Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2007

Date introduced: 20 September 2007

House: House of Representatives

Portfolio: Families, Community Services and Indigenous Affairs (FACSIA)

Commencement: Schedule 1 commences on the 35^th day after Royal Assent. Schedules 2 and 3, items 1-19 and 22-24 of Schedule 4, and Schedules 5 and 6 commence the day after Royal Assent. Schedule 4, items 20 and 21 commence on proclamation (linked to item 12 of Schedule 4 of the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007). [1]

Links: The relevant links to the Bill, Explanatory Memorandum and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.

See also the Senate inquiry into the NT Bills.

Purpose

The purpose of the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2007 (the Bill) is to amend the policy regime set up by the legislative regime known as the Northern Territory (NT) Emergency Response package. The Bill would make six key changes, as follows.

Background

The background to this Bill can be found in the Digests prepared on the package of Northern Territory Emergency Response Bills. Five Bills were introduced to the Parliament as a package on 7 August 2007 and passed on 16 August 2007. The resulting Acts are:

The Bills Digest for the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007 (the Families Bill) is available here. [2] The Bills Digest for the Northern Territory National Emergency Response Bill 2007 (the Emergency Bill) is available here. [3]

Financial implications

Standing appropriations

The Explanatory Memorandum says that there is no impact for the financial year 2007-08. [4] However, the amendments made by item 24 in Schedule 4 would effect the special standing appropriation enacted by the Emergency Act 2007.

This extension of the existing special (standing) appropriation under section 63 of the NT NER Act is appropriate because amounts payable by the Commonwealth under new section 33B, and the timing of those payments, cannot be predicted in a way that would make an annual appropriation suitable. [5]

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Main provisions

Schedule 1 R 18+ Programs Amendment of the Broadcasting Services Act 1992

Schedule 1 would amend the Broadcasting Services Act 1992 to prohibit the provision of television programs rated R 18+ in prescribed areas of the Northern Territory. The Explanatory Memorandum states that field workers since the emergency response commenced had confirmed research published in the Ampe Akelyernemane Meke Mekarle 'Little Children are Sacred': The Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, authored by Pat Anderson and Rex Wild (the Anderson/Wild report) [6] that subscription-based R 18+ programs provided by Austar United Communications Ltd (Austar) appeared to be readily accessible to children in Northern Territory Indigenous communities. [7]

The Emergency and Families Acts sought to filter public computers and ban pornography in the prescribed areas of the NT. [8] The Senate Legal and Constitutional Affairs Committee cites concerns raised by the Festival of Light and other Christian groups that the internet filtering provisions and restrictions on pornography in Indigenous areas of the NT did not go far enough. [9]

The Committee commented in their final report on the NT Bills that it will be important to carefully monitor the measures in the Emergency Bill dealing with the possession and supply of X 18+ films to assess their effectiveness in preventing child abuse. The Committee reported that:

These amendments do not go that far. The provisions instead prohibit any subscription television narrowcasting service from providing television programs that are rated R 18+ to subscribers who receive the service in prescribed areas, as defined in section 4 of the Emergency Act. This would be achieved through the addition of a new licence condition in Part 7 of Schedule 2 to the Broadcasting Services Act 1992.

Items 1 and 2 make amendments to the criminal offence and civil penalties provisions in the Broadcasting Services Act that apply to breaches of a subscription narrowcasting television licence condition. The maximum criminal penalty is 50 penalty units ($5 500), or five times that if a corporation is responsible for the relevant breach.

Item 3 adds a new licence condition to the end of Part 7 of Schedule 2 to the Broadcasting Services Act that applies only to particular subscription television narrowcasting services that provide services to a subscriber who is in a prescribed area of the Northern Territory. (proposed subclause 12(1)).

Proposed subclause 12(2) inserts a sunset clause, by providing that the proposed licence condition be repealed after five years, or on an earlier date (if any) specified in a legislative instrument made by the Minister. The Explanatory Memorandum states:

Proposed subclause 12(3) provides that the Minister s instrument to repeal the licence condition is exempt from disallowance by Parliament under section 42 of the Legislative Instruments Act 2003. The Explanatory Memorandum states:

Proposed clause 13 in Part 7 of Schedule 2 to the Broadcasting Services Act will declare the new licence condition and related provisions of the Broadcasting Services Act to be a special measure for the purposes of the Racial Discrimination Act 1975 (the RDA). See extended discussion of the RDA issues in the 'Background' section of the Bills Digest on the Emergency Response Bill. [13] See also the submission and evidence of the Human Rights and Equal Opportunity Commission to the Senate inquiry.

The operation of Northern Territory anti-discrimination laws are excluded under proposed clause 14, however, the Minister may determine certain laws not to be excluded, by way of legislative instrument (proposed subsection 14(3)). Proposed clause 15 excludes the guarantee that trade and commerce between the Northern Territory and other States shall be absolutely free in section 49 of the Northern Territory (Self-Government) Act 1978 from the operation of these amendments.

Schedule 2 Residential Tenancies Amendment of the Northern Territory National Emergency Response Act 2007

Schedule 2 proposes to amend the Families Act to displace existing NT law, namely the Residential Tenancies Act (NT) (the RTA) and the Tenancy Act (NT) (the Tenancy Act) in relation to residential tenancies where the Commonwealth is a party. This means the Commonwealth is not liable for any existing obligations such as repair and maintenance under NT law.

Existing section 31 of the Emergency Act provides for a lease to be granted to the Commonwealth over specified land in the Northern Territory (the five-year leases). Where a lease is granted under section 31, section 34 of the Emergency Act preserves any existing right, title or other interest in the land and provides that, where a right, title or interest was granted by the owner of the land, it will have effect as if granted by the Commonwealth. However, the changes proposed here in Schedule 2 of the Bill will exclude the Commonwealth s tenancy obligations under NT law.

Item 1 inserts new Division 3A Residential tenancies into Part 4 of the Emergency Act. Proposed new sections 59C and 59D would provide that neither the RTA nor the Tenancy Act applies to tenancy agreements to which the Commonwealth is a party in respect of premises on leased land, and the Commonwealth is not subject to obligations regarding condition of the premises, or repair or maintenance of the premises. Proposed subsection 59E would provide that the Minister may declare via legislative instrument that all, or parts of, the RTA or the Tenancy Act are to apply tenancy agreements to which the Commonwealth is a party.

In his second reading speech the Minister stated:

The Northern Territory Government has denied it has been a bad landlord. [15]

Schedule 3 Defence Housing Australia Amendment of the Defence Housing Australia Act 1987

Schedule 3 gives Defence Housing Australia (DHA) the ability to assist FACSIA in delivering housing to NT areas by amending the Defence Housing Australia Act 1987 (the DHA Act). The primary role of DHA is to provide housing to members of the Australian Defence Force and their families. However the scope of DHA was expanded in 2006 to enable it to provide services to other Australian Government agencies. [16]

The main change is found in Item 5, which inserts after subsection 6(1) of the DHA Act a second additional function for DHA: (new subsection 6(1A)) to assist an Agency (other than Defence) in relation to the delivery of a program that involves the provision of housing, or housing related services, to persons.

Items 9,10 and 11 make amendments to section 6 of the DHA Act to ensure that any assistance provided by DHA is subject to existing requirements in the DHA Act to ensure that DHA maintains its primary Defence focus. [17]

Schedule 4 Land Rights Amendment of the Aboriginal Land Rights (Northern Territory) Act 1976 and Northern Territory National Emergency Response Act 2007

Schedule 4 makes a series of amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 (the ALRA).

Executive Director of Township Leasing

The first series of amendments are regarding the position of Executive Director of Township Leasing. A scheme to facilitate Northern Territory township leasing was included in 2006 amendments to the ALRA. [18] Under section 19A of the ALRA, a Land Trust may grant a 99 year lease of a township to an approved entity , which means either a Commonwealth or NT entity, if both the Minister and the Land Council agree to the granting of the lease.

In June 2007 the Commonwealth created the position of Executive Director of Township Leasing, claiming that the Northern Territory Government had failed to establish an approved entity as required by 19A of the ALRA to administer 99-year leases. [19] Schedule 4 of this Bill seeks to make some amendments to the functions of the Executive Director of Township Leasing.

Item 1 proposes to amend section 20E of the ALRA to allow the Executive Director to be appointed on a full-time or part-time basis (20E previously stipulated a full-time appointment). Items 2 and 3 expand sections 20H and 20K respectively to place restrictions on outside employment for a part-time Executive Director, and to allow the Minister to approve a leave of absence for a part-time Executive Director.

Item 4 repeals and substitutes a new section 20M of the ALRA, dealing with termination of appointment. New section 20M will include a subsection providing that the appointment of a part-time Executive Director may be terminated if he or she engages in paid employment that conflicts or could conflict with the proper performance of his or her office.

Statutory rights over buildings and infrastructure

Items 5 and 8 repeal and substitute sections in the ALRA dealing with statutory rights, to provide that where the Commonwealth has statutory rights [20], the Minister may, on behalf of the Commonwealth, permit a person to exercise the statutory rights. Similarly items 6 and 9 allow the Minister to agree with a Land Council to vary the area over which statutory rights may apply. Under items 7 and 10, the Minister may determine that the buildings or infrastructure to which statutory rights apply are not longer required by the Commonwealth.

Item 22 inserts a new subsection 76(1A) to allow the Minister to delegate any of his or her functions or power under Part 11B of the Act, relating to statutory rights over infrastructure, to a Secretary or SES employee of his/her own department, or another department, or the General Manager of Indigenous Business Australia.

Land Councils and fees

Existing section 23 of the ALRA sets out the functions of Land Councils. Paragraph 23(1) (fa) states that a function of a Land Council is to negotiate, and enter into agreements, as necessary, for the purposes of subsection 70(4) (which deals with entry to Aboriginal land). Item 12 of this Bill proposes to expand the functions of the Land Councils to include:

Item 13 adds that the functions of Land Councils may be further expanded via the regulations.

Item 14 proposes to insert new section 33B to the ALRA, to permit a Land Council to charge certain fees. Existing section 33A allows Land Councils to charge fees for services provided in performing any of their functions, or exercising any of their powers, under the ALRA. Under proposed section 33B, a Land Council could charge the Commonwealth a fee for the reasonable expenses incurred by the Council in performing negotiations as provided for in new paragraphs 23(1) (fb-fd) outlined above. A Land Council may also charge a fee for other services as may be prescribed by the regulations in the future. The fee must not amount to taxation (proposed section 33B(3)). The total amount of fees received must be included in the Land Council s annual report (item 19). A fee payable by the Commonwealth will be payable from the Consolidated Revenue Fund (CRF) (item 24). The Explanatory Memorandum states that this is preferred over an annual appropriation because amounts payable by the Commonwealth under new section 33B, and the timing of the payments, cannot be predicted in a way that would make an annual appropriation suitable. [21]

Item 18 amends section 35(4) of the ALRA, which stipulates that where a Land Council receives a payment in respect of Aboriginal land, it must, within 6 months after the payment is received, pay an amount equal to that payment to or for the benefit of the traditional Aboriginal owners of the land. Item 18 amends subsection 35(4) to ensure that payments received in accordance with sections 60 and 62 of the Emergency Act must be distributed to the traditional owners.

Other amendments

Item 20 proposes to amend subsection 70F(2) to provide that the right of persons who seek to enter and remain on a common area that is within community land applies to common areas which are within a lease held by the Director of National Parks.

Item 21 proposes to insert new section 70J, to provide that the access rights in sections 70B to 70G may be subject to regulation under the Environment Protection and Biodiversity Conservation Act 1999 and its regulations.

Note that both items 21 and 22 only come into force once item 12 of Schedule 4 of the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007 comes into force. Item 12 of that Act inserts sections 70A to 70H into the ALRA.

Item 23 seeks to repeal subsection 52(8) of the Emergency Act, as it will be made redundant by the amendment in item 18, outlined above.

Schedule 5 Acquisition of rights, titles and interests in land Amendment of the Northern Territory National Emergency Response Act 2007

Schedule 5 to the Bill seeks to make amendments to Part 4 of the Emergency Act. Part 4 of that Act deals with acquisition of rights, titles and interests in land, most significantly the five-year leases assumed by the Commonwealth over Aboriginal communities and town camps. Many of the amendments are minor and technical in nature.

Section 31 lease over Canteen Creek

Item 2 proposes to repeal existing subsections 38(1) and (2) of the Emergency Act, which relate to the traditional land claim over Canteen Creek. Proposed new subsection 38(1) states that a grant of a five-year lease of Canteen Creek to the Commonwealth under section 31 of the Act has effect, despite section 67A of the ALRA. Further, the grant by the Commonwealth of any estate or interest in Canteen Creek also has effect despite section 67A of the ALRA. Section 67A of the ALRA provides that estates or interests are not to be granted while land is subject to a traditional land claim. Canteen Creek is subject to a traditional land claim under the ALRA. [22]

Proposed new subsection 38(2) clarifies that the grants provided under section 38 will not affect the traditional land claim over Canteen Creek.

Grants of interests by Land Trusts

Item 8 proposes to insert new subsection 52(4A), relating to grants of interests by a Land Trust under the ALRA. Under current section 52 of the Emergency Act, Land Trusts may, with the consent of the Minister for Indigenous Affairs, continue to grant leases of land under section 19 of the ALRA, in spite of the five-year Commonwealth leases.

Section 19 of the ALRA allows Land Trusts to grant leases over land vested in it, including the granting of 99-year leases to the Commonwealth as provided by section 19A of the ALRA. For a full background on 99-year leases refer to the Bills Digest for the ALRA Amendment Bill 2006. [23]

Under proposed new section 52(4A), Land Trusts will be permitted to continue to grant interests (not leases), of a kind to be prescribed by regulation, over land leased by the Commonwealth under section 31 of the Emergency Act. Item 9 proposes to repeal and substitute subsection 52(5) to clarify that only interests referred to in 52(1) and (4A) can be granted by Land Trusts while a five-year lease is in place.

Future Act provisions in the Native Title Act

Items 5 and 6 amend paragraphs 51(1)(c) and (d) respectively of the Emergency Act, replacing references to on land with on or in relation to land . Section 51 of the Act provides that the future act provisions of the Native Title Act 1993 will not apply to acts such as section 31 leases and vesting of rights under section 47 (see the Bills Digest on the Emergency Act for further detail on this). [24] The future act provisions provide certain procedural rights in relation to future acts while native title applications are being resolved. The non-extinguishment principle will apply by virtue of existing subsection 51(2) of the Emergency Act.

The amendment proposed here is to ensure that if the Commonwealth, the Northern Territory or an Authority (as under the ALRA) grants interests within the five-year lease period, the future act provisions in the Native title Act 1993 do not apply. [25]

Agreement on amounts in respect of five-year leases

Item 12 proposes to insert new subsections 62 (1A) through to (1H) into the Emergency Act. Section 62 deals with the payment of rent by the Commonwealth to the owner of land (other than the Northern Territory Government) which is subject to a section 31 five-year lease. The new subsections provide more detail on specific circumstances which may arise. For example, proposed subsection 62(1B) allows for the rent amount to be paid as a one-off payment or a periodic payment. Proposed subsections 62(1D) through to (1F) provide for the parties to agree on an amount to be paid in the case of termination or suspension of a lease. Proposed subsection 62(1H) provides that if the land owner is not being represented by the relevant Land Council, the Commonwealth must pay the reasonable expenses incurred in representing the other party in negotiations under new subsections 61(1A), (1D) or (1E), including the costs of hiring a person to represent them.

Schedule 6 Community Stores Amendment of the Northern Territory National Emergency Response Act 2007

Schedule 6 amends the definition of 'roadhouse' in existing paragraph 92(2)(b), Part 7 Licensing of Community Stores in the Northern Territory National Emergency Response Act 2007.

Under existing section 92, the meaning of community store is as follows:

Item 1 would amend the definition so that roadhouse is now covered by the definition of 'community store' if 'an Indigenous community is substantially dependent upon the roadhouse for the provision of grocery items and drinks'.

Conclusion

The speed of the passage of the package of emergency response bills through the Parliament has brought about the need for substantial amendments within a few months.

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Endnotes