe and concluded that `the lives of Aboriginal children are more
important than the right to drink'.
The alcohol restriction measures in this bill are a response to the findings of
the Inquiry and, along with the other measures in this bill, will help to create
environments in which Aboriginal children in the Northern Territory will be safe
and healthy.
Part 2 modifies the Liquor Act of the Northern Territory. Although the
Liquor Act is modified by this bill, the new obligations, offences, penalties and
requirements have effect as Northern Territory law. The Liquor Act will
continue to operate in areas that are not prescribed areas and its provisions
as modified will also apply to prescribed areas. For example, section 86 of
the Liquor Act currently allows people to transport liquor across a general
restricted area. The modifications will mean that people travelling around the
Northern Territory by road are able to carry liquor across a prescribed area
provided they do not consume or dispose of the liquor in that area as provided
for by section 86 of the Liquor Act. Similarly, aircraft that land in a prescribed
area are able to carry liquor provided the liquor is not consumed while the
aircraft is on the ground and the final destination is not a prescribed area.
Division 1 - Preliminary
Clause 7 provides that expressions defined in the Liquor Act of the Northern
Territory and used in this Part have the same meaning as in the Liquor Act.
Clause 8 provides that the Commission (that is, the Northern Territory
Licensing Commission established by section 4 of the Northern Territory
Licensing Commission Act) or the Director of Northern Territory Liquor
Licensing must, if requested by the Commonwealth Minister to provide
information relevant to the operation of this Part, take all reasonable steps to
provide the information.
Clause 9 provides that the Liquor Act, the Liquor Regulations and the Police
Administration Act have effect subject to the modifications in this Part in
relation to a prescribed area. This means that the Northern Territory
legislation will still have effect and will need to be read with this bill to identify
which provisions are modified, for example, in relation to prescribed areas.
9
Clause 10 provides that the laws of the Northern Territory modified by this
Part have effect as laws of the Northern Territory. In effect, the Liquor Act is
to read as amended accordingly.
Division 2 - Prescribed Areas
Subclause 11(1) provides that the Commission must, if it is practicable to do
so, put up notices at:
· the place where a customary access route enters the area; and
· the customary departure locations for aircraft flying into the area;
informing the public that it is an offence to bring liquor into the area, be in
possession or control of liquor in the area, or consume, sell or otherwise
dispose of liquor within the area. It also specifies the possible penalties for
the offence.
Customary access route in this sense means usual or commonly used routes
including roads or tracks. In some cases it may be a river or other water way.
Subclause 11(2) provides that the Commission must also put notices in a
newspaper circulating in the relevant area advising of the change.
Subclause 11(3) provides that a failure to comply with subclause 11(1) or (2)
does not invalidate a declaration made under clause 4 that an area is a
prescribed area.
Clause 11 is very similar to section 85 of the Liquor Act. The effect of
clause 11 is to place a similar obligation on the Liquor Licensing Commission
in respect of prescribed areas as it currently has for general restricted areas.
The purpose of posting the notices is to ensure that people entering a
prescribed area are aware of the offences in relation to liquor that apply within
the prescribed area and the penalties that apply to an offence.
Clause 12 creates offences in relation to liquor within prescribed areas. It has
harsher penalties for more serious offences such as the large scale
transportation, selling or possession of liquor. However, it is also imposes
fines for less serious offences, such as possessing or consuming alcohol.
The intention is that having alcohol within a prescribed area is to be treated as
a significant offence.
10
Clause 12 provides that the prohibitions and offences under the Liquor Act,
that are applicable to general restricted areas, will also apply in all prescribed
areas in the Northern Territory. This will enable alcohol to be controlled
without delay in Indigenous communities where child abuse and neglect is
occurring. This provision will apply as a short term measure, to enable these
issues to be addressed immediately in the Northern Territory, because of the
particular problems in Northern Territory Aboriginal communities, where
alcohol abuse and child abuse are clearly connected. This clause is subject
to the five-year sunset period applicable to the Northern Territory emergency
response legislation.
It should be noted that there is an alternative process available under the
Liquor Regulations for the issue of penalty infringement notices for minor
offences providing a penalty of $100. This process is available under this
legislation by virtue of clause 23.
Subclause 12(1) provides that the Liquor Act has effect as if:
· each prescribed area had been declared by the Commission to be a
general restricted area under that Act; and
· the offences against subsection 75(1) of that Act, so far as they relate
to a prescribed area, were replaced by the offences set out in this
section.
Subclause 12(2) provides that a person commits an offence in a prescribed
area if the person brings in liquor, has liquor in his or her possession or
control or consumes liquor in the prescribed area.
The maximum penalty for an offence is 10 penalty units for a first offence or
20 penalty units for a second or subsequent offence.
Subclause 12(3) provides a defence to a prosecution for an offence under
subclause 12(2). If the defendant was engaged in recreational boating or
commercial fishing activities on waters in a prescribed area and no
declaration had been made under subclause 12(8) then the defence will
apply. It is recognised that prescribed areas will include land covered by
water, for example, rivers and estuaries. In many instances Aboriginal land
(and therefore the prescribed area) is defined as going to the low water mark.
Therefore the area between the low water mark and the high water mark (that
is inter tidal waters) would be prescribed areas in such circumstances.
11
The boat having alcohol will have to enter the prescribed area covered by
water from an area outside a prescribed area. The boat must be a kind of
vessel used in navigation by water (see subclause 12(14)). The Boat must
be on water. It is intended that recreational or commercial use of boats not be
restricted by the alcohol ban but nor should boats be permitted to become
part of schemes to circumvent the alcohol ban. Alcohol cannot be brought
over a prescribed land area to supply a boat. This defence does not allow
drinking on land such as from river banks or beaches.
Subclause 12(4) provides that a person commits an offence in a prescribed
area if the person:
· supplies liquor to a third person; or
· transports liquor intending to supply any of it; or believing that another
person intends to supply any of it, to a third person; or
· possess liquor intending to supply any of it to a third person;
and the third person is in a prescribed area.
The maximum penalty for an offence is 10 penalty units for a first offence or
20 penalty units for a second or subsequent offence.
Subclause 12(5) provides a defence to a prosecution for an offence under
subclause 12(4). It is the same defence as contained in subclause 12(3) for
offences committed under subclause 12(2), that is the defence of
recreational boating or commercial fishing activities.
Subclause 12(6) provides that where person commits an offence in the same
terms as subclause 12(4) but the amount of alcohol involved exceeds
1,350 millilitres the penalty is 680 penalty units or 18 months imprisonment.
The serious penalties in relation to larger scale offences are intended to
reinforce the initiatives in relation to the protection of Aboriginal children, stop
the huge flow of alcohol into Aboriginal communities and repair endemic
alcohol-related dysfunction. The offences and related penalties are not
primarily targeted at users, who generally have personal health and social
issues, but those profiting from the vulnerability of these people and
communities. The penalties are similar to those prescribed under Queensland
legislation.
Subclause 12(7) provides that a person who can prove that he or she did not
have an intention or belief that the alcohol was to be supplied to another
person as provided in paragraph 12(6)(b) will not be subject to the higher
range of penalties.
12
Subclause 12(8) provides that a Commonwealth Ministerial declaration may
be made which precludes the use of the recreational boating defence if
necessary. Where concerns arise that the alcohol bans are being subverted
by use of the recreational boating defence in particular areas, the subclause
enables the removal of the defence in those particular areas.
Subclause 12(9) provides that a Ministerial declaration under
subclause 12(8) is not subject to disallowance under section 42 of the
Legislative Instruments Act. These are emergency measures and the need to
respond quickly where people are circumventing the new restrictions is
paramount. Preventing disallowance will promote certainty that the
declarations will continue. Quick responses will ensure that the purpose of
the alcohol measures is not undermined.
Subclause 12(10) provides that while an area is declared under
subclause 12(8) the Commission must, if it is practicable to do so, put up
notices where a customary access route enters the area stating that a
defence under subclauses 12(3) and (5) is not available in relation to the
area.
Subclause 12(11) provides that the Commission must also advertise in a
newspaper circulating in a relevant area that a defence under
subclause 12(3) or (5), that is the defence of recreational boating or
commercial fishing, is not available in relation to that area. This means that
people will not be able to take alcohol into the declared area while engaging in
recreational boating or commercial fishing.
Subclause 12(12) provides that failing to comply with subclause 12(10) or
(11) does not invalidate a declaration under subclause 12(8).
Subclause 12(13) provides that anything done in the normal course of a
postal service will not create an offence. The provision will enable postal
services to be maintained in prescribed areas without the potential for people
providing those services to be prosecuted under the provisions of this clause.
However, this only applies in relation to anything done in the normal course of
the provision of a postal service. It will only apply to official postal services
and not to any carriage of goods outside of an official postal service.
Subclause 12(14) provides for the following definitions for the purposes of
this section:
boat, which is any kind of vessel used in navigation on water. This
would not include devices intended to provide flotation such as for
instance, an inflatable plastic or rubber mattress such as a lilo;
postal service means a postal service within paragraph 51(v) of the
Constitution. This would not include, for instance, an informal postal
delivery service;
supply, which includes but is not limited to sale, exchange or gift.
13
Clause 12 should be read together with clauses 13 and 14, under which
existing provisions in the Liquor Act, for granting licences and permits to
access alcohol in prescribed areas, may continue to apply on the land
affected. Individual persons within the prescribed areas may apply for a
permit under section 87 of the Liquor Act as was allowed before these
measures were introduced.
Clause 13 confers on the Commonwealth Minister the authority to determine
whether licences for premises within existing general restricted areas (as
defined in section 4 of the Liquor Act) should be allowed to continue to have
effect and, if the licences should continue to have effect, whether further
conditions should be attached to the licence to ensure the conditions give
effect to strict alcohol management practices.
Subclause 13(1) has effect if, immediately before the commencement of this
Part, a licence under the Liquor Act was in force within a prescribed area.
Subclause 13(2) provides that subject to this section, the licence continues to
have effect on the terms that it was issued subject to this clause of the bill.
Nothing in this provision prevents the Liquor Commission from cancelling a
licence as it otherwise is entitled to under the Liquor Act. Subclause 13(3)
provides that the licence in a prescribed area will be subject to a new
condition that takeaway sales of alcohol are banned unless the purchaser has
a current permit issued under section 87 of the Liquor Act that is in force in
relation to the relevant prescribed area. Subclause 13(4) provides that the
Commonwealth Minister may give a notice to a licensee in a prescribed area
(and to the Commission) prohibiting the sale of alcohol for consumption on the
premises or away from the premises.
Subclause 13(5) provides that the Commonwealth Minister may, by notice in
writing given to a licensee and the Liquor Licensing Commission, determine
that the conditions of the licence are varied in a way specified in the notice.
Subclause 13(6) provides that if a determination is made under
subclause (4) or (5), the Liquor Act and the licence has effect accordingly.
Subclause 14(1) provides that a permit issued under section 87 of the Liquor
Act, (that is, a permit enabling a person in a general exemption area which will
become a prescribed area under this Part to posses or consume alcohol in
that area) whether before or after the commencement of this Part is subject to
this bill. Subclause 14(2) provides that the Commonwealth Minister may, by
notice in writing given to the permit holder, determine that the permit does not
authorise a person to:
· bring liquor into;
· have liquor in his or her possession or under his or her control within;
or
· consume liquor within;
a prescribed area.
14
Subclause 14(3) provides that the Commonwealth Minister may, by notice in
writing given to the permit holder, determine that the conditions of the permit
are varied in a way specified in the notice. Subclause 14(4) provides that if a
determination is made under subclause 14(2) or (3), the Liquor Act and the
permit has effect accordingly.
The Liquor Licensing Commission has issued permits to people to allow them
and their guests to consume liquor within a general restricted area. It is
proposed that those permits will be reviewed. If it is considered necessary in
order to give full effect to efforts to reduce consumption of liquor within
prescribed areas, it may be necessary to withdraw or vary the permit while the
area is a prescribed area. Clause 14 will enable the Australian Government
to give effect to such measures.
For both clauses 13 and 14 there is no provision for merits review in relation
to decisions by the Commonwealth Minister. Merits review is not considered
appropriate given the emergency nature of these measures. There is a need
for the Commonwealth Minister to be able to respond with certainty. The
Commonwealth Minister needs to be able to quickly impose conditions so as
to ensure that the alcohol ban is not being undermined by licences or permits.
Clause 15 provides that a court must not grant an interlocutory application
unless exceptional circumstances apply. It is intended that the
Commonwealth Minister will have the power to make prompt decisions in
relation to the emergency situation. Exercise of such power includes
addressing issues that go to the safety of individuals and communities. Only
in exceptional circumstances should interlocutory relief be granted.
Clause 16 creates a penalty for removing or damaging notices which will
provide information about the alcohol ban and the penalties applying for
alcohol-related offences in the area.
Subclause 16(1) provides that the Liquor Act has effect as if it included the
offence set out in this clause.
Subclause 16(2) provides that a person commits an offence if he or she
removes or damages a notice explaining an alcohol ban. The maximum
penalty for an offence against subclause 16(2) is five penalty units.
Subclause 16(3) provides a defence for actions which would otherwise fall
within subclause 16(2) that were performed as part of a person's duties.
Clause 17 relates to seizure of vehicles. Its purpose is to ensure that a
community is not disadvantaged by vehicle seizures resulting from the acts of
individuals who might bring alcohol into a prescribed area using an asset
intended for the benefit of a community. The type of vehicles covered by this
measure include night patrol vehicles and community buses.
Subclause 17(1) provides that the Liquor Act has effect as if it included a
provision in the same terms as subclause 17(2) of this section.
15
Subclause 17(2) provides that an Inspector of Licensed Premises appointed
under section 18 of the Liquor Act in deciding whether to seize a vehicle,
under section 95, must have regard to whether the main use of the vehicle is
for the benefit of a community as a whole and the hardship that might be
caused to the community by the seizure of the vehicle.
Clause 18 provides that Division 4 of Part VII of the Police Administration Act
of the Northern Territory applies to each prescribed area as if it were a public
place.
The Police Administration Act provides members of the Northern Territory
Police Force with the authority to, without warrant, apprehend and take a
person into custody where that person is believed to be intoxicated with
alcohol. The person is only held in custody for so long as it reasonably
appears that the person remains intoxicated. A person so taken and held in
custody may not be charged with an offence nor questioned in relation to an
offence. It is a requirement of the Police Administration Act that an
intoxicated person must be in a public place or trespassing on private
property. This amendment extends that power to cover all property and areas
in the prescribed areas. This means that police can deal with intoxicated
people in prescribed areas. It recognises the established link between
intoxication and violence and will enable the police to ensure the safety of the
community.
Subclause 19(1) provides that the Commonwealth Minister may declare that
this Division ceases to have effect. The intention is that as the emergency
response takes effect the Commonwealth Minister will be able cease part or
all of the emergency powers. Subclause 19(2) provides that the declaration
is a legislative instrument, but section 42 of the Legislative Instruments Act
does not apply to the declaration. That is, an instrument ceasing the powers in
this bill will not be disallowable. It is not intended to leave these measures in
place indefinitely and therefore there needs to be certainty that should the
Commonwealth Minister decide to cease these powers the powers will not be
re-commenced by disallowance. Part 6 of the Legislative Instruments Act
deals with sunsetting. When the Commonwealth Minister has declared the
provision to cease to have effect, the declaration will not be subject to
sunsetting so as to ensure finality.
16
Division 3 - Sales of liquor for consumption away from licensed
premises
It is an important element of the strategies for dealing with alcohol abuse and
alcohol related violence and abuse to have appropriate measures in place to
deter people from contravening the provisions of Part 2. This demands that
well publicised processes be in place to ensure actions leading to the supply
of alcohol to communities can be followed up and addressed. The
effectiveness of the restrictions may be seriously compromised if licensees or
their staff fail to comply with new identification and recording requirements.
This link is recognised in the creation of offences around the identification
requirements at the point of sale of more than the prescribed amount of
takeaway alcohol.
Under subclause 20, if there is a sale of a quantity of alcohol exceeding
1,350 millilitres, where the seller knows or ought reasonably to know, that the
alcohol was for consumption away from the premises there is an obligation to
record information including the name and address of the purchaser and
address or name of the area where the alcohol is intended to be consumed.
Various offences have been created for failing to do so. Subclause 20(5)
provides that if records of the name and address of the purchaser and the
intended location of the consumption of the alcohol are kept then that is a
defence to an offence under subclause 20(2) or (3). Subclause 20(6)
provides the list of acceptable forms of identification, such as a driver's
licence issued in Australia or a passport. The Liquor Commission may also
determine other forms of suitable identification.
A quantity of three cartons of 375 millilitre cans or bottles containing a
beverage with five percent or less alcohol by volume would not fall within this
provision. Similarly, five cartons of 375 millilitres cans or bottles containing a
beverage with two percent or less alcohol by volume would not fall within this
section.
Subclause 20(1) provides that the Liquor Act has effect as if it included the
offences set out in this section.
For purchases of alcohol above the 1,350 millilitres limit offences have been
created for licensees, employees of licensees and the licensee where an
employee commits an offence.
Subclause 20(2) provides the offence for licensees and a maximum penalty
of 340 penalty units.
Subclause 20(3) provides the offence for an employee of a licensee of
licensed premises and a maximum penalty of 60 penalty units.
Subclause 20(4) provides that a licensee of licensed premises commits an
offence if an employee commits an offence under subclause 20(3) and the
maximum penalty is 170 penalty units.
17
Subclause 20(7) provides a defence for licensees to an offence under
subclause 20(4) if the licensee proves that he or she had taken all
reasonable steps to ensure that the employee was aware of the obligations
under this clause.
Subclause 21(1) provides that the Liquor Act has effect as if it included the
offences set out in this section. Subclause 21(2) provides that a licensee
commits an offence if the licensee fails to keep, for at least 3 years after the
records are made, records as mentioned in subclause 20(5) of what will be
the Northern Territory National Emergency Response Act 2007. This clause
recognises that investigations and prosecutions of offences under these
provisions may take some time to finalise. The maximum penalty for an
offence against subclause 21(2) is 50 penalty units. Subclause 21(3)
provides that a licensee must produce the records kept under
subclause 21(2) to an inspector upon demand being made by the inspector
on or at the premises to which the licence relates. The maximum penalty for
an offence against subsection 21(3) is 50 penalty units.
Subclause 22(1) provides that the Commonwealth Minister may declare that
this Division ceases to have effect. Subclause 22(2) provides that the
declaration is a legislative instrument, but section 42 of the Legislative
Instruments Act does not apply to the declaration, that is, an instrument
ceasing the powers in Division 3 will not be disallowable. It is not intended to
leave these measures in place indefinitely and therefore there should be
certainty so that should the Commonwealth Minister decide to cease these
powers the powers will not be re-commenced by disallowance. Part 6 of the
Legislative Instruments Act deals with sunsetting. When the Commonwealth
Minister has declared the provision to cease to have effect, the declaration will
not be subject to sunsetting so as to ensure finality.
Division 4 - Liquor Regulations
Clause 23 provides that the Liquor Regulations have effect as if the following
offences included in the Liquor Act under Division 2 of Part 2 of this bill were
infringement offences for the purposes of those Regulations.
The offences are bringing, possessing, controlling or consuming liquor in a
prescribed area (subclause 12(2)). It also includes the offence of supplying
alcohol where the amount of alcohol is 1,350 millilitres or less
(subclause 12(4)). It also includes the offence of removing or damaging
notices put up by the Liquor Commission (subclause 16(2)).
18
Part 3 of the Liquor Regulations provides a system of infringement notices.
Infringement notices may be issued by a police officer if the police officer
reasonably believes that an offence has been committed. The amount
payable for an infringement notice is $100. If a person issued with an
infringement notice does nothing in response to the notice a range of
sanctions may be utilised which include the making of a community work
order. Individuals can contest an infringement notice by electing to have the
matter dealt with in a court.
Subclause 24(1) provides that the Commonwealth Minister may declare that
this Division ceases to have effect. Subclause 24(2) provides that the
declaration is a legislative instrument, but section 42 of the Legislative
Instruments Act does not apply to the declaration, that is, an instrument
ceasing the powers in this bill will not be disallowable. It is not intended to
leave these measures in place indefinitely and therefore there should be
certainty so that should the Commonwealth Minister decide to cease these
powers the powers will not be re-commenced by disallowance. Part 6 of the
Legislative Instruments Act deals with sunsetting. When the Commonwealth
Minister has declared the provision to cease to have effect, the declaration will
not be subject to sunsetting so as to ensure finality.
Division 5 -Application of offences
Clause 25 provides that offences created by this Part will come into effect
28 days after this Act receives the Royal Assent.
19
Part 3 - Requirements for publicly funded computers
Clause 26 introduces an obligation for the responsible person to install an
accredited filter on all computers covered by this Part. There is a requirement
that filters be installed and maintained and updated as necessary when new
software is released.
The filter function that allows for the blocking of content may be disabled for a
specific period if a person using the computer needs to access material for
work, research or study that would otherwise be blocked by the filter. In that
case the blocking of content may be disabled while maintaining the monitoring
function. This would allow access to the relevant sites without losing the
record of the history of sites accessed.
Appropriate safeguards around the disabling of filters would need to be
implemented by the responsible person in order to meet the obligations
imposed by this part.
It will be a strict liability offence with a maximum penalty of five penalty units
to fail to install and maintain an accredited filter.
A defence is provided to this offence, thus reversing the onus of proof. It
would be a defence if the filter was intentionally disabled by a person other
than the responsible person without his or her knowledge or consent.
In order to ensure the most effective filter software is installed the
Telecommunications Minister will accredit programs that effectively filter
material that can be accessed via the internet. The Minister must cause an
accreditation to be published in the Commonwealth Gazette. This accredited
list will be made available on the relevant websites and on request.
Clause 27 provides for the keeping of records identifying the people who
used a computer; the user, at particular times on particular dates.
As the scheme is designed to provide for the audit of computers to ensure
illegal material accessed by the computer is identified it may be necessary,
depending on the nature of the material detected, to investigate further to
determine whether a crime has been committed. To assist further
investigation this provision provides a mechanism whereby the person who
used the computer at the relevant time can be identified.
Records created under this provision may be made available to the Australian
Crime Commission.
In the first year of operation the reporting period will be from the date of
commencement of the legislation to 30 November following the date of
commencement. The usual reporting period will be from 1 December to
30 November in the following year.
20
In order to allow enough time for any investigation to be completed, records
must be kept for a period of three years from the end of the relevant reporting
period. This means, in effect, that if a person is recorded as using the
computer on 2 December 2007 that record will actually be held for a period
just short of four years.
It will be a strict liability offence with a maximum penalty of five penalty units
for the responsible person not to keep records as required.
Clause 28 requires that a policy for using publicly funded computers is
developed and communicated to all users of the computer.
In the case of a body where only employees use the computer this policy may
form part of the internal communications to staff. For example, it may be
included in a code of conduct for the employees or communicated via the
intranet site of that body or as a log on message.
In the case of computers that are accessible by the public the policy may
need to be prominently displayed adjacent to the computer or given in writing
to persons before they use the computer. Individuals must also have a policy
for use of their own computers and advise anyone who uses their computer of
this policy.
The provision requires that the policy state specific things that are prohibited.
These things provide concrete examples where using the computer for
accessing this type of material or engaging in activities for these purposes will
constitute illegal activities. The Minister may, by legislative instrument,
determine matters that must be included. If no determination is made the
policy must contain all the matters specified in this provision.
In order to ensure the users are made aware that their use of the computer
may be monitored and their name and other information may be provided to
relevant law enforcement bodies, the responsible person must ensure
computer users are informed of the policy. In order to comply with Privacy
Principle 2 users will be advised that the user records and the results of the
periodic audits may be made available to the Australian Crime Commission
and, if appropriate, other law enforcement bodies.
Clause 30 (see below) provides that it will be a strict liability offence with a
maximum penalty of five penalty units if the responsible person does not
develop and communicate the policy to all users.
In order to assist the responsible person to comply with these requirements a
model policy that may be adopted will be posted on the internet.
21
Clause 29 provides that the responsible person will be required to conduct
and report on an audit of the computer at the end of a six-monthly period
ending on 31 May and 30 November each year.
If 31 May or 30 November falls on a weekend or public holiday then the audit
must be conducted on the next working day.
The Audit of computers is the principal component of the scheme that
determines the extent to which illegal material may be located on publicly
funded computers. The results of audits will determine whether other
measures have successfully prevented illegal use of publicly funded
computers. The record of the audit must be kept for a period of three years
from the date on which the audit was conducted
The responsible person must also conduct an audit of any computer as soon
as possible if he or she knows that the computer contains material that
contravenes the law or if he or she is reckless that the computer contains
such material or that such material has been accessed by the computer.
As the scheme applies to any publicly funded computer whenever purchased,
the initial audit should identify illegal material already on computers at the
date of the first audit. This may provide a benchmark from which the success
of the scheme can be measured.
The results of audits must be provided to the Australian Crime Commission
within 14 days of the date of which the audit was completed. A report must be
provided whether or not illegal material was found.
The Australian Crime Commission may conduct further investigations of its
own or pass on information to State or Territory law enforcement
organisations.
The Minister must determine the form of the audit in writing published in the
Commonwealth Gazette. The determination and approval of the form of the
audit is not a legislative instrument. In developing the means of the audit the
Minister will endeavour to develop a technical approach that will minimise
compliance costs for the responsible person. In addition to publication in the
Commonwealth Gazette, the form will be made available directly to bodies
and organisations that receive funds under a Commonwealth funding
agreement.
It is an offence carrying a maximum penalty of five penalty units if the
computer is not audited as required.
A more serious offence carrying a maximum penalty of 10 penalty units would
be committed where an audit is not conducted and the responsible person
knows or is reckless as to whether the computer contains illegal material that
contravenes a law of the Commonwealth, a State or a Territory and the
computer does contain that material.
22
Clause 30 establishes a number of offences.
Subclause 30(1) provides that certain offences are offences of strict liability.
Strict liability is an appropriate basis for these offences due to:
· the difficulty the prosecution would have in proving fault (especially
knowledge or intention) in this case;
· the fact that the offence is minor;
· the fact that the requirements that must be complied with are
administrative in nature;
· the fact that the elements of these offences are factual;
· the fact that the offence does not involve dishonesty or other serious
imputation affecting the person's reputation; and
· the maximum penalty is at the smaller end of the scale.
While the Act comes into effect on the day after it receives Royal Assent, the
offences created by this section apply only to conduct engaged in, on or after,
28 days from the day on which the Act receives Royal Assent. This delayed
implementation will provide time for the responsible person to install filters,
create a user log and publish an acceptable use policy.
23
Part 4 - Acquisition of rights, titles and interests in land
Division 1 - Grants of leases for five years
Subdivision A - Grant of lease
Subclause 31(1) provides for a lease to the Commonwealth, by the relevant
owner, of land referred to, under a heading, in Parts 1 to 3 of Schedule 1 to
the bill. The lease takes effect by operation of the bill.
Part 1 of Schedule 1 deals with Aboriginal land within the meaning of
paragraph 3(1)(a) of the Land Rights Act .
Part 2 lists land, commonly referred to as `community living areas', granted to
associations under section 46(1A) of the Lands Acquisition Act of the
Northern Territory.
Part 3 lists two other areas of land that have not been the subject of land
grants under that legislation.
In addition to the land in Parts 1 to 3 of Schedule 1, the regulations may
prescribe other land over which a lease is granted. The regulations may only
prescribe land that is:
· Aboriginal land within the meaning of section 3(1)(a) of the Land Rights
Act ;
· land granted under section 46(1A) of the Lands Acquisition Act of the
Northern Territory; or
· certain other land in which the fee simple or a leasehold is held by
specified entities at the commencement of this clause.
Subclause 31(2) provides for the term of a lease over land granted under
subclause 31(1). The commencement dates of 26 identified leases is the
date of commencement of clause 31. The commencement dates of a further
identified 25 leases of the Northern Territory is the date of commencement of
clause 32 and the dates of commencement of a further 13 leases over land in
Parts 1 to 3 of Schedule 1 is the date of commencement of clause 33. The
lease over the land referred to in clause 64 of Schedule 1 will be the day
after the disallowance period for the regulations made for this purpose. The
date of commencement of leases over land prescribed by the regulations is
the first day after the end of the disallowance period for the regulations.
Subclauses 31(3) and (4) provide for the exclusion from the lease granted
under clause 31 of any area of land over which a registered lease existed
immediately before the commencement of clause 31. Land excluded from
the clause 31 lease may be included later under subclause 34(6) of the bill.
24
This provision does not apply in respect of leases of Nauiyu (Daly River),
Finke or Kalkarindji, for which special provision is made in clauses 39 and 40.
All leases granted under clause 31 come to an end five years after the time
on which clause 31 commences.
Clause 32 provides for leases referred to in subparagraph 31((2)(a)(ii) to
commence at the time this clause commences.
Clause 33 provides for leases referred to in subparagraph 31((2)(a)(iii) to
commence at the time this clause commences.
Clause 34 provides for the preservation of pre-existing rights, titles and
interests in land covered by a lease granted under clause 31, other than
native title rights and interests for which special provision is made in
clause 51. These preserved rights, titles and interests continue in effect after
the Commonwealth's lease takes effect.
Where the right, title or interest was granted by the owner of the land,
subclause 34(4) makes clear that it continues on the same terms and
conditions as applied immediately before the grant of the lease under
clause 31 as if the right, title or interest had been granted by the
Commonwealth.
Subclause 34(5) allows the Minister to make a determination that
subclause 34(4) does not apply, in any particular case, and at any time, while
the lease granted under clause 31 exists.
A copy of a determination under subclause 34(5) must be given to the holder
of the right, title or interest and may be given to the relevant owner of the land
and any other relevant person.
A determination under subclause 34(5) must specify when it takes effect
which must not be earlier than the day on which the determination is given to
the holder of the right, title or interest.
Subclause 34(8) provides that subclause 34(4) is to be disregarded for the
purposes of subsection 19A(11) of the Land Rights Act. The effect of this is
that if a township lease is granted under section 19A of that Act during the
course of a five year lease, then subsection 19A(11) will take effect in relation
to rights, titles or interests that were granted by the Land Trust as if the
conversion in subclause 34(4) to rights, titles or interests granted by the
Commonwealth had not occurred.
Subclause 34(9) is for the assistance of readers because a determination
under this clause is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act.
Subclause 34(10) extends the meaning of `right, title or interest' in this clause
to include a licence.
25
Clause 35 provides for certain terms and conditions of a lease granted under
clause 31. The leases will not prevent the indigenous communities from
living on and using the land. The leasing provisions will facilitate the repair of
buildings and infrastructure in this crisis situation by ensuring that the
Government has unfettered access to the land and assets in question.
Subclause 35(1) provides for the Commonwealth to have exclusive
possession and quiet enjoyment of the land, subject to preserved rights, titles
and interests (clause 32), for so long as the lease granted under clause 31
exists. Where the relevant owner is a Land Trust, the Land Trust is able to
grant another lease in accordance with section 19 of the Land Rights Act
(clause 52).
Subclause 35(2) makes clear that no rent is payable by the Commonwealth,
except in accordance with clause 62.
Subclause 35(3) provides the Commonwealth with immunity from liability for
any loss, damage or injury to any person or property arising out of the
condition of the land or buildings and infrastructure at the time the lease
commences.
Only the Commonwealth may terminate or vary a lease granted under
clause 31. Subclause 35(4) prohibits the relevant owner of the land covered
by a lease from terminating or varying the lease.
Subclause 35(5) permits the Commonwealth to sublease, license, part with
possession of, or otherwise deal with, its interest in the lease, but the
Commonwealth may not transfer the lease.
The Commonwealth may, under subclause 35(6), vary a lease granted under
clause 31 by excluding land from the lease or by including land in the lease
which had been excluded by clause 33.
Subclause 35(8) provides for a variation to a lease, or a termination of a
lease, granted under clause 31, to be effected by the Minister giving notice to
the relevant owner of the land. In the case of a variation which excludes land
from, or includes land in, a lease, subclause 35(9) requires the notice to
specify the land so excluded or included. Subclause 35(10) provides for a
variation or termination to specify when it takes effect which must not be
earlier than the day on which the notice is given to the relevant owner.
Subclause 35(11) is for the assistance of readers because a notice under this
clause is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act.
Subclause 36(1) provides for additional terms and conditions of a lease
granted under clause 31 to be determined by the Minister.
26
Subclause 36(2) allows the Minister to vary terms and conditions determined
by him or her, whether generally, or in relation to a particular lease granted
under clause 31.
Subclause 36(3) requires notice of a variation made by the Minister to be
given to the relevant owner of the land.
Subclause 36(4) makes provision for when a variation under
subclause 35(2) takes effect.
Subclause 36(5) makes clear that terms and conditions determined under
subclause 36(1) and a variation under subclause 36(2) are legislative
instruments, but they are not subject to disallowance. It is essential for all the
terms and conditions of a lease under clause 31 to be certain at the
commencement of the leases. It is also appropriate for the Minister to have
the power to vary these additional terms and conditions given that the major
terms of leases under clause 31 are in the bill. For this reason section 42 of
the Legislative Instruments Act, providing for disallowance has been
disapplied to the determination of additional terms and conditions.
Subclause 36(6) makes clear that terms and conditions determined by the
Minister under this clause may be varied only in accordance with this clause.
Subclause 37(1) provides for the termination of a right, title or interest
preserved under clause 32 and of a lease of land excluded, by clause 33,
from the lease granted under clause 31. The Commonwealth may terminate
such a right, title or interest, or lease, at any time while the lease granted
under clause 31 is in force.
Subclause 37(2) provides that this clause does not apply to certain rights
granted under the Land Rights Act.
Subclause 37(3) provides for the Commonwealth to terminate a right, title,
interest or a lease under this clause by giving notice to the holder of the right,
title, interest or lease. The Minister may also give notice to the relevant owner
of the land and to any other relevant person.
Subclause 37(4) provides for the notice to specify when the termination takes
effect, which must not be earlier than the day on which the notice is given to
the person who holds the right, title, interest or lease.
Subclause 37(5) is for the assistance of readers because a notice under this
clause is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act.
Subclause 37(6) makes its clear that a Land Trust may grant a lease under
section 19A even if a lease is granted under clause 31 of this bill.
27
Subclause 37(7) provides that the clause 31 lease is terminated if the Land
Trust grants a township lease that covers all the land covered by the
clause 31 lease.
Subclause 37(8) deals with the situation where a township lease covers only
part of the land over which a clause 31 lease exists. In such a case, the
clause 31 lease is varied to exclude the part covered by the township lease.
Subclause 37(9) provides for when the termination or variation takes effect.
Subdivision B - Special provisions relating to particular land
Clause 38 provides for the continuation of the traditional land claim made
under section 50(1)(a) of the Land Rights Act over Canteen Creek.
Subclause 38(1) provides for the grant of the lease under clause 31 of the
land under the heading Canteen Creek in Part 3 of Schedule 1 to have effect
despite section 67A of the Land Rights Act.
Subclause 38(2) makes it clear that the grant of a lease under clause 31 has
no effect on an application made under section 50(1)(a) of the Land Rights
Act which has not been finally disposed of before the lease takes effect.
Subclause 38(3) provides that, if a deed of grant of an estate in fee simple in
that land is executed as a result of such an application, the deed is of no
effect until the clause 31 lease ends.
Clause 39 provides for the circumstances at Daly River and applies despite
clause 33. Subclause 39(1) provides for the variation of a lease (the earlier
lease) in force over land under the heading Daly River, in Part 3 of
Schedule 1, at the commencement of the lease granted under clause 31.
The variation of the earlier lease excludes the land the subject of the
clause 31 lease from the earlier lease from that time.
Subclause 39(3) makes it clear that the earlier lease is not otherwise affected
by the grant of the clause 31 lease.
Subclause 39(4) provides for the earlier lease to be varied, if it is still in force,
to include the land excluded under subclause 39(1) when the lease granted
to the Commonwealth under clause 31 comes to an end.
Subclause 39(5) makes clear that a variation of the earlier lease under
subclause 39(4) takes effect when the clause 31 lease ends.
Clause 40 makes provision for the circumstances at Finke and Kalkarindji
where there is an existing lease and applies despite clause 33. In Finke and
Kalkarindji, earlier leases to the leaseholders referred to in paragraph (e) of
the definition of `relevant owner' are suspended for so long as the lease to the
Commonwealth under clause 31 is in force. The suspension ends when the
lease to the Commonwealth under clause 31 ends.
28
Clause 41 provides for section 20(2) of the Crown Lands Act to have effect in
relation to community living areas in Part 2 of Schedule 1, covered by a
lease granted under clause 31, as if the reference to the Minister in that
section includes the Commonwealth Minister.
Clause 42(1) provides for rights of way where a lease granted under
clause 31 includes more than one area of land to enable the Commonwealth,
its employees and agents to access all of those areas of land by using
existing roads and tracks between the areas of land.
Subclause 42(2) makes similar provision for rights of way where land covered
by a lease under clause 31 forms part of a grant of land (a community living
area) under section 46(1A) of the Lands Acquisition Act of the Northern
Territory. The provision also applies to certain other land. Where a road
through another part of the land gives access to the land covered by the lease
under clause 31, the Commonwealth, its employees and agents have a right
to use that road to access the leased land.
Division 2 - Acquisition of rights, titles and interests relating to town
camps
Subdivision A - Resumption and forfeiture of land under the Special Purposes
Leases Act
Subdivision A allows the Commonwealth Minister to exercise the powers of
the Northern Territory Minister or Administrator, as modified by this
Subdivision, in relation to the forfeiture and resumption of special purpose
leases.
Clause 43 provides that the Special Purposes Leases Act, as modified by
this Subdivision, has effect in relation to the town camps identified in Part 4 of
Schedule 1 to the bill, and any other town camps in the Northern Territory
prescribed by the regulations for the purposes of this clause.
The Special Purposes Leases Act, as modified by this Subdivision, operates
as a law of the Northern Territory.
Clause 44 provides for the modifications of the Special Purposes Leases Act
to permit the Commonwealth Minister to forfeit a special purposes lease,
and to resume land included in a special purposes lease.
Subclause 44(1) modifies the Special Purposes Leases Act to enable the
Commonwealth Minister to forfeit a special purpose lease over land referred
to in clause 43 on the same grounds (except one) as those on which the
Northern Territory Minister may forfeit such a lease. The same objection
processes and compensation entitlements apply where the Commonwealth
Minister exercises the power of forfeiture as where the Northern Territory
Minister exercises the power. Any compensation payable under the Special
Purposes Leases Act is payable by the Commonwealth.
29
The Special Purposes Leases Act is also modified to enable the
Commonwealth Minister to exercise the Northern Territory Administrator's
power to resume land included in a special purposes lease over land referred
to in clause 43 for the same reasons as the Northern Territory Administrator
may resume the land. Where the Commonwealth Minister exercises the
power of resumption, not less than 60 days notice must be given. The same
objection processes and compensation entitlements apply where the
Commonwealth Minister exercises the power of forfeiture as where the
Northern Territory Administrator exercises the power. Any compensation
payable under the Special Purposes Leases Act is payable by the
Commonwealth.
Subclause 44(2) makes it clear that, in exercising the powers of forfeiture and
resumption under this clause, the Commonwealth Minister acts in place of the
Northern Territory Minister or the Northern Territory Administrator, as the case
may be.
Subclause 44(3) provides that the regulations may make further modifications
to the Special Purposes Leases Act for the purposes of this clause.
Subclause 44(4) ensures that the Commonwealth Minister may commence
action to forfeit leases and resume land referred to in clause 43, under the
Special Purposes Leases Act, only for the period of five years after the
commencement of this provision
Subdivision B - Resumption and forfeiture of land under the Crown Lands Act
Subdivision B allows the Commonwealth Minister to exercise the powers of
the Northern Territory Minister or the Administrator, as modified in this
subdivision, in relation to the forfeiture and resumption of Crown leases.
Clause 45 provides that the Crown Lands Act, as modified by this
Subdivision, has effect in relation to the town camps identified in Part 4 of
Schedule 1 to the bill, and any other town camps in the Northern Territory
prescribed by the regulations for the purposes of this clause.
The Crown Lands Act, as modified by this Subdivision, operates as a law of
the Northern Territory.
Clause 46 provides for the modifications of the Crown Lands Act to permit the
Commonwealth Minister to forfeit a lease granted under the Crown Lands Act,
and to resume land included in a lease granted under that Act.
30
Subclause 46 (1) empowers the Commonwealth Minister to take action to
forfeit a lease over land referred to in clause 45 on the same grounds as
those on which the Northern Territory Minister may take action to forfeit such
a lease. The same objection processes and compensation entitlements apply
where the Commonwealth Minister exercises the power of forfeiture as where
the Northern Territory Minister exercises the power. Any compensation
payable under the Crown Lands Act is payable by the Commonwealth.
The Commonwealth Minister is also empowered to exercise the Northern
Territory Administrator's power to resume land included in a lease over land
referred to in clause 45 for the same reasons as the Northern Territory
Administrator may resume the land. Where the Commonwealth Minister
exercises the power of resumption, not less than 60 days notice must be
given. The same objection processes apply where the Commonwealth
Minister exercises the power of forfeiture as where the Northern Territory
Administrator exercises the power. Any compensation payable under the
Crown Leases Act is payable by the Commonwealth.
Subclause 46(2) makes it clear that, in exercising the powers of forfeiture and
resumption under this clause, the Commonwealth Minister acts in place of the
Northern Territory Minister or the Northern Territory Administrator, as the case
may be.
Subclause 46(3) provides that the regulations may make further modifications
to the Crown Lands Act for the purposes of this clause.
Subclause 46(4) ensures that the Commonwealth Minister may commence
action to forfeit leases and resume land referred to in clause 45, under the
Crown Lands Act, only for the period of five years after the commencement of
this provision
Subdivision C - Vesting rights, titles and interests in land in the
Commonwealth
Clause 47 enables the Commonwealth to acquire long term rights, titles and
interests, including freehold title, in town camps, that is, land which is the
subject of a lease under the Special Purposes Leases Act or the Crown Lands
Act and is referred to in Part 4 of Schedule 1 or in regulations made for the
purposes of this provision. (Note that land may be removed from Part 4 of
Schedule 1 by regulations referred to in clause 64.)
The Commonwealth acquires the Commonwealth interest by giving the
Northern Territory Government a notice under subclause 47(1) specifying the
land. The notice may also specify rights, titles and interests that are
preserved under clause 48.
31
Subclause 47(2) provides that the Commonwealth may give notice under
subclause 47(1) in relation to a lease, or land covered by a lease, under the
Special Purposes Leases Act or the Crown Lands Act even if the
Commonwealth Minister or the Northern Territory Minister has not taken any
action to forfeit the lease or resume the land the subject of the lease.
Subclause 47(3) provides that, subject to clause 48 (which deals with the
preservation of special rights, titles and interests) and clause 51 (which deals
with any native title rights and interests), the Commonwealth interest vests in
the Commonwealth and is freed from all other rights, titles and interests,
trusts, restrictions, mortgages, licences, contracts and charges.
Subclause 47(4) provides that the Commonwealth interest vests by force of
this provision at the time specified in the notice which cannot be earlier than
the day on which the notice is given under subclause 47(1).
Subclauses 47(5) and (6) provides for the notice to be published in the
Commonwealth Gazette within 7 days but that failure to comply with this
notice requirement does not invalidate the notice.
Subclause 47(7) is for the assistance of readers as the notice given under
subclause 47(1) is not a legislative instrument within the meaning of section 5
of the Legislative Instruments Act.
Subclause 47(8) ensures that the Commonwealth Minister may give a notice
under this section only for the period of five years after the commencement of
this provision.
Subclause 47(9) excludes rights, titles and interests in minerals, petroleum
and gas from the rights, titles and interests which the Commonwealth may
acquire under this provision.
Clause 48(1) provides for the preservation of certain rights, titles and interests
in relation to land specified in a notice under subclause 47(1) where the
notice specifies those rights, titles and interests as rights, titles and interests
to be preserved.
Subclause 48(2) provides that, where a right, title or interest in land is
preserved under subclause 48(1), the Commonwealth Minister may make a
determination that the preserved right, title or interest has effect, for so long
as the Commonwealth holds the Commonwealth interest in the land, as if it
were granted by the Commonwealth on the same terms and conditions as
applied immediately before the notice was given.
Subclause 48(3) provides that the Commonwealth Minister must give a copy
of a determination made under subclause 48(2) to the holder of the
preserved right, title or interest and may give a copy of the determination to
any other relevant person.
32
Subclause 48(4) provides that a determination under subclause 48(2) takes
effect at the time specified in the determination and cannot take effect earlier
than the day when the determination is given to the holder of the preserved
interest.
Subclause 48(5) is for the assistance of readers as the determination given
under this clause is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act. .
Subclause 48(6) extends the meaning of `right, title or interest' in this clause
to include a licence.
Clause 49(1) provides for the termination by the Commonwealth of certain
rights, titles and interests in land which have been preserved under
clause 48. The Commonwealth may only terminate such rights, titles and
interests for so long as the Commonwealth holds the Commonwealth interest.
Clause 49(2) provides that the Commonwealth terminates a right, title or
interest in land under this clause by giving notice in writing to the holder of the
right, title or interest. The Minister may also give a copy to any other relevant
person.
Clause 49(3) provides that the termination of the right, title or interest takes
effect by operation of the clause at the time specified in the notice which
cannot be earlier than the day on which the notice is given to the holder of the
right, title or interest.
Clause 49(4) is for the assistance of readers as the notice given under
subclause 49(3) is not a legislative instrument within the meaning of section 5
of the Legislative Instruments Act.
Division 3 - Effect of other laws in relation to land covered by this Part
Clause 50 provides for Divisions 1 and 2 of this Part and clause 52 to have
effect despite the provisions of any other law of the Commonwealth or of the
Northern Territory and, in particular, despite the provisions of the Lands
Acquisition Act 1989.
The 'future act' provisions in the Native Title Act 1993 (Native Title Act)
currently do not apply to Aboriginal land granted under the Aboriginal Land
Rights (Northern Territory) Act 1976 (Land Rights Act) (see subsection 233(3)
of the Native Title Act, and subparagraph (a)(iii) of the definition of
'Aboriginal/Torres Strait Islander land or waters' in section 253 of that Act).
Clause 51 deals with possible native title issues for land covered by Part 4.
The 'future act' provisions in the Native Title Act currently do not apply to
Aboriginal land granted under the Land Rights Act (see subsection 233(3) of
the Native Title Act) and subparagraph (a)(iii) of the definition of
'Aboriginal/Torres Strait Islander land or waters' in section 253 of that Act.
33
Subparagraph 51(1)(a)(i) and paragraph 51(1)(e) provide that if native title
exists in respect of any land the subject of a lease granted by force of
subclause 31(1) then, whether or not the land is Aboriginal land granted
under the Land Rights Act, the 'future act' provisions in the Native Title Act do
not apply in relation to:
· the grant of the lease; or
· any act that is related to the grant of the lease (for example, ancillary
measures done under other Commonwealth or Northern Territory laws,
such as the grant of licences or permits, that may be required in order
to build or refurbish houses and infrastructure in the lease area).
Subparagraph 51(1)(a)(ii) and paragraph 51(1)(e) provide that if any native
title exists in respect of town camp land in respect of which rights, titles and
interests are vested in the Commonwealth under clause 47, then the `future
act' provisions in the Native Title Act do not apply in relation to:
· the vesting; or
· any act that is related to the vesting (for example ancillary measures
done under other Commonwealth or Northern Territory laws).
Paragraphs 51(1)(b) and (e) provide that if any native title exists in respect of
any land in relation to which any other act is done by, under or in accordance
with any other provision of Part 4, or any act that is related to such other act
(for example, ancillary measures done under other Commonwealth or
Northern Territory laws), then the `future act' provisions in the Native Title Act
do not apply to the act.
Paragraphs 51(1)(c) and (e) provide that if any native title exists in respect of
land that is resumed, or in respect of which a lease is forfeited in accordance
with Division 2 of Part 4, then the 'future act' provisions in the Native Title Act
do not apply to:
· any act done on that land by the Commonwealth, the Northern
Territory, or an Authority within the meaning of the Land Rights Act, in
the five year period from the day this clause commences, other than
land in which a Commonwealth interest exists; or
· any act that is related to such an act (for example, ancillary measures
done under other Commonwealth or Northern Territory laws).
Paragraphs 51(1)(d) and (e) provide that if any native title exists in respect of
any land on which a Commonwealth interest exists, then the `future act'
provisions in the Native Title Act do not apply in relation to:
· any act done on that land by the Commonwealth, the Northern Territory
or an Authority within the meaning of the Land Rights Act; or
34
· any act that is related to such an act (for example, ancillary measures
done under other Commonwealth or Northern Territory laws).
If native title exists in respect of land the subject of the acts covered by
subclause 51(1), subclause 51(2) provides that the 'non-extinguishment
principle' applies to the acts. The 'non-extinguishment principle' is defined in
section 238 of the Native Title Act. When the non-extinguishment principle
applies to an act, native title is suppressed, but not extinguished, while the act
remains in force. When the act is removed or otherwise ceases to have
effect, any native title can again have full effect subject to any other acts
which remain in force.
Subclause 51(3) defines `Authority' as having the meaning in the Land Rights
Act.
Clause 52 provides for the interaction of the five year leasing provisions with
various provisions in the Land Rights Act. Subclauses 52(1) and (2) enable a
Land Trust to grant a lease (under section 19 of the Land Rights Act) of land
covered by a lease under clause 31, with the written consent of the Minister.
If this occurs the land covered by the lease under clause 31 is varied by force
of subclause 52(3) to exclude the land covered by the section 19 lease.
Subclause 52(4) provides that such a variation takes effect at the time the
section 19 lease takes effect. Subclause 52(5) makes clear that a Land Trust
can not otherwise deal with estates or interests in land covered by a lease
under clause 31.
Subclause 52(6) provides that section 27(3) of the Land Rights Act (requiring
Ministerial consent to contracts) does not apply if the Land Trust and the
Commonwealth agree on the amount of compensation to be paid for a lease
under clause 31.
Subclause 52(7) makes clear that where the Commonwealth grants interests
under clause 34(5), the provisions in subsection 19(8) of the Land Rights Act
requiring the consent of the Land Council do not apply.
Subclause 52(8) makes clear that any compensation paid to a Land Council
(on behalf of a Land Trust) in relation to a lease under clause 31 must be
paid out in accordance with subsection 35(4) of the Land Rights Act.
Clause 53 provides for section 18 of the Public Works Committee Act 1969 to
have no application to work proposed to be carried out on land covered by a
lease granted under clause 31;
· land in which a Commonwealth interest exists; or
· land which has been resumed or forfeited by the Commonwealth in
accordance with Division 2 of this Part but in which there is no
Commonwealth interest.
35
In relation to land resumed or forfeited in accordance with Division 2 of this
Part in which there is no Commonwealth interest, section 18 of the Public
Works Committee Act 1969 has no application only for the period of five years
after the commencement of this clause.
Clause 54 provides that the Minister may, in a legislative instrument, specify
other laws of the Commonwealth which have no effect to the extent that they
regulate, hinder, or prevent the doing of an act in relation to:
· land covered by a lease granted under clause 31;
· land in which a Commonwealth interest exist; or
· land which has been resumed or forfeited by the Commonwealth in
accordance with Division 2 of this Part but in which there is no
Commonwealth interest.
In relation to land resumed or forfeited in accordance with Division 2 of this
Part, in which there is no Commonwealth interest, these other Commonwealth
laws will not apply only for the period of five years after the commencement of
this clause.
This is to ensure that the implementation of the emergency response is not
prevented by the operation of particular Commonwealth laws.
Clause 55 provides that the Minister may lodge with the Northern Territory
Registrar-General, or other appropriate officer, notification certified by the
Minister of dealings in land which are effected by or under this bill. The
dealings in land are specified in subclause 55(1) and include the grant of a
lease under clause 31, the variation or termination of such a lease, the
termination of a right, title, interest or lease under clause 36 or 49, the vesting
of rights, titles and interests in land under clause 47, and any other dealing in
land that occurs under or by force of the bill or the Special Purposes Leases
Act or the Crown Lands Act for the purposes of this bill.
Subclause 55(3) requires the officer with whom the notification is lodged in
accordance with subclause 55(2), to give effect to it as if it were a grant,
conveyance, memorandum or instrument of transfer under Northern Territory
law.
Clause 56 provides exemptions from Northern Territory stamp duty and
similar taxes in relation to the grant or variation of a lease granted under
clause 31, the vesting of rights, titles and interests under clause 47, and the
grant of any sublease by the Commonwealth under subclause 34(5).
Clause 57 disapplies, in relation to land covered by a lease under clause 31,
the procedures for subdivision under Northern Territory laws relating to the
transfer of land.
36
Clause 58 enables the Governor-General to make regulations to modify the
effect of certain Northern Territory laws in relation to:
· land covered by a lease granted under clause 31;
· land in which a Commonwealth interest exists; and
· land which has been resumed or forfeited by the Commonwealth in
accordance with Division 2 of this Part but in which there is no
Commonwealth interest.
In relation to land resumed or forfeited in accordance with Division 2 of this
Part, in which there is no Commonwealth interest, regulations made in
accordance with this clause may modify the effect of Northern Territory laws
only for the period of five years after the commencement of this clause.
This is to ensure that the implementation of the emergency response is not
prevented by the operation of particular Northern Territory laws.
Clause 59 preserves the application of Northern Territory laws to:
· land covered by a lease granted under clause 31;
· land in which a Commonwealth interest exists; and
· land which has been resumed or forfeited by the Commonwealth in
accordance with Division 2 of this Part but in which there is no
Commonwealth interest
to the extent that they can operate concurrently with this bill or regulations.
This clause applies in relation to land resumed or forfeited in accordance with
Division 2 of this Part, in which there is no Commonwealth interest, only for a
period of five years after the commencement of this clause.
Division 4 - Miscellaneous
Clause 60 provides for the payment of compensation for acquisition of
property.
Subclause 60(1) disapplies subsection 50(2) of the Northern Territory (Self-
Government) Act 1978 in relation to any acquisition of property that occurs as
a result of:
· the operation of this part of the bill;
37
· any act done in relation to land covered by a lease granted under
clause 31, land on town camps resumed or in respect of which a lease
is forfeited by the Commonwealth under the Special Purposes Leases
Act or the Crown Lands Act, or land in which a Commonwealth interest
exists; or
· any act done by the Commonwealth Minister under the Special
Purposes Leases Act or the Crown Lands Act.
Subclause 60(2) provides that if any of the matters referred to in
subclause 60(1) would result in an acquisition of property from a person
within the meaning of section 51(xxxi) of the Constitution, otherwise than on
just terms, the Commonwealth is liable to pay reasonable compensation to the
person.
Subclause 60(3) provides that, if the amount of compensation cannot be
agreed between the Commonwealth and the person, the person may take
proceedings in a court of competent jurisdiction for a determination of
reasonable compensation.
Subclause 60(4) defines acquisition of property and just terms for the
purposes of subclause 60(2). These terms are defined as having the same
meanings as in section 51(xxxi) of the Constitution.
Clause 61 provides for certain matters which the court must take into account
in determining a reasonable amount of compensation. These are any amounts
of rent paid or payable under clause 62 in respect of land covered by a lease
under clause 31, any amounts of compensation paid or payable by the
Commonwealth under the Special Purposes Leases Act or the Crown Lands
Act in respect of the resumption or forfeiture of leases over town camps, and
any improvements funded by the Commonwealth at any time.
Subclause 62(1) provides that the Commonwealth Minister may ask the
Northern Territory Valuer-General to determine a reasonable rent to be paid
by the Commonwealth for land covered by a lease under clause 31. Where
the lease is varied to exclude land, the Minister may request that a new
reasonable rent be determined.
Subclause 62(2) provides that the Valuer-General must comply with such a
request.
Subclause 62(3) provides the Valuer-General with powers under the
Valuation of Land Act of the Northern Territory to assist him comply with the
request, including the power of delegation.
Subclause 62(4) provides for the Valuer-General not to take account of the
value of improvements on the land in determining a reasonable rent.
38
Subclause 62(5) provides for the Commonwealth to pay the amount of
reasonable rent determined by the Valuer-General to the relevant owner of
the land for so long as the lease under clause 31 is in force.
Clause 63 provides for special appropriations for amounts payable by the
Commonwealth under clauses 60 and 62, under the Special Purposes
Leases Act, the Crown Lands Act, and for amounts which have been received
by the Commonwealth and are to be paid to the relevant owner of the land.
Subclause 64(1) provides power for the regulations to remove, at any time,
areas of land included in Part 4 of Schedule 1 from the Schedule. This
power is intended for use in situations where, for example, an Indigenous
housing organisation subleases all or a substantial part of its leasehold to the
Northern Territory Government on a long-term (99 year) basis.
Subclause 64(2) provides that amendments made under subclause 64(1)
are to be treated for the purposes of the Amendments Incorporation Act 1905
as if they were made by an Act.
39
Part 5 - Business management areas
Division 1 - Funding agreements
Division 1 provides the Commonwealth with powers to vary and terminate
Commonwealth funding agreements, under which funding is provided to
communities in the business management areas, during the period of the
emergency response. These powers will be able to be exercised on the
Commonwealth's behalf by the agency responsible for the funding and the
agency's representatives as provided for under the relevant agreement.
The purpose of Division 1 is to allow the Commonwealth to adjust the
allocation and management of funding provided to communities in the
business management areas in order to respond to the needs and priorities of
the emergency response.
Clause 65 enables the Commonwealth to vary or terminate funding
agreements.
Subclause 65(1) provides that the power to vary a funding agreement and the
deemed inclusion of the clause at Schedule 3 will apply to any funding
agreements that are current at the time of commencement and any funding
agreements entered into on or after the day of commencement.
Subclause 65(2) provides for the Commonwealth to make variations to
funding agreements with respect to matters concerning the management of
the funding. The Commonwealth will be able to vary a funding agreement by
including new terms and conditions or omitting existing terms and conditions
with respect to the release of funding, the ways funds are to be spent,
reporting requirements, the appointment of a person to control the funds to be
paid under the agreement, and the use, management or security of assets
purchased with the funding.
Subclause 65(3) provides that where a funding agreement does not include a
clause in substantially the same terms as the standard clause set out at
Schedule 3 to the bill, that clause will be taken to be included in the
agreement.
The standard clause at Schedule 3 provides for the termination or reduction
in scope of an agreement at the discretion of the Commonwealth. This
standard clause is frequently included in Commonwealth funding agreements.
The deemed inclusion of such a standard clause in those funding agreements
in which it is not currently included, will ensure consistency in the terms and
conditions under which a funding agreement may be terminated, or reduced in
scope, throughout the communities included in the business management
areas.
40
A standard clause that enables the Commonwealth to either terminate or
reduce the scope of a funding agreement will allow the Commonwealth to
effectively respond to changes in Government policy and the needs and
priorities of the relevant communities and provide for the most efficient
allocation of funding.
Whereas the Commonwealth may be able to rely on the common law doctrine
of executive necessity to terminate an agreement, or reduce the scope of an
agreement in similar circumstances, the inclusion of the clause at Schedule 3
that expressly provides for this will also provide a mechanism for the
calculation of compensation payable by the Commonwealth.
Clause 66 deals with the effect of variations to funding agreements.
Subclause 66(1) provides that where a funding agreement is varied in
accordance with subclause 66(2), the variation will take effect on the day on
which the variation is made and have effect for the remainder of the term of
the agreement.
Subclause 66(2) provides that if a funding agreement is taken to be varied by
the inclusion of the clause at Schedule 3 to the bill, the variation will have
effect for the remainder of the agreement.
Division 2 - Directions for business management areas
The purpose of Division 2 is to allow the Minister to make directions with
respect to the provision of Commonwealth and Northern Territory funded
services and assets required for the delivery of those services in business
management areas. These powers will allow the Minister to respond to a
failure on the part of a relevant entity to provide the services for which it is
responsible and to ensure that the resources of the entity are efficiently
employed for the benefit of the community.
The powers to direct an entity in relation to the delivery of a service or assets
required for those services apply where an entity has received
Commonwealth or Northern Territory funding to provide those services. In
addition to services that have been directly funded by the Northern Territory or
the Commonwealth this will cover local government functions that may be
carried out by an entity using funds provided by grant from, or under an
agreement with, the Northern Territory or Commonwealth.
Subdivision A - Directions relating to services
Clause 67 provides that the Minister may give a direction to a community
services entity in relation to the delivery of services.
41
Subclause 67(1) sets out the circumstances in which the power to give a
direction to a community services entity in relation to the delivery of a service
will be available. Subclause 67(1) provides that this power applies if the
Minister is satisfied that a service is either not being provided in a business
management area, or is not being adequately provided, and Commonwealth
or Northern Territory funding has been provided that could be used by the
community services entity to provide that service.
Subclause 67(2) provides that a direction may be given to a community
services entity to provide a service, to deliver a service in a specified way
(including by directing that a specified person is to do a specified thing in
relation to the provision of the service), or to provide a service within a
specified period.
Subclause 67(3) provides that a direction under subclause 67(2) may
incorporate any other instrument or writing as in force at the time of
incorporation or from time to time. This will permit the Minister, for example,
to direct a community services entity to provide a service in accordance with
Northern Territory or local government regulations or by-laws that regulate the
provision of similar services by local government bodies operating in other
communities in the Northern Territory.
Where a direction is given which requires that a service be delivered in
accordance with terms set out in another instrument, by allowing the terms of
that instrument to be incorporated as in force from time to time it will ensure
that the service continues to be delivered consistently with the standards, and
under the same conditions, that apply to the delivery of the service elsewhere.
Subclause 67(4) provides that a direction given under subclause 67(2) is a
legislative instrument for purposes of the Legislative Instruments Act. This is
declaratory only because a direction given under subclause 67(2) is a
Ministerial direction, and therefore neither disallowance of the instrument
under section 42 nor sunsetting of the instrument under Part 6 of the
Legislative Instruments Act apply by virtue of subsections 44(2) and 54(2) of
that Act, respectively.
Subdivision B - Directions relating to assets
Clause 68 provides that the Minister may give a direction to a community
services entity in relation to non-fixed assets that are required for the purpose
of delivering a Commonwealth or Northern Territory funded service in a
business management area.
42
Subclause 68(1) sets out the circumstances in which the power to give a
direction in relation to assets may be given to a community services entity.
Subclause 68(1) provides that this power applies if a community services
entity owns, controls or possesses an asset, the entity provides services in a
business management area and the Minister is satisfied that the use of the
asset is required for providing services in the same business management
area and funding has been provided by the Commonwealth or the Northern
Territory that could be used to provide those services.
Subclause 68(2) provides that a direction may be given to a community
services entity, for the purpose of providing funded services in an business
management area, to use an asset in a particular way, manage an asset in a
particular way, or to transfer ownership or possession of an asset to another
community services entity, the Commonwealth or a specified person.
Subclause 68(3) provides that if a direction is given to transfer an asset, the
Minister may also direct the transferee to use or manage the transferred asset
in a particular way, or transfer the asset to a community services entity, the
Commonwealth, or a specified person.
Subclause 68(4) provides that a direction under subclause 68(2) is a
legislative instrument for purposes of the Legislative Instruments Act. This is
declaratory only because a direction given under subclause 68(2) is a
Ministerial direction, and therefore neither disallowance of the instrument
under section 42 nor sunsetting of the instrument under Part 6 of the
Legislative Instruments Act apply by virtue of subsections 44(2) and 54(2) of
that Act, respectively.
Subdivision C - Compliance
Clause 69 provides that if a person does not comply with a direction given
under Division 2 (being a direction in relation to services in a business
management area or a direction in relation to the use or management of
assets required to be used in providing services in a business management
area) a civil penalty of up to 50 penalty units applies. (If an entity fails to
comply with a direction, an injunction may also be sought from the Federal
Court (see clause 89).)
Subdivision D - Miscellaneous
Clause 70 deals with how a direction relates to existing laws.
Subclause 70(1) provides that a direction given under this Division has effect
despite a Northern Territory law, an instrument made under a law of the
Northern Territory, or the constitution of a community services entity.
43
Subclause 70(2) provides that if a direction under section 181A of the Local
Government Act is in force at the time a direction under this Division is given,
then both directions apply to the extent that they can operate concurrently.
However, to the extent there is any inconsistency between the two directions,
the direction given under this Division prevails. Section 181A of the Local
Government Act provides that the relevant Northern Territory Minister can
direct a council which has failed to comply with a provision under that Act to
take certain action to comply with that provision. It is envisaged that
directions under section 181A of the Local Government Act might potentially
arise because many community services entities are community government
councils incorporated under the Local Government Act.
Clause 71 provides that in the event a direction is given to a community
services entity under this Division, the Minister may publish such a direction.
It is envisaged that publication will aid transparency and encourage
compliance with a direction.
Division 3 - Observers of community services entities
The purpose of Division 3 is to enable the Commonwealth to have access to,
and knowledge of, the workings of community services entities that perform
functions or provide Commonwealth or Northern Territory funded services
within business management areas. This will be done by allowing the
Commonwealth to appoint observers of such entities.
It is envisaged that this will provide for greater transparency of the operations
of these entities. Also, a better understanding of these entities will facilitate
better decision-making under Divisions 1 and 2 to Part 5 of the bill.
Clause 72 provides for the Minister to appoint observers to community
services entities.
Subclause 72(1) provides that the Minister may appoint one or more persons
to be an observer of a community services entity that performs functions or
provides services in a business management area.
Subclause 72(2) provides that an observer is entitled to attend the meetings
(however described) of a community services entity or a committee of the
entity.
Subclause 72(3) provides that an observer appointed to a community
services entity under subclause 73(1) has the same rights and obligations as
other members belonging to that entity, other than voting rights, and for the
purposes of section 48A of the Interpretation Act (Northern Territory) (which
provides for participation in meetings by telephone) is treated as a member.
Subclause 72(4) provides that the entitlement of an observer to attend
meetings extends to being present at any deliberations of the entity or
committee with respect to a matter or to be present during any voting of the
entity.
44
Subclause 72(5) provides that a community services entity must not impose
fees in respect of an observer appointed under clause 72.
Clause 73 provides that the Minister must give written notice to a community
services entity when a person is appointed as an observer. A community
services entity must give a person appointed as an observer notice of the time
and place of any meetings of the entity, copies of documents and papers to
be considered at the meetings and minutes of (or, if there are no minutes,
notices of decisions made at) previous meetings. If the entity is unable to do
this at the same time, and in the same way, as for other members of the
entity, then it must do so as quickly as reasonably possible.
Clause 74 provides that if a community services entity fails to comply with
requirements under clause 73 in relation to notifying observers at the same
time, and in the same manner, as for other members, a civil penalty of up to
50 penalty units applies.
Clause 75 provides that Division 3 of Part 5 applies despite a law or
instrument (however described) of the Northern Territory, or the constitution of
a community services entity.
Division 4 - Commonwealth management in business management
areas
The purpose of Division 4 is to modify Northern Territory legislation to give
the Commonwealth the same powers as the Northern Territory (with
necessary and appropriate modifications) to place certain types of community
services entit under external administration for failures relating to the provision
of Commonwealth or Northern Territory funded services in a business
management area.
The community services entities that are responsible for providing services in
business management areas are, for the most part, community government
councils incorporated under the Local Government Act, or incorporated
associations incorporated under the Associations Act. The effect of
Division 4 is to modify the Local Government Act and Associations Act to
confer powers under that legislation on the Commonwealth Minister.
Division 4 provides the Commonwealth Minister with the ability to exercise
specific powers that the relevant decision-makers under the Local
Government Act and the Associations Act, respectively, may exercise in
relation to the suspension and dismissal of members and the appointment of
external managers.
Division 4 does not deal with community services entities that are
corporations established under the Corporations (Aboriginal and Torres Strait
Islander) Act 2006 because that Act confers on the Registrar of Aboriginal and
Torres Strait Islander Corporations a power to appoint special administrators.
45
Subdivision A - Commonwealth management of community government
councils
Clause 76 provides that expressions used in Table 1 in Schedule 4 that are
defined in the Local Government Act have the same meaning as in that Act.
Clause 77 deals with the effect of the Local Government Act.
Subclause 77(1) provides that the Local Government Act has effect subject
to the modifications in this Subdivision in relation to community government
councils (as entities incorporated under that Act). The modifications of the
Local Government Act are set out in the other provisions of this Subdivision
and Table 1 in Schedule 4.
Subclause 77(2) provides that the Local Government Act, as modified by this
Subdivision, has effect as a law of the Northern Territory.
Clause 78 deals with Commonwealth management of community government
councils.
Subclause 78(1) provides that the Local Government Act has effect as if the
Commonwealth Minister had the same powers as the Northern Territory
Minister under Part 13 of that Act, but only in relation to community
government councils and subject to clause 78 (which among other things
modifies Part 13 of the Local Government Act). The effect is that the
Commonwealth Minister may exercise powers under Part 13 of the Local
Government Act, which deals with the suspension and dismissal of council
members and the appointment of external managers.
Subclause 78(2) places a limit on the Commonwealth Minister's power under
subsection 264(1) of the Local Government Act to suspend all the members of
a community government council, in that the Commonwealth Minister may
exercise the power only if the ground for suspension relates to the provision of
services by the council in a business management area, and the
Commonwealth Minister is satisfied that Commonwealth or Northern Territory
funding has been provided to the council that could be used to provide the
services.
Subclause 78(3) provides that the Local Government Act has effect in
relation to the exercise by the Commonwealth Minister of powers under that
Act as if that Act were modified as set out in Table 1 in Schedule 4 and as if
references in Part 13 of that Act to the Northern Territory Minister were
references to the Commonwealth Minister. The result is that the Local
Government Act is `modified' only to the extent necessary for the purpose of
allowing the Commonwealth Minister to exercise powers already provided for
under that Act.
46
The modifications set out in Table 1 in Schedule 4 will not affect the ordinary
use of these powers under Part 13 of the Local Government Act by the
Northern Territory Minister, except for the purpose of dealing with the
interaction of the Northern Territory Minister's and Commonwealth Minister's
powers. Therefore, for the purposes of the exercise of these powers by the
Northern Territory Minister, Part 13 will, in effect, operate without being
affected by most of these modifications. However, where there are express
limitations as set out under clause 12 in Table 1 of Schedule 4 in relation to
the exercise of the powers by the Northern Territory Minister, the Northern
Territory Minister must only exercise those powers in accordance with those
limitations.
Subclause 78(4) provides that, for the purposes of clause 78, Table 1 in
Schedule 4 (referred to in subclause 78(3)) may be amended by the
regulations. Table 1 in Schedule 4 provides specific modifications to Part 13
of the Local Government Act.
Table 1 sets out the modifications to the Local Government Act required at
the time of enactment, but it is considered necessary to include a power to
further modify that Act to deal with the possibility of the Northern Territory
Assembly amending that Act in the future. In addition, there are certain
aspects of the Local Government Act scheme (elections) for which
modification will only be necessary in particular contingencies.
The option of leaving the detailed modifications out of the bill and providing
generally for modifications by regulations (or other legislative instrument) was
considered. However, the current approach is preferred because the
Commonwealth Parliament will be able to enact the bill knowing exactly what
modifications are necessary (at least at the time of enactment).
Other options were considered such as providing for future modifications
directly by regulation, rather than by the amendment of the Schedule to the
Act. However, the proposed approach of providing for regulations to amend
the Schedule is preferred because:
· it will result in all modifications remaining in a single place (that is, the
Schedule); and
· it will make the modifications all accessible in progressive consolidated
versions of the Act as published. Readers will not have to access the
regulations as such to find out the current form of the modifications.
Subclause 78(5) provides that in the event amendments are made to Table 1
in Schedule 4 by the regulations, any reprint of the Act will incorporate these
amendments in Table 1. That is, for the purposes of the Amendments
Incorporation Act 1905, subclause 78(5) declares that any amendments
made to Table 1 in Schedule 4 are to be treated as if they were made by an
Act thus allowing any reprint of this Act to include these amendments.
47
Subdivision B - Commonwealth management of incorporated associations
Clause 79 provides that expressions used in Table 2 in Schedule 4 that are
defined in the Associations Act have the same meaning as in that Act.
Clause 80 deals with the effect of the Associations Act.
Subclause 80(1) provides that the Associations Act has effect subject to the
modifications in this Subdivision in relation to incorporated associations (as
entities incorporated under that Act).
Subclause 80(2) provides that the Associations Act, as modified by this
Subdivision, has effect as a law of the Northern Territory.
Clause 81 deals with Commonwealth management of incorporated
associations.
Subclause 81(1) provides that the Associations Act has effect as if the
Commonwealth Minister had the same powers as the Northern Territory
Commissioner of Consumer Affairs (who administers that Act) under
Division 2 of Part 9 of that Act in relation to an incorporated association, but
subject to clause 81 (which among other things modifies Division 2 of Part 9
of the Associations Act). The effect is that the Commonwealth Minister may
exercise powers under Northern Territory legislation. Division 2 of Part 9 of
the Associations Act deals with the appointment of statutory managers to
administer the affairs of incorporated associations.
Subclause 81(2) places a limit on the Commonwealth Minister's power under
subsection 78(1) of the Associations Act to appoint a statutory manager to
administer the affairs of an incorporated association, in that the
Commonwealth Minister may exercise the power only if the ground for
appointment relates to the provision of services by the association in a
business management area and the Commonwealth Minister is satisfied that
Commonwealth or Northern Territory funding has been provided to the
association that could be used to provide the services.
Subclause 81(3) provides that the Associations Act has effect in relation to
the exercise by the Commonwealth Minister of powers under that Act as if that
Act were modified as set out in Table 2 in Schedule 4 and as if references in
Division 2 of Part 9 of that Act to the Northern Territory Commissioner were
references to the Commonwealth Minister. The result is that the Associations
Act is `modified' Act only to the extent necessary for the purpose of allowing
the Commonwealth Minister to exercise powers already existing under that
Act.
48
The `modifications' set out in Table 2 in Schedule 4 will not affect the ordinary
use of these powers under Division 2 of Part 9 of the Associations Act by the
Northern Territory Commissioner, except for the purpose of dealing with the
interaction of the Northern Territory Commissioner's and Commonwealth
Minister's powers. Therefore, for the purposes of the exercise of these
powers by the Northern Territory Commissioner, Division 2 of Part 9 will, in
effect, operate without being affected by most of these modifications.
However, where there are express limitations as set out under clause 5 in
Table 2 of Schedule 4 in relation to the exercise of the powers by the
Northern Territory Commissioner, the Northern Territory Commissioner must
only exercise those powers in accordance with those limitations.
Subclause 81(4) provides that, for the purposes of clause 81, Table 2 in
Schedule 4 (referred to in subclause 81(3)) may be amended by the
regulations. Table 2 in Schedule 4 provides specific modifications to
Division 2 of Part 9 of the Associations Act. The reason for allowing that the
Schedule may be amended by regulations is substantially the same as set out
above in relation to subclause 78(4).
Subclause 81(5) provides that in the event amendments are made to Table 2
in Schedule 4 by the regulations, any reprint of the Act will incorporate these
amendments in Table 2. That is, for the purposes of the Amendments
Incorporation Act 1905, subclause 81(5) declares that any amendments
made to Table 2 in Schedule 4 are to be treated as if they were made by an
Act thus allowing any reprint of this Act to include these amendments.
Subclause 81(6) provides that the Northern Territory Commissioner means
the Commissioner within the meaning of the Associations Act, who is the
Commissioner for Consumer Affairs within the meaning of the Consumer
Affairs and Fair Trading Act (Northern Territory).
Division 5 - Enforcement
Subdivision A - Civil penalties
Clause 82 provides that the Federal Court may order a person to pay a
pecuniary penalty for contravening a civil penalty provision.
Subclause 82(1) provides that in the event a person has contravened a
direction given under clauses 67 and 68 or has contravened requirements
with respect to appointing observers under clause 73 (to which civil penalty
provisions in clauses 69 and 74 apply respectively), the Secretary may, within
6 years of that contravention, apply to the Federal Court for an order that the
person pay the Commonwealth a pecuniary penalty.
49
Subclause 82(2) provides that upon an application having been made to a
Federal Court under subclause 82(1), the Court may, if satisfied that the
person has contravened a civil penalty provision, order payment for each
contravention. However, the amount ordered to be paid for each
contravention must not exceed the maximum amount specified in the civil
penalty provision.
Subclause 82(3) provides the Court with a number of factors that it must
have regard to when determining the amount of a pecuniary penalty. These
factors include the nature and extent of the contravention.
Subclause 82(4) provides that the Court must apply the rules of evidence and
procedure for civil matters when hearing and determining such applications
made under clause 82.
Clause 83 provides that the contravention of a civil penalty provision applies
to persons who aid, abet, counsel or procure others to contravene a civil
penalty provision, or induce others to contravene a civil penalty provision, or
conspire to contravene a civil penalty provision.
Clause 84 provides that a Court may relieve a person who has contravened a
civil penalty provision either wholly or partly from liability if the person has a
reasonable excuse, and having regard to all the circumstances of the case,
the person ought fairly to be excused for contravening that provision.
The purpose for making available a defence based on grounds of a
`reasonable excuse' is that there will be some circumstances in which it would
be appropriate and fair to excuse a community services entity from liability for
failing to comply with a direction (clauses 67 and 68) or the requirements with
respect to appointing observers (clause 73). However, it is not possible to
anticipate all of the possible circumstances in which it would be appropriate to
excuse a community services entity from liability.
An additional reason for a comparatively broad defence like the `reasonable
excuse' defence is that in many remote communities it falls to a single
community services entity to provide all of a community's services. As such,
what might be appropriate as a defence for a failure to comply with a direction
in relation to one kind of service, could be very different from what might be
appropriate as a defence for a failure to comply with a direction to provide
another and completely unrelated kind of service.
Subclauses 84(2) to (4) provide that if a person has reason to believe that
proceedings for the contravention of clauses 69 or 74 will or may be begun
against that person, he or she may apply to the Federal Court for relief under
clause 84.
Clause 85 provides that, if necessary, the Commonwealth may enforce a
Court order in relation to the payment of a pecuniary penalty as if it was a
judgment of the Court.
50
Clause 86 provides that where the Secretary has reasonable grounds to
suspect that a person can give relevant information in relation to an
application for a civil penalty order under clause 82, the Secretary may, by
written notice to that person, require that person to give all reasonable
assistance in connection with the application made under clause 82. A failure
to comply with a request for assistance under subclause 86(2) is an offence
and a person who commits such an offence is liable to a penalty of up to
30 penalty units.
The purpose for clause 86 is to ensure that the Court is able to properly
consider an application made under clause 82.
Subclause 86(6) provides that a requirement made to a person by the
Secretary to give information under subclause 86(2) is not a legislative
instrument.
Clause 87 provides that where an act or thing is required to be done within a
specified period of time (for example, paragraph 67(2)(c) permits a direction
in relation to the provision of a service to specify a time frame), the obligation
to do the act or thing continues, despite the specified time period having
lapsed, until that act or thing is done. In the event a person refuses or fails to
comply with a requirement described under subclause 87(1) and the failure
or refusal contravenes a civil penalty provision, that person will be held to
have contravened the civil penalty provision for each day the person does not
comply with that requirement. The purpose of this provision is to ensure that
the requirement to comply with a relevant direction is ongoing until followed,
and the civil penalty provisions apply accordingly.
Subdivision B - Application of civil penalty provisions
Clause 88 provides that the civil penalty provisions created under this part
apply to a contravention that occurs on or after the 28th day after the day on
which this Act receives the Royal Assent.
Subdivision C - Injunctions
Clause 89 provides that if a person has engaged or is engaging in conduct or
has refused or is refusing or failing to do an act or thing that would contravene
this Part (other than a contravention in relation to Division 4) the Federal
Court may, on the application of the Minister or any person whose interests
have or might be affected by such conduct, grant an injunction on terms the
Court considers appropriate. The Court may also grant an interim injunction
pending the determination of a relevant application. If an interim injunction is
granted the Court must do so without requiring any undertakings from the
relevant parties in relation to damages.
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Part 6 - Bail and sentencing
On 14 July 2006, the Council of Australian Governments (COAG) agreed that
no customary law or cultural practice excuses, justifies, authorises, requires,
or lessens the seriousness of violence or sexual abuse. All jurisdictions
agreed that their laws would reflect this, if necessary by future amendment.
COAG also agreed to improve the effectiveness of bail provisions in providing
support and protection for victims and witnesses of violence and sexual
abuse.
The Commonwealth implemented the COAG decision through the Crimes
Amendment (Bail and Sentencing) Act 2006 (the Bail and Sentencing Act)
which applies to bail and sentencing discretion in relation to Commonwealth
offences. The Bail and Sentencing Act amended the Crimes Act 1914 (the
Crimes Act) to preclude consideration of customary law or cultural practice
from sentencing discretion and bail hearings as a reason for excusing,
justifying, authorising, requiring or lessening the seriousness of the criminal
behaviour to which the offence or alleged offence relates. The amendments
also preclude consideration of customary law or cultural practice as a reason
for aggravating the seriousness of the criminal behaviour to which the offence
relates.
The Bail and Sentencing Act also inserted provisions into the Crimes Act
requiring the relevant authority to consider the potential impact on victims and
witnesses, and specifically the potential impact on victims and witnesses in
remote communities, when granting and imposing bail conditions for
Commonwealth offences.
While Northern Territory legislation does not make specific provision regarding
the consideration of customary law or cultural practice in bail hearings, the
Government wishes to ensure that it is clear that such matters must not be
taken into consideration as lessening or aggravating the seriousness of the
alleged offender's criminal behaviour.
Although Northern Territory legislation requires a court to consider the
protection and welfare of the community in bail applications, it does not
specifically require the court to consider the potential impact on victims and
witnesses in remote communities.
Northern Territory legislation lists the factors a court shall have regard to in
sentencing an offender. This list refers generally to any aggravating or
mitigating factor concerning the offender and the extent to which the offender
is to blame for the offence, but does not specifically refer to customary law or
cultural practice.
The Government wishes to ensure that the decisions of COAG, as
implemented by the Bail and Sentencing Act, apply in relation to bail and
sentencing discretion for Northern Territory offences.
52
Section 122 of the Constitution provides the Commonwealth with a very broad
power to make laws directly regulating Territory matters, including in relation
to bail and sentencing. The Commonwealth provisions in Part 6 will prevail
over any inconsistent Territory laws. It is the Government's intention that, if
the Northern Territory enacts sufficiently complementary provisions, the
amendments made by Part 6 would be repealed.
Clause 90 sets out certain matters to be considered and matters precluded
from consideration, by a bail authority when granting bail and/or imposing
bail conditions on alleged offenders in relation to Northern Territory offences.
Paragraph 90(1)(a) requires a bail authority to consider the potential impact
of the bail authority's actions on victims and potential witnesses.
Subclause 90(2) further requires that where victims and potential witnesses
are living in, or located in, a `remote community', a bail authority in the
Northern Territory must take this into account when considering granting bail.
This is because remote communities are typically small and isolated, and
victims and potential witnesses in such communities face higher risks than
others when alleged offenders are released into their communities on bail.
This provision will ensure that bail authorities give appropriate weight to the
special circumstances of victims and potential witnesses in remote
communities.
Remote community is not a defined term. It will be a matter for the bail
authority to determine, on the facts of the case, whether an alleged victim or
potential witness is located in a remote community.
Paragraph 90(1)(b) prohibits a bail authority from taking into consideration
any form of customary law or cultural practice to lessen or aggravate the
seriousness of the alleged offender's criminal behaviour - and on that basis
influence the decision to grant bail to an alleged offender. A bail authority will
still be able to consider customary law or cultural practice in deciding whether
to grant bail, but this amendment makes clear that the decision should not be
based on whether the criminal behaviour would be assessed as less, or more
serious, due to customary law or cultural practice.
Bail authority and criminal behaviour are defined in clause 3.
Clause 91 expressly prohibits a court from taking into account customary law
or cultural practice as an excuse or justification for criminal behaviour when
sentencing a person for having committed a Northern Territory offence, thus
preventing a court from reducing the sentence imposed on an offender on the
basis of customary law or cultural practice. This clause also precludes a court
taking into account customary law or cultural practice as a reason for
aggravating the seriousness of criminal behaviour, thus preventing a court
from increasing the sentence imposed on an offender on the basis of
customary law or cultural practice.
Criminal behaviour is defined in clause 3.
53
Part 7 - Licensing of community stores
Part 7 introduces a new licensing regime applicable to persons who operate
community stores in Indigenous communities in the Northern Territory.
Community stores will be assessed by authorised officers who will be
empowered to enter the premises of community stores with consent, obtain
access to records and documents and request information from persons
relating to the assessment of a community store.
Assessments can be initiated by the Secretary without application and are
expected to commence shortly after Royal Assent. A person may also apply
for a community store licence.
The powers to make licensing decisions (to refuse to grant, grant, vary,
revoke, transfer or refuse to transfer) will be vested in the Secretary.
The basis of assessment will be the assessable matters set out in
clause 93.
The Minister will have discretion to make guidelines about the assessable
matters. These guidelines must be applied when making licensing decisions
when issued but, until the guidelines are made, are not a precondition to
making licensing decisions.
A non statutory Advisory Board comprised of people appointed by the Minister
with expertise in the retail food industry and other relevant fields will provide
input, as appropriate, into the assessment process, licensing decisions and
the development of the Ministerial guidelines.
Part 7 provides flexibility for conditions to be imposed upon holders of
licences such as a requirement to appoint an external or independent
manager.
As a last resort, the Commonwealth will also be able to acquire the assets
and liabilities of the community store business.
Part 7 is comprised of the following Divisions:
Division 1 Meaning of expressions
Division 2 Assessments of community stores
Division 3 Licensing of community stores
Division 4 Acquisition by the Commonwealth
Division 5 Authorised officers
Division 6 Other matters
54
Division 1 - Meaning of expressions
Clause 92 defines community store.
Subclause 92(1) provides that a business will be regarded as a community
store if:
· one of the main purposes of the business is the provision of grocery
items and drinks; and
· the business is carried on at premises located in a prescribed area; or
at premises located in an area or place in the Northern Territory or
specified premises in the Northern Territory covered by a legislative
instrument issued by the Minister under subclause 123(1) or 123(2).
It is sufficient for the purposes of subclause 92(1) that `one of the main
purposes' of the business be the provision of grocery items and drinks. This
is intended to cover mixed businesses (which may be co-located with a
takeaway food outlet or a fuel outlet) which also sell grocery items and drinks
as one of its main purposes.
The reference to prescribed area in paragraph 92(1)(a) refers the reader to
the definition of prescribed areas contained in clause 4 of the bill and covers
the premises of a community store located on:
· land covered by paragraph (a) of the definition of `Aboriginal land' in
subclause 3(1) of the Land Rights Act. This refers to land held by an
Aboriginal land trust for an estate in fee simple established under the
Land Rights Act and covers the majority of community stores (see
paragraph 4(2)(a));
· community living areas as declared under the Pastoral Leases Act of
the Northern Territory (see paragraph 4(2)(c)); and
· areas in the Northern Territory known as town camps and the subject
of a declaration by the Minister under subclause 4(3) (see
paragraph4(2)(d)). If the Minister has not made a declaration under
subclause 4(3) in respect of the town camp in which the store is
located, the Minister could still bring a specific business within the
definition of `community store' by exercising his power under
subclause 123(1) or 123(2).
Paragraph 4(2)(b) also covers `any roads, rivers, streams, estuaries or other
areas' as defined. Roadhouses have been excluded from the definition of
`community store' (see paragraph 92(2)(b) below) to ensure that these
businesses are not covered by the licensing scheme because of the
application of paragraph 4(2)(b).
Subclause 92(2) defines what businesses are not to be regarded as
community stores as follows:
55
· a business that is solely a takeaway food shop or a fast food shop
(including shops at which takeaway or fast food can be consumed on
the premises);
· a roadhouse;
· a business at premises located in an area or place in the Northern
Territory or a specified business at premises located in the Northern
Territory that is covered by a legislative instrument issued under
subclause 123(3) or 123(4); and
· a business `of a kind' prescribed by the regulations.
The regulations referred to in paragraph 92(2)(d) provide the flexibility to
cover other kinds of businesses (in addition to takeaway food shops or
roadhouses which are already excluded) that are not to be subject to the
definition.
The Secretary, in making licensing decisions will be required to have regard to
certain matters described as `assessable matters'. The assessable matters
are relevant to the provision of high quality community store services to
Indigenous communities. Subclause 93(1) defines the assessable matters.
There are five assessable matters as follows:
i. The community store's capacity to participate in, and (if applicable) the
community store's record of compliance with, the requirements of the
income management regime.
The delivery of the income management regime may involve arrangements
where a portion of a welfare recipient's payment will be paid to an account
established for this purpose by a community store so that the recipient can
use the amounts credited to purchase food and other goods from the store.
A community store will need to be able to satisfy the Secretary that it has the
capacity to participate in the income management regime. This involves
consideration of the store's capability to participate in the income
management scheme. Alternatively, the community store should be able to
demonstrate a sound record of compliance with the requirements of the
income management regime.
ii. The quality, quantity and range of groceries and consumer items,
including healthy food and drink, available and promoted at the
community store.
The assessment of the store will include an examination of the quality,
quantity and range of groceries including healthy food and drink. The quality,
quantity and range of other consumer items includes items such as cleaning
aids and appliances and other personal hygiene products of importance to the
overall health and wellbeing of the Indigenous community.
56
iii. The financial structure, retail practices and governance practices of
the community store;
The assessment of the financial structures of the store may include an
assessment of all sources of income and all outgoing expenses of the
community store and the balance between the two. The examination of retail
practices may include an examination of the pricing strategy of the store,
particularly where stores have a near monopoly in communities.
iv. Any matter specified by the Minister under subclause 125(2) to be
an assessable matter;
The Minister will also have the power to determine further assessable matters
by legislative instrument under subclause 125(2). This gives flexibility to add
further assessable matters if more are identified at a future stage.
v. Any other matter that the Secretary considers relevant to the
provision of high quality community store services.
This is intended to give the Secretary capacity to take into account any other
matter that is not explicitly addressed in the assessable matters provided that
the matter is relevant to the provision of high quality community store
services.
Subclause 93(2) is intended to ensure that both the current and future state
of affairs is able to be considered in all cases, not just where the person is not
a current operator, when considering whether to grant a community store
licence to a person. The Secretary may consider the assessable matters:
· as they apply to a community store of which the person is the operator
at the time of the consideration; or
· as the person proposes that they will apply in future to a community
store of which the person is the operator at the time of the
consideration; or a community store that the person proposes to
operate, or may operate, in future.
Subclause 93(3) is similar in intent to subclause 93(2) and applies for the
purpose of considering whether to revoke, vary, transfer or impose conditions
upon a community store licence. In this context, the Secretary may consider
the assessable matters as they apply to the community store to which the
licence relates or will relate at the time of the consideration, or as they are
proposed to apply to the store in future.
57
The Minister may also issue guidelines about how the assessable matters are
to apply to various licensing decisions made under Part 7 (see clause 125).
These guidelines are not a necessary precondition to the Secretary making
various licensing decisions under Part 7; however, if the Minister chooses to
make these guidelines, they must be taken into account by the Secretary in
making licensing decisions.
Division 2 - Assessments of community stores
Subclause 94(1) provides that the Secretary will be able to initiate
assessments of community stores without the need for the operator to make
an application for the community store licence.
The assessment will be carried out at the premises of the community store by
an authorised officer (see clause 116) and by other officers assisting the
authorised officer. The assessment is for the purpose of deciding whether or
not to grant a community store licence to the operator of the store, or deciding
whether to revoke, vary, transfer or impose conditions upon a community
store licence.
The authorised officers will provide their assessment to the Secretary for
decision. It is intended that authorised officers may consult with the
independent Advisory Board' in preparing an assessment for submission to
the Secretary (see explanation for subclause 95(3)).
The provisions in Division 2 will commence the day after the day the Act
receives Royal Assent to enable assessments to begin as soon as possible
after Royal Assent is given.
Before an assessment of a community store can be carried out, clause 95
requires a notice of assessment to be given.
Subclause 94(2) provides that in assessing a community store, an authorised
officer must have regard to the assessable matters (see clause 125).
Subclause 94(3) enables an authorised officer to consult with such persons
as the authorised officer considers appropriate. It is envisaged that for the
purposes of this subclause, authorised officers may send their reports initially
to an independent Advisory Board. The Advisory Board will be a non
statutory Board established by the Minister to advise the Minister and
Secretary about the licensing arrangements in general (including the
operation of the scheme). The Advisory Board will also provide expert input
into the development of the Ministerial guidelines under clause 125 and
provide advice to the Secretary on assessments of community stores as
appropriate.
An authorised officer may be required to assess a community store whether
or not the operator has made an application under clause 96
(subclause 94(4)).
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Clause 95 sets out the requirements for notices of assessment.
Subclause 95(1) requires that before a community store can be assessed the
Secretary (or an authorised officer) must give written notice to the operator of
the store, advising that the assessment is to take place.
Subclause 95(2) sets out the requirements of the notice of assessment. The
notice must specify the day or days on which, or the period within which, entry
to the store is required, the name of the authorised officer or authorised
officers who will conduct the assessment, the purpose of the assessment (for
example, if it relates to a grant or variation of the licence), the matters to
which the authorised officer will have regard in making the assessment and
the material and documents to which the authorised officer requires access to
for the purposes of making the assessment.
Subclause 95(3) provides that the notice must be given at least 7 working
days before the assessment is to take place.
Division 3: Licensing of community stores
The powers to grant, refuse to grant, revoke, vary, transfer and refuse to
transfer a community store licence are vested in the Secretary. For
convenience, the differing types of licensing decisions that can be made are
dealt with in different subdivisions within Division 3.
Division 3 is structured as follows:
Subdivision A Granting and refusing to grant community store
licences
Subdivision B Conditions of community store licences
Subdivision C Revocation and variation of community store
licences
Subdivision D Surrender and transfer of community store
licences
Subdivision A - Granting and refusing to grant community store licences.
Clause 96 provides for a mechanism for persons to apply for a community
store licence (it will be unnecessary for current operators of community stores
to apply for a community store licence as such persons and their premises will
be liable to be assessed at the initiative of the Secretary after Royal Assent;
however, a current operator could choose to do so if they wish). This clause
is primarily aimed at other persons (other than current operators) who may
wish to apply for a licence to operate a community store.
Subclause 96(2) requires the application to be made in the form (if any)
specified in writing by the Secretary. The application form may specify the
information to be included in an application and the documents or other
material that must accompany an application: subclause 96(3).
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With respect to decisions to grant or refuse a community store licence,
subclause 97(1) places an obligation on the Secretary to decide whether or
not to grant a community store licence to a person if the person is the
operator of a community store and the store has been assessed under
clause 94 or if the person has applied under clause 96 for a community store
licence.
In addition, the Secretary may grant a community store licence to a person on
the Secretary's own initiative without the need for an application to be made:
subclause 97(2).
Subclause 97(3) provides that a community store licence cannot be granted
to a person unless the Secretary is satisfied that, if the licence is granted, the
community store or stores to which the licence relates will be operated in a
satisfactory manner, having regard to:
· the assessable matters; and
· if the person is an operator of a community store or community stores
that have been assessed under clause 94 - the assessment or
assessments; and
· any other matter the Secretary considers relevant.
Subclause 97(4) provides that the Secretary may refuse to grant a
community store licence to a person if:
· in the case of a person who is an operator of a community store - if the
person unreasonably withholds consent under clause 118 for an
authorised officer to enter the premises of the community store or if the
person unreasonably refuses to provide documents, material or
assistance as required by clause 119; or
· in any case where the person does not give the Secretary sufficient
documents, material or assistance to enable the Secretary to make an
informed decision.
Clause 98 enables a community store licence to relate to more than one
store. A community store licence may be expressed to relate to a specified
community store or stores or to all community stores.
Clause 99 sets out the processes that must occur before the Secretary can
refuse to grant a community store licence. These procedures provide the
person with an opportunity to make written submissions on the proposed
refusal. These submissions must be taken into account before the decision
can be made if made within time.
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If the Secretary proposes to refuse to grant a community store licence,
subclause 99(1) requires the Secretary to notify the operator (if the store has
been assessed under clause 94) or the person who has applied for the
licence under clause 96 of the proposed refusal.
Subclause 99(2) sets out the requirements for the notice. The notice must be
in writing; state the reasons for the proposed refusal (for example identify the
particular assessable matter that is of concern) and invite the person to make
written submissions. The notice must also specify the deadline for making
submissions to the Secretary and specify the address where submissions are
to be lodged.
Subclause 99(3) requires that the recipient of the notice be given at least
seven working days after the day on which the notice is given to provide the
submissions to the Secretary.
Subclause 99(4) provides that the Secretary may refuse to grant a
community store licence only if the person required to be given a notice under
subclause (1) has been given such a notice and the Secretary has
considered any submission made by the person by the day mentioned in
paragraph 99(2)(d).
Clause 100 sets out the duration of a community store licence. A community
store licence has effect for the period beginning on the day specified in the
licence or, if no day is specified, the day on which the licence is granted; and
ending on whichever of the following days occurs first:
· the day specified in the licence as the day on which the licence ceases
to be in effect;
· the day on which the licence is revoked;
· the day on which the licence is surrendered; or
· the day on which this Part ceases to have effect.
It is intended that community store licences will be granted to operators of
community stores for an initial period of six months. Stores will then be liable
to a further assessment by authorised officers before the end of the six
months with a view to the Secretary making a further decision either not to
grant a licence or to vary the existing licence by extending its term for a
further period as appropriate.
Subclause 101 requires notice of the decision to be sent to the operator. If
the Secretary decides to grant a community store licence, the Secretary must
give written notice of the decision to the person who will be the holder of the
licence and attach a copy of the licence.
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Similarly, under subclause 101(2), if the Secretary decides to refuse to grant
a community store licence, the Secretary must give written notice of the
decision to the person who is the operator of the store (if store assessed
under clause 94) or to the person who has applied (if the person has applied
under clause 96 for the community store licence).
Subclause 101(3) provides that the notice must specify the reasons for the
refusal.
A decision to refuse to grant a community store licence will not be subject to
internal review or to external review by the Administrative Appeals Tribunal
(AAT). Given the emergency response, opening the licensing process to
review could unduly prolong matters before action to improve the operation of
community stores could be confirmed and hence such review processes are
not considered appropriate in the circumstances. The processes that are
required to be followed before a decision to refuse to grant a licence can be
made by the Secretary provide the person concerned with an appropriate
opportunity to address any areas of concern.
Subdivision B--Conditions of community store licences
All community store licences will be subject to a number of statutory
conditions as listed in clause 102. These conditions are:
· the condition set out in clauses 104 (satisfactory performance), 105
(monitoring and audits) and 110 (transfer);
· the conditions (if any) specified by the Minister under clause 124;
· the conditions (if any) imposed by the Secretary at the time of issuing
the licence; and
· the conditions imposed by the Secretary under clause 107 after the
licence is issued.
Additional conditions may also be specified or imposed on holders of
communities store licences. Subclause 103(1) provides that licence
conditions that are specified by legislative instrument or imposed by the
Secretary under clause 102 may relate to, but are not limited to, the following:
· assessable matters (including but not limited to specifying standards to
be met in relation to the assessable matters);
· documentation and record-keeping requirements;
· the income management regime (including but not limited to
requirements relating to funds);
· auditing and reporting;
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· assistance and facilities to be provided for the purposes of making
assessments or monitoring compliance with the conditions of the
licence.
It is also intended that other persons with a proven record in providing high
quality community store services may also be brought in to assist a person
who is currently operating a community store. Subclause 103(2) gives the
Secretary power to impose a licence condition which may require the operator
of a community store to take such steps as are specified in the condition in
relation to appointing an external or independent manager (however
described) of the community store.
The holder of a community store licence will have a continuing obligation to
operate the store in a satisfactory manner having regard to the assessable
matters. Clause 104 imposes this as a condition on all licences.
A condition is also imposed on all holders of community stores with respect to
monitoring and audits. Subclause 105(1) provides that it is a condition of a
community store licence that the holder of the licence must:
· allow the Secretary or an authorised officer to enter the premises of the
store or stores to which the licence relates for the purposes of auditing
or monitoring compliance with the conditions of the licence; and
· allow the Secretary or an authorised officer to inspect things at the
premises; and
· if requested, produce to the Secretary or an authorised officer
documents and materials relevant to auditing and monitoring
compliance.
Subclause 105(2) clarifies that subclause (1) does not limit the conditions
that may be imposed by the Secretary in the licence or by legislative
instrument.
Subdivision C--Revocation and variation of community store licences
The Secretary may revoke the licence held by an operator under clause 106.
Subclause 106(1) provides that the Secretary may, by notice in writing given
to the holder of a community store licence, revoke the licence if:
· the Secretary believes on reasonable grounds that a condition of the
licence has been breached; or
· the Secretary believes on reasonable grounds that the licence holder,
or a person covered by the licence, has committed an offence against
this Act; or
· the licence was obtained improperly; or
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· the Secretary is satisfied that the store is not being operated in a
satisfactory manner having regard to the assessable matters.
Subclause 106(2) states that the revocation takes effect on the date on which
the notice is given or on a later date specified in the notice.
The Secretary may also under clause 107 vary a community store licence
held by an operator of a community store.
The Secretary will have discretion under subclause 107(1) to vary a
community store licence by notice in writing given to the licence holder at any
time on the Secretary's own initiative or if the licence holder applies for a
variation.
Subclause 107(2) sets out the requirements for an application for a variation
for the purposes of paragraph 107(1)(b). The application must be in writing,
and must contain such information as is prescribed by the regulations (if any);
and such information (if any) as is specified in writing by the Secretary.
In exercising the powers of variation, subclause 107(3) the Secretary can
impose licence conditions or additional licence conditions; remove or vary
licence conditions that were imposed by the Secretary or extend the licence.
The Secretary must not vary a licence unless the Secretary is satisfied that
the variation will not detract from the satisfactory operation of the community
store, having regard to the assessable matters: subclause 107(4).
The variation takes effect on the date on which the notice is given or on a later
date specified in the notice by the Secretary: subclause 107(5). A variation to
extend the period of effect of a licence can be backdated to prior to the day on
which the notice is given (subclause 107(6)), this power, for example,
enables continuity, where, for example, the initial licence granted to an
operator under clause 97 has expired before the assessment process could
be completed or the decision made.
Subclause 107(7) gives the Secretary discretion to refuse to vary a licence if
a person unreasonably withholds consent for an authorised officer to enter the
premises of the community store under clause 118; or unreasonably refuses
to provide documents, material or assistance as required by clause 119.
The Secretary may also refuse to vary a licence if the holder of the licence
does not give the Secretary sufficient information to make an informed
decision.
Similar processes apply before a decision can be made revoking or varying a
community store licence under clause 108 as provided for under clause 99 in
relation to a proposal to refuse to grant a licence. These procedures provide
the person with an opportunity to make written submissions on the proposed
refusal before the decision can be made.
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The procedures set out in clause 108 require the Secretary to do the
following if the Secretary proposes to revoke or vary a community store
licence.
Subclause 108(1) requires the Secretary to notify the operator of the
community store of the proposed revocation or variation.
Subclause 108(2) sets out the requirements of the notice. The notice must be
in writing, specify the reason for the proposed revocation or variation, invite
the person to make written submissions in relation to the proposed revocation
or variation, specify the deadline by which submissions should be given and
specify an address where submissions are to be lodged.
Subclause 108(3) requires that the recipient of the notice be given at least
seven working days after the day on which the notice is given to provide
submissions.
Subclause 108(4) provides that the Secretary may revoke or vary a
community store licence only if the person required to be given a notice under
subclause 108(1) has been given such a notice and the Secretary has
considered any submission made by the person by the day mentioned in
paragraph 108(2)(d).
Subclause 108(5) clarifies that clause 108 applies to a proposed refusal to
vary a licence for which the holder has applied under clause 107.
Decisions under Subdivision C will not be formally subject to internal review
and review by the Administrative Appeals Tribunal. Given the emergency
response, opening these decisions to such review could unduly prolong
matters before action to improve the operation of community stores could be
confirmed and hence such review processes are not considered appropriate
in the circumstances. The processes that are required to be followed before
such decisions can be made provide the person concerned with an
appropriate opportunity to address any areas of concern.
Subdivision D--Surrender and transfer of community store licences
Clause 109 provides that the holder of a community store licence may, by
written notice given to the Secretary, surrender the licence.
Subclause 110(1) clarifies that it is a condition of a community store licence
that, if there is to be a change in operator of the store to which the licence
relates, the operator who holds the licence and the person who is to become
the operator (the transferee) must notify the Secretary of the proposed
change of operator and apply for transfer of the licence.
Subclause 110(2) requires that the application for transfer of a licence be in
writing, and must contain such information as is prescribed by the regulations
(if any) and such information (if any) as is specified in writing by the Secretary.
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The Secretary must not transfer the licence unless the Secretary is satisfied
that the transfer will not detract from the satisfactory operation of the
community store, having regard to the assessable matters: subclause 110(3).
Subclause 110(4) provides the Secretary with the discretion to refuse to
transfer a community store licence on a similar basis as set out in
subclause 107(7) for variation.
The formalities for transfer of a licence are set out in clause 111.
Subclause 111(1) requires the Secretary to give written notice of his or her
decision on the transfer application.
If the Secretary decides to transfer the licence, then subclause 111(2)
clarifies that the transfer takes effect on the date specified in the notice and
the licence continues in force and is subject to the same conditions as those
in force immediately before the transfer.
Division 4 --Acquisition by the Commonwealth
Clause 112 confers powers on the Commonwealth to acquire the community
store's assets and liabilities. These powers complement the Commonwealth's
powers in relation to the powers to acquire rights, titles and interests in land
(see Part 4 of the bill). With respect to assets, given the existence of Part 4
of the bill, the powers of acquisition in Part 7 are limited to `eligible assets'.
It is recognised that such action may give rise to a claim for compensation for
acquisition of the property concerned. Clause 134 (see Part 8) comprises a
`historic shipwrecks' clause for this purpose.
The Minister's powers contained in Division 4 are discretionary and intended
to be used after all other options are exhausted.
The question whether these powers should be invoked arises after the
conclusion of a process where the Secretary has made a decision not to grant
a community store licence, a decision not to vary a licence by extending its
term or a decision to revoke a licence. Prior to the Secretary making these
licensing decisions, the person concerned would have had an opportunity to
make written submissions in relation to the proposed refusal to grant or
proposed revocation or variation and these submissions (provided they were
made within time) would have been taken into account by the Secretary. In
addition, the Advisory Board would have been consulted and its expertise
utilised as part of the process. Other options would have been examined and
exhausted including, for example, the option of imposing a condition on the
holder of a licence under subclause 103(2) to take such steps in relation to
appointing an external or an independent manager (however described) of the
community store.
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In exercising the powers of acquisition, the Commonwealth is also acquiring
the liabilities of a community store. If a community store is currently insolvent
or its liabilities exceed its assets than acquisition of the store may represent
the preferred outcome for the operator concerned.
Subclause 112(1) provides that the clause applies to eligible assets that are
held by a community store (or by the owner or operator of a community store)
and to liabilities of the store or of the owner or operator if:
· an authorised officer has assessed the community store under
clause 94 for the purpose of deciding whether or not to grant a
community store licence and the Secretary has decided not to grant the
licence; or
· an authorised officer has assessed the community store under
clause 94 for the purpose of deciding whether or not to vary a
community store licence and the Secretary has decided not to extend
the term of the licence; or
· the Secretary has revoked a community store licence.
Subclause 112(2) gives the Minister the discretion to make any or all of the
specified declarations in relation to some or all of the eligible assets (or
liabilities) to which this clause applies. The declarations that can be made
are:
· a declaration that the legal and beneficial interests in the assets vest in
the Commonwealth at a specified time without any conveyance,
transfer or assignment;
· a similar declaration in respect of the liabilities to that referred to in (a);
· a declaration that a specified instrument relating to any or all of the
assets or liabilities continues to have effect after they have vested in
the Commonwealth as if a reference in the instrument to a specified
person were a reference to the Commonwealth;
· a declaration that, immediately after the assets or liabilities vest in the
Commonwealth, the Commonwealth becomes the successor in law of
the holder of those assets.
A declaration under subclause (2) has effect accordingly: subclause 112(3).
Subclause 112(4) provides that a copy of a declaration made under
subclause 112(2) must be given to the owner or operator of the community
store; and published in the Commonwealth Gazette within 7 days of being
given to the owner or operator.
A failure to comply with subclause 112(4) does not invalidate a declaration
(subclause 112(5)).
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A declaration under subclause 112(2) is not a legislative instrument:
subclause 112(6).
Subclause 112(7) provides that stamp duty or other tax is not payable under
a law of the Northern Territory in respect of the vesting of an asset under this
clause; or anything done (including a transaction entered into or an instrument
or document made, executed, lodged or given) because of, or for a purpose
connected with or arising out of, such vesting.
Subclause 112(8) defines eligible asset to mean:
· any legal or equitable estate or interest in personal property, whether
actual, contingent or prospective held by a community store, or by the
owner or operator of a community store, being an estate or interest that
relates to the operations of the community store; or
· any right, power, privilege or immunity, whether actual, contingent or
prospective held by a community store, or by the owner or operator of
a community store, being a right, power, privilege or immunity that
relates to the operations of the community store.
`Eligible asset' is limited to `any legal or equitable estate or interest in personal
property'. It is intended to apply to assets of a community store such as (for
example and without limiting the personal property that may be covered)
moveable refrigeration units, shelving, cash registers, stock in trade, etc
owned by the store.
Subclause 112(8) also defines liability in the broadest of terms to mean any
liability, duty or obligation, whether actual, contingent or prospective, of a
community store being a liability that relates to the operations of the
community store.
Clause 113 provides for certificates to be issued relating to vesting of eligible
assets.
Subclause 113(1) provides that the clause applies if an eligible asset vests in
the Commonwealth and there is lodged with an assets official a certificate
signed by the Minister that identifies the asset which states that the asset has
become vested in the Commonwealth under clause 112.
The note to subclause 113(1) clarifies that certificates under
paragraph 113(1)(b) are presumed to be authentic (see clause 115).
Once a certificate is lodged with an assets official, subclause 113(2) provides
that the assets official may:
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· deal with, and give effect to, the certificate as if it were a proper and
appropriate instrument for transactions in relation to assets of that kind;
and
· make such entries in the register in relation to assets of that kind as are
necessary having regard to the effect of this Part.
Subclause 113(3) clarifies that the reference to an assets official, in relation
to an asset other than land, means the person or authority who, under a law
of the Commonwealth, a State or a Territory, under a trust instrument or
otherwise, has responsibility for keeping a register in relation to assets of the
kind concerned.
Clause 114 clarifies what happens in the event the community store is
involved in legal proceedings (in a court or tribunal) relating to an asset or
liability that vests in the Commonwealth) immediately before commencement
of the bill. This clause provides for the substitution of Commonwealth as a
party to pending proceedings. In circumstances where this clause applies, the
Commonwealth is substituted for the community store or the owner or
operator, from the commencement of this clause, as a party to the
proceedings.
Clause 115 provides that a document that appears to be a certificate made or
issued under this Division is taken to be such a certificate and is taken to have
been properly given unless the contrary is established.
Division 5--Authorised officers
The powers of authorised officers which undertake assessments of
community stores in the field are found in Division 5.
Subclause 116(1) provides that the Secretary may, in writing, appoint an
appropriately qualified officer to be an authorised officer for the purposes of
the exercise of the powers conferred on authorised officers by this Part.
Subclause 116(2) clarifies that officer means an APS employee in the
Department or any other person engaged by the Department, under contract
or otherwise, to exercise powers, or perform duties or functions, under this
Part.
Clause 117 empowers the Secretary to issue identity cards to an authorised
officer in the form approved by the Secretary. The identity card must contain
a recent photograph of the authorised officer.
Subclause 118(1) empowers an authorised officer to enter the premises of
the community store for the purposes of assessing a community store under
clause 94. That is an assessment can be made for the purposes of deciding
whether or not to grant a licence, or deciding whether to revoke, vary, transfer
or impose conditions upon a community store licence.
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Before an authorised officer can enter the premises of a community store for
the purposes of assessing it, the occupier of the premises (or another person
who apparently represents the occupier) must have consented to the entry
and the officer has shown his or her identity card if required by the occupier:
subclause 118(2).
The note to subclause 118(2) reminds the reader that if consent is
unreasonably withheld, the Secretary may refuse to grant a licence: see
subclause 97(4).
The occupier of the premises or another person who apparently represents
the occupier can withdraw their consent to entry at any time. If this occurs
then subclause 118(3) provides that the authorised officer must leave the
premises if the occupier, or another person who apparently represents the
occupier, asks the authorised officer to do so.
Clause 119 empowers authorised officers to obtain access to records and
assistance and as subclause 119(1) provides, the clause applies if an
authorised officer is assessing a community store under clause 94.
Subclause 119(2) provides that the operator of the community store, the
occupier of premises of the store, or another person who apparently
represents the occupier, must, if requested, produce to an authorised officer,
or any other person assisting the authorised officer, such documents and
material as are reasonably necessary for the authorised officer to make the
assessment. An offence attracting a penalty of 60 penalty units applies for
non-compliance with this requirement. This penalty is commensurate with the
penalty applicable to a provision in the A New Tax System (Family
Assistance)(Administration) Act 1999 and applicable to occupiers of child care
services that has a similar purpose (section 219L).
In addition, the operator of the community store, the occupier of premises of
the community store, or another person who apparently represents the
occupier, must provide the authorised officer, or any other person assisting
the authorised officer, with such assistance and facilities as are necessary
and reasonable for making the assessment (subclause 119(3)). An offence
attracting a penalty of 10 penalty units applies for non-compliance with this
requirement. The penalty of 10 penalty units is at the lower end of the scale.
Subclause 119(4) clarifies that the offences contained in subclauses 119(2)
and (3) are offences of strict liability. The note to this subclause signposts the
reader to section 6.1 of the Criminal Code for a definition of strict liability.
These offences are strict liability offences because:
· the prosecution would have great difficulty in proving fault (especially
knowledge or intention);
· the offences in question are minor;
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· the requirements that must be complied with are administrative in
nature;
· the elements of these offences are factual;
· the offence does not involve dishonesty or any other serious imputation
affecting the person's reputation; and
· compliance with the requirement to provide access to information and
reasonable assistance and facilities is essential to the assessment
process which supports the licence decision making process.
In addition to the above powers, authorised officers under clause 120 have
the power to request information from persons relating to the assessment of a
community store. This power is important as some documentation may be
retained with advisers and other persons and not on the premises of the
community store.
Subclause 120(1) clarifies that the clause only applies to a person if the
Secretary has reason to believe that information (called compellable
information) relating to the assessment of a community store under clause 94
is in the person's possession, custody or control (whether held electronically
or in any other form).
If the Secretary has reason to believe that such information is in the person's
possession, custody or control, subclause 120(2) provides that the Secretary
may, in writing, require the person to give specified compellable information to
the Secretary within a specified period of time; and in a specified form or
manner.
Subclause 120(3) provides that the person receiving a notice under
subclause 120(2) must not fail to comply with a requirement under this
clause. An offence attracting a penalty of 10 penalty units applies for non-
compliance. Subclause 120(3) is subject to two defences.
The first defence to subclause 120(3) in subclause 120(5) provides that
subclause 120(3) does not apply to the extent that the person has a
reasonable excuse. However, a person does not have a reasonable excuse
merely because the information in question is of a commercial nature; or
subject to an obligation of confidentiality arising from a commercial
relationship; or commercially sensitive.
The second defence applicable to subclause 120(3) is in subclause 120(6)
and clarifies that subclause 120(3) does not apply in relation to compellable
information covered by paragraph 120(1)(b) if giving the information might
tend to incriminate the person or expose the person to a penalty.
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Subclause 120(4) provides for a further offence. A person must not, in
compliance with a requirement under clause 120, give to the Secretary
information that is false or misleading in a material particular. An offence
attracting a penalty of 60 penalty units applies should information be given to
the Secretary that is false or misleading in a material particular.
Subclause 120(7) clarifies that this clause has effect despite any law of the
Commonwealth, a State or a Territory prohibiting disclosure of the information.
Division 6 - Other matters
Division 6 is structured as follows:
Subdivision A Interaction with other laws
Subdivision B Legislative instruments
Subdivision C Other matters
Subdivision A - Interaction with other laws
With respect to the application of the laws of the Northern Territory to
community stores, clause 121 clarifies that to the extent that a law of the
Northern Territory is capable of operating concurrently with this Part, this Part
does not affect the application of the law to a community store or to the
operator of a community store. This means Northern Territory legislation such
as the Food Act still apply.
Clause 122 clarifies the interaction with other Commonwealth laws, in
particular the Trade Practices Act 1974. This provision has been included
because in licensing a community store there are a number of broad areas
where the Trade Practices Act 1974 could potentially limit the
Commonwealth's ability to improve the quality of the service provided by
particular stores and to assist welfare recipients in managing their income.
The exception provisions of the Trade Practices Act 1974 are invoked in this
bill by this section.
Subclause 122(1) clarifies that Part 7 has effect despite any other law of the
Commonwealth.
Subclause 122(2) is made for the purposes of subsection 51(1) of the Trade
Practices Act 1974 and clarifies the following things that are to be regarded as
specified in this clause and specifically authorised by this clause:
(a) granting a community store licence;
(b) refusing to grant a community store licence;
(c) imposing or specifying a condition of a community store licence;
(d) varying or refusing to vary a community store licence (including by
extending or refusing to extend its period of effect or varying or
refusing to vary the conditions to which it is subject);
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(e) revoking a community store licence;
(f) transferring a community store licence;
(g) taking any action in connection with an action referred to in
paragraph (a), (b), (c), (d), (e) or (f);
(h) taking any action (including but not limited to an action taken by the
Commonwealth, a Commonwealth authority, the holder of a
community store licence or a person acting in accordance with a
community store licence), being an action that is:
(i) required by a community store licence; or
(ii) authorised by a community store licence; or
(iii) in connection with an action referred to in subparagraph (i)
or (ii); or
(i) acquiring an eligible asset under clause 112.
Subdivision B - Legislative instruments
Clause 123 provides that the Minister may make the following instruments in
relation to the meaning of community store:
· The Minister may, by legislative instrument, specify an area or place for
the purposes of subparagraph 92(1)(b)(ii).
· The Minister may, by legislative instrument, specify premises for the
purposes of subparagraph 92(1)(b)(iii).
· The Minister may, by legislative instrument, specify an area or place for
the purposes of paragraph 92(2)(c).
· The Minister may, by legislative instrument, specify premises for the
purposes of paragraph 92(2)(d).
The power to make these instruments provides the necessary flexibility in
relation to the definition of community store by enabling further stores to be
added or removed from the licensing requirements.
These instruments are subject to the usual requirements under the Legislative
Instruments Act such as disallowance by Parliament.
Clause 124 provides that the Minister may, by legislative instrument, specify
conditions to which community store licences are subject.
Instruments made under this clause are subject to the usual requirements
under the Legislative Instruments Act such as disallowance by the Parliament.
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Subclause 125(1) gives the Minister discretion, by legislative instrument, to
issue guidelines relating to either or both of the following the consideration of
assessable matters by authorised officers when assessing a community store
under clause 94 or the Secretary's consideration of assessable matters when
considering whether or not to grant, revoke, vary, transfer or impose
conditions upon a community store licence. Advice from the independent
Advisory Board will be sought in the development of these guidelines.
Subclause 125(2) empowers the Minister, by legislative instrument to specify
one or more matters to be assessable matters for the purposes of
subclause 93(1)(d).
Subclause 125(3) provides that if guidelines under subclause125 (1) are in
force, an authorised officer or the Secretary (as the case requires) must
comply with the guidelines in assessing a community store or considering
whether or not to grant, revoke, vary, transfer or impose conditions upon a
community store licence.
Subclause 125(4) clarifies that licensing decisions can proceed should no
guidelines be in place. An authorised officer may assess a community store,
and the Secretary may grant or refuse to grant, revoke, vary, transfer or
impose conditions upon a community store licence, even if no guidelines are
in force under this clause and whether or not the Minister has specified
matters under subclause 125(2).
Instruments made under this clause are subject to the usual requirements
under the Legislative Instruments Act, such as disallowance by the
Parliament.
Subdivision C - Other matters
Clause 126 clarifies that in making a decision under the income management
regime being a decision that may result in a payment or benefit of any kind
being made to or received by a person who is the owner or operator of a
community store, the decision maker may have regard to whether or not the
operator of the community store holds a community store licence.
Clause 127 clarifies that the offences created by Part 7 apply to conduct
engaged in on or after the 28th day after the day on which this Act receives
the Royal Assent.
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Part 8 - Miscellaneous
Subclause 128(1) provides that the Minister may, in writing, delegate to the
Secretary, an SES employee or acting SES employee in the Department any
of the Minister's functions or powers under this Act. However, the Minister
may not delegate to any of those persons any power referred to in Division 4
of Part 5 (Commonwealth management in business management areas).
Subclause 128(3) provides that the Secretary may, in writing, delegate to an
SES employee or acting SES employee in the Department any of the
Secretary's functions or powers under this Act.
Clause 129 provides that, to the extent that an Act or regulations of the
Northern Territory are modified by this Act or regulations made under this Act,
the Interpretation Act of the Northern Territory, and any other Northern
Territory Acts of general application, apply in relation to this Act or regulations
made under this Act.
Subclause 130(1) provides that a reference in a law of the Commonwealth, or
a law of the Northern Territory, to a law of the Northern Territory includes a
reference to a law of the Northern Territory as modified by this Act or
regulations made under this Act.
Subclause 130(2) is a similar provision to subclause 130(1) except that it
refers to offences against a law of the Northern Territory.
Subclause 130(3) provides that references in a law of the Commonwealth, or
a law of the Northern Territory to a law of the Commonwealth, does not
include a reference to a law of the Northern Territory as modified by this Act
or regulations under this Act.
Subclause 130(4) provides that a reference in a law of the Northern Territory
to a particular law of the Northern Territory includes a reference to that law as
modified by this Act or regulations made under this Act.
Clause 131 provides that section 49 of the Northern Territory (Self-
Government) Act 1978 does not apply to the operation of this Act. Section 49
provides that trade, commerce and intercourse between the Territory and the
States, whether by means of internal carriage or ocean navigation, shall be
absolutely free. While the regulation of the movement of alcohol and
pornographic material may be consistent with section 49, clause 131 was
included to make it clear that the provisions in the bills, and in particular those
relating to the movement of alcohol or prohibited pornographic material from
outside Northern Territory were not to be read as being subject to section 49
of the Northern Territory (Self-Government) Act 1978.
Clause 132 ensures that this Act, and all actions and omissions in any way
related to it, are deemed to be special measures and are also excluded from
the operation of Part II of the Racial Discrimination Act 1975.
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Subclause 132(1) provides that, for the purposes of the Racial Discrimination
Act 1975, the provisions of this Act, and all actions and omissions in any way
related to it, are deemed to be special measures. Article 1.4 of the
International Convention on the Elimination of All Forms of Racial
Discrimination provides that `Special measures taken for the sole purpose of
securing adequate advancement of certain racial or ethnic groups or
individuals requiring such protection as may be necessary in order to ensure
such groups or individuals equal enjoyment or exercise of human rights and
fundamental freedoms shall not be deemed racial discrimination, provided,
however, that such measures do not, as a consequence, lead to the
maintenance of separate rights for different racial groups and that they shall
not be continued after the objectives for which they were taken have been
achieved.'
Subclause 132(2) provides that this Act, and all actions and omissions in any
way related to it, are excluded from Part II of the Racial Discrimination
Act 1975. Part II of the Racial Discrimination Act 1975 includes
subsections 9(1), 9(1A) and section 10. Subclause 132(2) overlaps with
subclause 132(1).
The Northern Territory national emergency response announced by the
government recognises the importance of prompt and comprehensive action
as well as Australia's obligations under international law:
· The Convention on the Rights of the Child requires Australia to protect
children from abuse and exploitation and ensure their survival and
development and that they benefit from social security. The
International Convention for the Elimination of All Forms of Racial
Discrimination requires Australia to ensure that people of all races are
protected from discrimination and equally enjoy their human rights and
fundamental freedoms.
· Preventing discrimination and ensuring equal treatment does not mean
treating all people the same. Different treatment based on reasonable
and objective criteria and directed towards achieving a purpose
legitimate under international human rights law is not race
discrimination In fact, the right not to be discriminated against is
violated when Governments, without objective and reasonable
justification, fail to treat differently people who's situations are
significantly different.
The impact of sexual abuse on indigenous children, families and communities
is a most serious issue requiring decisive and prompt action. The Northern
Territory national emergency response will protect children and implement
Australia's obligations under human rights treaties. In doing so, it will take
important steps to advance the human rights of the indigenous peoples in
communities suffering the crisis of community dysfunction.
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In the case of Indigenous people in the Northern Territory, there are
significant social and economic barriers to the enjoyment of their rights to
health, development, education, property, social security and culture.
The emergency measures in the bill are the basis of action to improve the
ability of indigenous peoples to enjoy these rights and freedoms. This cannot
be achieved without implementing measures that do no apply in other parts of
Australia. In a crisis such as this, the measures in the bill are necessary to
ensure that there is real improvement before it is too late for many of the
children. The bill will provide the foundation for rebuilding social and
economic structures and give meaningful content to indigenous rights and
freedoms.
For example, in relation limiting the availability of alcohol, some measures
apply across the entire Northern Territory (sales over 1,350ml of alcohol and
record keeping) while others apply in communities which are predominantly
indigenous, referred to as 'prescribed areas'.
The bill strengthens and extends a number of prohibitions and offences under
the Northern Territory Liquor Act in each of the prescribed areas. This will
enable alcohol to be controlled in indigenous communities to address the
related issues of alcohol misuse and child abuse. Although the alcohol
measures apply generally to prescribed areas, individuals can apply for
permits and the measures are subject to a five year sunset period.
The bill also grants five year leases to the Government over certain land in the
Northern Territory as part of the measures to achieve the object of the Act of
improving the well-being of communities in the Northern Territory.
Preventing child abuse depends upon families living in stable and secure
environments. Indigenous communities cannot enjoy their social and
economic rights equally with non-indigenous people, including their rights over
their land, if living conditions in communities are dangerous and their children
are subject to abuse. Sustainable housing is a key element to making lasting
improvements to community living arrangements.
The leasing provisions are required to allow the Government to address the
national emergency in the Northern Territory. The Government cannot build
and repair buildings and infrastructure without access to the townships and
security over the land and assets.
The leases will not prevent the indigenous communities from living on and
using the land, or lead to limitations not connected with the Government's
emergency intervention. The existing rights, title and interest of indigenous
owners over the leased land are not removed but are preserved and
compensation, on just terms, will be given whenever it is payable.
The leases are a short-term measure with the longer-term focus on putting
residents of these communities in a position where they can buy their own
homes.
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Subclauses 133(1) and (2) ensure that this Act, and all actions and
omissions in any way related to it, are excluded from the operation of any law
of the Northern Territory that in any way relates to discrimination. The
purpose of this provision is to ensure that none of the laws of the Northern
Territory that relate to discrimination will prevent the implementation of the
emergency measures in the bill.
Subclause 133(3) allows the Minister to make a legislative instrument to
determine that subclause 132(1) does not apply to a particular law of the
Northern Territory.
Subclause 133(4) ensures that a reference to acts includes a reference to
omissions.
Subclause 134(1) provides that, except for an acquisition of property under
Part 4 of the bill (which deals with the acquisition of rights, titles and interests
in land), subsection 50(2) of the Northern Territory (Self Government) Act
1978 does not apply to an acquisition of property that occurs as a result of the
operation of the terms of this bill.
The effect of subclause 134(1) is that where subsection 50(2) of the Northern
Territory (Self Government) Act 1978 would apply so as to require the
payment of compensation on just terms for an acquisition of property that
occurs as a result of the operation of the terms of this bill, that requirement
does not apply unless the acquisition occurs under Part 4.
Subclause 134(2) provides that the Commonwealth is liable to pay a
reasonable amount of compensation for acquisitions of property that occur
other than under Part 4. Therefore, where an acquisition of property that
occurs as a result of the operation of the terms of this bill is excluded from the
requirement under subsection 50(2) of the Northern Territory (Self
Government) Act 1978 to pay just terms compensation, subclause 134(2)
nevertheless requires the payment of a reasonable amount of compensation.
Subclause 134(3) provides that where an amount is unable to be agreed,
proceedings may be commenced in a court of competent jurisdiction for a
determination of a reasonable amount of compensation.
Subclauses 134(2) and (3) are based on section 21 of the Historic
Shipwrecks Act 1976.
Clause 135 provides that the Governor-General may make regulations
prescribing matters required or permitted by the Act to be prescribed, or
necessary or convenient to be prescribed for carrying out or giving effect to
the Act.
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Schedule 1 - Property descriptions
Subclause 31(1) provides for a lease to the Commonwealth, by the relevant
owner of land referred to, under a heading, in Parts 1 to 3 of Schedule 1 to
the bill. Part 1 of Schedule 1 deals with Aboriginal land within the meaning of
paragraph 3(1)(a) of the Land Rights Act. Part 2 lists land, commonly
referred to as community living areas, granted to associations under
subsection 46(1A) of the Lands Acquisition Act. Part 3 lists two other areas of
land which have not been the subject of land grants under that legislation.
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Schedule 2 - Business management areas
Schedule 2 lists places for the purposes of paragraph (c) of the definition of
business management area in clause 3. These are places in which the
powers at Part 5 can be exercised, in addition to those areas described in
Parts 1 to 3 of Schedule 1.
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Schedule 3 - Funding agreements
Schedule 3 sets out the clause referred to in subclause 65(3), which is taken
to be included in funding agreements. The clause provides for the termination
or reduction in scope of a funding agreement.
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Schedule 4 - Commonwealth management in business management
areas: modifications of Northern Territory legislation
Schedule 4 sets out the specific modifications made to the Local Government
Act and Associations Act by Division 4. In particular:
· Table 1 sets out the modifications to Part 13 of the Local Government
Act made in accordance with subclause 78(3); and
· Table 2 sets out the modifications to Division 2 of Part 9 of the
Associations Act made in accordance with subclause 81(3).
Table 1 - Modifications of the Local Government Act of the Northern
Territory
Clause 1 omits subsection 241(2) of the Local Government Act, which
provides that a person appointed under paragraph 264(2)(b) of that Act to be
the manager of a council is an inspector of local government. This reflects the
intention that where a person is appointed by the Commonwealth Minister as
the manager of a community government council, it is not necessary for the
person to also be an inspector of local government.
Clause 2 inserts a new paragraph (f) in subsection 264(1) of the Local
Government Act, which sets out the grounds for suspension of all the
members of a council. The effect of new paragraph (f) is that, in addition to
the existing grounds for suspension under the Local Government Act, the
Commonwealth Minister may suspend the members of a community
government council if satisfied that the council has failed to comply with a
direction under Division 2 of Part 5 of this bill. Division 2 of Part 5 deals
with giving directions to community services entities in relation to the services
and assets in business management areas.
Clause 3 modifies the words of subsection 264(1) of the Local Government
Act to remove the need for the Commonwealth Minister to recommend to the
Administrator of the Northern Territory that the members of a community
government council be suspended. Rather, the Commonwealth Minister may
suspend the members of a community government council under that
subsection by notice in the Northern Territory Gazette.
Clause 4 omits and substitutes subsection 264(2) of the Local Government
Act so as to remove the Administrator of the Northern Territory from the
process of appointing a manager of a community government council after the
members of the council have been suspended. Instead, the Commonwealth
Minister must appoint a person to be the manager of the council.
Clause 5 omits from subsections 264(3) and (4) of the Local Government Act
references to `subsection (2)(b)'. This is to reflect the fact that clause 4
substitutes a new subsection 264(2), which does not contain any
paragraph (b).
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Clause 6 omits from paragraph 264(4)(b) of the Local Government Act the
reference to taking action under Part 11 of that Act (which deals with
inspections). This reflects the intention that where a person is appointed by
the Commonwealth Minister as the manager of a community government
council, it is not necessary for the person to also be an inspector of local
government.
Clause 7 modifies subsection 264(7) of the Local Government Act to remove
the need for the Commonwealth Minister to make a recommendation to the
Administrator of the Northern Territory after receiving a report from the
appointed manager of a community government council (that is, following the
suspension of the members of that council). Rather, the Commonwealth
Minister must by notice in the Northern Territory Gazette either reinstate or
dismiss all the suspended council members.
Clause 8 omits subsections 264A(1) and (3) of the Local Government Act.
The omission of subsection 264A(1) reflects the fact that the Administrator of
the Northern Territory has no part in the process when the Commonwealth
Minister reinstates or dismisses the members of a community government
council under subsection 264(1) of the Local Government Act. The omission
of subsection 264A(3) removes the requirement for the Commonwealth
Minister to table a report in the Northern Territory Legislative Assembly in
relation to the dismissal of the members of a community government council,
where the Commonwealth Minister dismisses the council members. Instead,
the Commonwealth Minister must notify the Northern Territory in accordance
with new paragraph 265AA(1)(b), inserted by clause 12 of Table 1.
Clause 9 omits section 264B of the Local Government Act, which deals with
the appointment of Commissioners to run inquiries. This reflects that the
Commonwealth does not intend to take over the Northern Territory's role of
inquiring into and investigating matters relating to the dismissal of the
members of a community government council.
Clause 10 modifies subsections 264C(1) and 265(1) of the Local Government
Act to omit the reference to `section 264A' and substitute `subsection 264(7)'.
This reflects that where the Commonwealth Minister dismisses the members
of a community government council, this would be done under
subsection 264(7).
Clause 11 modifies subsection 265(2) to omit `Administrator' and substitute
`Minister', so that the power conferred by that provision to, in certain
circumstances, repeal the constitution of a community government council
would be exercisable by the Commonwealth Minister.
Clause 12 modifies Part 13 of the Local Government Act to insert two new
sections at the end of that Part:
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· New section 265AA provides that the Commonwealth Minister must
give written notice to the Northern Territory Minister administering the
Local Government Act of the exercise of the Commonwealth Minister's
powers under that Act. The intention is that the Commonwealth
Minister should keep the Northern Territory informed of actions taken
by the Commonwealth under Northern Territory legislation. However, a
failure by the Commonwealth Minister to comply with the notice
requirements would not invalidate a decision of the Commonwealth
Minister.
· New section 265AB deals with the concurrent exercise by the
Commonwealth Minister and the Northern Territory Minister of powers
under Part 13 of the Local Government Act. The effect is that if the
Commonwealth Minister has appointed a manager to a community
government council, no person including the Northern Territory Minister
may exercise powers under Part 13 of the Local Government Act in
relation to the council without Commonwealth consent, until the
Commonwealth-appointed manager has ceased to hold office.
Table 2 - Modifications of the Associations Act of the Northern Territory
Clause 1 modifies paragraph 78(1)(d) by inserting `or the Minister
administering the Northern Territory National Emergency Response Act 2007
of the Commonwealth' after `Commissioner. This will allow the
Commonwealth Minister to provide notice to an incorporated association that
the Commonwealth Minister will appoint a statutory manager of the
association under section 78 of the Associations Act on grounds that the
Minister is satisfied that the association has wilfully contravened a provision of
the Associations Act, the Regulations or the association's constitution.
Clause 2 inserts a new paragraph 78(da) after paragraph 78(1)(d). This new
paragraph provides that the Commonwealth Minister may appoint a statutory
manager if satisfied that the association has wilfully contravened a direction
under Division 2 of Part 5 of the Northern Territory National Emergency
Response Act 2007 of the Commonwealth.
Clause 3 omits `following an investigation under this Act into the affairs of the
association' from paragraph 78(1)(e). The effect of this omission is to remove
the requirement that the affairs of an association must first be investigated in
accordance with Part 10 of the Associations Act before the Commonwealth
Minister is able to appoint a statutory manager of that association on the
grounds that the Commonwealth Minister is satisfied that the appointment is
in the interests of members or creditors of the association or in the public
interest whether because of the financial condition of the association or
otherwise.
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Clause 4 modifies subsection 80(5) of the Associations Act by adding at the
end of that subsection `, or a direction under Division 2 of Part 5 of the
Northern Territory National Emergency Response Act 2007 of the
Commonwealth.' The effect of this addition is to ensure that in the event a
statutory manager's appointment to an association is revoked under
section 80 of the Associations Act, the statutory manager will still be held to
account in the event an association has wilfully failed to comply with a
direction under Division 2 of Part 5.
Clause 5 modifies Division 2 of Part 9 of the Associations Act to insert two
new sections at the end of that Part:
· New section 85A provides that the Commonwealth Minister must give
written notice to the Northern Territory Commissioner of Consumer
Affairs administering the Associations Act of the exercise of the
Commonwealth Minister's powers under that Act. The intention is that
the Commonwealth Minister should keep the Northern Territory
informed of actions taken by the Commonwealth under Northern
Territory legislation. However, a failure by the Commonwealth Minister
to comply with the notice requirements would not invalidate a decision
of the Commonwealth Minister.
· New section 85B deals with the concurrent exercise by the
Commonwealth Minister and the Northern Territory Minister of powers
under Division 2 of Part 9 of the Local Government Act. The effect is
that if the Commonwealth Minister has appointed a statutory manager
to an incorporated association, no person including the Northern
Territory Commissioner may exercise powers under Division 2 of Part 9
of the Associations Act in relation to the incorporated association
without Commonwealth consent, until the Commonwealth-appointed
manager has ceased to hold office.
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