22 February 2017

ALRA amendments passed by NSW Parliament

The NSW Parliament yesterday passed amendments to the Aboriginal Land Rights Act 1983 (ALRA) to build the performance and capacity of the Land Rights network.

The amendments were developed in consultation with the NSW Aboriginal Land Council (NSWALC) and followed consultation with the network through Regional Forums from July to October.

The amendments address:

• Performance improvement orders and advisors for Local Aboriginal Land Councils (LALCs)
• The use of corporations by LALCs
• The appointment of administrators and interim administrators to LALCs
• Repeal of the uncommenced provisions of the Aboriginal Land Rights Amendment Act 2014, relating to the appointment of administrators, investigators and advisors

The amendments are expected to commence in early April.

Performance Improvement Orders and Advisors

The amendments improve the existing mechanism for appointing advisors to LALCs and introduce a new mechanism for building capacity through Performance Improvement Orders (PIOs).

The new provisions:

• Authorise NSWALC to issue PIOs to LALCs if NSWALC reasonably considers (in line with criteria in the regulations) that action is needed to improve the performance of the LALC
• Requires LALC Boards to ensure that the LALC, LALC Board, individual Board members, or the LALC CEO, comply with a PIO and carry out the actions it requires
• Requires LALCs to report to NSWALC and its members on its compliance with a PIO
• Authorises NSWALC to appoint an advisor to advise and assist a Board of a LALC that has been issued with a PIO
• Requires a LALC, LALC Board and staff to cooperate with an appointed advisor

These reforms stem from the 2012 ALRA review. Network consultations during the review concluded that:

• The intervention mechanisms in the ALRA (the appointment of Administrators, Investigators and Advisors) needed to be reconsidered
• A more cost-effective intervention prior to administration was needed
• NSWALC needed to have greater oversight in respect to interventions

Administrators are costly and poorly-targeted at issues of capacity, performance and community governance.

The mechanisms contained in these latest amendments enhance self-determination and effectively target capacity, performance and governance issues that emerge where the voluntary support of NSWALC is rejected.

NSWALC is working with the NSW Government and the Office of the Registrar of the ALRA to ensure the new mechanisms are in line with other sections of the ALRA.

Use of corporations by LALCS

The amendments restore the ability of LALCs to use the Corporations Act 2001 (Commonwealth) corporations in carrying out their functions.

The 2014 amendments to the ALRA restricted the ability of LALCs to use such corporations - effectively instituting the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) as the default for LALCs to use corporations.

NSWALC has been strongly opposed to the detrimental and discriminatory restriction this imposed and is pleased that LALCs have a restored ability to pursue economic development opportunities with commercially-attractive corporate vehicles.

Administrator and interim administrator provisions

The amendments also clarify and make consistent the mechanisms related to the appointment of administrators and interim administrators to LALCs. The previous drafting of these provisions set inconsistencies between the two mechanisms.

Uncommenced provisions

The amendments repeal the uncommenced provisions of the Aboriginal Land Rights Amendment Act 2014. They proposed transferring authority for the appointment of administrators, investigators and advisors to LALCs - from the Minister for Aboriginal Affairs to the Registrar of the ALRA.

NSWALC supported these 2014 amendments but believes that the amendments made yesterday provide an improved framework for early and more effective interventions to improve the capacity and performance of LALCs.