ABORIGINAL LAND RIGHTS AMENDMENT (HOUSING) ACT 2011
Monday, 21 November 2011

On 16 November 2011, the Aboriginal Land Rights Amendment (Housing) Act 2011 (the Housing Amendment) received royal assent.  It is now law.

The purpose of the Housing Amendment is to facilitate the entry into, management and termination of residential tenancy agreements of less than three years or periodic agreements by Boards of Local Aboriginal Land Councils (LALCs) where the tenants are natural persons.

The Housing Amendment was drafted in response to the decision of the Land and Environment Court in Woods v Gandangara LALC; Thatcher v Gandangara LALC [2011] NSWLEC 42 (the Woods decision).  The effect of that decision was that entry into, management and termination of residential tenancy agreements was a dealing in land and required the approval of LALC members.

The Housing Amendments affect the Aboriginal Land Rights Act 1983 (the ALRA) as follows:

• New definitions of residential tenancy agreement and short term residential tenancy agreement have been added to section 4.
  • residential tenancy agreement has the same meaning as it does in the Residential Tenancies Act 201
  • short term residential tenancy agreement is a residential tenancy agreement of less than three years or is a periodic agreement where the parties to the agreement are a LALC and a natural person. (A periodic agreement has no fixed term and usually happens when a fixed term agreement has ended and the tenant and landlord agree that the tenant can stay on and pay the rent. The notice period is 90 days )
• Section 42E(2)(a) has been amended so that short term residential tenancy agreements are specifically excluded from the requirement for NSWALC approval under the Land Dealings provisions
• Section 52G(e) has been amended to specify that entry into, management and termination of short term residential tenancy agreements are excluded from the functions that must be exercised by a resolution of LALC members
• Section 62(1) has been amended to specifically include entry into, management and termination of short term residential tenancy agreements as a function of the LALC Board, to be exercised consistently with the Community Land and Business Plan
• Section 230 has been amended to enable an administrator to enter into, manage and terminate short term residential tenancy agreements without the consent of the Council.

Existing short term residential tenancy agreements will be subject to the new provisions but only where the management and termination functions are exercised after the date of commencement of the new laws (i.e., from 16 November 2011).  That means that a LALC Board or an Administrator can terminate an existing short term residential tenancy agreement from now, regardless of the fact that the agreement was made prior to the commencement of the amendments.

These amendments do not affect the rights of tenants under the Residential Tenancies Act 2010 or under the specific residential tenancy agreement.

It is important to note that the following decisions about housing still require members' and NSWALC approval:

• leases of any kind for a term of 3 years or more
• entry into head leases with the Aboriginal Housing Office (the AHO)
• social housing schemes under section 52B

A copy of the Amendment Act is attached.

If you have any questions or want further information about the amendments, please contact the Legal Services Unit on 02 - 96894423.

Note:  This network message does not constitute legal advice.  LALCs will need to seek their own legal advice in relation to specific issues of tenancy management.

Lesley Turner - Deputy CEO