Aboriginal Land Rights Amendment Bill 2022

25 November 2022

The NSW Aboriginal Land Council (NSWALC) would like to inform the Land Rights Network that further to the 9 November 2022 Network Message, the Aboriginal Land Rights Amendment Bill 2022 (the Bill) has now passed the NSW Parliament.

The Bill is the first stage of reforms outlined in the 2021 Statutory Review of the Aboriginal Land Rights Act 1983 (NSW) (ALRA), undertaken in line with the guiding principles of consistency, efficiency and empowerment. The ALRA Review report is available here.

NSWALC undertook engagements with LALCs in 2021 on possible reform proposals and welcomed the findings of the ALRA Review Report, which you can find here.

NSWALC views the Bill as an initial set of reforms to improve the operation of the ALRA.

Key changes

The Bill includes various administrative and operational amendments outlined in the ALRA review report, and reflecting Network engagements.

Key amendments are outlined below – please note this is not an exhaustive list. LALCs are encouraged to review the Bill and explanatory note (see links below) for a full list of changes. NSWALC will also distribute further guidance for LALCs.

The Bill is currently awaiting assent, and will come into force 28 days after it is assented to (except for provisions relating to NSWALC elections which will be commenced by proclamation).

Further reforms

The ALRA Review Report outlined further work to be undertaken as follows.

  • Stage 2 – improving options to allow Aboriginal Land Councils to utilise land holdings for social, cultural and economic purposes, subject to native title, and
  • Stage 3 – consideration and consultation on ideas for broader aspirational reforms including Aboriginal culture and heritage, strategic land use improvements, compensatory mechanisms, compliance and regulatory roles, and housing.

NSWALC is keen to see the next stages of the review progress as a matter of priority.

More information

If LALCs have any queries or would like further information, please contact the Strategy and Policy Unit on 02 9689 4444 or policy@alc.org.au.

The Bill as passed by NSW Parliament and explanatory note is available at:

https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=4039

Please see the summary table below.

OverviewChanges

Reduce burdens on LALCs by clarifying administrative provisions relating to land dealings and community benefits

Section 38 – Changing the threshold from 5% to 15% above market value for LALCs when purchasing lands

S.38Clarifying that LALCs can purchase land for nominal value (e.g., $1) without requiring a valuation or NSWALC approval

S.42UAClarifying the Community Development Levy to be refunded if a transaction is subsequently cancelled by a LALC
Improve the efficiency and effectiveness of conduct and disciplinary provisions
S.182 & S.189New procedural fairness steps in dismissal and censure provisions including notice requirements, and providing the officer with an opportunity to make submissions

S.195Allowing the Registrar, ALRA to suspend officers while undertaking investigations if the Registrar is satisfied the alleged misconduct is so serious as to threaten the proper operation of the Aboriginal Land Council

S.188Applying to misconduct provisions to former office holders

S.197Additional powers allowing the Registrar, ALRA to take various actions against an officer of an Aboriginal Land Council including directing the officer to cease engaging in the misconduct, directing the officer to undertake training, directing the officer to participate in mediation, suspending the officer, removing the officer from office or recommending that the Aboriginal Land Council remove the officer from office, or disqualifying the officer from holding office in an Aboriginal Land Council for a period of not more than two years
Allow LALC Board members to undertake work for the LALC in certain circumstances
Section 52G and new section 66A – Allow for LALC members to provide approval for LALC Board members to undertake paid employment or activities related to the LALC where they are an elected officer, so as not to disqualify a person from holding office as a Board member on that ground.

The current disqualification from holding office as a LALC Board member if undertaking any paid work for the LALC is inflexible, preventing community members reasonable benefits for cultural matters, for example, while also serving as officers. As it stands the disqualification may prevent a Board member who is a recognised Elder from giving advice on cultural heritage matters or providing welcome to Country ceremonies.

To ensure appropriate governance and oversight arrangements, the new provisions specify that any work will need to be:

– In line with a policy prepared in accordance with directions of NSWALC and approved by resolution of voting members; and
– Approved by voting members or the Board if the approved policy allows the Board to approve; and
– LALC CEO work is expressly prohibited; and‘Permanent work’ is expressly prohibited
Maintain and promote good governance
S.66 (LALC Board) and S.132 (NSWALC Councillors) – Adds a new ground for disqualification for LALC Board members and NSWALC Councillors if there have been findings by the Independent Commission Against Corruption (ICAC) of serious corruption

S.66 (LALC Board) and S.132 (NSWALC Councillors) – Adds a new ground for disqualification for failures in the management of a corporation established under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act)
Align some provisions with similar provisions in the Local Government Act
S.66 – Providing that a conviction for an offence disqualifies a person from holding office as a Board member of an LALC only if the offence is punishable by imprisonment for 5 years or more. Currently, disqualification applies in relation to offences punishable by imprisonment for 12 months or more

S.121A – Allowing NSWALC to choose an alternative electoral service provider for NSWALC elections – Currently the NSW Electoral Commission must administer NSWALC elections. Other organisations, such as Local Governments, are able to choose alternative service providers. Note: these provisions will not be commenced immediately
Provide greater self-determination and ease some administrative requirements
S.52GRemoving requirement for Ministerial approval of LALC Board member travel and other allowances, and providing these functions to LALCs

S.79AAllowing the Board of a LALC to advertise a vacancy for the position of Chief Executive Officer of the LALC in a way it decides to be sufficient to enable suitably qualified persons to apply for the position, rather than in the way prescribed by the regulations

S.113, S.114 and S.152C – Reducing some requirements for Ministerial approvals, such as for NSWALC policies and NSWALC budget
Various administrative and miscellaneous changes
Preamble – Updating the preamble of the ALRA to include a reference to ‘waters’ as well as land to reflect the importance of water to Aboriginal people

S.72 – Provides that a Board of an LALC must review its delegations within 12 months after an election of the Board, rather than every year and immediately after an election of the Board

S.175 – Allowing the Registrar to make updates to the Register of Aboriginal Owners if the Registrar considers the information is false, erroneous or misleading. The Registrar must first give the Aboriginal person to whom the information relates written notice and an opportunity to make submissions about the proposed change

S.132 – Allowing NSWALC Councillors to undertake work in certain circumstances, subject to the approval of Council