Part 5 Local Aboriginal Land Councils
Division 1 Constitution of Local Aboriginal Land Councils and Local Aboriginal Land Council areas
49 Constitution of Local Aboriginal Land Council areas
(cf former section 5)
(1) The Minister may, in the manner prescribed by the regulations, constitute an area as a Local Aboriginal Land Council area.(2) The Governor may make regulations for or with respect to the constitution of Local Aboriginal Land Council areas.(3) Without affecting the generality of subsection (2), regulations may be made under that subsection for or with respect to the following:(a) applications for the constitution of areas as Local Aboriginal Land Council areas,(b) the making of recommendations to the Minister with respect to proposals to constitute Local Aboriginal Land Council areas,(c) the lodging of objections against:(i) the refusal of applications for the constitution of Local Aboriginal Land Council areas or the failure to deal with any such applications, and(ii) proposals to constitute Local Aboriginal Land Council areas,(d) the reference to the Court of objections of the kind referred to in paragraph (c) and the hearing and determination by the Court of any such objections.
50 Constitution of Local Aboriginal Land Councils
(cf former section 6 (1) and (2))
(1) A Local Aboriginal Land Council is constituted by this Act for each Local Aboriginal Land Council area.(2) A Local Aboriginal Land Council is a body corporate.(3) The corporate name of a Local Aboriginal Land Council is “Local Aboriginal Land Council” preceded by the name of the area of the Council.
51 Objects of Local Aboriginal Land Councils
(cf clause 5 of Schedule 1 to 1996 Regulation)
The objects of each Local Aboriginal Land Council are to improve, protect and foster the best interests of all Aboriginal persons within the Council’s area and other persons who are members of the Council.
Division 1A Functions of Local Aboriginal Land Councils
52 Functions of Local Aboriginal Land Councils
(1) A Local Aboriginal Land Council has the functions conferred or imposed on it by or under this or any other Act.(2) Land acquisition
A Local Aboriginal Land Council has the following functions in relation to the acquisition of land and related matters:(a) in accordance with this Act and the regulations, to acquire land and to use, manage, control, hold or dispose of, or otherwise deal with, land vested in or acquired by the Council,(b) functions relating to the acquisition of land and any other functions conferred on it by or under Part 4A of the NPW Act,(c) to submit proposals for the listing in Schedule 14 to the NPW Act of lands of cultural significance to Aboriginal persons that are reserved under the NPW Act,(d) to negotiate the lease by the Council or by the Council and one or more other Aboriginal Land Councils of lands to which section 36A applies to the Minister administering the NPW Act,(e) when exercising its functions with respect to land that is the subject of a lease, or proposed lease, under Part 4A of the NPW Act, to act in the best interests of the Aboriginal owners of the land concerned,(f) to make written applications to the New South Wales Aboriginal Land Council for the acquisition by the New South Wales Aboriginal Land Council of land on behalf of, or to be vested in, the Local Aboriginal Land Council,(g) to make claims to Crown lands.(3) Land use and management
A Local Aboriginal Land Council has the following functions in relation to land use and management:(a) to consider applications to prospect or mine for minerals on the Council’s land and to make recommendations to the New South Wales Aboriginal Land Council in respect of such applications,(b) to protect the interests of Aboriginal persons in its area in relation to the acquisition, management, use, control and disposal of its land.(4) Aboriginal culture and heritage
A Local Aboriginal Land Council has the following functions in relation to Aboriginal culture and heritage:(a) to take action to protect the culture and heritage of Aboriginal persons in the Council’s area, subject to any other law,(b) to promote awareness in the community of the culture and heritage of Aboriginal persons in the Council’s area.(5) Financial stewardship
A Local Aboriginal Land Council has the following functions in relation to financial management and business planning:(a) to prepare and implement, in accordance with this Act, a community, land and business plan,(b) to manage, in accordance with this Act and consistently with its community, land and business plan, the investment of any assets of the Council,(c) to facilitate business enterprises, in accordance with this Act and the regulations and consistently with its community, land and business plan.(6) Other functions prescribed by regulations
A Local Aboriginal Land Council has any other functions prescribed by the regulations.Note. Under section 50 of the Interpretation Act 1987, a Local Aboriginal Land Council has certain functions as a statutory corporation, including the power to purchase, exchange, take on lease, hold, dispose of and otherwise deal with property. This provision is subject to the provisions of this Act.
52A Community benefits schemes
(1) A Local Aboriginal Land Council may, in accordance with an approval of the New South Wales Aboriginal Land Council:(a) directly or indirectly, provide community benefits under community benefits schemes, and(b) without limiting paragraph (a), provide, acquire, construct, upgrade or extend residential accommodation for Aboriginal persons in its area.(2) The New South Wales Aboriginal Land Council must not approve a community benefits scheme of a Local Aboriginal Land Council unless it is satisfied that:(a) the proposed scheme complies with this Act and the regulations, and(b) the proposed scheme is consistent with any applicable policy of the New South Wales Aboriginal Land Council, and(c) the proposed scheme is consistent with the community, land and business plan of the Local Aboriginal Land Council, and(d) the proposed scheme is fair and equitable and will be administered in a way that is responsible and transparent, and(e) the proposed scheme is not likely to prevent the Local Aboriginal Land Council from being able to meet its debts as and when they fall due, and(f) the need for the proposed benefits is not otherwise being adequately met.(3) A Local Aboriginal Land Council must ensure that any community benefits scheme under which community benefits are provided by it or on its behalf:(a) complies with this Act and the regulations, and(b) is consistent with any applicable policy of the New South Wales Aboriginal Land Council, and(c) is consistent with the community, land and business plan of the Local Aboriginal Land Council.(4) A Local Aboriginal Land Council may provide community benefits under a community benefits scheme to persons within the areas of other Local Aboriginal Land Councils and may provide community benefits in conjunction with one or more other Aboriginal Land Councils.
52AA Powers of Local Aboriginal Land Councils with respect to property
(1) A Local Aboriginal Land Council may do or suffer in relation to its property any act or thing that it could lawfully do or suffer if it were a natural person having, in the case of land, the same estate or interest in the property as the Council.(2) In particular, without limiting the generality of subsection (1), a Local Aboriginal Land Council may do or suffer any such act or thing to enable it to:(a) improve, or cause to be improved, any land vested in it, or(b) explore for and exploit, or cause to be explored for or exploited, mineral resources or other natural resources vested in it.(3) This section is subject to this Act.
(1) This section applies to a community benefits scheme in relation to the acquisition and provision by or on behalf of a Local Aboriginal Land Council of residential accommodation for Aboriginal persons in its area and to the construction, upgrading and extension of any such accommodation (a social housing scheme).(2) The New South Wales Aboriginal Land Council must not approve a social housing scheme under section 52A unless:(a) it is satisfied that the income (including any subsidies and grants) from any existing social housing scheme provided by or on behalf of the Local Aboriginal Land Council or of the proposed scheme is or will be sufficient to meet all the expenses of the scheme concerned, including long term maintenance requirements, and(b) it has considered the likely impact of the proposed scheme on the overall financial situation of the Local Aboriginal Land Council.(3) A Local Aboriginal Land Council may provide a social housing scheme by using the services of another body or agency, or with the assistance of another body or agency, approved by the New South Wales Aboriginal Land Council either generally or in relation to a particular social housing scheme.(4) (Repealed)
(1) A Local Aboriginal Land Council may, with the approval of the New South Wales Aboriginal Land Council, establish, or participate in the establishment of, a trust for the purpose of providing a community benefits scheme.(2) The New South Wales Aboriginal Land Council must not give an approval for the purposes of this section unless it is of the opinion that the proposed action by the Local Aboriginal Land Council:(a) complies with this Act and the regulations, and(b) is consistent with any applicable policy of the New South Wales Aboriginal Land Council, and(c) is consistent with the community, land and business plan of the Local Aboriginal Land Council, and(d) is not likely to prevent the Local Aboriginal Land Council from being able to meet its debts as and when they fall due.(3) Regulations may be made for or with respect to financial and reporting obligations for trusts established by Local Aboriginal Land Councils.
52D Duty of Aboriginal Land Council not to transfer land or other assets to Council members, Board members, staff or consultants
(1) A Local Aboriginal Land Council must ensure that no part of the income or property of the Council is transferred directly or indirectly by way of dividend or bonus or otherwise by way of profit to members of the Council, Board members or any member of staff of, or consultant to, the Council.(2) Nothing in this section prevents:(a) the provision of a benefit in good faith to a Council member, Board member, member of staff or consultant in accordance with this Act, or(b) the payment in good faith of remuneration to any such member, Board member, member of staff or consultant.
52E Delegation of functions by Local Aboriginal Land Councils
(1) A Local Aboriginal Land Council may, by resolution, delegate to any person or body the exercise of any of the functions of the Council, other than the following:(a) the acquisition of land and the use, management, control, holding or disposal of, or otherwise dealing with, land vested in or acquired by the Council,(b) any function under this or any other Act that is expressly required to be exercised by resolution of the voting members of the Council.(2) Each Local Aboriginal Land Council must, once every year, review all its delegations.
52F Rules of Local Aboriginal Land Councils
(1) The purpose of this section is to provide rules for Local Aboriginal Land Councils relating to those Councils’ functions and operations.(2) The rules prescribed by the regulations as model rules are the rules for a Local Aboriginal Land Council.(3) However, a Local Aboriginal Land Council may prepare its own rules and submit them to the Registrar for approval.(4) On approval by the Registrar, the rules prepared by a Local Aboriginal Land Council, to the extent that they are not inconsistent with this Act or the regulations, become the rules of the Council to the exclusion of the model rules.(5) A Local Aboriginal Land Council’s rules may, with the approval of the Registrar, be amended, repealed or replaced from time to time.(6) A Local Aboriginal Land Council may appeal to the Court against the Registrar’s refusal to approve of rules or to approve of an amendment, a repeal or a replacement of its rules.(7) On the hearing of an appeal under subsection (6), the Court may direct the Registrar to approve of rules, or an amendment, a repeal or a replacement of rules, specified in the direction.
52G Functions exercised by Council resolution
The following functions are to be exercised, in accordance with this Act, by resolution of the voting members of a Local Aboriginal Land Council:(a) acceptance of persons as qualified for membership,(b) delegation of functions of the Council,(c) approval of the rules and code of conduct of the Council and any amendment to or repeal or replacement of those rules or that code,(d) approval of the community, land and business plan of the Council and any changes to the plan,(e) approval of dealings with land (within the meaning of Division 4 of Part 2) and land dealing approval agreements (within the meaning of that Division), other than any such dealings or agreements that relate to short-term residential tenancy agreements,(f) receipt of the annual budget and the financial statements of the Council,(g) election of Board members,(h) suspension of members from attending or voting at meetings of the Council,(i) approval of requests to change the name of the Council’s area or for the amalgamation or dissolution of the Council, or its re-allocation to another Region.
52H Meetings of Local Aboriginal Land Councils
Part 1 of Schedule 3 has effect.
Division 2 Membership of Local Aboriginal Land Councils
53 Membership of Local Aboriginal Land Councils
(cf former section 6 (3))
The members of the Local Aboriginal Land Council for a Local Aboriginal Land Council area are the adult Aboriginal persons who are listed on the Local Aboriginal Land Council membership roll for that area.
54 Local Aboriginal Land Council membership rolls
(cf former section 7 (1) and (2))
(1) The chief executive officer of a Local Aboriginal Land Council must, in respect of the Local Aboriginal Land Council area, prepare and maintain a Local Aboriginal Land Council membership roll (the membership roll).(2) The chief executive officer of a Local Aboriginal Land Council must list on the membership roll for the area of the Council the names and addresses of those persons who are qualified for membership.(2A) A person is qualified for membership if:(a) the person is an adult Aboriginal person who resides within the area of the Local Aboriginal Land Council concerned and is accepted as being qualified on that basis to be a member by a meeting of the Council, or(b) the person is an adult Aboriginal person who has a sufficient association with the area of the Local Aboriginal Land Council concerned (as determined by the voting members of the Council at a meeting of the Council) and is accepted as being qualified on that basis to be a member by a meeting of the Council, or(c) the person is an Aboriginal owner in relation to land within the area of the Local Aboriginal Land Council concerned and has made a written application for membership in accordance with subsection (3).(2B) The membership roll must indicate whether a member is a person who is included on the roll because of residence or association, or as an Aboriginal owner, and must indicate the basis for that inclusion.(3) A person seeking to be accepted as a member of a Local Aboriginal Land Council must make and submit to that Council a written application for that membership that:(a) declares that the person is eligible for inclusion on the membership roll, and(b) sets out the grounds (other than acceptance as being qualified at a meeting) on which the person is qualified for inclusion on the membership roll, and(b1) sets out the basis on which the person asserts his or her Aboriginal descent and, if the application declares that the person has a sufficient association with that Council’s area, the basis of that association, and(c) if the person is seeking to be accepted as a voting member of the Council—attaches a notice from the Registrar declaring that the person is not a voting member of any other Local Aboriginal Land Council.Note. If a person is a voting member of one Local Aboriginal Land Council and wishes to join and become a voting member of another Local Aboriginal Land Council, the person must first be accepted as a non-voting member of the second Local Aboriginal Land Council under this section. The person must then make a nomination under section 56 to change the Council in which the person intends to have voting rights.(4) A person must not make an application for membership of an Aboriginal Land Council that the persons knows, or ought reasonably to know, is false or misleading in a material particular.Maximum penalty (subsection (4)): 10 penalty units.
Note. An Aboriginal person may request that the Registrar issue a compliance direction under Part 12 if the person believes a Local Aboriginal Land Council has, in contravention of this Act:(a) failed or refused to list the person’s name on the membership roll of the Council, or(b) removed the person’s name from that roll.
55 Aboriginal persons may be member of more than one Local Aboriginal Land Council
(1) An Aboriginal person may be a member of more than one Local Aboriginal Land Council.(2) However, a person is entitled to voting rights in relation to one Local Aboriginal Land Council only at any one time.(3) The Local Aboriginal Land Council in relation to which the person has voting rights is to be the Council nominated by the person or, if the person has not made a nomination, the Council for the area within which the person resides.(4) A non-voting member of a Local Aboriginal Land Council is not entitled to vote:(a) in elections for Board members, or(b) on any matter to be determined by the Council.(4A) A voting member of a Local Aboriginal Land Council is not entitled to vote in elections for Board members if:(a) the member has not attended at least 2 meetings of the Council in the preceding 12 months as a voting member, or(b) the member is suspended from membership of the Council or Board.(5) A vote by a non-voting member of a Local Aboriginal Land Council or a member referred to in subsection (4A) in such an election or on such a matter is void.
(1) A person who is a member of more than one Local Aboriginal Land Council may, by notice in writing given to the Registrar, make a nomination to change the Council in relation to which the person has voting rights (being a Council of which the person is a member).(2) A person must not make more than one nomination under subsection (1) in any 12 month period.(3) The Registrar may at any time, by notice in writing to a person who the Registrar believes is a member of 2 or more Local Aboriginal Land Councils, require the person to make a nomination under this section within the time specified in the notice.(4) If a nomination is not made within the time required under subsection (3), the Local Aboriginal Land Council in relation to which the person has voting rights is to be the Council for the area within which the person resides.(5) The Registrar is, as soon as practicable, to give notice of the receipt of a nomination or of a failure to make a nomination under this section to the person concerned and to the Registrar and the chief executive officer of each Local Aboriginal Land Council of which the person is a member.(6) The chief executive officer of each such Council must record on the membership roll for the Local Aboriginal Land Council the Council in relation to which the person has voting rights.
57 Suspension of members from attending Council meetings
(cf clause 10 of Schedule 1 to 1996 Regulation)
(1) A member of a Local Aboriginal Land Council (other than a Board member of that Council) whose conduct the Council decides is detrimental to the best interests of the Council may be suspended by the Council from attending Council meetings for a period of time specified by the Council, but such a period must not be greater than 3 years.(2) During any period of suspension, the member is not entitled:(a) to attend meetings of that Council, or(b) to vote:(i) in elections for officers of the Council, or(ii) on any matter to be determined by the Council, or(c) if the member is also a member of another Local Aboriginal Land Council—to make a nomination to change the Council in relation to which the person has voting rights.(3) A Local Aboriginal Land Council that has suspended a member under this section may at any time revoke the suspension.(4) The chief executive officer of a Local Aboriginal Land Council that has suspended a member under this section must notify the Registrar of the suspension, and the details of the suspension, and of any revocation of that suspension.(5) At the end of the period of suspension, the member is entitled to attend Council meetings, vote and make a nomination in relation to voting rights unless the Council, by a further vote, held in accordance with this section, sets another period of suspension.
58 Removal of person’s name from membership roll
(cf clause 8 (2) of Schedule 1 to 1996 Regulation)
The chief executive officer of a Local Aboriginal Land Council must remove the name of a person from the Council’s membership roll if, and only if:(a) the person dies, or(b) the person resigns in writing, or(c) if the person is a member because the person resided in the Council area—the person no longer resides in the Council area and the Council at a meeting decides that the person does not have a sufficient association with the area to continue as a member, or(d) the chief executive officer is satisfied, after making reasonable inquiries, that the residential address of the person is unknown.
59 Updating and consolidation of membership rolls
(1) The chief executive officer of each Local Aboriginal Land Council must:(a) within such period as may be prescribed by the regulations, send a copy of the Council’s membership roll, certified as correct by the chief executive officer, to the Registrar, and(b) advise the Registrar in writing of any changes to the membership roll that have occurred since a copy was last sent to the Registrar.(2) The chief executive officer of a Local Aboriginal Land Council is to ensure, so far as practicable, that the membership roll of the Council is kept up to date.(3) The Registrar is to compile and maintain a consolidated roll of all members of Local Aboriginal Land Councils.(4) The New South Wales Aboriginal Land Council must, at the request of the Registrar, pay to the Registrar a contribution, of an amount approved by the Minister, for the cost of the exercise of the Registrar’s functions under this section.
60 Regulations concerning membership of Local Aboriginal Land Council and membership rolls
(cf former section 7 (3))
The Governor may make regulations for or with respect to:(a) the preparation and maintenance of Local Aboriginal Land Council membership rolls, and(b) the particulars to be recorded in Local Aboriginal Land Council membership rolls, and(c) the removal of particulars from Local Aboriginal Land Council membership rolls, and(d) the procedure to be followed by Local Aboriginal Land Councils when deciding whether to suspend a member from attending Council meetings and voting.
Division 3 Boards of Local Aboriginal Land Councils
61 Local Aboriginal Land Councils to have Boards
(1) Each Local Aboriginal Land Council is to have a Board consisting of not less than 5, and not more than 10, members.(2) The number of Board members for each Local Aboriginal Land Council is to be determined in accordance with the regulations.(3) Part 2 of Schedule 3 has effect with respect to the procedure of Boards of Local Aboriginal Land Councils.(4) The regulations may prescribe additional requirements with respect to meetings.
62 Functions of Boards of Local Aboriginal Land Councils
(1) A Board of a Local Aboriginal Land Council has the following functions:(a) to direct and control the affairs of the Council,(b) to facilitate communication between the Council’s members and the New South Wales Aboriginal Land Council,(c) to review the performance of the Council in the exercise of its functions and the achievement of its objectives,(c1) without limiting paragraph (a), to enter into short-term residential tenancy agreements in relation to land vested in the Council and to manage or terminate such agreements,(d) any other functions conferred on the Board by or under this Act.(2) The functions of the Board of a Local Aboriginal Land Council are to be exercised in accordance with this Act and the regulations and consistently with the community, land and business plan of the Council.
(1) The Board members are to be elected at every second annual meeting of a Local Aboriginal Land Council.(2) A person is not qualified to stand and be elected as a Board member of a Local Aboriginal Land Council:(a) unless the person is a voting member of the Council, or(b) if the person is suspended or disqualified from holding office as a Board member or is suspended or disqualified from membership of the Council.(3) The term of office of a Board member commences on the Board member’s election and ends on the election of the next Board at the second annual meeting of the Council following the member’s election.(4) A Board member is entitled to be paid such travelling and other allowances as the Minister may from time to time determine in respect of the member.(5) A Board member is eligible for re-election, subject to this Act.(6) The Registrar is to be the returning officer for an election.(7) Elections for Board members are to be conducted in accordance with the regulations.
64 Chairperson and Deputy Chairperson
(1) A Chairperson and Deputy Chairperson of the Board of a Local Aboriginal Land Council are to be elected from among the Board members at the first meeting of the Board after its election.(2) The Chairperson and Deputy Chairperson of a Board have the functions conferred on the Chairperson or Deputy Chairperson by or under this Act.(3) In the absence of the Chairperson of a Board, the Deputy Chairperson:(a) is, if available, to act in the place of the Chairperson, and(b) while so acting, has all the functions of the Chairperson and is taken to be the Chairperson of the Board.(4) If a Chairperson of a Board becomes a councillor, the person ceases to be the Chairperson and a new Chairperson is to be elected.(5) Elections for Chairperson and Deputy Chairperson are to be conducted in accordance with the regulations.
(1) The New South Wales Aboriginal Land Council must arrange training in relation to the matters prescribed by the regulations for each member elected for the first time to a Board of a Local Aboriginal Land Council.(2) The training is to be provided not later than 6 months after the date of election of a Board member.(3) A Board member must not refuse or fail to undergo training provided under this section when required to do so by the New South Wales Aboriginal Land Council.(4) If a Board member refuses or fails to undergo training provided under this section when required to do so by the New South Wales Aboriginal Land Council, the Board member is, on written notice being given to the Board member by the Council, suspended from office as a Board member until the person undergoes the training.(5) The New South Wales Aboriginal Land Council may:(a) exempt a Board member wholly or partly from the requirement to undergo training provided under this section, if the Council is satisfied that the Board member already has sufficient expertise, skills and experience to carry out his or her functions as a Board member, or(b) extend the period within which training is to be provided to a Board member under this section.
66 Grounds for disqualification from office
(1) A person is disqualified from holding office as a Board member of a Local Aboriginal Land Council if the person:(a) has a conviction in New South Wales or elsewhere for an offence relating to the management of a corporation, that was recorded within the last 5 years, or(b) has a conviction for an offence under this Act that was recorded within the last 5 years, or(c) has a conviction in New South Wales for any other offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable that was recorded within the last 5 years, or(d) ceases to be a voting member of the Council, or(e) becomes a councillor of the New South Wales Aboriginal Land Council, or(f) is a mentally incapacitated person, or(g) is or becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(h) is or was a director or person concerned in the management of a body corporate that is the subject of a winding up order or for which a controller or administrator has been appointed under the Corporations Act 2001 of the Commonwealth during the last 3 years, or(i) is disqualified from holding office in or being concerned in the management of a corporation under any law of this or any other State or Territory or the Commonwealth, or(j) is an employee of, or a consultant to, the Council, or(k) was, on 2 or more occasions before an administrator was appointed to the Council, an officer of the Council, or(l) fails, without a reasonable excuse, for a period of 3 months or more to comply with a written requirement by the New South Wales Aboriginal Land Council to undergo training under section 65, or(m) is disqualified from holding office as a councillor.(2) The Registrar may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.(3) The Registrar may determine that a person is not disqualified on the ground set out in subsection (1) (k) if the Registrar is satisfied that it is appropriate in the circumstances that the person not be disqualified on that ground.
A person who is a Board member of a Local Aboriginal Land Council vacates office if the person:(a) dies, or(b) is absent from 2 consecutive meetings of the Board or the Council of which reasonable notice has been given to the person personally or by post, except on leave granted by the Board or unless the person is excused by the Board for having been absent from those meetings, or(c) completes a term of office and is not re-elected, or(d) resigns the office by instrument in writing addressed to the Council, or(e) becomes disqualified from holding office as a Board member under this Act.
A person is to be appointed in accordance with the regulations to fill a casual vacancy in the office of a Board member for the remainder of the term of office.
69 ADT may declare particular offices of Local Aboriginal Land Council vacant
(cf section 329 of Local Government Act 1993)
(1) Any person may apply to the Administrative Decisions Tribunal for an order declaring that a particular office of a Board member of a Local Aboriginal Land Council has become vacant under this Act.(2) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this section.
70 Appeals to Supreme Court against order
(cf section 330 of Local Government Act 1993)
(1) A person whose office has been declared vacant by order of the Administrative Decisions Tribunal may appeal against the order, on a question of law, to the Supreme Court.(2) Such an appeal may not be made more than 28 days after the date on which the order is made.
71 Effect of order declaring vacancy
(cf section 331 of Local Government Act 1993)
An order declaring a vacancy in an office made by the Administrative Decisions Tribunal under this Division takes effect:(a) if no appeal to the Supreme Court is made against the order, at the end of the period during which such an appeal may be made, or(b) if such an appeal is made within that period and the order is confirmed on appeal, when the order is confirmed, or(c) if, within that period, the person against whom the order is made serves on the Chief Executive Officer of the New South Wales Aboriginal Land Council written notice of intention not to appeal against the order, when the notice is lodged.
(1) A Board may delegate to any person or body any of the functions of the Board other than this power of delegation and any matter under this Act or the regulations that also requires the approval of the New South Wales Aboriginal Land Council.(2) A Board must, once every year and immediately after an election of the Board, review all its delegations.
73–77(Repealed)
Division 5 Staff of Local Aboriginal Land Councils
(cf former section 12A)
A Local Aboriginal Land Council may employ such staff, and engage such consultants, as are necessary to enable the Council to exercise its functions.
(1) A Local Aboriginal Land Council must employ a member of staff to exercise the functions of the chief executive officer of the Council for the purposes of this Act.(2) The chief executive officer has the following particular functions:(a) the day-to-day management of the Council’s affairs,(b) the exercise of such functions of the Board as are delegated by the Board to the chief executive officer,(c) the appointment of staff in accordance with the approval of the Board,(d) the direction and dismissal of members of staff,(e) such other functions as may be conferred or imposed on the chief executive officer by or under this or any other Act.
78B Certain persons must not be employed as chief executive officers
(1) The following persons must not be or continue to be employed as the chief executive officer of a Local Aboriginal Land Council:(a) a person who is a Board member of the Council or a councillor,(b) a person who has a conviction in New South Wales or elsewhere for an offence relating to the management of a corporation that was recorded within the last 5 years,(c) a person who has a conviction in New South Wales for an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, that was recorded within the last 5 years,(d) a person who is disqualified from holding office in or being concerned in the management of a corporation under any law of this or any other State or Territory or the Commonwealth,(e) a person who has an interest in, or is an employee of or concerned in the management of, a corporation that receives a benefit from the Council,(f) a person who is already engaged as a consultant to the Council,(g) a person who is a member of staff of the New South Wales Aboriginal Land Council,(h) a person who has been dismissed on the recommendation of the Pecuniary Interest and Disciplinary Tribunal within the last 5 years,(i) a person who is disqualified under this Act from being a Board member or a councillor (other than on the grounds of employment by the Council or ceasing to be a voting member of a Local Aboriginal Land Council).(2) The Registrar may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.
78C Filling of vacancy in position of chief executive officer
(1) If a vacancy occurs in the position of chief executive officer, the Local Aboriginal Land Council must immediately appoint a person under section 78A to the vacant position or appoint a person to act in the vacant position.(2) A vacancy occurs in the position of chief executive officer if the chief executive officer:(a) dies, or(b) completes the term of his or her contract and is not re-appointed, or(c) resigns from the position, or(d) becomes a mentally incapacitated person and is removed from the position by the Council because of that mental incapacity, or(e) is removed from the position on a ground set out in section 78B or for any other reason.
79 Certain persons must not be employed
(1) A person who is convicted of an offence under Part 3 (except section 61), 4, 4A or 5 of the Crimes Act 1900 must not be employed as a staff member of, or a consultant to, a Local Aboriginal Land Council for 5 years from the date of conviction.(2) A person who is a councillor or an officer of a Local or Regional Aboriginal Land Council must not be employed as a member of staff of a Local Aboriginal Land Council while the person is such a councillor or officer.(3) A person who is a consultant to a Local Aboriginal Land Council must not be employed as a member of staff of that Council while the person is such a consultant.(4) A member of staff of the New South Wales Aboriginal Land Council must not be employed as a member of staff of a Local Aboriginal Land Council while the person is such a member of staff.
(1) If it is proposed to make an appointment to a vacant position in the staff of a Local Aboriginal Land Council, the chief executive officer must advertise the vacancy in the manner prescribed by the regulations.(2) The chief executive officer need not advertise a vacant position in the circumstances prescribed by the regulations.
80 Appointments and promotion to be on merit
(1) Appointments to the staff of a Local Aboriginal Land Council and promotions for members of that staff are to be made on the basis of the merit of the applicants for appointment or promotion.(2) The merit of persons eligible for appointment or promotion to a vacant position is to be determined having regard to:(a) the nature of the duties of the position, and(b) the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties.
81 Consultants to be engaged on merit
(1) A decision by a Local Aboriginal Land Council to engage a consultant is to be made on the basis of merit.(2) The merit of persons eligible to be engaged as a consultant is to be determined having regard to:(a) the nature of the duties of the work required to be done, and(b) the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties.
Division 6 Community, land and business plans
82 Community, land and business plans
(1) A Local Aboriginal Land Council must prepare and implement a community, land and business plan.(2) A Local Aboriginal Land Council preparing a community, land and business plan must consult with the following persons:(a) members of the Council,(b) persons who have a cultural association with the land within the Council’s area,(c) any other persons required to be consulted by the regulations or a policy of the New South Wales Aboriginal Land Council.(3) A Local Aboriginal Land Council may amend a community, land and business plan.(4) The provisions of this Division apply to any proposed amendment in the same way as they apply to the preparation and approval of a plan.(5) The New South Wales Aboriginal Land Council may exempt a Local Aboriginal Land Council wholly or partly from the requirement to prepare a community, land and business plan, if the New South Wales Aboriginal Land Council is satisfied that, having regard to the limited operations of the Local Aboriginal Land Council, compliance is not appropriate.(6) For the purposes of this section, a person has a cultural association with land if the person is an Aboriginal owner in relation to land within the area of the Local Aboriginal Land Council concerned or is a person of a class prescribed by the regulations for the purposes of this subsection.
(1) A community, land and business plan of a Local Aboriginal Land Council must contain the following matters:(a) the objectives and strategy of the Council for the acquisition, management and development of land and other assets,(b) the objectives and strategy of the Council for the provision and management of community benefits schemes,(c) the objectives and strategy of the Council for carrying out business enterprises and investment,(d) the objectives and strategy of the Council in relation to Aboriginal culture and heritage,(e) if the plan contains particular proposals related to the strategies in paragraph (a), (b) or (c), strategies for the development or acquisition of human resources and skills to implement the proposals,(f) timelines for the achievement of proposed strategies and proposals in the plan,(g) particulars of the assets and liabilities of the Council,(h) any matter required to be included by a policy of the New South Wales Aboriginal Land Council,(i) any other matter prescribed by the regulations.(2) A community, land and business plan must contain the following matters in relation to land:(a) the identity of, and particulars of any encumbrance affecting, any parcel of land of the Council,(b) the particulars of any other interest in land of the Council,(c) whether, and what, land is subject to the restriction contained in section 42 or to Part 4A of the NPW Act,(d) any conditions affecting land of the Council under section 36 or 39,(e) any other matters prescribed by the regulations.
84 Approval of community, land and business plans
(1) A community, land and business plan is adopted by a Local Aboriginal Land Council if it is approved by a meeting of the members of the Council, of which not less than 14 days notice was given.(2) A Local Aboriginal Land Council must submit a proposed community, land and business plan to the New South Wales Aboriginal Land Council not less than 28 days before any such meeting.(3) A Local Aboriginal Land Council must make available to its members, on request, for a period of not less than 14 days before any such meeting and at the meeting, a summary of the proposed community, land and business plan or a copy of the plan.(4) The summary is to contain the matters prescribed by the regulations.(5) More than one meeting may be called to enable approval of a community, land and business plan.(6) A community, land and business plan approved by a Local Aboriginal Land Council takes effect when it is approved by the New South Wales Aboriginal Land Council.(7) A community, land and business plan has effect for the period (not exceeding 5 years) specified in the plan or until it is replaced, whichever occurs first.(8) Failure to comply with a requirement of this Division for the preparation or approval of a community, land or business plan does not affect the validity of the plan.
85 Approval of plan by New South Wales Aboriginal Land Council
(1) The New South Wales Aboriginal Land Council must not approve a community, land and business plan unless it is satisfied that the plan complies with this Act and the regulations and is consistent with any applicable policy of the Council.(2) If a Local Aboriginal Land Council is not able to reach agreement on a proposed community, land and business plan within 3 months after it is first proposed for approval at a meeting of the Council, the Chairperson of the Board may refer the proposed plan to the New South Wales Aboriginal Land Council.(3) The New South Wales Aboriginal Land Council may amend or replace a proposed community, land and business plan referred to it under subsection (2) and may refer the amended or replaced plan to the Local Aboriginal Land Council for approval.
86 Administration may follow plan failure
(1) A failure by a Local Aboriginal Land Council to approve the same or another proposed community, land and business plan after a plan is referred to it by the New South Wales Aboriginal Land Council under section 85 (3) is, for the purposes of section 222 (1) (e), a substantial breach of the requirements of this Act.(2) A substantial failure by a Local Aboriginal Land Council to comply with its community, land and business plan is, for the purposes of section 222 (1) (e), a substantial breach of the requirements of this Act.Note. The effect of a substantial breach is that an administrator may be appointed for the Local Aboriginal Land Council.
Division 7 Changes to Local Aboriginal Land Councils and areas of Local Aboriginal Land Councils
87 Changes to Local Aboriginal Land Council areas
(1) The Minister may, by order published in the Gazette, do any one or more of the following:(a) change the name of a Local Aboriginal Land Council area,(b) change the boundaries of a Local Aboriginal Land Council area,(c) amalgamate 2 or more Local Aboriginal Land Council areas and constitute the amalgamated area as a Local Aboriginal Land Council area,(d) without limiting paragraph (b) or (c), include the whole of the area of a Local Aboriginal Land Council within the area of one or more other Local Aboriginal Land Councils,(e) dissolve a Local Aboriginal Land Council.(2) If the Minister makes an order under subsection (1) (b), (c), (d) or (e), the Minister may, in the same order, specify the Councils to which members of existing Councils affected by the order may (with the members’ consent) be allocated, or a method of determining the allocation of members (with the members’ consent).(3) The Minister may make an order under subsection (1) only if the order concerned is permitted or required by or under this Act or the regulations.(4) The regulations may make provision of a savings or transitional nature consequent on the making of orders under this section, including (but not limited to) construing references to Local Aboriginal Land Council areas and Councils and elections for Boards of new Local Aboriginal Land Councils.
On the day an order dissolving a Local Aboriginal Land Council takes effect, the Council ceases to exist and the Board members of the Council cease to hold office.
89 Transfer of assets, rights and liabilities
(1) If the Minister makes an order under section 87 (1), the Minister may, after consulting with the New South Wales Aboriginal Land Council, by order in writing, direct that all or part of the assets, rights and liabilities be transferred to an Aboriginal Land Council specified in the order.(2) An order under this section may be subject to specified terms and conditions.(3) More than one order may be made in respect of the same assets, rights and liabilities following the making of an order referred to in subsection (1).(4) Schedule 3A has effect with respect to the transfer of assets, rights and liabilities under this section.(5) Words and expressions used in this section have the same meanings as they have in Schedule 3A.(6) Despite any other provision of this section, lands vested in a Local Aboriginal Land Council under Part 4A of the NPW Act vest in accordance with that Part.Note. Part 4A of the NPW Act deals with lands reserved or dedicated under that Act that are vested in an Aboriginal Land Council or Councils and are leased by that Council or Councils to the Minister administering that Act.
(1) The Minister may make an order under section 87 in relation to a Local Aboriginal Land Council area or a Local Aboriginal Land Council on application made by an Aboriginal Land Council or a person in accordance with the regulations.(2) For the purposes of this section, regulations may be made for or with respect to the following matters:(a) the persons who may apply for an order under section 87,(b) applications for the making of an order,(c) procedures for approval of applications,(d) the making of recommendations to the Minister with respect to proposals to change Local Aboriginal Land Council areas,(e) determination of applications,(f) the functions of the Registrar in relation to applications,(g) the lodging of objections against the refusal of applications,(h) the reference to the Court of any such objections and the hearing and determination of any such objections.
91 Changes on initiative of Minister
(1) The Minister may make an order under section 87 in relation to a Local Aboriginal Land Council area or a Local Aboriginal Land Council if the Minister is satisfied that the Council:(a) has less than 50 voting members, or(b) has less than 3% of the potential members who reside in its area, as determined from the most recent available Australian census data, or(c) has a membership that is in significant decline, or(d) has not, for a period of not less than 3 months, been able to elect the required number of Board members, or(e) cannot pay its debts as and when they fall due, or(f) has had qualified audits or has failed to provide complete financial statements for any 3 of the last 5 years, or(g) has had an administrator appointed under this Act for any 3 of the last 5 years, or(h) is the subject of a report by an investigator or administrator under this Act, the New South Wales Aboriginal Land Council or the Local Aboriginal Land Council that has found that the Local Aboriginal Land Council has ceased to function.(2) The Minister may take action on a ground specified subsection (1) (a)–(f) on the basis of a report by the Registrar.(3) The Minister may not make an order on a ground specified in subsection (1):(a) in the case of an order amalgamating one or more Local Aboriginal Land Councils—except with the consent of the Councils, or(b) in the case of an order including the area of a dissolved Local Aboriginal Land Council in the area of one or more other Councils—except with the consent of those other Councils.
92 Objections to Minister’s changes
(1) Before taking action on a ground under section 91, the Minister must notify the following persons of the proposed action and of their rights under this section:(a) the New South Wales Aboriginal Land Council,(b) the Board of any Local Aboriginal Land Council affected,(c) the members of any such Council,(d) any investigator appointed to investigate the affairs of any such Council,(e) any administrator of any such Council.(2) A person notified of a proposed action may make submissions, within 21 days of being notified, to the Minister about the proposed action.(3) Before determining whether to take the action, the Minister must consider any submissions received under this section.