Does not include amendments by:
Government Information (Public
Access) (Consequential Amendments and Repeal) Act 2009 No 54
(not commenced)
Aboriginal Land Rights Amendment Act
2009 No 58
(not commenced)
|
Aboriginal Land Rights Act 1983 No 42
 Status Information Currency of version Provisions in force Does not include amendments by: Responsible Minister Authorisation:
This version of the legislation is compiled and maintained in
a database of legislation by the Parliamentary Counsel's Office
and published on the NSW legislation website, and is certified
as the form of that legislation that is correct under section
45C of the Interpretation Act 1987. Contents Long title Part 1 Preliminary 1 Name of Act 2 Commencement 3 Purpose of Act 4 Definitions 5–34C (Repealed) Part 2 Land rights Division 1 35(Repealed) Division 2 Claimable Crown lands 36 Claims to Crown lands 36A Special provision concerning certain Crown lands having nature conservation value 37 Aboriginal lands in travelling stock reserves Division 3 Acquisition of other lands 38 Purchase, lease etc of property 39 Acquisition of land Division 4 Disposal and use of Aboriginal land 40 Disposal of land restricted 40AA Disposal of land subject to native title restricted 40AB Disposal of land reserved or dedicated under NPW Act restricted 40A Transfer of land from one Council to another 40B Lease, use etc of land 40C Sale etc of land by New South Wales Aboriginal Land Council 40D Sale etc of land by Local Aboriginal Land Council 41 Powers of Aboriginal Land Councils with respect to property 42 Appropriation or resumption of Aboriginal lands 42A Unlawful land dealings Division 5 Rates 43 Exemption of Aboriginal lands from the payment of rates 44 Proceedings for non-payment of certain rates for Aboriginal lands barred 44A Payment of rates by NSW Aboriginal Land Council Part 3 Mineral rights and mining 45 Mineral rights and mining on Aboriginal land 46 Fees or royalties for mining on Aboriginal land Part 4 Hunting, fishing and gathering 47 Agreements to permit hunting, fishing or gathering 48 Access permits may be issued by the Court 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 50 Constitution of Local Aboriginal Land Councils 51 Objects of Local Aboriginal Land Councils Division 1A Functions of Local Aboriginal Land Councils 52 Functions of Local Aboriginal Land Councils 52A Community benefits schemes 52B Social housing schemes 52C Trusts 52D Duty of Aboriginal Land Council not to transfer land or other assets to Council members, Board members, staff or consultants 52E Delegation of functions by Local Aboriginal Land Councils 52F Rules of Local Aboriginal Land Councils 52G Functions to be exercised by Council resolution 52H Meetings of Local Aboriginal Land Councils Division 2 Membership of Local Aboriginal Land Councils 53 Membership of Local Aboriginal Land Councils 54 Local Aboriginal Land Council membership rolls 55 Aboriginal persons may be member of more than one Local Aboriginal Land Council 56 Nomination of voting area 57 Suspension of members from attending Council meetings 58 Removal of person’s name from membership roll 59 Updating and consolidation of membership rolls 60 Regulations concerning membership of Local Aboriginal Land Council and membership rolls Division 3 Boards of Local Aboriginal Land Councils 61 Local Aboriginal Land Councils to have Boards 62 Functions of Boards of Local Aboriginal Land Councils 63 Board members 64 Chairperson and Deputy Chairperson 65 Training for Board members 66 Grounds for disqualification from office 67 Vacancy in office 68 Casual vacancy 69 ADT may declare particular offices of Local Aboriginal Land Council vacant 70 Appeals to Supreme Court against order 71 Effect of order declaring vacancy 72 Delegation by Boards Division 4 73–77(Repealed) Division 5 Staff of Local Aboriginal Land Councils 78 Staff 78A Chief executive officer 78B Certain persons must not be employed as chief executive officers 78C Filling of vacancy in position of chief executive officer 79 Certain persons must not be employed 79A Advertising vacancies 80 Appointments and promotion to be on merit 81 Consultants to be engaged on merit Division 6 Community, land and business plans 82 Community, land and business plans 83 Matters covered by plans 84 Approval of community, land and business plans 85 Approval of plan by New South Wales Aboriginal Land Council 86 Administration may follow plan failure Division 7 Changes to Local Aboriginal Land Councils and areas of Local Aboriginal Land Councils 87 Changes to Local Aboriginal Land Council areas 88 Effect of dissolution 89 Transfer of assets, rights and liabilities 90 Voluntary changes 91 Changes on initiative of Minister 92 Objections to Minister’s changes Part 6 Regions 93 Regions 94–103 (Repealed) Part 7 New South Wales Aboriginal Land Council Division 1 Constitution of New South Wales Aboriginal Land Council 104 Constitution of NSW Aboriginal Land Council 105 Objects of New South Wales Aboriginal Land Council Division 2 Functions of New South Wales Aboriginal Land Council 106 Functions of New South Wales Aboriginal Land Council 107 Training 108 Community benefits schemes 109 Social housing schemes 110 Increased membership of Local Aboriginal Land Councils 111 Trusts 112 Duty of New South Wales Aboriginal Land Council not to transfer land or other assets to councillors, staff or consultants 113 Policies relating to Aboriginal Land Council functions 114 Procedure for making policies 115 New South Wales Aboriginal Land Council may give other Councils directions regarding certain matters 116 Delegation by New South Wales Aboriginal Land Council 117 Rules of the New South Wales Aboriginal Land Council 118 Advisory committees 119 Approvals Division 3 Councillors of NSW Aboriginal Land Council 120 Membership of New South Wales Aboriginal Land Council 121 Election of councillors 122 Timing of elections 123 Declaration of election 124 Councillors pending determination of disputed return 125 Method of disputing elections and returns 126 Procedure 127 Immaterial errors not to invalidate election 128 Decisions to be final 129 Chairperson and Deputy Chairperson 130 Role of councillors of NSW Aboriginal Land Council 131 Training for councillors Division 4 Removal from office 132 Grounds for disqualification from office 133 Vacancy in office 134 Casual vacancy 135 ADT may declare particular offices of New South Wales Aboriginal Land Council vacant 136 Appeals to Supreme Court against order 137 Effect of order declaring vacancy Division 5 Community, land and business plans 137A Community, land and business plans 137B Matters covered by plans 137C Approval of community, land and business plans 137D Administration may follow plan failure Divisions 6–8 Division 9 Chief Executive Officer of New South Wales Aboriginal Land Council 138 Chief Executive Officer 138A Certain persons must not be employed as Chief Executive Officer 139 Functions of Chief Executive Officer 140 Attendance of Chief Executive Officer at meetings 141 Filling of vacancy in position of Chief Executive Officer 141A Delegations by Chief Executive Officer Division 10 Staff of New South Wales Aboriginal Land Council 142 Staff organisation structure 143 Appointments and promotion to be on merit 143A Vacancies to be advertised 144 Certain persons must not be employed 145 Consultants to be engaged on merit Division 11 146–148(Repealed) Part 8 Finance Division 1 Establishment of accounts 149 NSW Aboriginal Land Council Account 150 Preservation of money in NSW Aboriginal Land Council Account 151 (Repealed) 152 Local Aboriginal Land Council Accounts Division 2 Keeping of accounts 153 Local Aboriginal Land Councils to keep accounts 154 Regulations may set requirements to judge satisfactory financial statements 155 Local Aboriginal Land Councils may request special auditor 156 Financial year of Aboriginal Land Councils 157 Budget of New South Wales Aboriginal Land Council 158 Budget of Local Aboriginal Land Councils 159 Quarterly and six monthly reports by New South Wales Aboriginal Land Council 160 NSW Aboriginal Land Council may give other Councils directions regarding accounting 161 Annual reports Division 3 Funding of Local Aboriginal Land Councils 162 Funding agreements 163 Cessation of funding Part 9 Registrar and Registers of Aboriginal Land Claims and Aboriginal Owners Division 1 Registrar 164 Appointment of Registrar 165 Functions of Registrar 165A Delegation Division 2 Register of Aboriginal Land Claims 166 Register of Aboriginal Land Claims 167 Contents of Register of Aboriginal Land Claims 168 Registrar may request information from Crown Lands Minister 169 Regulations may provide for public inspection of Register Division 3 Register of Aboriginal Owners 170 Register of Aboriginal Owners 171 Contents of Register of Aboriginal Owners 172 Requests for entry of names in Register 173 Requests for opening of parts of Register of Aboriginal Owners 174 Rectification of Register 175 Reference by Registrar to Land and Environment Court Part 10 Honesty and disclosure of interests Division 1 Honesty, care and diligence 176 Conduct of councillors, Board members and staff of Aboriginal Land Councils Division 2 Codes of conduct 177 Codes of conduct Division 3 Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal 178 Establishment of Pecuniary Interest and Disciplinary Tribunal 179 Constitution of Pecuniary Interest and Disciplinary Tribunal 180 Functions of Pecuniary Interest and Disciplinary Tribunal 181 Annual report Division 3A Misbehaviour 181A Interpretation 181B Formal censure for misbehaviour 181C Process for initiating suspension or other action 181D Grounds on which a person may be suspended or action taken 181E How requests and reports are to be dealt with 181F Suspension by Registrar for misbehaviour 181G When suspension order takes effect 181H Appeals against suspension 181I Actions by Registrar against members of staff for misbehaviour 181J Appeals against action against members of staff 181K Referral of matters to Pecuniary Interest and Disciplinary Tribunal 181L Alternatives to suspension or referral to Pecuniary Interest and Disciplinary Tribunal 181M Expenses to be borne by Aboriginal Land Councils 181N Reasons to be given 181O Other proceedings or actions not affected Division 4 Duties of disclosure Subdivision 1 Preliminary 182 Definition of “pecuniary interest” 183 Persons who have pecuniary interests Subdivision 2 Disclosure of pecuniary interests at meetings 184 Disclosure and presence in meetings 185 Disclosures to be recorded 186 General disclosure 187 Disclosure by consultants 188 Circumstances in which sections 184 and 187 are not breached Division 5 Complaints concerning non-disclosure 189 Complaints concerning failure to disclose pecuniary interests 190 Registrar may require further information 191 Inquiries regarding complaints 192 Decision not to inquire into complaint 193 Referral and investigation of complaints by other authorities 194 Pecuniary Interest and Disciplinary Tribunal to be notified of inquiries 195 Persons to be notified of complaint 196 Reports of investigation of complaints by authorities 197 Presentation of reports to Pecuniary Interest and Disciplinary Tribunal Division 6 Proceedings before the Pecuniary Interest and Disciplinary Tribunal Subdivision 1 Proceedings relating to pecuniary interest matters 198 Pecuniary Interest and Disciplinary Tribunal to decide whether or not to conduct proceedings into a complaint 199 Circumstances in which Pecuniary Interest and Disciplinary Tribunal may dispense with hearing Subdivision 2 Proceedings relating to misbehaviour 199A Pecuniary Interest and Disciplinary Tribunal to decide whether or not to conduct proceedings into a referred matter relating to misbehaviour 199B Circumstances in which Pecuniary Interest and Disciplinary Tribunal may dispense with hearing Subdivision 3 General provisions 200 General conduct of proceedings 201 Private and public hearings 202 Representation at hearings 203 Presentation of cases at hearings 204 Power to summon witnesses and take evidence at hearings 205 Power to obtain documents 206 Privilege concerning answers and documents 207 Additional complaints 208 Adjournments 209 Release of information 210 Witnesses’ expenses 211 Decision of Pecuniary Interest and Disciplinary Tribunal—interest matters 211A Decision of Pecuniary Interest and Disciplinary Tribunal—misbehaviour matters 212 Standard of proof 213 Pecuniary Interest and Disciplinary Tribunal to provide details of its decisions 214 Appeals to Supreme Court 215 Referral of matters by Pecuniary Interest and Disciplinary Tribunal Part 11 Investigation and administration of Aboriginal Land Councils Division 1 Investigation of Aboriginal Land Councils 216 Appointment of investigator into Aboriginal Land Councils 217 Contents of investigator’s instrument of appointment 218 Aboriginal Land Councils to assist investigators 219 Investigator to report 220 Minister may extend term of office of investigator 221 Minister may remove an investigator 221A Provision of information to Registrar and New South Wales Aboriginal Land Council Division 2 Administration of Aboriginal Land Councils 222 Administrators—Local Aboriginal Land Councils 223 Administrators—New South Wales Aboriginal Land Council 223A Notice of appointment of administrator 223B Interim actions pending appointment of administrator 224 Contents of administrator’s instrument of appointment 225 Certain persons ineligible to be administrators 226 Removal of office holders on appointment of administrator 227 Officers to assist administrator 228 Administrator of an Aboriginal Land Council may call meetings 229 Administrator to report monthly 230 Administrator may not buy or sell Local Aboriginal Land Council land without consent 231 Minister may extend term of office of administrator 232 Minister may remove administrator Division 3 Non-functioning Aboriginal Land Councils and assistance to Local Aboriginal Land Councils 233 Failure of NSW Aboriginal Land Council to function 234 Appointment of advisors Part 12 Compliance directions 235 Registrar may issue compliance directions 236 Registrar may refer failure to comply to Court 237 Court to determine compliance matters Part 13 Dispute resolution 238 Application of Part 239 Mediation, conciliation or arbitration of disputes by NSW Aboriginal Land Council 240 Application of Commercial Arbitration Act 1984 241 Reference of disputes to Court Part 14 Miscellaneous 242 Exclusion of personal liability 243 Delegation 244 Service of documents 245 Authentication of certain documents 246 Proof of certain matters not required 247 Aboriginal Land Councils not statutory bodies representing the Crown 248 Aboriginal Land Councils to be public authorities etc for certain purposes 249 Proceedings for offences 249A Offences by corporations 250 Establishment of new Local Aboriginal Land Councils 251 (Repealed) 252 Regulations 252A Review of Act 253 Savings, transitional and other provisions Schedule 1 Provisions relating to the Registrar Schedule 2 Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal Schedule 3 Procedure of Boards and Councils Schedule 3A Transfer of assets, rights and liabilities Schedule 4 Savings, transitional and other provisions Schedule 5 Regions Schedule 6 (Repealed) Historical notes An Act to repeal the Aborigines Act 1969 and to make provisions with respect to the land rights of Aborigines, including provisions for or with respect to the constitution of Aboriginal Land Councils, the vesting of land in those Councils, the acquisition of land by or for those Councils and the allocations of funds to and by those Councils; to amend certain other Acts; and to make provisions for certain other purposes. WHEREAS: (1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines: (2) Land is of spiritual, social, cultural and economic importance to Aborigines: (3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land: (4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation: BE it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows: This Act may be cited as the Aboriginal Land Rights Act 1983. (1) Sections 1 and 2 shall commence on the date of assent to this Act.(2) Except as provided by subsection (1), the several provisions of this Act shall commence on such day or days as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. The purposes of this Act are as follows:(a) to provide land rights for Aboriginal persons in New South Wales,(b) to provide for representative Aboriginal Land Councils in New South Wales,(c) to vest land in those Councils,(d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils,(e) to provide for the provision of community benefit schemes by or on behalf of those Councils. (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: 35(Repealed) Division 2 Claimable Crown lands (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires: 36A Special provision concerning certain Crown lands having nature conservation value (1) This section applies in relation to lands that:(a) are the subject of a claim by one or more Aboriginal Land Councils under section 36, and(b) the Crown Lands Minister is satisfied would be claimable Crown lands except for the fact that the lands are needed, or likely to be needed, for the essential public purpose of nature conservation.(2) If the Aboriginal Land Council or Councils making the claim agree to the imposition of the conditions that, before the grant of a claim to lands to which this section applies, the Aboriginal Land Council or Councils:(a) must negotiate a lease of the lands, that complies with the requirements of Part 4A of the NPW Act, with the Minister administering that Act, and(b) must agree:the Crown Lands Minister may, despite section 36 (5) (b), grant a claim to lands to which this section applies.(i) to enter into a lease of the lands to the Minister administering the NPW Act in the terms negotiated in accordance with paragraph (a), and(ii) to the simultaneous reservation or dedication of the lands under the NPW Act, and(iii) to hold the lands as lands reserved or dedicated under the NPW Act, and(iv) to comply with the requirements of the NPW Act and, in particular, the requirements of Part 4A of that Act in relation to the lands,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 those Councils to the Minister administering that Act.(3) The Crown Lands Minister must not grant a claim to lands to which this section applies unless the Minister administering the NPW Act:(a) has agreed to the reservation or dedication of the lands under Division 4 of Part 4A of that Act, and(b) has notified the Crown Lands Minister in writing that a lease, negotiated in pursuance of subsection (2) with the Aboriginal Land Council or Councils concerned, is acceptable to the Minister and has been executed in escrow by the proposed parties to it.Note. Division 4 of Part 4A of the NPW Act deals with the reservation or dedication and leasing under that Act of lands to which section 36A applies that have been granted by the Crown Lands Minister to an Aboriginal Land Council or Councils under this Act.(4) If a claim by one or more Aboriginal Land Councils relates partly to lands to which this section applies and partly to other lands, nothing in this section prevents the Crown Lands Minister from granting the claim:(a) as to so much of the lands to which this section applies—subject to and in accordance with this section, and(b) as to the balance of the lands—in accordance with the other provisions of this Part.(5) This section does not limit section 36 and the provisions of that section (in so far as they are applicable) apply to the lands to which this section applies, and to their transfer.(6) Parts 3 and 4 do not apply to lands to which this section applies on and from the date of their reservation or dedication under the NPW Act.(7) In this section, claimable Crown lands and Crown Lands Minister have the same meanings as in section 36. 37 Aboriginal lands in travelling stock reserves (1) Where a claim by an Aboriginal Land Council is lodged under section 36 in respect of land which is or is part of a travelling stock reserve within the meaning of the Rural Lands Protection Act 1998 (not being a travelling stock reserve in the Western Division within the meaning of the Crown Lands Act 1989), the Registrar shall, in addition to complying with section 36 (4) (c), refer a copy of the claim to the Pastures Protection Board for the district in which that land is situated.(2) This section has effect notwithstanding the provisions of the Rural Lands Protection Act 1998 or Crown Lands Act 1989.(3) Subject to subsection (4), the Crown Lands Minister within the meaning of section 36 may, in respect of the land referred to in subsection (1), enter into an agreement with the claimant Aboriginal Land Council so referred to, so as to achieve the following purposes:(a) the vesting of the freehold title to that land, subject to any existing easements, in the claimant Aboriginal Land Council,(b) the leasing in perpetuity of that land to Her Majesty at a nominal rent,(c) the preparation of a plan of management in respect of that land giving the claimant Aboriginal Land Council or Aborigines defined rights, or conferring or imposing on the claimant Aboriginal Land Council or on Aborigines defined functions, in respect of that land.(4) The Minister referred to in subsection (3) shall not enter into an agreement under that subsection in respect of land unless the Minister is satisfied that Aborigines have traditional rights to the land or that Aborigines have had a long association with the land.(4A) The Minister referred to in subsection (3) shall not enter into an agreement under that subsection in respect of land which is or is part of a travelling stock reserve within the meaning of the Rural Lands Protection Act 1998 without the approval of the Minister administering that Act.(5) For the purposes of giving effect to an agreement referred to in subsection (3):(a) the Minister so referred to may, by notification published in the Gazette, vest the freehold title to land, subject to any existing easements, in the claimant Aboriginal Land Council and that notification shall have effect according to its tenor, and(b) the Minister so referred to and the claimant Aboriginal Land Council may execute any necessary instruments.(6) Subject to any plan of management prepared as referred to in subsection (3) in respect of the land, the vesting of the freehold title to any land in an Aboriginal Land Council, and the holding of the land under perpetual lease by Her Majesty, under this section shall not affect:(a) the application of the provisions of the Rural Lands Protection Act 1998, or regulations under that Act, to the land, or(b) the status of the land for the purposes of any other law, other than a law relating to the registration of titles.(7) There shall be no appeal against, or review of, a decision of the Minister referred to in subsection (3) not to enter into an agreement under this section.(8) Duty under the Duties Act 1997 is not payable in respect of an agreement or other instrument executed for the purposes of this section. Division 3 Acquisition of other lands 38 Purchase, lease etc of property (1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may purchase, take on lease or hold any property or may acquire property by gift inter vivos, devise or bequest.(1A) Despite subsection (1), a Local Aboriginal Land Council may purchase land only if:(a) the purchase price for the land is not more than 5% above the assessed market value of the land, or(b) the New South Wales Aboriginal Land Council has given its written approval to that purchase.(2) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may agree to the condition of any gift, devise or bequest to it, and the rule of law relating to perpetuities does not apply to any condition to which the Council has agreed under this section.(3) Property acquired by the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council subject to a condition to which the Council has agreed shall not be dealt with by the Council except in accordance with the condition.(4) Without limiting its functions under any other provision of this Act or under any other Act, the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may exercise its power to purchase or take on lease any property (other than land), as referred to in subsection (1), only for or in connection with the use, development and improvement of land.(5) Nothing in this Act prevents the vesting of lands pursuant to Division 3 of Part 4A of the NPW Act in more than one Local Aboriginal Land Council as joint tenants (without the benefit of survivorship).Note. Division 3 of Part 4A of the NPW Act deals, among other matters, with the vesting in an Aboriginal Land Council or Councils of lands, reserved or dedicated under that Act, that are of cultural significance to Aboriginals and that are listed in Schedule 14 to that Act.(6) In this section, assessed market value of land means the market value of the land as assessed by a registered valuer (within the meaning of the Valuers Act 2003) appointed by the Local Aboriginal Land Council concerned. (1) The Minister may, for the purposes of this Act, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.(2) The Minister may do so only if the Minister is of the opinion that there are exceptional circumstances which warrant the acquisition of land for the purpose of satisfying the objectives of this Act.(3) If so required by the Minister, the New South Wales Aboriginal Land Council or the Local Aboriginal Land Council is to make provision to the satisfaction of the Minister for the payment of the purchase price or of compensation for compulsory acquisition (together with all necessary charges and expenses incidental to the acquisition).(4) The Minister may transfer land acquired under this section to an Aboriginal Land Council or other organisation or body established for the benefit of Aborigines.(5) For the purposes of the Public Works Act 1912, an acquisition of land under this section is taken to be for an authorised work and the Minister is, in relation to that authorised work, taken to be the Constructing Authority.(6) Part 3 of the Public Works Act 1912 does not apply in respect of works constructed under this Act. Division 4 Disposal and use of Aboriginal land 40 Disposal of land restricted (1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it, except in accordance with this Division.(2) Any sale, exchange, lease, disposal or mortgage of, or other dealing with, land in contravention of this Division is void.(3) This Division does not apply to land purchased as an investment under section 149 or 152. 40AA Disposal of land subject to native title restricted (1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).(2) Subsection (1) does not apply to or in respect of the lease of land by the New South Wales Aboriginal Land Council or one or more Local Aboriginal Land Councils to the Minister administering the National Parks and Wildlife Act 1974 under Part 4A of that Act in accordance with a condition imposed under section 36A (2). 40AB Disposal of land reserved or dedicated under NPW Act restricted (1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council or Councils may not sell, exchange, lease, dispose of, mortgage or otherwise deal with lands that are vested in them and that are reserved or dedicated under Part 4A of the NPW Act except in accordance with that Act.(2) Sections 40A–40D and 41 do not apply with respect to lands referred to in subsection (1).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 those Councils to the Minister administering that Act. 40A Transfer of land from one Council to another (1) The New South Wales Aboriginal Land Council may transfer land vested in it to a Local Aboriginal Land Council.(2) A Local Aboriginal Land Council may transfer land vested in it to the New South Wales Aboriginal Land Council or to another Local Aboriginal Land Council.(3) Duty under the Duties Act 1997 is not payable in respect of the transfer of land under this section. (1) The New South Wales Aboriginal Land Council may, subject to the provisions of any other Act:(a) lease or change the use of land vested in it, and(b) grant an easement over land vested in it, and(c) release an easement benefiting land vested in it.(2) A Local Aboriginal Land Council may, subject to the provisions of any other Act and with the approval of the New South Wales Aboriginal Land Council:(a) lease land vested in it for a period of 3 or more years (including any option to renew the lease), and(a1) change the use of land vested in it, and(b) grant an easement over land vested in it, and(c) release an easement benefiting land vested in it,but only if the lease, change of use or the grant or release of the easement has been approved at a meeting of the Local Aboriginal Land Council specifically called for that purpose at which a quorum was present.(2A) A Local Aboriginal Land Council may, subject to the provisions of any other Act, lease land vested in it for a period of less than 3 years (including any option to renew the lease), but only if the lease has been approved at a meeting of the Local Aboriginal Land Council specifically called for that purpose at which a quorum was present.(3) The New South Wales Aboriginal Land Council may not refuse to give an approval of a lease or change of use under this section except on the ground that the terms or conditions of the lease are inequitable to the Local Aboriginal Land Council concerned or that the change of use would be detrimental to the interests of other Local Aboriginal Land Councils.(4) Nothing in this section authorises the change of use of land claimed and granted to an Aboriginal Land Council under section 36 if the change of use contravenes a condition imposed when the claim was granted under that section. 40C Sale etc of land by New South Wales Aboriginal Land Council (1) The New South Wales Aboriginal Land Council may, subject to the provisions of any other Act, sell, exchange, mortgage or otherwise dispose of land vested in it if:(a) at a meeting of the Local Aboriginal Land Council of the area in which the land is situated specifically called for the purpose (being a meeting at which a quorum was present) not less than 80 per cent of the members of the Council present and voting have determined that the land is not of cultural significance to Aborigines of the area and should be disposed of, and(b) (Repealed)(c) in the case of the disposal of land transferred to an Aboriginal Land Council under section 36, both the Crown Lands Minister referred to in that section and the Minister have been notified of the proposed disposal.(2) A certificate in the prescribed form (if any) purporting to be signed by the Chairperson of the New South Wales Aboriginal Land Council and certifying that the disposal by the Council of land specified in the certificate does not contravene this section is conclusive evidence of the fact in favour of any person (whether or not the person is the person to whom the certificate was issued) except a person who had notice, when the certificate was issued, that the disposal of the land did contravene this section.(3) For the purposes of this section, land is of cultural significance to Aborigines if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aborigines. 40D Sale etc of land by Local Aboriginal Land Council (1) A Local Aboriginal Land Council may, subject to the provisions of any other Act, sell, exchange, mortgage or otherwise dispose of land vested in it if:(a) at a meeting of the Council specifically called for the purpose (being a meeting at which a quorum was present) not less than 80 per cent of the members of the Council present and voting have determined that the land is not of cultural significance to Aborigines of the area and should be disposed of, and(b) the New South Wales Aboriginal Land Council has approved of the proposed disposal, and(c) (Repealed)(d) in the case of the disposal of land transferred to an Aboriginal Land Council under section 36, both the Crown Lands Minister referred to in that section and the Minister have been notified of the proposed disposal.(2) A certificate in the prescribed form (if any), purporting to be signed by the Chairperson of the New South Wales Aboriginal Land Council and certifying that the disposal by the Local Aboriginal Land Council of land specified in the certificate does not contravene this section, is conclusive evidence of that fact in favour of any person (whether or not the person is the person to whom the certificate was issued) except a person who had notice, when the certificate was issued, that the disposal of the land did contravene this section.(3) For the purposes of this section, land is of cultural significance to Aborigines if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aborigines. 41 Powers of Aboriginal Land Councils with respect to property Subject to this Act, an 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 and, in particular, but without prejudice to the generality of the foregoing, it 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. 42 Appropriation or resumption of Aboriginal lands Notwithstanding anything in any Act, lands vested in an Aboriginal Land Council shall not be appropriated or resumed except by an Act of Parliament. (1) A person must not deal with land, or enter into a transaction or arrangement to deal with land, vested in an Aboriginal Land Council knowing that the dealing is not authorised or permitted by this Act. 43 Exemption of Aboriginal lands from the payment of rates (1) The regulations may declare that specified land (being land vested in an Aboriginal Land Council) is exempt from:(a) the payment of rates and charges, or from the payment of specified rates and charges, under the Local Government Act 1993, or(b) the payment of rates, levies and charges, or from the payment of specified rates, levies and charges, under the Hunter Water Act 1991, or(c) the payment of service charges, or the payment of specified service charges, under the following Acts:(i) the Sydney Water Act 1994,(ii) the Water Management Act 2000.(2) A regulation made under subsection (1) may provide that the exemption referred to in that subsection is to operate for a limited period of time. 44 Proceedings for non-payment of certain rates for Aboriginal lands barred Notwithstanding the provisions of:(a) the Local Government Act 1993,(b) the Water Board (Corporatisation) Act 1994,(c) the Hunter Water Board (Corporatisation) Act 1991, or(d) the Broken Hill Water and Sewerage Act 1938,or any other rule of law, land vested in an Aboriginal Land Council shall not be sold, whether by way of writ of execution or otherwise, for overdue rates payable under any of those Acts nor shall action be taken to wind up any such Council because of non-payment of any such rates. 44A Payment of rates by NSW Aboriginal Land Council (1) Where rates payable under an Act referred to in section 44 have been unpaid for a period of not less than 12 months in respect of a rating year commencing on 1 January 1985 or any subsequent date, the New South Wales Aboriginal Land Council shall, within 30 days after receipt of a notice from the appropriate rating authority specifying the total of the amount unpaid, the amount of any interest accrued on that amount and any extra charges, pay that total to that rating authority.(2) A rating authority may recover an amount unpaid after the expiration of the period of 30 days referred to in subsection (1) from the New South Wales Aboriginal Land Council as a debt in a court of competent jurisdiction.(3) The New South Wales Aboriginal Land Council may recover an amount paid under this section from the Local Aboriginal Land Council in whose area the land subject to the rate is situated. Part 3 Mineral rights and mining 45 Mineral rights and mining on Aboriginal land (1) In this section:(a) mining operations means prospecting, exploring or mining for mineral resources or other natural resources, and(b) (Repealed)(2) Notwithstanding any other Act, but subject to this section:(a) any transfer of lands to an Aboriginal Land Council under section 36 includes the transfer of the mineral resources or other natural resources contained in those lands,(b) any vesting of the title to lands in an Aboriginal Land Council under section 37 includes, subject to that section, the vesting of the title to the mineral resources or other natural resources contained in those lands, and(c) where:(i) an Aboriginal Land Council purchases lands under section 38, or(ii) lands are acquired under section 39 and vested in an Aboriginal Land Council,any mineral resources or other natural resources which were, immediately before the purchase or vesting, vested in the Crown shall, on that purchase or vesting, become vested in the Aboriginal Land Council.(3) To the extent to which an Act provides for a person to explore for or exploit mineral resources, or other natural resources, vested in another person, the Act does not apply to or in respect of mineral resources, or other natural resources, vested in the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council.(4) Subject to this section, no person shall carry on mining operations on the lands of an Aboriginal Land Council without the consent of that Council.(5) An Aboriginal Land Council may give a consent under subsection (4) subject to such terms and conditions, including terms or conditions with respect to payment of fees or royalties, as it thinks fit to impose.(6) A Local Aboriginal Land Council shall not give its consent under subsection (4) unless either:(a) the New South Wales Aboriginal Land Council, or(b) the Court, under subsection (8),has approved of the consent being given and of any terms and conditions proposed to be attached to the consent.(7) Where a Local Aboriginal Land Council has submitted to the New South Wales Aboriginal Land Council a proposal to give a consent under subsection (4), and any terms and conditions proposed to be attached to the consent, and the New South Wales Aboriginal Land Council:(a) has refused to approve of the proposed consent being given or of the proposed terms and conditions, or(b) has not, within 1 month after the submission of the proposed consent and of the proposed terms and conditions or such longer period as the Local Aboriginal Land Council and the New South Wales Aboriginal Land Council agree to, approved of the consent being given and of the proposed terms and conditions (or those terms and conditions as altered with the consent of the Local Aboriginal Land Council),the Local Aboriginal Land Council or the New South Wales Aboriginal Land Council may refer the proposal or the proposed terms and conditions, as the case may require, to the Court to be dealt with under subsection (8).(8) Where a proposal to give a consent or the terms and conditions proposed to be attached to a consent are referred to the Court under subsection (7), the Court shall approve or refuse to approve of the giving of the consent or of the proposed terms and conditions, with or without alterations specified by the Court.(9) The New South Wales Aboriginal Land Council or the Court shall not, under this section, refuse to approve of the giving of a consent or of the terms and conditions proposed to be attached to a consent except on the ground that the giving of the consent is, or those terms and conditions are, inequitable to the Local Aboriginal Land Council concerned or would be detrimental to the interests of members of other Local Aboriginal Land Councils.(10) A consent given in contravention of this section is void.(11) Nothing in or done under this Act operates to abridge or control the prerogative rights and powers of the Crown with respect to gold mines and silver mines or affects the Crown’s ownership of coal and petroleum.(12) This section does not apply to or in relation to any mining operations that are or may be carried on on any lands of an Aboriginal Land Council:(a) in respect of gold, silver, coal or petroleum, or(b) in respect of any other mineral, pursuant to any right conferred by or under the Mining Act 1992, the Offshore Minerals Act 1999, or any other law, being a right in force at the time the lands were vested in that Council or a mineral claim or authority referred to in subsection (13) (b), or a renewal or extension of any such right, mineral claim or authority.(13) Nothing in this section prevents:(a) the renewal or extension of any right, mineral claim or authority referred to in subsection (12) (b), or(b) the granting of an authority or mineral claim in accordance with an exclusive right conferred by the Mining Act 1992 or of a licence in accordance with an exclusive right conferred by the Offshore Minerals Act 1999,under and subject to the provisions of the Mining Act 1992 or the Offshore Minerals Act 1999 as the case requires. 46 Fees or royalties for mining on Aboriginal land (1) All fees and royalties payable in respect of mining on land owned by a Local Aboriginal Land Council are payable to the New South Wales Aboriginal Land Council and not the Local Aboriginal Land Council.(2) Such fees and royalties together with the fees and royalties payable to the New South Wales Aboriginal Land Council in respect of mining on its land must, when received by it, be paid into a separate account in a bank, building society or credit union to be called the Mining Royalties Account.(3) Money to the credit of the Mining Royalties Account is to be disbursed, in accordance with the regulations, as follows:(a) 40 per cent is to be paid to the New South Wales Aboriginal Land Council,(b) the balance, in so far as it is derived from the fees and royalties payable in respect of mining on land owned by a Local Aboriginal Land Council, is to be paid to the Local Aboriginal Land Council.(4) Money to the credit of the Mining Royalties Account may be invested in any manner authorised by the regulations pending its disbursement in accordance with this section. Part 4 Hunting, fishing and gathering 47 Agreements to permit hunting, fishing or gathering Subject to the provisions of any other Act and any rule, by-law, regulation, ordinance or like instrument, a Local Aboriginal Land Council may negotiate agreements with the owner, occupier or person in control of any land to permit any specified Aborigines or group of Aborigines to have access to the land for the purpose of hunting, fishing or gathering on the land. 48 Access permits may be issued by the Court (1) Where a Local Aboriginal Land Council:(a) desires to obtain rights of access for any specified Aborigines or group of Aborigines for the purpose of hunting or fishing for, or the gathering of, traditional foods for domestic purposes, being access to land traditionally used for those purposes or to land giving access to any land so used, and(b) has been unable to negotiate an agreement to obtain those rights,the Council may apply to the Court for a permit conferring those rights.(2) An application under subsection (1) shall be:(a) made as prescribed, and(b) lodged with the Registrar.(3) The Registrar shall refer an application lodged with the Registrar under subsection (2) to the Court together with a statement as to who appears to the Registrar to be the owner, occupier or person in control of the land to which the application relates.(4) The Court shall:(a) give notice of any application referred to it under subsection (3) to any person who, in its opinion, is likely to be directly affected by the issue of the permit applied for, or to the public generally if it considers it appropriate, and(b) by that notice, provide that objections against the application may be lodged within the time specified in that notice.(5) The Court shall consider:(a) any application referred to it under subsection (3), and(b) any objections lodged against the application,and, subject to subsection (6), shall either:(c) issue a permit conferring such rights of access as it specifies in the permit on Aborigines or any group of Aborigines so specified, or(d) refuse to issue the permit.(6) The Court shall issue a permit under subsection (5) in pursuance of an application under subsection (1) only if it is satisfied that the rights applied for are rights of a kind referred to in subsection (1).(7) A permit issued under subsection (5) (c):(a) shall be subject to the provisions of any other Act and any rule, by-law, regulation, ordinance or like instrument, and(b) may be subject to such terms and conditions as the Court thinks fit and are specified in the permit.(8) Any person who fails to allow access to any person in accordance with a permit issued under this section shall be guilty of an offence against this Act. 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
50 Constitution of Local Aboriginal Land Councils
51 Objects of Local Aboriginal Land Councils
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 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. (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) Section 40B (2) applies to a lease by a Local Aboriginal Land Council (whether or not for a period exceeding 3 years), if the lease is for the purposes of the provision or management of a social housing scheme. (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 to be 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,(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
54 Local Aboriginal Land Council membership rolls
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
58 Removal of person’s name from membership roll
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
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 A Board of a Local Aboriginal Land Council has the following functions:(a) to direct and control the affairs of the Council, in accordance with this Act and the regulations and consistently with the community, land and business plan 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,(d) any other functions conferred on the Board by or under this Act. (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
70 Appeals to Supreme Court against order
71 Effect of order declaring vacancy
(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
(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 40AA 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. (1) The Region for a Local Aboriginal Land Council is the Region specified for the Council in Schedule 5.(2) The Governor may, by order published on the NSW legislation website, amend or substitute Schedule 5.(3) An order that has the effect of changing the area of a Region may not be made except on the recommendation of the Minister.(4) The Minister must not make a recommendation unless the Minister is satisfied that any Local Aboriginal Land Council affected, and the New South Wales Aboriginal Land Council, consent to the change of Region.(5) Subsection (4) does not apply if the change results from an order made under section 87.(6) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may at any time request the Minister to change the name of a Region or the Council areas included in the Region.(7) Regulations may be made for or with respect to elections for councillors and other matters consequential on changes to Regions. Part 7 New South Wales Aboriginal Land Council Division 1 Constitution of New South Wales Aboriginal Land Council 104 Constitution of NSW Aboriginal Land Council
105 Objects of New South Wales Aboriginal Land Council
Division 2 Functions of New South Wales Aboriginal Land Council 106 Functions of New South Wales Aboriginal Land Council (1) The New South Wales Aboriginal Land Council has the functions conferred or imposed on it by or under this or any other Act.(2) Land acquisition (1) The New South Wales Aboriginal Land Council is to provide or arrange training, in accordance with the regulations, for the purpose of developing the capacity of the following persons to exercise functions under this Act or the regulations:(a) councillors,(b) Board members,(c) members of staff of Aboriginal Land Councils.(2) The New South Wales Aboriginal Land Council is to prepare and implement a capacity development plan for the purposes of carrying out its functions under this section.(3) Regulations may be made for or with respect to requirements for a capacity development plan. 108 Community benefits schemes (1) The New South Wales Aboriginal Land Council has the following functions in relation to community benefits schemes:(a) directly or indirectly, to provide community benefits under community benefits schemes,(b) to supervise the community benefits schemes of Local Aboriginal Land Councils,(c) to consider and approve the provision of community benefits schemes by or on behalf of Local Aboriginal Land Councils,(d) to make grants or lend money to, or invest money for or on behalf of, Aboriginal persons,(e) without limiting paragraph (a), to provide, acquire, construct, upgrade or extend residential accommodation for Aboriginal persons in the State,(f) without limiting paragraph (a), with the approval of the Minister, to make grants or lend money to a funeral benefits scheme established for the benefit of Aboriginal persons,(g) to maintain a register of approvals by the Council of community benefits schemes and to notify the Minister of any such approvals.(2) The New South Wales 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 Council, and(c) is consistent with the community, land and business plan of the Council, and(d) is fair and equitable and administered in a responsible and transparent way, and(e) will not prevent the Council from being able to meet its debts as and when they fall due.(3) The New South Wales Aboriginal Land Council may provide community benefits under a community benefits scheme to Aboriginal persons within the area of one or more Local Aboriginal Land Councils and may provide community benefits in conjunction with one or more Local Aboriginal Land Councils. (1) This section applies to a community benefits scheme in relation to the acquisition and provision by or on behalf of the New South Wales Aboriginal Land Council of residential accommodation for Aboriginal persons and to the construction, upgrading and extension of any such accommodation (a social housing scheme).(2) The New South Wales Aboriginal Land Council may provide benefits under a social housing scheme by using the services of another body or agency, or with the assistance of another body or agency.(3) The New South Wales Aboriginal Land Council must not provide benefits under a social housing scheme unless:(a) before the scheme commenced, it considered the likely impact of the scheme on the Council’s overall financial position, and(b) it is satisfied that the Council will be able to meet all the expenses of the scheme, including long term maintenance requirements. 110 Increased membership of Local Aboriginal Land Councils (1) The New South Wales Aboriginal Land Council must use its best endeavours to increase the total number of voting members of Local Aboriginal Land Councils in the State by not less than 3% per annum, for the 5 year period commencing at the beginning of the first financial year after the commencement of this section.(2) The New South Wales Aboriginal Land Council is to include in its annual report a report on the steps taken to meet the target established under this section. (1) The New South Wales Aboriginal Land Council may establish, or participate in the establishment of, a trust for the purpose of providing a community benefits scheme.(2) Regulations may be made for or with respect to financial and reporting obligations of trusts established by the New South Wales Aboriginal Land Council. 112 Duty of New South Wales Aboriginal Land Council not to transfer land or other assets to councillors, staff or consultants (1) The New South Wales 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 councillors 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 councillor, member of staff or consultant in accordance with this Act, or(b) the payment in good faith of remuneration to any such councillor, member of staff or consultant. 113 Policies relating to Aboriginal Land Council functions (1) The New South Wales Aboriginal Land Council may prepare and implement policies about the following matters:(a) the contents, preparation and approval of community, land and business plans of Local Aboriginal Land Councils,(b) land dealings by Aboriginal Land Councils, including assessment and approval of land dealings,(c) business enterprises and investments of Aboriginal Land Councils, including assessment and approval of business enterprises and investments,(d) the provision of training to members of staff, Board members and councillors,(e) community benefits schemes,(f) financial and reporting requirements for Aboriginal Land Councils,(g) fees for assessments conducted by the Council,(h) any other matters prescribed by the regulations.(2) Without limiting subsection (1), a policy relating to community benefits schemes that provide residential accommodation is to include criteria for determining applications for approval that have been determined after consultation with the Aboriginal Housing Office.(3) The New South Wales Aboriginal Land Council must review all of its policies every 5 years.(4) The New South Wales Aboriginal Land Council must make copies of its policies publicly available. 114 Procedure for making policies (1) Before the New South Wales Aboriginal Land Council adopts a policy it must:(a) refer the policy to each Local Aboriginal Land Council for comment, and(b) consider any submissions made by any Local Aboriginal Land Council within 30 days of the referral of the policy, and(c) obtain the approval of the Minister to the policy.(2) A policy takes effect on its publication in the Gazette or on a later day specified in the policy.(3) A policy may be amended or revoked in the same way as a policy may be made. 115 New South Wales Aboriginal Land Council may give other Councils directions regarding certain matters (1) The New South Wales Aboriginal Land Council may give directions to Local Aboriginal Land Councils with respect to the following:(a) the form, contents and method of preparation of community, land and business plans,(b) the keeping of records (including records relating to land and other assets),(c) any other matters prescribed by the regulations.(2) A Local Aboriginal Land Council must comply with a direction given under this section.(3) A direction must not be inconsistent with this Act or the regulations or any applicable policy of the New South Wales Aboriginal Land Council. 116 Delegation by New South Wales Aboriginal Land Council (1) The New South Wales Aboriginal Land Council may delegate to the Chief Executive Officer or any other person or body (not including another member of staff of the Council) any of the functions of the Council, other than the following:(a) the administration of the New South Wales Aboriginal Land Council Account and the Mining Royalties Account established under this Act,(b) the granting of funds for the payment of the costs and expenses of Local Aboriginal Land Councils and advisory committees of the Council,(c) the acquisition of land on the Council’s behalf, or on behalf of a Local Aboriginal Land Council, and the transfer of such land to a Local Aboriginal Land Council and the use, management, control, holding or disposal of, or otherwise dealing with, land vested in or acquired by the Council,(d) the negotiation of the acquisition by the Council, or by one or more Local Aboriginal Land Councils, of land of cultural significance to Aboriginal persons that is listed in Schedule 14 to the NPW Act and the lease of that land to the Minister administering that Act,(e) the negotiation of the lease by the Council, or by one or more Local Aboriginal Land Councils, of land to which section 36A applies to the Minister administering the NPW Act,(f) the determination and approval of terms and conditions of agreements proposed by Local Aboriginal Land Councils to allow mining or mineral exploration on land,(g) approval of community, land and business plans,(h) advising the Minister on matters relating to Aboriginal land rights,(i) this power of delegation,(j) any function under this or any other Act that is expressly required to be exercised by resolution of the Council.(2) The New South Wales Aboriginal Land Council must, once every year, review all of its delegations. 117 Rules of the New South Wales Aboriginal Land Council (1) The purpose of this section is to provide rules for the New South Wales Aboriginal Land Council relating to the Council’s functions and operations.(2) The rules prescribed by the regulations as model rules are the rules for the New South Wales Aboriginal Land Council.(3) However, the New South Wales 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 the New South Wales 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) The New South Wales Aboriginal Land Council’s rules may, with the approval of the Registrar, be amended, repealed or replaced from time to time.(6) The New South Wales 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. (1) The New South Wales Aboriginal Land Council may from time to time appoint such advisory committees as the Council considers appropriate for the purpose of advising the Council, carrying out consultations with Aboriginal persons or facilitating discussion about issues arising under this Act.(2) An advisory committee has such functions as the Council may from time to time determine in respect of it.(3) An advisory committee consists of such persons appointed by the Council as the Council thinks fit.(4) A committee member holds office for such period as is specified in the instrument of appointment of the committee member, but any such appointment may be terminated by the Council at any time.(5) One of the committee members, in and by the instrument of appointment of the committee member, is to be appointed as chairperson of the committee.(6) The procedure for the calling of meetings of an advisory committee and for the conduct of business at those meetings is to be as determined by the Council or (subject to any determination of the Council) by the committee.(7) A committee member is entitled to be paid such travelling and other allowances as the Minister may from time to time determine in respect of the committee member. (1) The New South Wales Aboriginal Land Council may impose conditions on any approval given by the Council under this Act.(2) Without limiting subsection (1), an approval may impose a time within which a condition must be complied with.(3) A Local Aboriginal Land Council must comply with the conditions of an approval given to the Council by the New South Wales Aboriginal Land Council.(4) The New South Wales Aboriginal Land Council may revoke an approval given by the Council under this Act. Division 3 Councillors of NSW Aboriginal Land Council 120 Membership of New South Wales Aboriginal Land Council (1) The New South Wales Aboriginal Land Council is to consist of an Aboriginal councillor elected for each Region.(2) The councillors are to be full-time.(3) Subject to this Act, a councillor holds office for a period beginning on the councillor’s election and expiring:(a) on the councillor’s election for another term, or(b) on the election of the councillor’s successor.(4) A councillor is eligible (if otherwise qualified) for re-election.(5) A councillor is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975.(6) A councillor is entitled to be paid such travelling and other allowances as the Minister may from time to time determine in respect of the councillor.(7) Part 3 of Schedule 3 has effect. The regulations may prescribe additional requirements for or with respect to meetings. (1) Each councillor is to be elected in the manner specified in this Division to represent a Region.(2) The regulations may make provision for or with respect to the election of councillors.(3) The Electoral Commissioner for New South Wales, or a person employed in the office of and nominated by the Electoral Commissioner, is to be the returning officer for elections of councillors.(4) A person is not qualified to stand for election, or to be elected, as a councillor representing a Region unless the person is a voting member of a Local Aboriginal Land Council the area of which is within the Region.(5) A person is entitled to vote at an election for a councillor to represent a Region if the person is a voting member of a Local Aboriginal Land Council the area of which is within the Region.(6) A person is only entitled to cast his or her vote in respect of the Local Aboriginal Land Council area in which the person has voting rights. (1) Elections of all councillors are to be held:(a) not sooner than 3 years and 9 months, and(b) not later than 4 years and 3 months,after the previous election of all councillors.(2) The Minister, in consultation with the New South Wales Aboriginal Land Council, is in accordance with this section to determine a date for the election of all councillors and is to notify the returning officer of that date. If the returning officer for an election of councillors is advised by a regional electoral officer that the result of the counting of votes is that a candidate has been elected, the returning officer must immediately publicly declare the candidate elected as a councillor. 124 Councillors pending determination of disputed return (1) Section 123 applies even if the election of the candidate (or of any other candidate in the election) is the subject of an application under section 125 disputing the validity of the election of the candidate.(2) A candidate who is publicly declared elected as a councillor by the returning officer holds that office until the determination of any proceedings disputing the validity of the election of the candidate.(3) A candidate referred to in subsection (2) is taken to hold office, and is competent to carry out all the functions and duties of a duly elected councillor, from the date on which the returning officer declares the candidate elected, until:(a) the Court hearing an application under section 125 disputing the validity of the election of the candidate determines otherwise, or(b) the term of office of the councillor expires or becomes vacant,whichever is the earlier.(4) The New South Wales Aboriginal Land Council in which a candidate referred to in subsection (2) holds office is not invalidly constituted for that reason. 125 Method of disputing elections and returns (1) The validity of an election for a councillor to represent a Region, or of any return or statement showing the voting in any such election, may be disputed by an application to the Court, and not otherwise.(2) Any person may make an application to the Court under this section within 28 days after the returning officer has publicly declared the result of the election that is the subject of the application.(3) In determining an application under this section, the Court has the same powers as are conferred by section 161 of the Parliamentary Electorates and Elections Act 1912 on the Court of Disputed Returns.(4) The returning officer is entitled to be represented at the hearing of an application under this section. (1) The procedure of the Court on an application under section 125 is to be determined by rules of Court, or in the absence of rules of Court, by the Court or a Judge of the Court.(2) The Court is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate.(3) Despite section 125 (3), the Court may make an order for costs in respect of an application under section 125 only if the Court is satisfied that there are exceptional circumstances that warrant the making of such an order. 127 Immaterial errors not to invalidate election (1) An election of councillors of the New South Wales Aboriginal Land Council, or any return or statement showing the voting in an election, is not invalid because of:(a) any delay in taking the votes of the electors or in making any statement or return, or(b) the absence of any officer, or(c) the error or omission of any officer,that could not have affected the result of the election.(2) If a person was prevented from voting in an election because of the absence of any officer, or the error or omission of any officer, the Court must not admit any evidence of the way the person intended to vote in order to determine whether or not the absence, error or omission could have affected the result of the election. (1) A decision of the Court in respect of an application under section 125 is final and conclusive and without appeal, and is not to be questioned in any way.(2) Section 58 of the Land and Environment Court Act 1979 does not apply to any such decision of the Court. 129 Chairperson and Deputy Chairperson (1) The councillors of the New South Wales Aboriginal Land Council are to elect a Chairperson and a Deputy Chairperson at the first meeting of the Council following the election of councillors.(2) The Chairperson and Deputy Chairperson are to hold office for a term of 2 years and are eligible (if otherwise qualified) for re-election.(3) The Deputy Chairperson is to act in the office of Chairperson during the illness or absence of the Chairperson, and the Deputy Chairperson while so acting, has and may exercise all the functions of the Chairperson and is taken to be the Chairperson. 130 Role of councillors of NSW Aboriginal Land Council (1) The role of a councillor is, as a member of the governing body of the Council:(a) to direct and control the affairs of the Council in accordance with this Act, and(b) to participate in the allocation of the Council’s resources for the benefit of Aboriginal people, and(c) to participate in the creation and review of the Council’s policies and objectives, and(d) to review the performance of the Council in the exercise of its functions and the achievement of its objectives.(2) The role of a councillor is, in addition:(a) to represent the interests and respond to the concerns of Local Aboriginal Land Council members, and(b) to facilitate communication between the Local Aboriginal Land Council members and the New South Wales Aboriginal Land Council. (1) The New South Wales Aboriginal Land Council must arrange training in relation to the matters prescribed by the regulations for each councillor elected for the first time to the Council.(2) The training is to be provided not later than 6 months after the date of election of the councillor.(3) A councillor 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 councillor refuses or fails to undergo training provided under this section when required to do so by the New South Wales Aboriginal Land Council, the councillor is, on written notice being given to the councillor by the Council, suspended from office as a councillor until the person undergoes the training.(5) The New South Wales Aboriginal Land Council may:(a) exempt a councillor wholly or partly from the requirement to undergo training provided under this section, if the Council is satisfied that the councillor already has sufficient expertise, skills and experience to carry out his or her functions as a councillor, or(b) extend the period within which training is to be provided to a councillor under this section. Division 4 Removal from office 132 Grounds for disqualification from office (1) A person is disqualified from holding office as a councillor of the New South Wales 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) is a mentally incapacitated person, or(e) 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(f) 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 previous 3 years, or(g) 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(h) is an employee of, or a consultant to, the Council, or(i) in the case of a councillor, engages in other paid employment, or(j) was, on 2 or more occasions before an administrator was appointed to the Council, an officer of the Council, or(k) fails, without a reasonable excuse, for a period of 3 months or more to comply with a written requirement by the Council to undergo training under section 125, or(l) is disqualified from being a Board member, other than on the ground that the person is 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) (j) 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 councillor of the New South Wales Aboriginal Land Council vacates office if the person:(a) dies, or(b) is absent from 2 consecutive meetings of the Council of which reasonable notice has been given to the person personally or by post, except on leave granted by the Council or unless the person is excused by the Council 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 councillor under this Act, or(f) represents a Region the area of which is changed. A person is to be appointed in accordance with the regulations to fill a casual vacancy in the office of a councillor for the remainder of the term of office. 135 ADT may declare particular offices of New South Wales Aboriginal Land Council vacant
136 Appeals to Supreme Court against order
137 Effect of order declaring vacancy
Division 5 Community, land and business plans 137A Community, land and business plans (1) The New South Wales Aboriginal Land Council must prepare and implement a community, land and business plan.(2) The Council when preparing a community, land and business plan must consult with the following persons:(a) persons who have a cultural association with land within the State,(b) any other persons required to be consulted by the regulations or a policy of the Council.(3) The New South Wales 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) For the purposes of this section, a person has a cultural association with land if the person is an Aboriginal owner or a person of a class prescribed by the regulations for the purposes of this subsection. (1) A community, land and business plan of the New South Wales 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 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, 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 40AA 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. 137C Approval of community, land and business plans (1) A community, land and business plan is adopted by the New South Wales Aboriginal Land Council if it is approved by a meeting of the Council, of which not less than 14 days notice was given.(2) The Chief Executive Officer of the New South Wales Aboriginal Land Council must make available to its councillors, 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.(3) The summary is to contain the matters prescribed by the regulations.(4) More than one meeting may be called to enable approval of a community, land and business plan.(5) 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.(6) A community, land and business plan 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. 137D Administration may follow plan failure (1) A failure by the New South Wales Aboriginal Land Council to approve a proposed community, land and business plan within 3 months after the plan is first referred to a meeting of the Council for approval is, for the purposes of section 223, a ground that justifies the appointment of an administrator (without any requirement for a report referred to in section 223 (3)).(2) A substantial failure by the New South Wales Aboriginal Land Council to comply with its community, land and business plan is, for the purposes of section 223, a ground that justifies the appointment of an administrator (without any requirement for a report referred to in section 223 (3)). (Repealed) Division 9 Chief Executive Officer of New South Wales Aboriginal Land Council (cf sections 334–336 of Local Government Act 1993) (1) The New South Wales Aboriginal Land Council must appoint a person to be its Chief Executive Officer.(2) For the purposes of this Act (other than section 139), the Chief Executive Officer is taken to be a member of staff of the New South Wales Aboriginal Land Council. 138A Certain persons must not be employed as Chief Executive Officer (1) The following persons must not be or continue to be employed as the Chief Executive Officer of the New South Wales Aboriginal Land Council:(a) a person who is a Board member 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 any 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 a Local 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. 139 Functions of Chief Executive Officer (1) The Chief Executive Officer is generally responsible for the efficient and effective operation of the New South Wales Aboriginal Land Council’s organisation and for ensuring the implementation, without undue delay, of decisions of the Council.(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 of the functions of the Council as are delegated by the Council to the Chief Executive Officer,(c) the appointment of members of staff in accordance with the staff organisation structure and resources approved by the Council,(d) the direction and dismissal of members of staff.(3) The Chief Executive Officer has such other functions as may be conferred or imposed on the Chief Executive Officer by or under this or any other Act. 140 Attendance of Chief Executive Officer at meetings
141 Filling of vacancy in position of Chief Executive Officer (1) If a vacancy occurs in the position of Chief Executive Officer, the New South Wales Aboriginal Land Council must immediately appoint a person under section 138 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) becomes a person who is not eligible to continue to be employed on a ground referred to in section 138A, or(f) is removed from the position for breach of or under the terms of the Chief Executive Officer’s contract with the Council. 141A Delegations by Chief Executive Officer (1) The Chief Executive Officer may delegate to any person or body any of the functions of the Chief Executive Officer, other than this power of delegation.(2) The Chief Executive Officer may sub-delegate a function delegated to the Chief Executive Officer by the New South Wales Aboriginal Land Council to any person or body (including another member of staff of the Council). Division 10 Staff of New South Wales Aboriginal Land Council 142 Staff organisation structure
143 Appointments and promotion to be on merit (1) Appointments to the staff of the New South Wales 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. 143A Vacancies to be advertised (1) If it is proposed to make an appointment to a vacant position in the staff of the New South Wales 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 if the Registrar approves. 144 Certain persons must not be employed 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 the New South Wales Aboriginal Land Council for 5 years from the date of conviction. 145 Consultants to be engaged on merit
146–148(Repealed) Division 1 Establishment of accounts 149 NSW Aboriginal Land Council Account
150 Preservation of money in NSW Aboriginal Land Council Account
152 Local Aboriginal Land Council Accounts
Division 2 Keeping of accounts 153 Local Aboriginal Land Councils to keep accounts
154 Regulations may set requirements to judge satisfactory financial statements The regulations may provide for the requirements that must be met by audited financial statements and other documents to assess whether the audited financial statements and other documents required to be furnished to the New South Wales Aboriginal Land Council under this Division by a Local Aboriginal Land Council are satisfactory. 155 Local Aboriginal Land Councils may request special auditor The New South Wales Aboriginal Land Council must, on the request of a Local Aboriginal Land Council, appoint a special auditor to examine the financial affairs of the Local Aboriginal Land Council. 156 Financial year of Aboriginal Land Councils
157 Budget of New South Wales Aboriginal Land Council
158 Budget of Local Aboriginal Land Councils
159 Quarterly and six monthly reports by New South Wales Aboriginal Land Council (1) The New South Wales Aboriginal Land Council must, if directed to do so by the Minister, prepare and submit to the Minister within 10 weeks after the end of each quarter of each financial year a report specifying:(a) the amounts of funds granted during the quarter by that Council to Local Aboriginal Land Councils and the purposes for which the funds were granted, and(b) whether the Local Aboriginal Land Councils concerned have complied with the financial obligations imposed by this Part in relation to those grants.(2) The New South Wales Aboriginal Land Council must prepare and submit to the Minister within 10 weeks after the end of each 6-month period ending on 30 June and 31 December in each year a report specifying:(a) the amounts of funds granted during the 6-month period by that Council to Local Aboriginal Land Councils and the purposes for which the funds were granted, and(b) whether the Local Aboriginal Land Councils concerned have complied with the financial obligations imposed by this Part in relation to those grants.(3) The regulations may prescribe the form and content of such reports. 160 NSW Aboriginal Land Council may give other Councils directions regarding accounting
Division 3 Funding of Local Aboriginal Land Councils (1) The New South Wales Aboriginal Land Council may enter into a funding agreement with a Local Aboriginal Land Council under which the New South Wales Aboriginal Land Council agrees to grant funds to the Local Aboriginal Land Council on certain specified conditions.(2) A funding agreement may provide that if the Local Aboriginal Land Council breaches a provision of the agreement, the New South Wales Aboriginal Land Council is to cease to provide funds to the Local Aboriginal Land Council.(3) A funding agreement is subject to the provisions of section 163.(4) The regulations may prescribe a model funding agreement that my be adopted for the purposes of this section.
Part 9 Registrar and Registers of Aboriginal Land Claims and Aboriginal Owners (cf former Part 8A) (1) The Governor may appoint a Registrar.(2) Schedule 1 has effect with respect to the Registrar.(3) The Registrar has and may exercise the functions conferred or imposed on the Registrar by or under this or any other Act. The functions of the Registrar are as follows:(a) to register land claims made under this Act by the New South Wales Aboriginal Land Council or Local Aboriginal Land Councils,(b) to maintain the Register of Aboriginal Land Claims and the Register of Aboriginal Owners,(c) to approve the rules of the New South Wales Aboriginal Land Council and Local Aboriginal Land Councils,(d) to make recommendations to the Minister and carry out such other prescribed functions in relation to the constitution of Local Aboriginal Land Council areas and the constitution of Local Aboriginal Land Councils, the alteration of area boundaries of Local Aboriginal Land Council areas and the changing of names of Local Aboriginal Land Councils,(e) to make recommendations to the Minister and carry out such other prescribed functions in relation to the alteration of area boundaries of Regions and the changing of names of Regions,(f) to issue compliance directions to Aboriginal Land Councils, officers of Aboriginal Land Councils and councillors relating to the administration of the Act and the regulations and to refer failures to comply with such directions to the Court,(g) to mediate, conciliate or arbitrate disputes relating to the operation of this Act and the regulations or to refer such disputes to independent mediators, conciliators or arbitrators,(h) to investigate complaints regarding the non-disclosure of pecuniary interests, misbehaviour by councillors, Board members and members of staff of, and consultants to, Aboriginal Land Councils and breaches of this Act and the regulations,(h1) at the request of the Minister, to provide to the Minister information as to the operations of an Aboriginal Land Council,(i) such other functions conferred or imposed on the Registrar by or under this or any other Act. The Registrar may delegate the exercise of any function of the Registrar under this Act (other than this power of delegation) to:(a) any member of staff of the Department of Aboriginal Affairs, or(b) any person, or any class of persons, authorised for the purposes of this section by the regulations. Division 2 Register of Aboriginal Land Claims 166 Register of Aboriginal Land Claims (1) The Registrar must establish and keep a Register of land claims.(2) The Register of Aboriginal Land Claims is to be kept in a form prescribed by the regulations or, if no form is prescribed, in a form determined by the Registrar. 167 Contents of Register of Aboriginal Land Claims The Register of Aboriginal Land Claims is to include the following information:(a) a number for each individual land claim (sequential over time),(b) the name of the Aboriginal Land Council that made the land claim,(c) a description of the land claimed,(d) the parish or parishes and the county or counties that the land claimed is within,(e) the local government area or areas that the land claimed is within,(f) the date of lodgment with the Registrar of the land claim,(g) the date of determination of the land claim by the Crown Lands Minister (within the meaning of section 36),(h) such other information prescribed by the regulations. 168 Registrar may request information from Crown Lands Minister The Registrar may request the Crown Lands Minister (within the meaning of section 36) to provide information relating to a land claim that is listed on the Register of Aboriginal Land Claims. 169 Regulations may provide for public inspection of Register The regulations may make provision for public inspection of the Register of Aboriginal Land Claims. Division 3 Register of Aboriginal Owners 170 Register of Aboriginal Owners
171 Contents of Register of Aboriginal Owners
172 Requests for entry of names in Register
173 Requests for opening of parts of Register of Aboriginal Owners
175 Reference by Registrar to Land and Environment Court
Part 10 Honesty and disclosure of interests (cf Chapter 14 of Local Government Act 1993) Division 1 Honesty, care and diligence 176 Conduct of councillors, Board members and staff of Aboriginal Land Councils
Division 3 Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal 178 Establishment of Pecuniary Interest and Disciplinary Tribunal
179 Constitution of Pecuniary Interest and Disciplinary Tribunal
180 Functions of Pecuniary Interest and Disciplinary Tribunal
181B Formal censure for misbehaviour
181C Process for initiating suspension or other action
181D Grounds on which a person may be suspended or action taken
181E How requests and reports are to be dealt with
181F Suspension by Registrar for misbehaviour
181G When suspension order takes effect
181H Appeals against suspension
181I Actions by Registrar against members of staff for misbehaviour (1) The Registrar may take action under this section in relation to a member of staff:(a) if the Registrar has conducted an investigation or considered an investigator’s report into the matters concerned and is satisfied that grounds exist that warrant the action, or(b) if the Independent Commission Against Corruption or the Ombudsman states in a report that the Commission or Ombudsman is satisfied that grounds exist that warrant the taking of action.(2) The Registrar may:(a) counsel the member of staff, or(b) reprimand the member of staff, or(c) recommend that the Council take disciplinary action against the member of staff (including counselling or reprimanding the member of staff), or(d) recommend dismissal of the member of staff. 181J Appeals against action against members of staff (1) A member of staff against whom a decision is made by the Registrar to take action may appeal against the decision to the Pecuniary Interest and Disciplinary Tribunal.(2) Such an appeal may not be made more than 28 days after the date notice of the decision was served on the member of staff.(3) The Tribunal may stay the decision until such time as the Tribunal determines the appeal.(4) The Tribunal may:(a) confirm the decision, or(b) quash the decision, or(c) amend the decision consistently with the powers of the Registrar.(5) If the decision is amended, the decision as amended has effect as if it had been made in that form by the Registrar.(6) The regulations may make provision for or with respect to the making, hearing and determination of appeals under this section. 181K Referral of matters to Pecuniary Interest and Disciplinary Tribunal
181L Alternatives to suspension or referral to Pecuniary Interest and Disciplinary Tribunal
181M Expenses to be borne by Aboriginal Land Councils
181O Other proceedings or actions not affected Nothing in this Division affects or limits any proceedings or other action that may be taken in respect of a councillor, Board member or member of staff. Division 4 Duties of disclosure 182 Definition of “pecuniary interest”
183 Persons who have pecuniary interests
Subdivision 2 Disclosure of pecuniary interests at meetings 184 Disclosure and presence in meetings
185 Disclosures to be recorded
188 Circumstances in which sections 184 and 187 are not breached
Division 5 Complaints concerning non-disclosure 189 Complaints concerning failure to disclose pecuniary interests
190 Registrar may require further information
191 Inquiries regarding complaints
192 Decision not to inquire into complaint
193 Referral and investigation of complaints by other authorities
194 Pecuniary Interest and Disciplinary Tribunal to be notified of inquiries
195 Persons to be notified of complaint
196 Reports of investigation of complaints by authorities
197 Presentation of reports to Pecuniary Interest and Disciplinary Tribunal
Division 6 Proceedings before the Pecuniary Interest and Disciplinary Tribunal Subdivision 1 Proceedings relating to pecuniary interest matters 198 Pecuniary Interest and Disciplinary Tribunal to decide whether or not to conduct proceedings into a complaint
199 Circumstances in which Pecuniary Interest and Disciplinary Tribunal may dispense with hearing
Subdivision 2 Proceedings relating to misbehaviour 199A Pecuniary Interest and Disciplinary Tribunal to decide whether or not to conduct proceedings into a referred matter relating to misbehaviour
199B Circumstances in which Pecuniary Interest and Disciplinary Tribunal may dispense with hearing
Subdivision 3 General provisions 200 General conduct of proceedings
201 Private and public hearings
202 Representation at hearings
203 Presentation of cases at hearings
204 Power to summon witnesses and take evidence at hearings
206 Privilege concerning answers and documents
211 Decision of Pecuniary Interest and Disciplinary Tribunal—interest matters
211A Decision of Pecuniary Interest and Disciplinary Tribunal—misbehaviour matters (1) This section applies where a matter has been referred to the Pecuniary Interest and Disciplinary Tribunal under section 181K.(2) The Tribunal may, if it finds that the behaviour concerned of a councillor or Board member warrants action under this section:(a) counsel the councillor or Board member, or(b) reprimand the councillor or Board member, or(c) suspend the councillor or Board member from office for a period not exceeding 6 months, or(d) if the referral relates to a councillor who is an officer of the New South Wales Aboriginal Land Council, remove the councillor from that office, or(e) disqualify the councillor or Board member from holding office as a councillor or Board member for a period not exceeding 5 years.(3) The Tribunal may, if it finds that the behaviour concerned of a member of staff of an Aboriginal Land Council warrants action under this section:(a) counsel the member of staff, or(b) reprimand the member of staff, or(c) recommend that the Council take specified disciplinary action against the member of staff (including counselling or reprimanding the member of staff), or(d) recommend the dismissal of the member of staff, or(e) disqualify the member of staff from holding office in an Aboriginal Land Council for a period not exceeding 5 years.(4) In this section, member of staff has the same meaning as it has in Division 3A.
213 Pecuniary Interest and Disciplinary Tribunal to provide details of its decisions
215 Referral of matters by Pecuniary Interest and Disciplinary Tribunal
Part 11 Investigation and administration of Aboriginal Land Councils Division 1 Investigation of Aboriginal Land Councils 216 Appointment of investigator into Aboriginal Land Councils
217 Contents of investigator’s instrument of appointment (1) The instrument by which the Minister appoints an investigator under this Division must specify the following:(a) whether all or only specified affairs of the Aboriginal Land Council concerned are to be investigated,(b) the time within which the report required to be prepared by the investigator under section 219 is to be delivered to the Minister, or the Minister and the New South Wales Aboriginal Land Council,(c) the term of office of the investigator,(d) the functions and duties of the investigator,(e) unless remuneration for investigators appointed under this Division is prescribed by the regulations—the remuneration of the investigator,(f) any other matter prescribed by the regulations.(2) The instrument may also contain provision for the payment to the investigator of remuneration in addition to the remuneration specified in the instrument. For example, the instrument could provide for the New South Wales Aboriginal Land Council to approve the payment of additional remuneration that it is satisfied is reasonable. 218 Aboriginal Land Councils to assist investigators
220 Minister may extend term of office of investigator (1) The Minister may extend the term of office of an investigator appointed under this Division to investigate the affairs, or specified affairs, of the New South Wales Aboriginal Land Council.(2) The Minister may, with the consent of the New South Wales Aboriginal Land Council, extend the term of office of an investigator appointed under this Division to investigate the affairs, or specified affairs, of a Local Aboriginal Land Council. 221 Minister may remove an investigator (1) The Minister may, at any time, remove an investigator appointed under this Division to investigate the affairs, or specified affairs, of the New South Wales Aboriginal Land Council.(2) The Minister may, at any time, with the consent of the New South Wales Aboriginal Land Council, remove an investigator appointed under this Division to investigate the affairs, or specified affairs, of a Local Aboriginal Land Council. 221A Provision of information to Registrar and New South Wales Aboriginal Land Council (1) The Chairperson of an Aboriginal Land Council and any other person who has possession or control of any records of the Council must, if required to do so by the Registrar, provide the Registrar with:(a) access to such of the records as relate to the operations of the Council requested by the Registrar, and(b) information that the Chairperson or other person is able to give in relation to those records and operations, and(c) authorities or orders on bankers and others that relate to those records or operations and that the Chairperson or other person is able to provide. Division 2 Administration of Aboriginal Land Councils 222 Administrators—Local Aboriginal Land Councils
223 Administrators—New South Wales Aboriginal Land Council
223A Notice of appointment of administrator (1) The Minister may, before appointing an administrator of an Aboriginal Land Council under this Division, give not less than 14 days notice in writing of the appointment to:(a) in the case of a Local Aboriginal Land Council—each Board member and the New South Wales Aboriginal Land Council, and(b) in the case of the New South Wales Aboriginal Land Council—each councillor.(2) The Minister must, before appointing an administrator, take into account any written representations received from any person or body to whom notice was given under this section. 223B Interim actions pending appointment of administrator (1) The Minister may, by notice in writing to an Aboriginal Land Council, take any of the following actions, pending the appointment of an administrator of the Council:(a) prohibit the Council from exercising certain specified functions or taking specified actions, except with the approval of the Minister, for a specified period,(b) appoint a person to act as an interim administrator of the Council, with specified functions, for a specified period (not exceeding 3 months).(2) A notice under this section ceases to have effect if an administrator is appointed under this Division or if the Minister decides not to appoint an administrator under this Division.(3) The Minister must notify the Aboriginal Land Council in writing if the Minister decides not to appoint an administrator.(4) The Minister may revoke or vary a notice given under this section.(5) An Aboriginal Land Council must not fail to comply with a notice given under this section. 224 Contents of administrator’s instrument of appointment (1) The instrument by which the Minister appoints an administrator under this Division must specify the following:(a) whether the administrator is to administer all or only specified functions of the Aboriginal Land Council concerned,(b) the term of office of the administrator,(c) the functions and duties of the administrator,(d) unless remuneration for administrators appointed under this Division is prescribed by the regulations—the remuneration of the administrator,(e) any other matter prescribed by the regulations.(2) The instrument may also contain provision for the payment to the administrator of remuneration in addition to the remuneration specified in the instrument. For example, the instrument could provide for the New South Wales Aboriginal Land Council to approve the payment of additional remuneration that it is satisfied is reasonable. 225 Certain persons ineligible to be administrators The Minister must not appoint any of the following persons as an administrator of an Aboriginal Land Council:(a) a councillor,(b) a Board member,(c) a member of a Local Aboriginal Land Council,(d) a member of staff of the New South Wales Aboriginal Land Council. 226 Removal of office holders on appointment of administrator
227 Officers to assist administrator
228 Administrator of an Aboriginal Land Council may call meetings The administrator of an Aboriginal Land Council may call meetings of the Council. 229 Administrator to report monthly (1) The administrator for a Local Aboriginal Land Council must report at least once a month to the following:(a) the Minister,(b) the New South Wales Aboriginal Land Council,(c) the Local Aboriginal Land Council concerned.(2) The administrator of the New South Wales Aboriginal Land Council must report at least once a month to the following:(a) the Minister,(b) the New South Wales Aboriginal Land Council.(3) The Minister may give directions to an administrator of an Aboriginal Land Council concerning the form and content of such reports.(4) The administrator must comply with a direction given under this section. 230 Administrator may not buy or sell Local Aboriginal Land Council land without consent The administrator for a Local Aboriginal Land Council must not dispose of or otherwise deal with land vested in or acquired by the Council without the consent of the Council (as decided at a meeting). 231 Minister may extend term of office of administrator (1) The Minister may extend the term of office of an administrator of the New South Wales Aboriginal Land Council.(2) The Minister may, with the consent of the New South Wales Aboriginal Land Council, extend the term of office of an administrator for a Local Aboriginal Land Council.(3) The Minister may, by further instrument of appointment, vary the functions of the Council that may be exercised by an administrator during the extension of the administrator’s term of appointment. 232 Minister may remove administrator (1) The Minister may, at any time, remove an administrator of the New South Wales Aboriginal Land Council.(2) The Minister may, at any time, with the consent of the New South Wales Aboriginal Land Council, remove an administrator for a Local Aboriginal Land Council. Division 3 Non-functioning Aboriginal Land Councils and assistance to Local Aboriginal Land Councils 233 Failure of NSW Aboriginal Land Council to function
(1) The Minister may, on the recommendation of the New South Wales Aboriginal Land Council or the Registrar, appoint an advisor to the Board of a Local Aboriginal Land Council, if the Minister is of the opinion that the Council is in danger of failing.(2) An advisor is to be appointed from a list of persons jointly prepared by the Director-General and the New South Wales Aboriginal Land Council.(3) Notice of the appointment of an advisor is to be published in the Gazette.(4) An advisor is to be appointed for a term specified by the Minister in the advisor’s instrument of appointment.(5) An advisor has, subject to any limitations specified in the advisor’s instrument of appointment, the following functions:(a) to advise and assist the Board of the Local Aboriginal Land Council and the Council in the exercise of their functions,(b) to report to the New South Wales Aboriginal Land Council and the Minister, when requested to do so by that Council or the Minister or at the advisor’s discretion, as to the operations of the Local Aboriginal Land Council.(6) The appointment of an advisor ceases to have effect if an administrator is appointed for the Local Aboriginal Land Council. 235 Registrar may issue compliance directions (1) Any person or body may request the Registrar to issue a direction to an Aboriginal Land Council, an officer of an Aboriginal Land Council or a councillor requiring the Council, officer or councillor to comply with a specified provision or provisions of this Act or of any regulations or rules made under this Act.(2) If the Registrar is satisfied that an Aboriginal Land Council, an officer of an Aboriginal Land Council or a councillor has failed to comply, or is not complying, with a specified provision or provisions of this Act or of any regulations or rules made under this Act, the Registrar may issue a direction to the Council, officer or councillor requiring the Council, officer or councillor to comply with that provision or those provisions within a time stated in the direction.(3) The Registrar is not to issue a direction under this Part in relation to any matter if:(a) the matter could constitute an offence under this Act or any other law, or(b) provision is made for the determination of the matter under another section of this Act. 236 Registrar may refer failure to comply to Court If an Aboriginal Land Council, an officer of an Aboriginal Land Council or a councillor does not comply with a direction issued under this Part within the time stated in the direction, the Registrar may refer the matter that is the subject of the direction to the Court for determination. 237 Court to determine compliance matters (1) The Court must hear and determine any matter referred to it by the Registrar under this Part.(2) The Court may give such directions as it considers necessary to determine a matter referred to it.(3) Any person who contravenes a direction given by the Court under this Part is guilty of an offence. (1) This Part applies to a dispute concerning the operation of this Act or the regulations.(2) This Part does not apply to a dispute if:(a) the dispute relates to a matter that could constitute an offence under this Act or the regulations or any other law, or(b) provision is made for the resolution or determination of the dispute under another provision of this Act (other than under Part 12) or the regulations. 239 Mediation, conciliation or arbitration of disputes by NSW Aboriginal Land Council (1) The New South Wales Aboriginal Land Council may, if the parties to a dispute to which this Part applies (other than a dispute to which that Council is a party) have agreed, attempt to resolve the dispute by mediation, conciliation or arbitration.(2) The New South Wales Aboriginal Land Council may, if the parties to the dispute have agreed, refer a dispute to which this Part applies (other than a dispute to which the Council is a party) to mediation, conciliation or arbitration by the Registrar or another independent person.(3) The Registrar may, if the parties to a dispute to which this Part applies have agreed:(a) attempt to resolve the dispute by mediation, conciliation or arbitration, or(b) refer the dispute to mediation, conciliation or arbitration by an independent person. 240 Application of Commercial Arbitration Act 1984 (1) Subject to this Act and the regulations, the Commercial Arbitration Act 1984 applies to an arbitration undertaken by the New South Wales Aboriginal Land Council, the Registrar or an independent person under this Part.(2) The provisions of the Commercial Arbitration Act 1984 apply to an arbitration under this Act with the modification that a reference in that Act to the Court or the Supreme Court is to be taken to be a reference to the Land and Environment Court.Note. The Commercial Arbitration Act 1984 contains machinery and other provisions applying to arbitrations. The provisions applying to arbitrations under that Act set out the way in which arbitrators are to conduct arbitration proceedings and powers to require evidence to be given, as well as parties’ rights to representation and other procedural matters. They also provide that an award by an arbitrator is to be final and provide for enforcement procedures. An appeal to a Court on a question of law is also available under that Act. 241 Reference of disputes to Court
242 Exclusion of personal liability
245 Authentication of certain documents
246 Proof of certain matters not required
247 Aboriginal Land Councils not statutory bodies representing the Crown
248 Aboriginal Land Councils to be public authorities etc for certain purposes
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or has been convicted under the provision.(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation under this Act or the regulations. 250 Establishment of new Local Aboriginal Land Councils (1) If, after the commencement of Schedule 1 [17] to the Aboriginal Land Rights Amendment Act 2001, a Local Aboriginal Land Council is constituted by this Act:(a) the Registrar (or a person appointed by the Registrar) is to prepare a membership roll for the Council under section 54 (1), and(b) the first meeting of the Council is to be held at a time (being a time as soon as practicable after its constitution) and place determined by the Registrar, and(c) until a Chairperson of the Board is elected at that first meeting, the Registrar (or a person appointed by the Registrar) is to preside at that meeting, and(d) at the first meeting of the Council, the members are to elect the Board of the Council.(2) Despite section 54, when first prepared as required by subsection (1), the membership roll is to contain the names and addresses of those adult Aboriginal persons:(a) who:(i) reside in the Local Aboriginal Council area concerned, or(ii) have a sufficient association with that area or are Aboriginal owners of land in that area, and(b) who have requested in writing that they be enrolled as members of the Council, and(c) who have been accepted by the Registrar (or a person appointed by the Registrar under subsection (1) (a)) as members.
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to the Aboriginal Land Rights Amendment Act 2006 and as soon as possible after the end of every period of 5 years thereafter.(3) A report on the outcome of a review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. 253 Savings, transitional and other provisions
Schedule 1 Provisions relating to the Registrar (Section 164 (2)) Subject to this Act, the Registrar is to be appointed for such term, not exceeding 7 years, as is specified in the relevant instrument of appointment, but is (if otherwise qualified) eligible for re-appointment. The Registrar is entitled to be paid:(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and(b) such travelling and subsistence allowances as the Minister may from time to time determine. 3 Public Sector Management Act 1988 not to apply The Public Sector Management Act 1988 (including Part 8) does not apply to or in respect of the appointment of the Registrar and the Registrar is not, in his or her capacity as the Registrar, subject to that Act during his or her term of office. The office of Registrar becomes vacant if the Registrar:(a) dies, or(b) engages in New South Wales or elsewhere during his or her term of office in any paid employment outside the duties of his or her office without the approval of the Minister, or(c) 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, allowances or estate for their benefit, or(d) absents himself or herself from duty for a period exceeding 14 consecutive days, except on leave granted by the Minister, or(e) becomes a mentally incapacitated person, or(f) is convicted in New South Wales of 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, or(g) resigns the office by instrument in writing addressed to the Minister, or(h) is removed from office under clause 5. The Governor may remove the Registrar from office for incapacity, misbehaviour or incompetence. 6 Superannuation and leave—preservation of rights (1) In this clause: Schedule 2 Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal (Section 179 (3)) In this Schedule, the member means the member appointed as the Pecuniary Interest and Disciplinary Tribunal under section 179. (1) The Governor may, from time to time, appoint a person to be the deputy of the member, and the Governor may revoke any such appointment. A person appointed as a deputy must have the same qualifications as those required of a person appointed as the member.(2) In the absence of the member, the member’s deputy:(a) may, if available, act in the place of the member, and(b) while so acting, has the functions of the member and is taken to be the member.(3) A person while so acting in the place of the member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.(4) For the purposes of this clause, a vacancy in the office of the member is taken to be an absence from office of the member. 3 Term of office of the member Subject to this Schedule, the member holds office for such period, not exceeding 5 years, as is specified in the member’s instrument of appointment, and (if otherwise qualified) is eligible for re-appointment. The member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member. 5 Vacancy in office of the member (1) The office of the member becomes vacant if the member:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) becomes a member of staff of an Aboriginal Land Council, or(e) is removed from office by the Governor under this clause or under Part 8 of the Public Sector Management Act 1988, or(f) 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(g) becomes a mentally incapacitated person, or(h) is convicted in New South Wales of 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.(2) The Governor may remove the member from office at any time. 6 Filling of vacancy in office of member If the office of the member becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy. (1) Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of the appointment of the member.(2) If by or under any Act provision is made:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or(b) prohibiting the person from engaging in employment outside the duties of that office,that provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as the member. Schedule 3 Procedure of Boards and Councils (Sections 52H, 61 (3) and 120 (7)) Part 1 Procedure of Local Aboriginal Land Councils (1) Subject to subclause (2), a Local Aboriginal Land Council is to hold meetings at such time as the Board of the Council determines.(2) A Council must:(a) hold not less than 3 ordinary meetings a year, at intervals of not more than 4 calendar months, and(b) hold annual meetings at the times, or within the periods, prescribed by the regulations. The procedure for the calling of meetings of a Local Aboriginal Land Council and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Council. The quorum for a meeting of a Local Aboriginal Land Council is 10 per cent of the total number of voting members of the Council. (1) The Chairperson of the Board (or, in the absence of the Chairperson, the Deputy Chairperson of the Board, or in the absence of both the Chairperson and the Deputy Chairperson, a person elected by the members of the Local Aboriginal Land Council who are present at a meeting of the Council) is to preside at a meeting of the Council.(2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.(3) If an administrator is appointed to the Council, the administrator is to preside at meetings of the Council. (1) A decision supported by a majority of the votes cast at a meeting of a Local Aboriginal Land Council at which a quorum is present is the decision of the Council.(2) The attendance of each person who is a voting member at a meeting of the Council is to be recorded on the membership roll. (1) The Local Aboriginal Land Council must cause minutes to be kept of the proceedings of each meeting of the Council.(2) The minutes are to include a record of the following:(a) motions put to the meeting,(b) amendments to such motions,(c) the names of the movers and seconders of those motions and amendments,(d) the resolutions passed by the meeting. Part 2 Procedure of Boards of Local Aboriginal Land Councils (1) A Board must meet at intervals not longer than every 2 calendar months.(2) The Chairperson may, at the request of a majority of the members of the Board, call a meeting of the Board at any time. The procedure for the calling of meetings of the Board and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Board. The quorum for a meeting of the Board is a majority of its members for the time being. (1) The Chairperson (or, in the absence of the Chairperson, the Deputy Chairperson, or in the absence of both the Chairperson and the Deputy Chairperson, a person elected by the members of the Board who are present at a meeting of the Board) is to preside at a meeting of the Board.(2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote. A decision supported by a majority of the votes cast at a meeting of the Board at which a quorum is present is the decision of the Board. 6 Transaction of business by telephone (1) The Board may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.(2) For the purposes of a meeting held in accordance with subclause (1), the presiding member and each Board member have the same voting rights as they have at an ordinary meeting of the Board.(3) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the Board.(4) Papers may be circulated among the Board members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned. Any document requiring authentication by the Board is sufficiently authenticated if it is signed by:(a) the Board member who presided at the meeting that dealt with the proceedings with respect to which the document was prepared, or(b) in the absence of that Board member, any other member who was present at that meeting. The chief executive officer of the Council or, if there is no chief executive officer, the Registrar may call the first meeting of the Board in such manner as he or she thinks fit. (1) The Board must cause minutes to be kept of the proceedings of each meeting of the Board.(2) The minutes are to include a record of the following:(a) motions put to the meeting,(b) amendments to such motions,(c) the names of the movers and seconders of those motions and amendments,(d) the resolutions passed by the meeting. Part 3 Procedure of New South Wales Aboriginal Land Council (1) The New South Wales Aboriginal Land Council is to hold its first meeting after each election of all councillors in accordance with the regulations at a time (being a time as soon as practicable after the election) and place arranged by the Registrar.(2) The New South Wales Aboriginal Land Council must hold ordinary meetings at least once every 3 calendar months.(3) The Chairperson must call an extraordinary meeting of the Council if requested to do so by a majority of the councillors for the time being.(4) The Chairperson may call an extraordinary meeting of the Council at any time. The procedure for the calling of meetings of the New South Wales Aboriginal Land Council and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Council. The quorum for a meeting of the New South Wales Aboriginal Land Council is a majority of the councillors constituting the Council for the time being. (1) The Chairperson of the New South Wales Aboriginal Land Council (or, in the absence of the Chairperson or Deputy Chairperson, a person elected by the members of the Council who are present at a meeting of the Council) is to preside at a meeting of the Council.(2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.(3) If an administrator is appointed to the Council, the administrator is to preside at meetings of the Council. A decision supported by a majority of the votes cast at a meeting of the New South Wales Aboriginal Land Council at which a quorum is present is the decision of the Council. (1) The New South Wales Aboriginal Land Council must cause minutes to be kept of the proceedings of each meeting of the Council.(2) The minutes are to include a record of the following:(a) motions put to the meeting,(b) amendments to such motions,(c) the names of the movers and seconders of those motions and amendments,(d) the resolutions passed by the meeting. Schedule 3A Transfer of assets, rights and liabilities (Section 89 (6)) In this Schedule: 2 Vesting of undertaking in transferee When any assets, rights or liabilities are transferred by a transfer order, the following provisions have effect (subject to the order):(a) those assets of the transferor vest in the transferee by virtue of this Schedule and without the need for any conveyance, transfer, assignment or assurance,(b) those rights and liabilities of the transferor become by virtue of this Schedule the rights and liabilities of the transferee,(c) all proceedings relating to those assets, rights or liabilities commenced before the transfer by or against the transferor or a predecessor of the transferor and pending immediately before the transfer are taken to be proceedings pending by or against the transferee,(d) any act, matter or thing done or omitted to be done in relation to those assets, rights or liabilities before the transfer by, to or in respect of the transferor is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee,(e) a reference in any Act, in any instrument made under any Act or in any document of any kind to the transferor or a predecessor of the transferor is (to the extent that it relates to those assets, rights or liabilities but subject to regulations or other provisions under Schedule 4), to be read as, or as including, a reference to the transferee. (1) The operation of this Schedule is not to be regarded:(a) as a breach of contract or confidence or otherwise as a civil wrong, or(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or(c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.(2) The operation of this Schedule is not to be regarded as an event of default under any contract or other instrument.(3) No attornment to the transferee by a lessee from the transferor is required.(4) The operation of this Schedule includes the making of a transfer order. A transfer order takes effect on the date specified in the order. (1) A transfer order may specify the consideration on which the order is made and the value or values at which the assets, rights or liabilities are transferred.(2) The consideration and value or values cannot exceed the optimised deprival value of those assets, rights or liabilities.(3) In this clause, optimised deprival value means a value determined by the application of the Guidelines on Accounting Policy for Valuation of Government Trading Enterprises prepared by the Steering Committee on National Performance Monitoring of Government Trading Enterprises, agreed on by the Commonwealth and States and published in October 1994. Duty under the Duties Act 1997 is not chargeable in respect of:(a) the transfer of assets, rights and liabilities to a person by a transfer order, or(b) anything certified by the Minister as having been done in consequence of such a transfer (for example, the transfer or registration of an interest in land). 7 Transfer of interest in land (1) A transfer order may transfer an interest in respect of land vested in the transferor without transferring the whole of the interests of the transferor in that land.(2) If the interest transferred is not a separate interest, the order operates to create the interest transferred in such terms as are specified in the order.(3) This clause does not limit any other provision of this Schedule. 8 Determinations of Minister for purposes of orders For the purposes of any transfer order, a determination by the Minister as to which entity to which any assets, rights or liabilities relate is conclusive. (1) The Minister may, by notice in writing, confirm a transfer of particular assets, rights and liabilities by operation of this Schedule.(2) Such a notice is conclusive evidence of that transfer. Schedule 4 Savings, transitional and other provisions (Section 253) In this Schedule: 1A Savings and transitional regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts: Part 2 Provisions consequent on the enactment of this Act 2 Transfer of certain property etc of the former Trust (1) Except as provided by Division 1 of Part 6, on and from the appointed day:(a) all real and personal property and all right and interest therein and all management and control thereof that, immediately before that day, was vested in or belonged to the former Trust shall vest in or belong to the New South Wales Aboriginal Land Council (in this clause referred to as the Council),(b) all debts, money and claims, liquidated and unliquidated, that, immediately before that day, were due or payable to, or recoverable by, the former Trust shall be debts due to, money payable to and claims recoverable by the Council,(c) all suits, actions and proceedings pending immediately before that day at the suit of the former Trust shall be respectively suits, actions and proceedings pending at the suit of the Council and all suits, actions and proceedings so pending at the suit of any person against the former Trust shall be respectively suits, actions and proceedings pending at the suit of that person against the Council,(d) all contracts, agreements, arrangements and undertakings entered into with and all securities lawfully given to or by the former Trust and in force immediately before that day shall be deemed to be contracts, agreements, arrangements and undertakings entered into with and securities given to or by the Council,(e) the Council may, in addition to pursuing any other remedies or exercising any other powers that may be available to it, pursue the same remedies for the recovery of money and claims referred to in this clause and for the prosecution of suits, actions and proceedings so referred to as the former Trust might have done but for the enactment of this Act,(f) the Council may enforce and realise any security or charge existing immediately before that day in favour of the former Trust and may exercise any powers thereby conferred on the former Trust as if the security or charge were a security or charge in favour of the Council,(g) all debts, money and claims, liquidated and unliquidated, that, immediately before that day, were due or payable by, or recoverable against, the former Trust shall be debts due by, money payable by and claims recoverable against the Council, and(h) all liquidated and unliquidated claims for which the former Trust would, but for the enactment of this Act, have been liable shall be liquidated and unliquidated claims for which the Council shall be liable.(2) No attornment to the Council by a lessee from the former Trust shall be required. 3 Transfer of certain property etc of the former Corporation (1) On and from the appointed day:(a) all real and personal property and all right and interest therein and all management and control thereof that, immediately before that day, was vested in or belonged to the former Corporation shall vest in or belong to the corporation sole constituted under section 50 (in this clause referred to as the Minister),(b) all debts, money and claims, liquidated and unliquidated, that, immediately before that day, were due or payable to, or recoverable by, the former Corporation shall be debts due to, money payable to and claims recoverable by the Minister,(c) all suits, actions and proceedings pending immediately before that day at the suit of the former Corporation shall be respectively suits, actions and proceedings pending at the suit of the Minister and all suits, actions and proceedings so pending at the suit of any person against the former Corporation shall be respectively suits, actions and proceedings pending at the suit of that person against the Minister,(d) all contracts, agreements, arrangements and undertakings entered into with and all securities lawfully given to or by the former Corporation and in force immediately before that day shall be deemed to be contracts, agreements, arrangements and undertakings entered into with and securities given to or by the Minister,(e) the Minister may, in addition to pursuing any other remedies or exercising any other powers that may be available to the Minister, pursue the same remedies for the recovery of money and claims referred to in this clause and for the prosecution of suits, actions and proceedings so referred to as the former Corporation might have done but for the enactment of this Act,(f) the Minister may enforce and realise any security or charge existing immediately before that day in favour of the former Corporation and may exercise any powers thereby conferred on the former Corporation as if the security or charge were a security or charge in favour of the Minister,(g) all debts, money and claims, liquidated and unliquidated, that, immediately before that day, were due or payable by, or recoverable against, the former Corporation shall be debts due by, money payable by and claims recoverable against the Minister, and(h) all liquidated and unliquidated claims for which the former Corporation would, but for the enactment of this Act, have been liable shall be liquidated and unliquidated claims for which the Minister shall be liable.(2) No attornment to the Minister by a lessee from the former Corporation shall be required. 4 Effect of certain acts etc of the former Trust and the former Corporation (1) Subject to this Act, to the extent that any act, matter or thing done or omitted to be done before the appointed day by, to or in respect of the former Trust would, but for the enactment of this Act, have had, on or after that day, any force or effect or been in operation, that act, matter or thing shall be deemed to have been done or omitted to be done by, to or in respect of the New South Wales Aboriginal Land Council.(2) Subject to this Act, to the extent that any act, matter or thing done or omitted to be done before the appointed day by, to or in respect of the former Corporation would, but for the enactment of this Act, have had, on or after that day, any force or effect or been in operation, that act, matter or thing shall be deemed to have been done or omitted to be done by, to or in respect of the corporation sole constituted under section 50. 5 Transfer of certain assets, debts and liabilities of the former Trust and the former Corporation (1) A reference in this clause to assets, debts and liabilities of the New South Wales Aboriginal Land Council is a reference to assets, debts and liabilities of the Council (excluding former Trust lands within the meaning of section 35) which were, immediately before the appointed day, assets, debts or liabilities of the former Trust.(2) The Minister may, after taking into consideration any recommendations made by the New South Wales Aboriginal Land Council, determine:(a) whether any, and if so what, assets, debts and liabilities of the New South Wales Aboriginal Land Council should be those of a Local Aboriginal Land Council, and(b) whether any, and if so what, assets, debts and liabilities of the corporation sole constituted under section 50 should be those of the New South Wales Aboriginal Land Council, a Regional Aboriginal Land Council, a Local Aboriginal Land Council or some other organisation or body established for the benefit of Aborigines.(3) A determination made under this clause shall be given effect to by the New South Wales Aboriginal Land Council, the corporation sole constituted under section 50 and the relevant Regional or Local Aboriginal Land Council or organisation or body, as the case may require. 6 Vesting of certain assets etc referred to in clause 5 (1) Without affecting anything in clause 5, the Governor may, by proclamation published in the Gazette, declare that any assets, debts or liabilities referred to in that clause and specified or referred to in the proclamation belong to an Aboriginal Land Council or an organisation or body specified in the proclamation.(2) A proclamation may be published under subclause (1) in respect only of assets, debts and liabilities that are determined under clause 5 to be those of the Aboriginal Land Council or the organisation or body specified in the proclamation in accordance with subclause (1).(3) The provisions of clauses 2 and 4 (1) apply to and in respect of the assets, debts or liabilities to which a proclamation under subclause (1) relates in the same way as they apply to and in respect of the things therein referred to, and so apply as if references therein to:(a) the appointed day were references to the date of publication in the Gazette of the proclamation or a later date specified in the proclamation,(b) the former Trust were references to the New South Wales Aboriginal Land Council or the corporation sole constituted under section 50, as the case may require, and(c) the New South Wales Aboriginal Land Council were references to the Aboriginal Land Council or the organisation or body specified in the proclamation.(4) For the purposes of subclause (1), any assets, debts or liabilities may be specified or referred to in a proclamation by reference to documents, lists or inventories kept at a place specified in the proclamation. 7 Construction of certain references Subject to the regulations, a reference in an instrument enacted, made, proclaimed or published before the repeal by this Act of the Aborigines Act 1969, being a reference to, or a reference to be read or construed as a reference to, or deemed or taken to refer to:(a) the former Trust shall be read and construed as a reference to the New South Wales Aboriginal Land Council, and(b) the corporation sole constituted under section 6 of the Aborigines Act 1969, as in force immediately before the repeal of that Act by this Act, shall be read and construed as a reference to the corporation sole constituted under section 50. Where, but for this clause, any lands would be claimable Crown lands as defined in section 36, those lands shall not, if they were, on the appointed day, the subject of a lease, licence or permissive occupancy, be claimable Crown lands as so defined until the lease, licence or permissive occupancy ceases to be in force. 9 Existing contracts of employment (1) Notwithstanding any other provision of this Act or any other law, any contracts entered into between the former Trust and its officers or employees in respect of wages, payments or any other benefits or in respect of conditions of employment, or any other contracts entered into between the former Trust and any person and declared by the Minister to be contracts to which this clause applies, are on and from the appointed day or the date of the declaration, as the case may require, null and void and any money which would, but for this clause, have been payable under those contracts shall not be payable or paid by the former Trust, the New South Wales Aboriginal Land Council, the Crown or any other person or body.(2) Any payments made under a contract referred to in subclause (1) before the appointed day and which, in the Minister’s opinion, are excessive may be declared by the Minister by instrument in writing to have been unauthorised payments.(3) A payment under a contract referred to in subclause (1) after the time that it became null and void under that subclause or an unauthorised payment referred to in subclause (2) shall be repaid to the Crown by the person to whom it was paid, on demand, and if not paid shall be recoverable, wholly or in part, in any court of competent jurisdiction as a debt due to the Crown.(4) In subclause (3), a reference to the Crown includes a reference to a person or authority nominated by the Minister, by instrument in writing, for the purposes of that subclause.(5) In the absence of evidence to the contrary, any instrument purported to have been signed by the Minister for the purposes of this clause shall, in any legal proceedings, be accepted without proof of the signature of the Minister. Part 2A Provision consequent on the enactment of the Aboriginal Land Rights (Amendment) Act 1986 9A Funding of acquisition of certain land (1) Where, as at 2 May 1986 (the date of assent to the amending Act), land was being acquired by a Local Aboriginal Land Council with money or other financial assistance provided by a Regional Aboriginal Land Council, the Regional Aboriginal Land Council may, notwithstanding the provisions of this Act, as amended by the amending Act, continue to provide that money or financial assistance and the Local Aboriginal Land Council may continue to acquire and complete the acquisition of that land.(2) This clause is taken to have commenced on 2 May 1986.(3) Subclause (1) re-enacts (with minor modifications) clause 1 of Schedule 2 to the amending Act. Subclause (1) is a transferred provision to which section 30A of the Interpretation Act 1987 applies.(4) In this clause: Part 3 Provisions consequent on the enactment of the Aboriginal Land Rights (Amendment) Act 1990 In this Part: 11 Vesting of property in NSW Aboriginal Land Council (1) Any property that, immediately before the appointed day, was vested in a Regional Aboriginal Land Council is on and from that day vested in the New South Wales Aboriginal Land Council.(2) On and from the appointed day:(a) all real and personal property (including any estate or interest in, or right to control or manage, real or personal property) that, immediately before the appointed day, was vested in a Regional Aboriginal Land Council vests in the New South Wales Aboriginal Land Council, and(b) all money that, immediately before the appointed day, was payable to a Regional Aboriginal Land Council becomes payable to the New South Wales Aboriginal Land Council, and(c) any liquidated or unliquidated claim that, immediately before the appointed day, was enforceable by or against a Regional Aboriginal Land Council becomes enforceable by or against the New South Wales Aboriginal Land Council, and(d) any proceedings pending immediately before the appointed day at the suit of or against a Regional Aboriginal Land Council becomes a proceeding pending at the suit of or against the New South Wales Aboriginal Land Council, and(e) any contract or arrangement entered into with a Regional Aboriginal Land Council and in force immediately before the appointed day becomes a contract or arrangement entered into with the New South Wales Aboriginal Land Council, and(f) any security or charge given to or by a Regional Aboriginal Land Council and in force immediately before the appointed day becomes a security or charge given to or by the New South Wales Aboriginal Land Council, and(g) any act, matter or thing done or omitted to be done before the appointed day by, to or in respect of a Regional Aboriginal Land Council is (to the extent that that act, matter or thing has any force or effect) to be taken to have been done or omitted by, to or in respect of the New South Wales Aboriginal Land Council. 12 Claims to Crown lands made by Regional Aboriginal Land Councils Any claim made by a Regional Aboriginal Land Council under section 36 which, immediately before the appointed day, had not been granted or refused under that section is to be taken to be a claim made under that section by the New South Wales Aboriginal Land Council on the appointed day. Money to the credit of the Mining Royalties Account is to be disbursed in accordance with section 46, as amended by the 1990 Act, whenever the money was paid into the Account. 14 Election of members of the NSW Aboriginal Land Council (1) For the purpose of enabling the New South Wales Aboriginal Land Council to be constituted on or after the appointed day, regulations may be made, elections may be held and any other act, matter or thing may be done before that day as if the whole of the 1990 Act commenced on the date of assent to that Act.(2) The first election of all councillors is to be held as soon as practicable after the date of assent to the 1990 Act.(3) If elections are not held in accordance with this Act, as amended by the 1990 Act, before the term of office of the current members of the Council expires:(a) the term of office of the current members, and(b) the term of office of the current Chairperson, Secretary and Treasurer of the Council,are extended until the new members are elected.(4) In this clause: (1) This clause applies in relation to the first election of councillors of the New South Wales Aboriginal Land Council held after the date of assent to the 1990 Act.(2) Despite any other provision of this Act:(a) the Registrar is to arrange forthwith the first meeting of the Council after the returning officer for the election has publicly declared elected candidates representing at least 10 Regional Aboriginal Land Council areas, and(b) those candidates hold office and are taken always to have held office as councillors on and from the date on which the returning officer declared them elected, and the Council is taken to be properly constituted even though councillors representing all such areas have not been elected or otherwise appointed, and(c) the terms of office of the persons who were members of the Council on the date of assent to the 1990 Act are taken to have expired on the date referred to in paragraph (b), and(d) the councillors may not elect officers referred to in clause 2 of Schedule 6 until councillors representing all such areas have been elected or otherwise appointed in accordance with this Act, but are at their first meeting to elect members to act in place of those officers and with all the functions of those officers, until an election of the officers can take place in accordance with that clause, and(e) otherwise, the Council is to proceed to transact business at its first and later meetings in accordance with this Act. Part 3A Provision consequent on the enactment of the Aboriginal Land Rights (Revival of Financial Provision) Act 1990 15A Saving of certain directions (1) Any directions given by the Minister under section 33A (as inserted by the Aboriginal Land Rights (Amendment) Act 1986) that were in force immediately before 2 May 1990 are to be taken to be directions given by the Minister under that section (as revived by the amending Act).(2) This clause is taken to have commenced on 22 June 1990.(3) Subclause (1) re-enacts (with minor modifications) section 4 of the amending Act. Subclause (1) is a transferred provision to which section 30A of the Interpretation Act 1987 applies.(4) In this clause: Part 4 Provisions consequent on enactment of National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 In this Part: 17 Extension of certain provisions to claims to Crown lands The provisions of this Act, as amended by the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996, extend to the following claims and the Crown Lands Minister may deal with the claims accordingly:(a) claims made before the appointed day that were not determined by the Crown Lands Minister before that day,(b) claims made before the appointed day that have been refused by the Crown Lands Minister but in respect of the refusal of which the right to appeal to the Land and Environment Court has not expired before the appointed day,(c) claims in respect of which appeals to the Land and Environment Court are pending on the appointed day. Part 5 Provisions consequent on the enactment of Aboriginal Land Rights Amendment Act 2001 In this Part: 19 Local and Regional Aboriginal Land Council areas (1) A Local Aboriginal Land Council area constituted under section 5 immediately before its repeal is taken to be a Local Aboriginal Land Council area constituted under section 49.(2) A Regional Aboriginal Land Council area constituted under section 14 immediately its repeal is taken to be a Regional Aboriginal Land Council area constituted under section 85. (1) A Local Aboriginal Land Council constituted under section 6 before its repeal is taken to have been constituted under section 50.(2) A Regional Aboriginal Land Council constituted under section 15 before its repeal is taken to have been constituted un |