review of the aboriginal land rights act 1983 of the aboriginal... · 2006. 9. 2. · 4 1.1...
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Review of theAboriginal Land Rights Act 1983
Prepared by the New South Wales Aboriginal Land Rights Act Review Task Force December 2005
Summary of Issues Paper 2Structure, Representation,Governance and Benefits
Summary of Issues Paper 2Structure, Representation,Governance and Benefits
DEFINITIONS
ACAA Aboriginal Councils and Associations Act 1976
ALC Aboriginal Land Council
ALRA Aboriginal Land Rights Act 1983 (the Act)
CEO Chief Executive Officer
ICAC Independent Commission Against Corruption
LALC Local Aboriginal Land Council
NPW Act National Parks and Wildlife Act 1974
NSWALC the New South Wales Aboriginal Land Council
RALC Regional Aboriginal Land Council
Task Force the Aboriginal Land Rights Act Review Task Force
The Review refers to this Review of the Aboriginal Land Rights Act
ToR Terms of Reference
Copyright © 2005The Office of the Registrar,Aboriginal Land Rights Act 1983 (NSW)
The National Library of Australia Cataloguing-in-Publication data:Aboriginal Land Rights Act Review Task Force (N.S.W.).Review of the Aboriginal Land Rights Act 1983 :summary of issues, paper 2 : structure, representation,governance and benefits.
ISBN 0 9581920 4 9.
1. New South Wales. Aboriginal Land Rights Act 1983.2. Native title (Australia) - New South Wales.3. Land tenure - New South Wales.I. New South Wales. Office of the Registrar, AboriginalLand Rights Act 1983. II. Title. (Series : Issues paper(Aboriginal Land Rights Act Review Task Force(N.S.W.)) ; 2).
346.9440432
Photographs courtesy of: Paul Berkemeier; Harry Clegg; The Office of the Registrar, Aboriginal Land Rights Act; and the NSW Department of Aboriginal Affairs
TERMS OF REFERENCE OF THE REVIEW
1. Inquire into and make recommendations as to whether the aims and objectives of the New South Wales Aboriginal Land Rights Act require expansion or change in light of developments since 1983.
2. Evaluate the material and other benefits achieved for Aboriginal people since the
commencement of the Act in 1983 including:
• whether the Aboriginal Land Rights Act allows benefits available under the
Aboriginal Land Rights Act to be delivered efficiently to Aboriginal people of
New South Wales at state, regional and local levels; and
• whether better outcomes could have been achieved and what alternative
arrangements might have facilitated better outcomes.
3. Report on the present resource and asset base of land councils and make
recommendations for the efficient and effective use of assets and resources for the
benefit of Aboriginal people of NSW, including an inquiry and recommendations
into an improved framework for managing, selling and developing land council assets,
in particular the sale and commercial development of land council real property.
4. Inquire and make recommendations regarding:
(a) the development of funding models for the equitable distribution of land
council resources; and
(b) the development of funding models which tend to the better delivery of
measurable outcomes for land council members and other stakeholders and
which deliver benefits in a transparent and outcome oriented manner.
5. Inquire and make recommendations more generally on the strengths and weaknesses
of present legislative and administrative arrangements with a view to improved
efficiency and effectiveness of the land council system.
6. Make recommendations for more representative, effective and efficient governance
within the New South Wales Aboriginal Land Rights system.
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TERMS OF REFERENCE OF THE REVIEW _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2
DEFINITIONS _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2
1 INTRODUCTION _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 4
2 OBJECTS AND PURPOSES OF THE ACT _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 5
3 THE LAND COUNCIL STRUCTURE _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 6
4 FUNDING _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 16
5 MEMBERSHIP AND VOTING _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 18
6 REGIONAL AND STATE REPRESENTATION _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 21
7 ROLES AND FUNCTIONS OF LAND COUNCILS _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 25
8 ROLE AND FUNCTIONS OF REGISTRAR AND MINISTER _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 28
9 BUSINESS ENTERPRISES AND INVESTMENT _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 30
10 BENEFITS _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 34
11 COMMUNITY HOUSING _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 36
12 CULTURE AND HERITAGE _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 38
13 GOVERNANCE _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 39
14 ENSURING GOOD GOVERNANCE _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 43
15 TABLE OF PREFERRED OPTIONS _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 48
Contents
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1.1 Background
This Review of the Aboriginal Land Rights Act 1983 was called by the then Minister forAboriginal Affairs, the Hon Dr AndrewRefshauge, on 26 May 2004. The Terms ofReference of the Review are shown on theinside cover.
The members of the Review Task Force are:
Ms Jody BrounDirector-General, Department of AboriginalAffairs;
Mr Murray ChapmanAdministrator, New South Wales AboriginalLand Council (NSWALC); and
Mr Stephen Wright(Chairperson) Registrar, Aboriginal Land Rights Act.
1.2 The Review so far
The Task Force has now produced two major‘issues papers’ and shorter summaries.
• Issues Paper 1 – Land Dealings
• Issues Paper 2 – Structure, Representation,Governance and Benefits
Issues Paper 1 – Land Dealings explains theserious problems associated with the currentland dealings provisions and proposes a newscheme for regulating land dealings.
This summary of Issues Paper 2 – Structure,Representation, Governance and Benefits,looks at: financial sustainability of the landrights network; the three tier land councilstructure; membership, voting andrepresentation; benefits from land rights;business and investments; community housing;culture and heritage; governance structure ofland councils; and ensuring good governance.
1.3 Core aims
The core aims of this stage of the Review are:
• a strong, workable and financially sustainablerepresentative land council structure;
• effective mechanisms for the delivery ofbenefits to Aboriginal people in New SouthWales through the operation of land rights;and
• the development of best practice governance regimes.
1.4 Need for ongoing review of the Act
There have been several previous reviews of the Act. The most recent was called in 1997and led to amendments to the Act which cameinto effect in October 2002. This Review beganonly 18 months later, but has had to considernew issues that could not have been foreseen at the time of the last review.
Looking ahead, it is likely that in a furtherthree or four years, the land council networkwill be facing many new issues as the newstructures that develop from this Review andthe range of land council activities evolve.
The Task Force believes it is important to ‘build in’ regular reviews of the Act to ensurethat emerging issues can be monitored anddealt with in a timely way, and allow forongoing opportunities to improve the Act ascircumstances change.
The first preferred option of the Task Force is to have regular reviews of the Act every four years.
Preferred Option 1 – Ongoing review of the Act
Introduction1
5
Objects and purposes of the Act2
Key issues in this section
• Should the purposes of the Act be amended?
2.1 Preamble and purpose of the Act
It is important that the objects and purposes ofthe Act be consistent with the provisions of theAct – in other words, what the Act allows landcouncils or individuals to do must beconsistent with what the Act itself is intendedto do and achieve.
As a result of the last review, a new section 3was inserted to state clearly the purposes of the Act:
(a) to provide land rights for Aboriginal persons inNew South Wales,
(b) to provide for representative Aboriginal LandCouncils in New South Wales,
(c) to vest land in those Councils,
(d) to provide for the acquisition of land by or forthose Council and the allocation of funds to and by those Councils.
At present, the purposes of the Act do nottouch on how the resources created by theALRA should be used, or for whose benefit.
The Task Force view is that section 3 should be expanded to clarify that the Act intends that the resources and assets acquired throughland rights should be used and managed forthe benefit of Aboriginal people in New South Wales.
Preferred Option 2 – Purposes of the Act
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The land council structure3
Key issues in this section
• How can the finite resources of the landcouncil structure be made sustainable andcost-effective?
• Should the current three tier structure of theland council system be retained?
• Should the number of Local Aboriginal LandCouncils (LALCs) be reduced, and if so,how?
• Should the number of Regional AboriginalLand Councils (RALCs) be reduced, and ifso, how?
3.1 The current land councilstructure
The Task Force has been asked to review andreport on the three tiered structure to see ifthere is a better way of delivering outcomes toAboriginal people.1
At present the Act provides for a three tieredstructure, which is currently composed of:
• 121 Local Aboriginal Land Councils(LALCs);
• 13 Regional Aboriginal Land Councils(RALCs); and
• the New South Wales Aboriginal LandCouncil (NSWALC).
The number of LALCs within each region varies from three to sixteen.
3.1.1 Funding
From 1 January 1984 to 31 December 1998, the Act provided for guaranteed funding throughthe payment of 7.5% of the land tax collectedin New South Wales. During this period, halfof the funds were available for land acquisitionand administration. The remainder wasdeposited into a statutory account to build acapital fund to provide ongoing funding in thefuture. The total funds allocated were$537,010,000, of which $268,505,000 wasdeposited in the statutory account (see figure 1).
NSWALC must maintain at least $487.8million in the investment account (the capitalvalue of the fund when the land tax paymentsceased). At 30 June 2005, the value of the fundwas approximately $550 million.
Administrative costs and funding forNSWALC, RALCs and LALCs comes fromincome from the investment fund. The amountcurrently available for annual operational costsis $20 million and is expected to remain at thislevel for the next three to five years.
3.1.2 Is change needed?
The major cost in the annual budget is the cost of funding Regional and Local Aboriginal LandCouncils. All LALCs currently receive aminimum funding allocation of $110,000 perannum. The combined annual cost of fundingRALCS and LALCs is estimated atapproximately $15 million ($14.5 million forLALCs and $0.5 million for RALCs).
The NSWALC budget is currently fullyexpended just to meet the basic costs of theexisting arrangements, and there are likely to befurther costs in implementing the regulatorysystems that are proposed in this review. 1 Press release of then Minister for Aboriginal Affairs,
Dr Andrew Refshauge, announcing the review, 26 May 2004.
7
In addition, a majority of LALCs have difficultymeeting their financial and reporting obligations.The SGS Economics & Planning, NSWALCSituation Report (April 2005) called it “a sector incrisis from a financial sustainability point of view”.In October 2004:
• 33% of LALCs were not fully funded byNSWALC due to breaches of their obligationsunder the Act;
• 7% were under administration;
• only 8% were fully funded and were classified as having no significant management difficultiesand requiring minimum supervision byNSWALC.
NSWALC must support those that are under-performing and supervise them more closely, as well as pay for extra costs such as investigators,administrators, legal expenses, and the cost ofmeeting LALC liabilities. These are huge burdenson the land council system and its resources. At 30 June 2004, LALC debts to NSWALC were $5.5 million.
The Task Force considers that the currentarrangements are not financially sustainable and are not cost effective.
100,000
200,000
300,000
400,000
500,000
600,000
1983-84
1984-85
1985-86
1986-87
1987-88
1988-89
1989-90
1990-91
1991-92
1992-93
1993-94
1994-95
1995-96
1996-97
1997-98
1998-99
1999-00
2000-01
2001-02
2002-03
2003-04
0
Figure 1. Performance of the NSWALC Capital Fund to June 2004
3.
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The
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The poor performance of many land councilsreflects a low skill base. The land council structurecurrently requires a minimum of 618 office bearersand elected councillors, and at least 200 staff(based on a minimum of one staff member for each LALC) to function. Few Aboriginalcommunities can draw on a large pool of peoplewith the managerial, business or financial skillsneeded to manage the resources and assets thatmany land councils now own. Smaller landcouncils usually have a smaller ‘talent’ pool to draw from and have difficulty attracting qualified staff.
3.2 What should the future land council structure look like?
The land council system is resource-intensive andover-stretched. It cannot continue to resource andfund so many land councils, let alone so manythat are underperforming. Greater economies ofscale are needed.
The Task Force preferred options are:
• the LALC structure should be retained, but witha reduced number of LALCs;
• RALCs should be removed from the structure asincorporated bodies and replaced with RegionalForums;
• the state body, NSWALC, should be retainedbut with some changes to its constitutionalstructure and functions.
3.3 LALCs
LALCs should continue to play an important role,but the number of LALCs must be reduced toensure that:
• the resources available in the land councilsystem are used most efficiently;
• LALCs have sufficient capacity and the resourcesto function more effectively.
The Task Force considers that the optimal numberof LALCs should be approximately 60.
3.3.1 Amalgamation of LALCs
The last review of the Act in 2000 recommendedthat the number of LALCs be reduced byvoluntary processes; this has not worked, and infact the number of LALCs has increased. The TaskForce has concluded that the number of LALCsmust be reduced by a compulsory process.
Figure 2 (opposite) shows current LALCboundaries. Figure 3 (over page) shows a scenariofor possible future LALC boundaries which hasbeen presented at community consultations. This map was produced for discussion purposesonly and no decisions have been made about how the boundaries should be re-drawn.
TibooburraWanaaring
Winbar
Wilcannia
Menindee
Dareton
Balranald
Ivanhoe
Hay
WambaWamba
MoamaCummeragunja
WaggaWagga
Leeton &District
Griffith
MurrinBridge
Condoblin
CobarNyngan
NullaNulla
Murrawari
Collarenebri Moree
ToomelahMungindi
GlenInnes
MoombahleneAshford Yaegl
JaliNgulingah
Jubulum Casino
GuginGudduba
Jana-Ngalee
Guyra
BaryulgilBogal
BirriganGargle
Forster
Purfleet Taree
Amaroo
Armidale Bowraville
Thungutti
Birpai
Bunyah
GraftonNgerrie
Karuah
Mindaribba
KoompahtooAwabakal
Worimi
Darkinjung
Deerubbin
Gandangarra
Metropolitan
La PerouseTharawal
Illawarra
JerrinjaUlladulla
Batemans Bay
Brungle-Tumut
MerrimansBega
Wagonga
Eden
Mogo
Nowra
Cobowra
Ngunnawal
Onerwal
Pejar
Orange
Cowra
Bathurst
Wellington
DubboTrangie
MudgeeNarromine
WarrenMacquarie
PeakHill
Gilgandra
Walhallow
Coonabarabran
RedChief
Anaiwan
NarrabriPiliga
Baradine
Wee Waa
UnkyaNambucca Heads
Kempsey
Coffs HarbourWalgett
QuamboneCoonamble
Weilwan
Goodooga
WestWyalong
Young
Narrandera
Mutawintji
BrokenHill
Deniliquin
Weilmoringle
Brewarrina
LightningRidge
Albury & DistrictBodalla
Wanaruah
Nungaroo
Tamworth
TweedByronMuli
Muli
Bahtabah
9
3.
The
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The
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TibooburraWanaaring
Winbar
Wilcannia
Menindee
Dareton
Balranald
Ivanhoe
Hay
WambaWamba
MoamaCummeragunja
WaggaWagga
Leeton &District
Griffith
MurrinBridge
Condoblin
CobarNyngan
NullaNulla
Murrawari
Collarenebri Moree
ToomelahMungindi
GlenInnes
MoombahleneAshford Yaegl
JaliNgulingah
Jubulum Casino
GuginGudduba
Jana-Ngalee
Guyra
BaryulgilBogal
BirriganGargle
Forster
Purfleet Taree
Amaroo
Armidale Bowraville
Thungutti
Birpai
Bunyah
GraftonNgerrie
Karuah
Mindaribba
KoompahtooAwabakal
Worimi
Darkinjung
Deerubbin
Gandangarra
Metropolitan
La PerouseTharawal
Illawarra
JerrinjaUlladulla
Batemans Bay
Brungle-Tumut
MerrimansBega
Wagonga
Eden
Mogo
Nowra
Cobowra
Ngunnawal
Onerwal
Pejar
Orange
Cowra
Bathurst
Wellington
DubboTrangie
MudgeeNarromine
WarrenMacquarie
PeakHill
Gilgandra
Walhallow
Coonabarabran
RedChief
Anaiwan
NarrabriPiliga
Baradine
Wee Waa
UnkyaNambucca Heads
Kempsey
Coffs HarbourWalgett
QuamboneCoonamble
Weilwan
Goodooga
WestWyalong
Young
Narrandera
Mutawintji
BrokenHill
Deniliquin
Weilmoringle
Brewarrina
LightningRidge
Albury & DistrictBodalla
Wanaruah
Nungaroo
Tamworth
TweedByronMuli
Muli
Bahtabah
Figure 3. Possible future LALC boundaries
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3.
The
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The LALC amalgamations process will need to beapproached carefully and will have to take intoconsideration a wide range of issues such as:
• the kind of assets, land holdings and housingthat the LALCs to be amalgamated own;
• the wishes of members;
• the geographic area and the nature of populationcentres and Aboriginal communities;
• cultural boundaries;
• the number of members of each LALC;
• the operational performance of each LALC andcompliance with the requirements of the Act;
• any other relevant matter.
The process of amalgamation should begin with a project, conducted by the Registrar, to considerand make recommendations about how theamalgamations should be done. As well as thespecific issues listed above, consideration may alsoneed to be given to the future location of LALCoffices, staff requirements, transition arrangements,and management of debts and liabilities.
The Registrar would give notice of theamalgamation proposals to the affected LALCsand seek their comments and those of NSWALC.
On finalising the amalgamation plan the Registrarwould forward it to the Minister to finalise theplan and re-draw the boundaries.
Preferred Option 3 – Reduction of number of LALCs
3.4 RALCs
A RALC is a body corporate. There are currently13 RALCs which are elected to represent the 13 regions. The current regional boundaries areshown in figure 4.
The role and operating capacity of RALCs weregreatly diminished following the 1990 amendmentsto the Act, when their powers to claim, purchaseand hold land were removed. Many RALCfunctions, and their assets, were transferred toNSWALC at that time. The 2002 amendmentsfurther reduced the functions of RALCs, and their role is now limited to providing advice and assistance to LALCs and to NSWALC, andpromoting the protection of Aboriginal cultureand heritage.
12
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The
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Western
North West
Central
Northern
Wiradjuri
FarSouthCoast
SouthCoast
NorthCoast
NorthernTablelands
CentralCoast
Sydney &Newcastle
WesternMetropolitan
Murray River
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3.
The
lan
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Regional Forums
Few RALCs are very active, but there isconsiderable potential for regional bodies to playan important role, for example in advocacy,planning and cultural and heritage protection.
Recent community consultations questioned thevalue of retaining RALCs if they were to continueto have no real role and limited resources, but itwas still felt there was a need for some kind ofregional forum.
The Task Force agrees and proposes that RALCs be replaced with Regional Forums which couldeither meet regularly or on an ‘as needed’ basis.The Regional Forum would be made up of LALCrepresentatives, generally the Chairpersons of eachLALC in the Regional Area.2
Regional Forums could be very flexible. Meetingsmight include representatives of all the LALCs inthat Regional Area (the NSWALC Councillor forthat Regional Area would act as chairperson), or ifan issue is of concern to only two or three LALCsin that Regional Area, or in adjoining RegionalAreas, those LALCs may wish to call a RegionalForum to discuss the issue. Some Regional Forummeetings may be funded and facilitated byNSWALC.
In chapter 6, the Task Force also proposes thatRegional Forums will elect regional representativesto the NSWALC. These would be called RegionalElectoral Forums (see section 6.1.2 and figure 9).
3.4.2 Number of Regional Areas
There is a strong case for reducing the number ofRegional Areas on the grounds of cost efficiency.The greater the number of Regional Areas, the
Preferred Option 4 – Replace RALCswith Regional Forums
higher the cost of NSWALC elections, and thehigher the cost of salaries, accommodation andtravel expenses for each of the NSWALCCouncillors in the 13 regions.
The Task Force proposes that the number ofRegional Areas be reduced to no more than six.
3.4.3 Plan for re-drawing Regional Area boundaries
In establishing the boundaries for the newRegional Areas, consideration should be given toexisting and likely future LALC boundaries,Aboriginal cultural boundaries, and the previousATSIC boundaries.
The new Regional Area boundaries might bebroadly defined as:
• North Coast
• Sydney/Newcastle
• South Coast
• Western
• Wiradjuri
• Gamillaroi/Northern
These names have been suggested for discussion.Some options for future Regional Area boundariesare shown in figures 5 and 6.
3.5 NSWALC
The reduced number of Regional Areas will meanthat the number of NSWALC Councillors electedfrom Regional Areas will be six.
Preferred Option 6 – Regional Area boundaries
Preferred Option 5 – Reduction ofnumber of Regional Areas
2 The Task Force has used the new term ‘Regional Area’ todistinguish the proposed new areas from the existing ‘Regions’.
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The
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TibooburraWanaaring
Winbar
Wilcannia
Menindee
Dareton
Balranald
Ivanhoe
Hay
WambaWamba
MoamaCummeragunja
WaggaWagga
Leeton &District
Griffith
MurrinBridge
Condoblin
CobarNyngan
NullaNulla
Murrawari
Collarenebri Moree
ToomelahMungindi
GlenInnes
MoombahleneAshford Yaegl
JaliNgulingah
Jubulum Casino
GuginGudduba
Jana-Ngalee
Guyra
Baryulgil Bogal
BirriganGargle
Forster
Purfleet Taree
Amaroo
Armidale Bowraville
Thungutti
Birpai
Bunyah
GraftonNgerrie
Karuah
Mindaribba
KoompahtooAwabakal
Worimi
Darkinjung
Deerubbin
Gandangarra
Metropolitan
La PerouseTharawal
Illawarra
JerrinjaUlladulla
Batemans Bay
Brungle-Tumut
MerrimansBega
Wagonga
Eden
Mogo
Nowra
Cobowra
Ngunnawal
Onerwal
Pejar
Orange
Cowra
Bathurst
Wellington
DubboTrangie
MudgeeNarromine
WarrenMacquarie
PeakHill
Gilgandra
Walhallow
Coonabarabran
RedChief
Anaiwan
NarrabriPiliga
Baradine
Wee Waa
UnkyaNambucca Heads
Kempsey
Coffs HarbourWalgett
QuamboneCoonamble
Weilwan
Goodooga
WestWyalong
Young
Narrandera
Mutawintji
BrokenHill
Deniliquin
Weilmoringle
Brewarrina
LightningRidge
Albury & DistrictBodalla
Wanaruah
Nungaroo
Tamworth
TweedByronMuli
Muli
Bahtabah
15
Figure 6. Future Regional Area Boundaries (Option 2)
3.
The
lan
d c
ou
nci
l str
uct
ure
TibooburraWanaaring
Winbar
Wilcannia
Menindee
Dareton
Balranald
Ivanhoe
Hay
WambaWamba
MoamaCummeragunja
WaggaWagga
Leeton &District
Griffith
MurrinBridge
Condoblin
CobarNyngan
NullaNulla
Murrawari
Collarenebri Moree
ToomelahMungindi
GlenInnes
MoombahleneAshford Yaegl
JaliNgulingah
Jubulum Casino
GuginGudduba
Jana-Ngalee
Guyra
Baryulgil Bogal
BirriganGargle
Forster
Purfleet Taree
Amaroo
Armidale Bowraville
Thungutti
Birpai
Bunyah
GraftonNgerrie
Karuah
Mindaribba
KoompahtooAwabakal
Worimi
Darkinjung
Deerubbin
Gandangarra
Metropolitan
La PerouseTharawal
Illawarra
JerrinjaUlladulla
Batemans Bay
Brungle-Tumut
MerrimansBega
Wagonga
Eden
Mogo
Nowra
Cobowra
Ngunnawal
Onerwal
Pejar
Orange
Cowra
Bathurst
Wellington
DubboTrangie
MudgeeNarromine
WarrenMacquarie
PeakHill
Gilgandra
Walhallow
Coonabarabran
RedChief
Anaiwan
NarrabriPiliga
Baradine
Wee Waa
UnkyaNambucca Heads
Kempsey
Coffs HarbourWalgett
QuamboneCoonamble
Weilwan
Goodooga
WestWyalong
Young
Narrandera
Mutawintji
BrokenHill
Deniliquin
Weilmoringle
Brewarrina
LightningRidge
Albury & DistrictBodalla
Wanaruah
Nungaroo
Tamworth
TweedByronMuli
Muli
Bahtabah
16
Funding4
Key issues in this section
• Should there be a change in the way LALCs are funded?
• How can the Act address inequitabledistribution of wealth and resources?
4.1 Funding for management of resources
The two main sources of funding forAboriginal land councils are income earnedfrom the capital fund and wealth realised fromland assets.
In future, money available from the NSWALCaccount will need to fund:
• the activities of NSWALC and LALCs,
• activities of the proposed Regional Forums,
• other regulatory activities under the Act (for example the expert advisory panel onland dealings).
A careful analysis of the new regulatorystructures proposed in this Review will beneeded, to make sure they are adequatelyfunded.
The Task Force has considered a number ofoptions for funding land councils, for example:
1) ‘Critical mass’ – NSWALC distributes thesame amount of money to each LALC foradministrative purposes (regardless of size,number of members, land assets etc); or
2) ‘Differential funding’ – NSWALCdifferentiates between LALCs and fundseach LALC for administrative purposesaccording to a range of attributes (such assize, number of members, assets, etc).
Both approaches have difficulties and if aparticular “funding model” were set out in theAct, exceptions to the funding rules would leadto inconsistent and unworkable outcomes.
The Task Force believes that NSWALC shouldretain as much flexibility as possible in the wayit funds LALCs, its own activities, and othercosts under the Act. The method of fundingshould remain a matter of NSWALC policy.
Preferred Option 7 – Funding andgrants to LALCs
17
4.2 Equitable distribution of resources
A range of factors have contributed to an unequaldistribution of resources between LALCs acrossNSW, for example:
• uneven outcomes of land claims,
• transfer of former Aboriginal reserves to some LALCs,
• whether the LALC is urban, regional or remote(which affects access to services, the value ofland, population and ability to attract resources).
Former Aboriginal reserves have a negative effecton the wealth of LALCs and are a drain on theirresources.
The inequality of wealth between LALCs becauseof the uneven outcome of land claims is also acritical issue for this Review. The Act must includea mechanism for NSWALC to address inequitiesbetween LALCs by redistributing wealth fromLALCs with valuable land to those withoutvaluable land. Although it is a sensitive issue, it is one that must be addressed.
4.
Fun
din
gDistribution of money from the NSWALCAccount cannot overcome the differences in the wealth of LALCs; there is simply not enoughmoney available for distribution to redress theimbalance.
After considering a number of options, the TaskForce has proposed a scheme to allow NSWALCto levy a fee or charge from a LALC for approvinga land dealing, business enterprise, investment orbenefits scheme application (these activities arediscussed in later sections). The fee or chargecould be used to cover NSWALC’s costs and also contribute money for distribution within theALC network. The amount of the fee or chargeshould be considered further in this Review.
Preferred Option 8 – Fees for NSWALC approvals
18
Key issues in this section
• Should be there be any change in the criteriafor membership of a LALC?
• Should there be a minimum requirement ofattendance to entitle a member to stand foroffice or vote for office bearers?
• Should there be any change to the rulesallowing membership by association?
• What mechanism should there be torecognise traditional connections to land?
5.1 LALC membership
Membership is the primary way in whichAboriginal people in New South Wales can participate in the land council system.Membership of a LALC is open to adultAboriginal people who:
• live within that area, or
• have an association with that area, and
• who have been accepted by a meeting of that council as members.
Since the 2002 amendments, individuals maybe members of more than one LALC, but canvote at only one LALC in any 12 monthperiod (s.55). Members may only stand foroffice for the LALC where they are entitled to vote, and can only vote for a NSWALCCouncillor for that region.
Over the life of the Act approximately 22,000people have joined LALCs. Of these,approximately 10,500 people have votingrights; 2,000 are on the roll at another LALCbut do not have voting rights there.
5.2 Issues associated withmembership
A range of continuing concerns have beenraised about membership issues:
• declining membership, and poor andinconsistent attendance;
• confusion about the new voting system;
• concerns that many people have failed toregister to vote at their LALC;
• problems associated with membership rolls;
• concerns that meetings might be ‘stacked’ by usually inactive members at elections orwhen important issues are decided;
• conflicting views about the role that peoplewith traditional or cultural associations withthe land should have; and
• the role of LALCs in determining‘Aboriginality’.
Some of these problems may be resolved asmembers become more used to the newsystems, and some may improve as a result ofthe reforms that come out of this Review. TheTask Force has a number of suggestions – suchas participatory planning and benefits schemes– that will encourage people to re-engage withtheir LALCs.
Membership and voting5
19
5.
Me
mb
ers
hip
an
d v
oti
ng5.3 Active and inactive members
Concerns about inactive members ‘stacking’meetings could be dealt with by requiring thatmembers participate in their LALC to be able tostand for office or to vote. For example, a membermight have to attend at least two meetings of theLALC in the preceding 12 months to be able tovote in LALC elections or stand for election.
5.4 Annual review of membership
LALCs already have the power to remove a personfrom the roll if they no longer live in the area anddo not have an association with the area (s.58). Ameeting of the LALC must decide that the persondoes not have a sufficient association with the areato continue as a member. This provision could bestrengthened by providing for an annual review ofthe membership roll. An initial review could bedone by a staff or Board member,3 and then by themembers of the LALC.
5.5 Membership by association
Membership by association enables a person to bea member of a LALC in an area where they do notlive, on the grounds of traditional, historical orfamily ties to the area. A person could be involvedwith several LALCs if, for example, theirboundaries overlap that person’s traditionalcountry.
Community consultations show there are diverseviews about membership by association and whatit means. In general, they showed that culturalrights and connections to country need to be
Preferred Option 10 – Annual review of membership roll
Preferred Option 9 – Eligibility tovote and stand for election
recognised and protected in decision-making about the land and cultural and heritage issues.The Task Force agrees that this association withland should have a special place in the land rightsregime. The Act could be strengthened to reflectthe significance of cultural connections to land forAboriginal people.
5.6 Register of Aboriginal Owners
One way the recognition of cultural links to landcould be strengthened in the Act is to make use of the existing Register of Aboriginal Owners (ss.170 and 171).
The Register is being developed and is maintainedby the Registrar. The process for registration isconducted carefully and gives people who areentered in it some security that their traditionalinterests in land will be recognised and protected.
The Register of Aboriginal Owners
Aboriginal people whose names are enteredon the Register must:
(a) be directly descended from the originalAboriginal inhabitants of the area;
(b) have a cultural association that derivesfrom the ‘traditions, observances,customs, beliefs or history’ of theoriginal inhabitants; and
(c) give their consent to have their nameincluded on the Register.
3 In chapter 13, the Task Force proposes a new structurefor LALCs which includes a Board.
20
5.
Me
mb
ers
hip
an
d v
oti
ng To date, the Registrar has had to give priority to
entering the names of people whose association iswith lands that are jointly managed as nationalparks under the National Parks and Wildlife Act 1974(NPW Act). Because of limited resources, theRegister as a whole is far from complete at thisstage. The resources available to the Registrar mayneed to be reviewed to ensure that the Register canbe properly developed and maintained.
Registration as an Aboriginal Owner could havebenefits such as:
• the right to become a member of the LALC or LALCs in the area where the person’sconnection is registered;
• the right to be consulted about cultural, heritageor other matters concerning the land.
The Task Force preferred option is that thequalifications for membership be refined toinclude registered Aboriginal Owners.
5.7 Importance of membership andthe membership roll
The membership roll is the most important recordof a land council as it is the formal record of allthe people who make up the council and canparticipate in its activities. The roll is presentlykept by the LALC’s Secretary.
Since the amendments to the Act in 2002,members must provide their address and date ofbirth and nominate the LALC where they wouldlike to vote (cl.28 of the Regulation). Unless all ofthe required information is provided, the person’sname cannot be entered into the membership rolland they cannot participate in elections or vote atmeetings of that LALC.
Preferred Option 11 – Qualifications for membership
Since the new rules came into effect, it appearsthat many people are either unaware that theymust provide the additional information, or theyhave been reluctant to do so. There are now about10,000 names on the roll for whom the requiredinformation has not been supplied. It is likely thatmany of these are people who regard themselves asmembers and regularly attend LALC meetings, butmay be unaware that they are not entitled to vote.
A careful review and rationalisation of membershiprolls is needed and the Task Force urges that thisbe given a high priority at the earliest opportunity.
5.7.1 Transfer of responsibility for membershiproll from NSWALC to Registrar
At present, LALCs must send a copy of theirmembership rolls to NSWALC (s.59) and adviseNSWALC of any changes to the roll. NSWALCmust compile and maintain a consolidated roll of all LALC members (s.106(r)).
There is some conflict in the current system in that NSWALC Councillors have responsibility formaintaining the membership roll of the personswho elect them. The Task Force sees this as anadministrative function that could be done by theRegistrar, in line with the independent regulatoryfunctions already performed by that office, andsuggests that NSWALC’s function to maintain theconsolidated membership roll be transferred to the Registrar.
Preferred Option 12 – Registrar tomaintain membership roll
21
Regional and state representation6
Key issues in this section
• Who should take part in Regional Forums?
• What relationship should there be betweenRegional Forums and the state body,NSWALC?
• How should NSWALC members be elected?
6.1 Current voting structure
Under the current structure, LALC membersdirectly elect their representatives to both theregional and state bodies, so at both regionaland state level, representatives are broadlyaccountable to all the members in their regions (see figure 7).
6.1.1 Criticisms of the current structure
The current structure has been criticisedbecause:
• there is no requirement or mechanism forregional representatives to report back to or be accountable to LALCs;
• state Councillors are not accountable toRALCs or LALCs in their regions;
• there is no direct relationship between theregional representatives on the RALC and the regional representatives on NSWALC;
• some people believe it does not encourageelection of the best qualified people to the senior levels of the structure.
Figure 7. Current Regional and State Representative Structure
NSWALC Officers elected by
NSWALC members:
Chairperson; Secretary; Treasurer
NSWALC made up of Councillors
elected by LALC members to
represent their regions
LALC members elect
councillors to represent
their regional area
RALC Officers elected by
RALC members:
Chairperson; Secretary; Treasurer
RALC made up of
‘regional representatives’
elected by LALC members
LALC members elect
‘regional representatives’
every 2 years
22
6.
Re
gio
nal
an
d s
tate
re
pre
sen
tati
on
6.1.2 Options for voting for Regional and Staterepresentatives
Some LALC members have suggested that the pre-1990 structure was better because it promoted theelection of the ‘best of the best’: local membersvoted for their best regional representatives, whothen voted for their best members to represent theregion at state level.
The Task Force has developed two possible optionsfor regional representation and selection of stateCouncillors, illustrated in figures 8 and 9.
Option 2 is preferred by the Task Force because it establishes strong lines of accountability:
• of the LALC’s regional representative back to the LALC;
• of the NSWALC Councillor to the LALCs intheir Regional Area.
Preferred Option 13 – Election ofRegional Forum and NSWALC members
LALC memberselect own board
LALC Chairs participatein Regional Forums
LALC Board elects Chair,Deputy Chair
LALC members LALC members LALC members
NSWALC Councillor
All LALC members in Regional Area elect NSWALC Councillor
Regional Representation Discussion Option 1
• LALC members would elect the board members (officers) (between seven and ten) of their own LALC;
• LALC board members would elect Chairperson and Deputy Chairperson;
• LALC Chairpersons participate in Regional Forums;
• all LALC members in a Regional Area would directly elect a NSWALC Councillor to represent
that Regional Area.
Figure 8. RegionalRepresentation (Option 1)
Regional Representation Discussion Option 2
• LALC members would elect Board members (officers) (between seven and ten) of their own LALC;
• LALC Board members would elect Chairperson and Deputy Chairperson;
• in each region, LALC Chairpersons would make up the members of the Regional Electoral Forum;
• following elections an initial meeting of the Regional Electoral Forum would be convened by the
Registrar to elect one of that group to represent the Regional Area as NSWALC Councillor (and to
chair Regional Forums as appropriate);
• the person elected as NSWALC Councillor would resign their position on their LALC’s Board, and
that LALC would conduct a further election to fill the vacant board position.
23
6.
Re
gio
nal
an
d s
tate
re
pre
sen
tati
on
REGIONAL ELECTORAL FORUM
LALC LALC Chairpersonsform regional body
Regional members elect Chairperson/NSWALCCouncillor for region, who resigns as an officer of his/her LALC
Figure 9. Regional Representation (Option 2)
24
6.
Re
gio
nal
an
d s
tate
re
pre
sen
tati
on
might also help to ensure a balance of age and gender in the Council.
Appointed councillors should be Aboriginal people who:
• live in New South Wales or have an associationwith land in New South Wales, and
• have particular knowledge, experience or expertisein areas such as delivery of government orcommunity services; public or private sectoradministration; or business, finance, or property.
6.2.2 Number of Councillors
The number of elected regional representatives willdepend on the number of Regional Areas. The TaskForce has proposed that there be six Regional Areaswhich would return six representatives to theNSWALC. In addition, there should be at least twoappointed NSWALC members, bringing the totalnumber of councillors to eight (see figure 10).
Preferred Option 14 – Elected andappointed NSWALC members
6.2 NWALC
Key issues in this section
• Number of state councillors
• Should some councillors be appointed?
6.2.1 Appointment of some NSWALC Councillors
The idea of appointing, rather than electing, NSWALCCouncillors has been considered in the past.
This proposal does not have broad support and theTask Force believes that NSWALC should remainbroadly representative, however the appointment of atleast some Councillors should be considered as ameans of enhancing the skill base of the Council.
NSWALC is increasingly taking on more and morecomplex functions, but it can be difficult to attractwell qualified people to stand for election. It would bedesirable to be able to strengthen the Council byappointing members who can provide particularexpertise or experience to complement the skills ofelected members. The ability to appoint councillors
NSWALC
Regional chair/elected Councillor
Appointed Councillor
NSWALC CEO attends meetings,but does not vote
Chairpersons of regional forumsare NSWALC Councillors
Figure 10. State representative structure – NSWALC
25
Roles and functions of land councils7
Key issues in this section
• Should there be any change to land councilfunctions?
• Need for greater clarity about what landcouncils are permitted to do
• How should the functions of land councilsbe set out in the Act?
7.1 LALCs
7.1.1 Current functions
The Task Force considered the breadth ofLALC functions and the difficulties that someLALCs have in fulfilling them.
Some LALCs are very effective in performingtheir range of functions and provide valuableservices to their communities. On the otherhand, many LALCs have difficulty fulfillingtheir basic functions, yet are attempting todeliver services that are beyond their capacity,such as social housing programs. Thesegenerally run at a loss and result in poorquality housing for the members, and othercosts to the broader land council system.
The Task Force considered whether the Actshould be changed to prevent LALCs fromperforming such functions, recognising theseare legitimate concerns of the members and area vehicle for communities to prioritise andmanage their affairs.
In general, the Task Force did not believe that LALC functions should be unreasonablylimited, but that the Act should establishstructures that will regulate some criticalfunctions (for example, investment, businessenterprises and housing). These issues arediscussed in separate chapters. While LALCsshould be free to provide certain social servicesas they see fit, as a matter of principle, servicesdelivered on behalf of governments should bedelivered on a fee for service basis.
7.1.2 LALC key functions
The Task Force considers that the primaryfocus of LALC activity should be upon corefunctions that fulfil the aims and purposes of land rights:
• land-related matters;
• protection of Aboriginal culture andheritage;
• stewardship of the assets and resources of the LALC;
• business enterprises and investments;
• distribution of benefits to Aboriginal peoplethrough approved benefits schemes; and
• advocacy and policy advice on behalf ofmembers.
Preferred Option 15 – LALC provisionof Government services
26
7.
Ro
les
and
fu
nct
ion
s o
f la
nd
co
un
cils 7.1.3 Inconsistencies and lack of clarity
in LALC functions
A recent ICAC Report expressed concern thatthere are “profound ambiguities in the purposes,principles and mechanisms” of the Act.4 Wherethere is confusion or uncertainty about what a land council may or may not do, there are risksthat these inconsistencies may be used to justifydoubtful or corrupt conduct.
Some LALC functions appear to be inconsistentwith others. Lack of clarity may also lead LALCsinto making unintentional, but possibly seriousmistakes or to try schemes that do not appear to be expressly prohibited. Either could involve theLALC in costly legal disputes and put the assets of the LALC at risk. In turn, this could haveconsequences for the entire land council system.
It is important that these inconsistencies and anylack of clarity be addressed in the re-draftingprocess. In particular, it would be helpful if the Act set out the functions of LALCs in categoriesthat group relevant functions together, as shown in preferred option 16.
Preferred Option 16 – LALC functions
7.2 RALCs
There is a widely held view that there is little valuein retaining RALCs in their current form. RALCs’functions have been progressively reduced overtime. RALCs’ current functions are set out in s.88:
• providing assistance, when requested, to LALCsin the area in relation to management,acquisition, use, control and disposal of land;
• promotion and protection of Aboriginal cultureand heritage in the area;
• providing advice and ‘such further assistance’ as required by LALCs in the area; and
• providing advice and assistance to NSWALC as required.
In practice, NSWALC has largely taken on theseroles. The Task Force recognises the value ofmaintaining a regional presence, and has proposedthat RALCs be abolished in their current formand replaced with Regional Forums (see preferred
option 4 and 13). RALCs’ current functions toassist LALCs should be formally transferred toNSWALC.
Preferred Option 17 – Transfer RALCfunctions to NSWALC
4 ICAC, Report on investigation into certain transactions of KoompahtooLocal Aboriginal Land Council, April 2005, p.104
7.3 NSWALC
7.3.1 Current functions
NSWALC’s functions are broadly set out in s.106.They include regulatory responsibilities aimed at ensuring that Local and Regional AboriginalLand Councils comply with their obligationsunder the Act, as well as responsibilities tooversight and approve of LALC activities such asland dealings. NSWALC does not currently have a broad responsibility under the Act to advise and assist LALCs.
7.3.2 Lack of clarity and guidance in the Act
There are some ambiguities in the provisions ofthe Act with regard to NSWALC’s responsibilitiesand how they should be exercised. An area ofparticular concern is lack of clarity aboutNSWALC’s responsibility to approve land dealingsby LALCs (s.40D). The Task Force has madedetailed recommendations as to how the landdealings provisions could be improved andregulated in Issues Paper 1 – Land Dealings.
7.3.3 Key functional areas of NSWALC
The Task Force considers that the primary focus ofNSWALC activity should be upon core functionsthat relate directly to the purposes of land rightsand assisting LALCs to achieve those purposes.These include:
• land-related matters: land acquisition, regulationand supervision of LALC land dealings,enterprises, investments and benefits schemes;
• assisting and supervising LALC planning inrelation to landholdings, business enterprises,investments and other activities;
• stewardship of the assets and resources of theland council system;
• protection of Aboriginal culture and heritage;
• conducting, and assisting LALCs in businessenterprises and investments;
• distribution of benefits to Aboriginal peoplethrough approved benefits schemes andsupervision of LALC benefits schemes; and
• advocacy and provision of policy advice.
It is important that the Act itself reflect theprimary aims listed above. At present, thefunctions of land councils are set out as they have grown – in an ad hoc way. It would be helpful if the functions of NSWALC were set out with greater clarity and grouped in categoriesthat draw relevant functions together.
7.3.4 Assistance to LALCs
A key area for NSWALC is the provision ofsupport and assistance to LALCs to improve theircapacity to conduct local activities effectively.Under the Act, RALCS currently have broaderresponsibilities to assist LALCs than NSWALChas, though in practice they do not have theresources to do so.
The recent ICAC investigation into land dealingsby Koompahtoo LALC specifically recommendedthat consideration be given to legislative change toconfer an express obligation on an appropriate entityto provide assistance and advice to Local AboriginalLand Councils to help them to comply with theirstatutory obligations and to run their affairseffectively. ICAC suggested that NSWALC mightbe the most appropriate body.
The Task Force has proposed that RALCs’responsibilities to assist LALCs be transferred to NSWALC (preferred option 17).
Preferred Option 18 – NSWALC functions
27
7.
Ro
les
and
fu
nct
ion
s o
f la
nd
co
un
cils
Key issues in this section
• Should there be any change to theRegistrar’s functions?
• Should there be any change to theMinister’s functions?
8.1 Current role and functions of the Registrar
An office of Registrar has existed since thebeginning of the Act in 1983. The Registrar’srole originally focussed on registration of landclaims, constitution of land councils and landcouncil boundaries. In 1996, the Registrar’sfunctions were expanded to include functionsrelated to the Register of Aboriginal Ownersand joint management of national parks.
In October 2002, there were further majorchanges, in line with ICAC’s 1998recommendation to strengthen the position so it would have statutory authority to act as“an independent check and balance”. The Registrar was given functions to give‘compliance directions’, to mediate, conciliateand arbitrate disputes, and the power toinvestigate complaints about the non-disclosure of pecuniary interests and otherbreaches of the Act. The current functions ofthe Registrar are broadly set out in s.165.
8.2 Independence of the Registrar
The office of Registrar is modelled on that of the Registrar of Aboriginal Corporationsunder the Aboriginal Councils and AssociationsAct 1976.
The last review considered the independence ofthe Registrar and the subsequent amendmentsin 2002 specifically codified the independentstatus of the Registrar by the addition ofSchedule 1 of the Act.
The Task Force believes it is important tomaintain the independence of the Registrar,especially in view of the Registrar’s functions to deal with land claims, register AboriginalOwners, approve land council rules, issuecompliance directions, mediate or arbitratedisputes and investigate complaints. Theseparation of the Office of the Registrar fromthe Minister, the DAA, and land councilsmeans that conflicts of interest are less likely to arise, and land councils can have confidencein an administration which is perceived to beneutral and unbiased.
Preferred Option 19 – Independent role of Registrar
28
Role and functions of Registrar and Minister
8
8.3 Changes to the Registrar’s functions
The recent ICAC investigation into KoompahtooLALC land dealings commented on the limitationson the Registrar’s powers and functions to provide“a relevant and useful form of protection againstthe possibility of corrupt conduct”. The Registrarmay refer a matter to the Land and EnvironmentCourt, but is unlikely to do so unless reasonablysatisfied the complaint has merit; the Registrarwould also need the resources to carry out athorough investigation and prepare material for the Court.
The Task Force believes the Registrar’s functionsshould include the power to recommendappointment of investigators (in consultation withNSWALC), and in support of this role, theRegistrar should receive the annual reports andfinancial statements of LALCs.
In addition, NSWALC’s responsibility formaintenance of the membership roll should betransferred to the Registrar (see section 5.7).
In addition to these expanded functions, theReview has made other proposals which wouldimpact on the role of the Registrar, and so a reviewof the resources available to the Registrar may needto be undertaken.
Preferred Option 20 – Changes to theRegistrar’s functions
8.4 Role and functions of Minister
Amendments may be needed in some areas of the Minister’s functions to reflect changesarising from this Review.
29
8.
Ro
le a
nd
fu
nct
ion
s o
f R
eg
istr
ar a
nd
Min
iste
r
An important theme of this Review of the Actis consideration of how land councils and theland council structure can meet the challenge ofmaintaining and managing the wealth and assetbase that have been built up over 20 years ofland rights, and at the same time, expand intonew areas of activity that will bring economicand other benefits to Aboriginal people in NewSouth Wales.
Are the structures of the land rights networkstill adequate to meet these challenges? TheTask Force view is that LALCs and NSWALCare not appropriately constituted to conductenterprises, and the conduct of commercialenterprises by land councils could presentunnecessary risks to the NSWALC Account and the assets owned by land councils.
This chapter suggests new structures that areneeded to assist land councils to enter intoinvestments and enterprises, whilst minimisingrisks to assets that are held in trust forAboriginal people.
9.1 LALC businesses and investments
Key issues in this section
• Should LALCs be able to run or invest inbusinesses?
• Should there be any change to how LALCscan make investments?
• If LALCs become more involved in thecommercial world, how can the assets gainedthrough land rights be preserved andprotected?
9.1.1 What the Act says
LALCs may establish and operate enterprises(s.52(g)(ii) and make investments(s.152(4)).Clause 94 of the Regulation sets out a restricted
range of low risk investments that LALCs canmake, such as government securities and interest-bearing deposits. No special approval is requiredfor these investments. The Act is not completelyclear about exactly what LALCs can do withregard to investment and business enterprise.
9.1.2 Proposals for regulating LALCinvestments, including businessinvestment
The Task Force has suggested a more complexstructure to allow LALCs to enter into a broaderrange of investments and enterprises, subject toan approval process. In this structure, LALCscould:
• invest in a broader range of approved low riskinvestments without restriction on the amountinvested;
• invest up to a prescribed amount (e.g.$200,000) in an investment or businessenterprise, if it first obtains an assessmentreport and certificate from an approvedprofessional advisor (chosen from a list ofqualified experts kept by NSWALC and theMinister);
• invest more than the prescribed amount in aninvestment or enterprise if, in addition to theassessment report and certificate, it hasNSWALC approval;
• invest more than the prescribed amount in a range of investments or enterprises in anyfinancial year, if it first has NSWALCapproval.
The criteria for NSWALC approval would bedefined broadly in the Act. LALCs wishing toconduct business or joint ventures would have to do so through related corporate entities (see figure 11).
Preferred Option 21 – Regulating LALC businessenterprises and other investments
30
Business enterprises and investment9
9.1.3 Related corporate entities to runLALC enterprises
As discussed in detail in Issues Paper 1 – LandDealings, there can be significant risks for LALCsin entering into land dealings, land developmentsand joint ventures. A land dealing that goes wrongcould cost a land council all its assets. Similarly, aLALC entering into other kinds of commercialventures may not only put at risk the amount ithas invested in the enterprise, but its entire assets.
The Task Force proposes that land councils shouldbe able to establish related corporate entities that
can conduct businesses or enter into joint ventureson a commercial basis. A possible model for thecreation of related corporate entities that could beapplied at local or state level is shown in figure 12.
Enterprise corporations established by LALCs forjoint ventures for housing development would besubject to the assessment and approvalmechanisms outlined in Issues Paper 1 – LandDealings, and the scheme for regulating LALCinvestments outlined in Preferred Option 21.
Preferred Option 22 – Related corporateentities to run LALC enterprises
31
9.
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Assets
Land development
Enterprises
LALC RelatedEntity Pty Ltd
LALC$$$ from land dealings
$$$Investments
LALC hascontrolling
interest
Up to $200Kin an enterprise
Approved lowrisk investment
$ unlimited
need assessment& certificate fromapproved adviser
need assessment,certificate &
NSWALC approval
need assessment,certificate &
NSWALC approval
> $200Kin one venture
> $200K total in2 or more venturesin a financial year
LALC cannot runenterprises in its
own right
Figure 11. LALC investments and business enterprises
32
9.
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In this model, the ‘LALC Enterprise Corporation’:
• is wholly owned by the land council;
• has an associated charitable trust (to allow for effective tax management);
• may create a number of subsidiary corporations to establish a range of individual businesses,
or to set up a joint venture;
• applies good governance principles and establishes a board of directors;
• reinvests profits, or returns them to the land council for approved community benefits schemes
or other purposes such as land acquisition.
The model could be applied at state or local level. Some LALCs have sufficient resources and
landholdings to make the creation of such a structure viable at the local level, while others may not.
Local AboriginalLand Council
Executive Officer Develop Landsubsidiary
corporation
Charitable TrustStaff
Board: 7–10including Chairperson,
Deputy Chairperson
LALC Enterprise Corporation Pty Ltd
Board: Chair of LALC,independent directorsincluding people with
commercial experience
Wholly owned subsidiary
LALC leasesland to
Holds title toundeveloped land,
and land withhousing stock
Land andBusiness Plans
Businesssubsidiary
corporation
Charitable Trust
Joint Venturesubsidiary
corporation
Charitable Trust
CEO
Charitable Trust
Wholly owned
Figure 12. LALC operation of businesses through related corporate entities –example of subsidiary corporation
9.1.4 Financial accountability of relatedcorporate entities
LALCs and their related corporate entities would berequired to account for their financial activities. Sothat there is no doubt that a LALC must accountfor the financial affairs of its related entities, theAct should clearly spell out a LALC’s obligations,and the obligations of its related corporate entitiesto cooperate by providing all financial records tothe LALC, and access to its records or any otherassistance required by the LALC’s auditor.
9.2 NSWALC businesses and investments
Key issues in this section
• Should NSWALC be able to invest funds onbehalf of LALCs?
• Should NSWALC be able to run businesses in itsown right?
9.2.1 NSWALC investments
NSWALC has responsibility for management of thecapital fund and also has a number of activeinvestments, including commercial property andpastoral enterprises (referred to as ‘the NSWALCAccount’). The NSWALC Account is established bys.149 of the Act. Section 149(5) allows money inthe Account to be invested in any mannerauthorised by the Regulation. The relevant clause ofthe Regulation (cl.93) allows the money to beinvested in any manner that is authorised for theinvestment of trust funds. The performance of thefund over time is shown in figure 1 (on page 7).
9.2.2 Investment on behalf of LALCs
NSWALC has a function to “make grants or lendmoney to, or invest money for or on behalf of,Aboriginal persons” (s.106(1)(k), but does not
Preferred Option 23 – Financial affairs of related entities
have a function to invest money on behalf ofLALCs. The Task Force considers that NSWALC’sexternally managed investment funds may beconsidered a relatively low risk investment optionfor LALCs, and that it may be appropriate to allow NSWALC to make investments on behalf of LALCs.
9.2.3 Related corporate entities to runNSWALC enterprises
NSWALC does not have an explicit function ofacquiring, establishing or operating enterprises, asLALCs have, although it does conduct some land-related enterprises such as the operation of pastoralleases on its land.
The Task Force proposes that NSWALC functionsshould be expanded to permit it to establish andoperate business enterprises through relatedcorporate entities that can conduct businesses on acommercial basis.
9.2.4 Financial accountability of relatedcorporate entities of NSWALC
NWSALC and its related corporate entities wouldbe required to account for their financial activities.So there is no doubt, the Act should clearly spellout NSWALC’s obligations, and the obligations of the related corporate entity to cooperate byproviding NSWALC all records it requires toprepare consolidated financial statements, and toprovide access to records and any other assistancerequired by NSWALC’s auditors.
Preferred Option 26 – Financial affairs ofNSWALC-related entities
Preferred Option 25 – NSWALC enterprises
Preferred Option 24 – NSWALC may investon behalf of LALCs
33
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Key issues in this section
• How should the Act be changed so thatAboriginal people can legitimately drawbenefits from land rights?
• What should benefits schemes look like?
• Who should give approval to LALCcommunity benefits schemes?
10.1 LALCs and material benefits
In Issues Paper 1 – Land Dealings, the TaskForce flagged the need for the Act to providelegitimate ways in which Aboriginal people inNew South Wales may draw benefits from landrights.
Section 52(1)(n), requires LALCs to “ensure thatno part of the income or property of theCouncil is transferred directly or indirectly” tomembers. The only material benefit thatmembers may legitimately draw from landrights is subsidised housing, if their LALCoperates a community housing scheme.Although members at community consultationsrecognise there have been important benefitsfrom land rights, the lack of direct economicbenefit to communities and individuals is seenas a major disadvantage and as a reason fordeclining membership.
The Task Force view is that a restriction toprevent the direct transfer of income orproperty to members should remain, but theAct should allow members to gain benefitsthrough approved community benefits schemes.
Preferred Option 27- Provision ofbenefits to members
10.2 LALC community benefitsschemes
Approved community benefits schemes couldinclude a range of activities and benefits,including community services, such as schemesfor:
• education, training and scholarships
• home ownership
• concessional interest loans
• funeral funds
• discretionary schemes to support culturalactivities
• child care services
• aged care services
Community benefits schemes should beconducted transparently and equitably andshould be approved and registered. LALCscould choose to have some or all of theirbenefits schemes administered by NSWALC.
10.2.1 LALC planning for communitybenefits schemes
In Issues Paper 1 – Land Dealings, the TaskForce proposed that LALCs should be requiredto prepare periodic ‘Community Land andBusiness Plans’ that would set out the LALC’sbroad plans for the use and management of itslands, including which land may be developed,leased or sold. The planning process must alsoconsider how the LALC might use the proceedsof any developments or land sales – such asinvestments, businesses and communitybenefits schemes. The priorities of LALCmembers and the most effective way ofdelivering benefits should be included in theplanning process.
34
Benefits10
It may not be possible to describe proposedbenefits schemes in detail in the initial planningstage, but the ‘Community Land and BusinessPlan’ should at least broadly consider the kinds ofschemes the LALC may propose for approval at alater date.
10.2.2 NSWALC approval of LALC communitybenefits schemes
In Issues Paper 1 – Land Dealings(Recommendation 17) the Task Force proposedthat the broad criteria for eligible communitybenefits schemes be set out in the Regulation. Eachcommunity benefits scheme should be assessedagainst these criteria, to make sure it is
• consistent with the purposes of the Act,
• financially sustainable,
• fair and equitable, and
• will be administered in a transparent way.
The assessment should also consider the risk of anyliability and its potential consequences for theLALC and the broader ALC network.
NSWALC is the most appropriate body to conductthe assessments. Proposals should also be given tothe Registrar and Minister and their commentstaken into consideration in the assessment. As wellas the broad criteria, NSWALC may need toproduce formal guidelines that set out the basis onwhich community benefits schemes would be likelyto be given approval.
NSWALC should be allowed to levy fees, includinga cost recovery component, for providingassessments and approvals (see section 4.2).
Preferred Option 28 – Approval ofLALC community benefits schemes
10.3 NSWALC community benefitsschemes
Unlike LALCs, NSWALC currently has the powerto make grants and lend money to Aboriginalpeople at its discretion (s.106(1)(k)). The Act doesnot require it do so according to a standardisedpolicy or guidelines.
NSWALC’s existing functions to make grants andloans could be changed to enable it to offercommunity benefits schemes, subject to guidelinesor formal policies similar to those suggested forLALC community benefits schemes.
Many LALCs do not have significant landholdingsor assets to enable them to offer communitybenefits schemes, so provision of communitybenefits schemes by NSWALC would allow for amore equitable distribution of benefits to LALCmembers. NSWALC benefits schemes could takeaccount of the existing inequity in LALC wealthand assets.
NSWALC should be required to report on thedelivery of benefits through formal benefitsschemes in its annual reports.
Preferred Option 29 – NSWALCcommunity benefits schemes
35
10
.B
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Key issues in this section
• How can inequities in the provision ofhousing for Aboriginal people in New SouthWales be addressed?
• Should LALCs continue to providecommunity housing, or should this beoutsourced to another body?
11.1 Provision of communityhousing by LALCs
Historically, most LALCs have providedhousing, in many cases since thecommencement of the Act in 1983, whenformer missions and reserves were transferredinto Aboriginal ownership. Many were thenalready dilapidated and run-down housingestates. For many land councils, social housingprograms have proven an unsustainable burden.The provision of community housing (or socialhousing) is one of the most important anddifficult issues confronting the Aboriginal landcouncil network in New South Wales.
11.1.1 Who provides housing?
The main providers of Aboriginal housing inNew South Wales are:
• the Aboriginal Housing Office (AHO) (4,156properties)
• the LALC network (2,664 properties)
• other Aboriginal community housingproviders (1,954 properties)
LALCs are responsible for nearly 60% of thehousing provided by Aboriginal communityhousing organisations, and own approximately30% of the total housing stock.
11.1.2 The cost of social housing
Social housing, of its nature, is not financiallyviable and must be subsidised on a recurrentbasis. This is a national issue that is not onlyconfined to providing Aboriginal housing. In New South Wales, it has been estimated thatthe reasonable cost of social housing providedthrough the land council network should beapproximately $8-10 million per year.5
In practice, only a small minority of LALCsthat manage their own housing stock receivefunding subsidies to provide housing to theirmembers. Approximately 90 LALCs (of a totalof 121) are registered with the AHO, but onlyapproximately 20 received AHO funding in 2005.
The main barrier is the inability of most LALCs to meet the AHO’s Key PerformanceIndicators, in particular, requirements that ratesand insurance are paid up to date, and liquidityof the organisation. Many LALCs are not in afinancial position to repair their houses to an adequate standard, and so have difficultycollecting rents and paying rates and insurance charges.
As a result there are enormous inequalities inthe standard of housing provided by LALCs.These issues are the subject of a broader reviewof Aboriginal housing in New South Wales.
In community consultations, many LALCmembers expressed concern about the housingissue and the burden it places on LALCs; manythought management of housing should beoutsourced to professional housing providers.
36
Community housing11
5 SGS Economics & Planning, NSWALC Situation Report, April 2005, p.74
The Task Force considers that the current situationis not sustainable and that inequities in theprovision of housing to Aboriginal people need tobe addressed. Resolution of the housing issue willalso be critical to the success of other reforms theTask Force has proposed in this Review.
11.2 Options for reform – LALC housing
The Task Force view is that the Act should not be changed to prevent LALCs from performingfunctions such as the delivery of social housing.The Task Force preferred option is that:
• LALCs should only be permitted to managehousing programs that are financially viable;
• LALCs that are successfully maintaining viablehousing programs should be permitted to do so,if they have NSWALC approval;
• LALC’s that want to manage their own housingshould plan for it in their ‘Community Landand Business Plan’ and put forward formalproposals about management of their housingprograms to NSWALC, the Registrar, theMinister, and the AHO;
• management of poorly functioning LALChousing programs should be transferred tohousing providers or property managers thathave the capacity to manage them effectively;
• in the event of a transfer of managementresponsibility, the housing stock should remainthe property of the LALC concerned.
Preferred Option 30 – LALC social housing
11.3 NSWALC approval of LALChousing schemes
The broad criteria for conduct of housingprograms should be set out in the Act to guideNSWALC’s assessment of a LALC’s capacity torun a housing program. The process of transfer ofmanagement responsibility will require a carefulprocess of review and negotiation with otheragencies and organisations. NSWALC will alsorequire some time to establish its policies andreview LALC requests to conduct social housingprograms. The Task Force considers that an 18month period will be required for NSWALC toassess the requests.
11.4 Transfer of LALC housingprograms to an approved body
In the case of LALCs that do not wish to continuemanagement of their housing programs, or do not receive NSWALC approval to do so,responsibility for management of those programsshould be transferred to the AHO or to anotherapproved body.
Preferred Option 32 – Transfer of managementof social housing
Preferred Option 31 – NSWALC approvalof social housing schemes
37
11
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Key issues in this section
• How could the Act strengthen protection of Aboriginal culture and heritage?
• Should LALCs have a greater role inpromoting and protecting Aboriginal cultureand heritage?
LALC’s currently have a function “to promotethe protection of Aboriginal culture and theheritage of Aboriginal persons” in their areas(s.52(1)(m)).
In the past, heritage protection andmanagement was a high priority of landcouncils and a major core activity. Over time,this role has been diminished due to ever-increasing pressures on land councils to provide a range of other services, meet landmanagement responsibilities and respond torequests from Government agencies.
Native title has also had some impact, and in recent years there has been an increasingtendency on the part of government agencies toconsult with individuals who are acknowledgedas ‘traditional owners’, rather than to makeapproaches through land councils.
Concern about land councils’ lack of control in cultural heritage and protection was raisedfrequently during recent communityconsultations.6 Members feel their LALCs havean important role to play in the protection ofcultural heritage.
The Task Force view is that the special place ofAboriginal traditional and cultural associationsshould be given due recognition in the Act, and the role of land councils in promoting andprotecting Aboriginal cultural heritage shouldbe strengthened in line with the intentions ofthe Act and the structures and processes thatalready exist, including:
• a state-wide network of land councils;
• LALCs’ statutory function to promote theprotection of Aboriginal culture and heritage;
• the Register of Aboriginal Owners establishedunder the Act;
• NSWALC’s statutory functions to promotethe protection of Aboriginal culture and heritage and to negotiate leases ofnational parks;
• requirements of state and Commonwealthlegislation to consult with appropriateAboriginal organisations.
The Register of Aboriginal Owners hasconsiderable potential to assist Aboriginalpeople to protect their cultural heritage. TheTask Force has suggested that registration as anAboriginal Owner might include an automaticright to membership of the LALC in the areawhere the interest is registered and the right tobe consulted about cultural, heritage or otherland-related issues.
The Act might also clarify that Aboriginal landcouncils have a role not merely to “promotethe protection” of Aboriginal culture andheritage, but also to promote Aboriginal culture– for example, to conduct advocacy or facilitatecultural activities.
The statutory function of land councils toprotect Aboriginal cultural heritage in NewSouth Wales would be enhanced if otherrelevant legislation (e.g. the NPW Act) werereviewed and amended if necessary to ensurethat land councils are given opportunities toconsult with and represent their constituents in cultural and heritage matters.
Preferred Option 33 – Culture and heritage
38
Culture and heritage12
6 Kate Sullivan & Associates, New South Wales Aboriginal Land CouncilSystem Review – Report of Six Focus Groups, Jan 2005, p.28, p.39
39
Governance13
Key issues in this section
• Are the governance structures of the Actadequate for present needs?
• Should the constitutional structure of landcouncils be changed?
13.1 What is governance?
Governance is the exercise of authority orcontrol, or a system of government ormanagement. It can be described simply as aprocess in which people develop structures thatenable them to make decisions and conductactivities, and can monitor or regulate theprocess to make sure that everything is beingdone properly and fairly (see figure 13).
13.2 Principles of good governance
Good governance requires that the structuresand decision-making of land councils:
• provide the best possible opportunities forAboriginal people (members) to makereasonable, lawful and prudent decisions;
• are fair, transparent and accountable;
• take into consideration the kinds of activitiesand the capacity of the people involved.
13.3 Changes to governancestructures of the Act over time
The governance structures and processes of the Act have evolved over time. The 2002amendments made major changes to thegovernance mechanisms of the Act, including:
• clarifying the roles of NSWALC Councillors,CEO and staff;
• changes to the Registrar’s powers;
• alternative dispute resolution mechanisms;
• introduction of a new Part 10 (Honesty anddisclosure of interests), including codes ofconduct and a new Aboriginal LandCouncils Pecuniary Interest Tribunal;
• grounds for ineligibility for employment orto hold office.
These changes are still being practiced for thefirst time in the every day working life of landcouncils. Some important issues still need to be addressed. In the main, these relate to theconstitutional structure of land councils andtheir decision-making processes.
People
StructureMonitoring
and regulation
Activities
Figure 13. The governance process
40
13
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Many land councils now have responsibility tomanage and preserve substantial wealth and assets.Some land councils, at least, are entities withmulti-million dollar assets. Even land councilswhich do not have substantial assets would beclassed by the Office of the Registrar forAboriginal Corporations as “medium to large”corporations, by virtue of the fact that they receivemore than $100,000 per year in funding. This hasimportant implications for the governancestructures of land councils.
As the ICAC report on Koompahtoo LALC landdealings pointed out,
Some Land Councils... have finally, after many years ofexisting largely as social clubs, obtained valuable tracts of land. Management and development of those lands(assuming development is deemed appropriate) cannot bereadily carried out by an organisation which resembles acommunity social club. Different skills and resources arerequired: even the structure of the organisation will needto change.7
ICAC recommended that proper roles foremployed staff, the executive and the membershipbe established for LALCs.
Given the breadth of activities now undertaken by LALCs, the Act should provide:
• clarity about the roles and responsibilities ofcouncillors, office bearers and staff of landcouncils;
• separation of responsibilities (or powers) between decision-makers and staff; and
• clarity about what land councils must do in their decision-making, meeting practices,administration, record-keeping and othergovernance responsibilities.
13.5 Constitutional structure of LALCs
13.5.1 Problems in the current structure
At present, the ‘decision-makers’ of a LALC are itsmembers, who make decisions about the LALC’sactivities at members’ meetings. This decision-making structure is very cumbersome. Decisionsmade at one meeting can be overturned at the next.It leaves too much room for uncertainty and disputeabout decisions, how they should be implemented,and who should implement them. The currentstructures also leave LALCs more vulnerable tocorrupt or dishonest conduct.
The current roles of office bearers (Secretary,Treasurer) are appropriate for some community-based organisations, but are no longer workable fororganisations that, in some cases, have responsibilityfor multi-million dollar assets and activities.
13.5.2 A new constitutional structure for LALCs
A new constitutional structure is needed that willshift most of the responsibility for the broaddirection and control of a LALC’s activities to anelected board and to staff delegated with authorityto carry out the decisions of the board.
This approach is consistent with the ‘separation ofpowers’ principle that is a foundation of goodcorporate governance, and will provide landcouncils with much greater clarity about the roles,functions, responsibilities and authority ofmembers, board and staff.
The Task Force is essentially proposing that landcouncils should begin to look more like corporatestructures with boards of directors, than the smallscale community organisations that they haveresembled to date. The proposed new roles andresponsibilities are outlined in the followingsections.
Preferred Option 34 – Constitutional structure of LALCs7 ICAC, Report on investigation into certain transactions of Koompahtoo Local Aboriginal Land Council, April 2005, p.108
13.5.3 Responsibilities and powers of members
The members of a LALC should meet at leastquarterly and should make decisions about thecore issues of concern to the LALC including:deciding who may be a member; the rules andcode of conduct of the LALC; approving budgetsand financial statements; and electing the Board.
In future, the LALC’s ‘Community Land andBusiness Plan’ will be the main way of deciding theLALC’s future directions: it will cover its plans forits landholdings, how to use the proceeds of anyland sales, setting up businesses, investments,community benefits schemes and other activities.It is important that LALC members take part inthis planning process and have final authority forapproving and changing the plan from time totime.
13.5.4 The LALC Board
The LALC Board should take general responsibilityfor the control and direction of the LALC, in linewith the high level decisions taken by members attheir quarterly meetings and the approved plans.
The Board will be elected by the members of theLALC every two years and will meet at leastmonthly. If casual vacancies arise, they will befilled at the next general meeting of members.
Individual Board members will not have a directrole in the day-to-day management of the LALC.The Board will make decisions (by formalresolution) to guide the staff in the managementand operation of the LALC. Decisions can only betaken by LALC Board members meeting together.
Preferred Option 36 – the LALC Board
Preferred Option 35 – Functions of LALC members
13.5.5 Election of Chairperson andDeputy Chairperson
The only ‘office bearers’ in the proposedconstitutional structure should be the Chairpersonand Deputy Chairperson, who will be elected bythe Board at its first meeting after election.Functions that were done by the Secretary andTreasurer will be done by land council staff, in linewith the ‘separation of powers’ principle.
13.5.6 Separation of powers – decision-makersand staff
The principle of separating the roles and powers ofa board and its staff simply means that it isgenerally the role of a board to act as the maindecision-making body, and the role of staff toimplement board decisions and manage theoperational activity of the organisation.
LALCs receive a funding allocation that enablesthem to employ at least one staff member tocoordinate the LALC’s activities, while largerLALCs may employ many staff members. At eitherend of the scale, the principle of delegatingauthority to staff members to make operationaldecisions and carry out the resolutions of theLALC Board should apply. The Task Force suggeststhat the most senior LALC staff member (whateverthe size of the staff) should be referred to as the‘Executive Officer’.
Preferred Option 38 – LALC Executive Officer and staff
Preferred Option 37 – LALC Chairpersonand Deputy Chairperson
41
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42
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ce 13.6 Constitutional structure of NSWALC
13.6.1 The current structure
At present there are 13 full-time electedCouncillors who represent each of the 13 existingregions. The Council includes three office-bearers:the Chairperson, the Secretary and the Treasurer.
The staff of NSWALC are directed by a ChiefExecutive Officer (CEO) who is generallyresponsible for the “efficient and effectiveoperation” of the NSWALC’s organisation and forensuring implementation of the decisions of theCouncil (s.139(1)).
The current provisions of the Act generallypromote a clear separation of the decision-makingand administrative arms of the NSWALC. TheCouncil retains authority to take high leveldecisions about the direction and policy ofNSWALC, and the CEO has responsibility forroutine functions and day-to-day operations.
Councillors currently hold office for four years.The Task Force considers that this is an appropriateterm, given the complexity of the Councillors’ roleand the need to retain skills and experience withinthe NSWALC.
13.6.2 Officer bearers of NSWALC
The existing roles of Secretary and Treasurer arenot consistent with a clear separation of powers,and the Task Force view is that these positionsshould be abolished. Instead, the Council should
Preferred Option 39 – Four year termsfor NSWALC members
elect a Chairperson and Deputy Chairperson attwo-yearly intervals. The role of Chairpersonshould be a full-time, salaried position and theposition of Councillor should be a salaried part-time position.
13.6.3 The Chief Executive Officer of NSWALC
The Task Force does not propose any major changeto the existing role of CEO, but suggests that theAct be amended to allow NSWALC to delegateany of its functions to the CEO, within certainlimits.
The range of functions required of NSWALC isnow so broad that, for reasons of efficiency it isdesirable that, where possible, some be undertakenby suitably qualified staff. There will need to becertain limitations on NSWALC’s power todelegate its functions, to ensure that the Councildoes not abrogate its own responsibility andauthority, for example, to approve land dealings.
13.6.4 Meetings of NSWALC
The Regulation (cl.86(2)) currently requires that theNSWALC meet quarterly. The Task Force does notbelieve this is frequent enough for an organisationof the size and complexity of NSWALC. In thepast, the Council has had to meet for a full weekat least monthly to complete its business. Thevolume and urgency of the work call for arequirement that NSWALC should meet at leastevery two months.
Preferred Option 42 – Frequency ofNSWALC meetings
Preferred Option 41 – CEO and delegationof Board powers
Preferred Option 40 – Election of NSWALCChairperson and Deputy Chairperson
43
Ensuring good governance14
Key issues in this section
• Should LALC Board members or NSWALCCouncillors be required to have specialqualifications to stand for office?
• Could the grounds on which a person isineligible or can be removed from office bemade clearer?
• What standards should apply to staffemployed by LALCs and NSWALC?
14.1 Qualifications and training forelected representatives
The question of whether the elected membersof LALCs or NSWALC should be required tohave special skills or qualifications has beenraised in previous reviews and at recentcommunity consultations.
In practice, it is not possible or appropriate toimpose a requirement that candidates forelection must hold particular qualifications,however it is important that electedrepresentatives fully understand their dutiesand responsibilities under the Act, for example,to act in good faith, to disclose pecuniaryinterests and to exercise care and due diligence.
Candidates for election should be required toconfirm that they are aware of and understandthe relevant sections of the Act, and LALCBoard members and NSWALC Councillorsshould be required to undertake training toensure they understand their duties andresponsibilities.
Preferred Option 43 – Duties and trainingof elected councillors
14.2 Duties of honesty, good faith,disclosure of interests, care and diligence
Part 10, Division 1 of the Act currently sets outrequirements for the conduct of councillors,officers and staff of Aboriginal land councils toact with honesty, care and diligence. Section176 requires that
(1) Every officer and member of staff of anAboriginal Land Council, and every councillor, mustact honestly and exercise a reasonable degree of careand diligence in carrying out his or her functionsunder this or any other Act.
The Task Force view is that s.176 is too generaland that the Act should set out more clearlythe specific duties of LALC Board members,LALC Executive Officers, NSWALCCouncillors and the NSWALC CEO. This mayrequire the repeal of s.176 and its replacementwith a series of sections that spell out theseduties more clearly.
14.3 Disqualification and removalfrom office
The Act presently makes provisions for thedisqualification and removal of persons fromoffice. The Task Force suggests that theseprovisions should be codified more clearly and should spell out the specific conduct that would be grounds for disqualifying orremoving someone from office.
Preferred Option 44 – Duties of ALCmembers, officers and staff
44
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ance 14.3.1 Disqualification from office of LALC
Board members
At present, a person is disqualified from holdingoffice if they are either a NSWALC Councillor orstaff member, or for five years after having beenconvicted of certain offences under the Crimes Act1900 (s.67).
The new structures proposed in this Review reflectthe complexity of functions, and the value of theassets for which many LALCs are now responsible(and which will be even greater as amalgamationstake place). The grounds for disqualification fromelection or continuing to hold office should alsoreflect this level of responsibility, and should bemore rigorous and more clearly set out in the Act.
14.3.2 Removal of a LALC Board memberfrom office
At present a LALC officer or RegionalRepresentative can be removed from office at a meeting of the LALC:
• by a majority vote if they have breached a‘dismissal provision’ of the LALC code ofconduct;
• for another reason if carried by at least 66% of the voting members (s.68).
The Task Force proposes instead that specificgrounds on which a person may be removed fromoffice should be clearly set out in the Act.
Preferred Option 46 – Removal from officeof a LALC Board member
Preferred Option 45 – Disqualificationof LALC Board members
14.3.3 Disqualification from holding office as aNSWALC Councillor
At present, the only ground specified in the Act for disqualification from office as a NSWALCCouncillor (s.111) is conviction of certain offencesunder the Crimes Act 1900, which disqualifies theperson for five years.
The Task Force proposes that the grounds fordisqualification be set out more clearly and, as forLALC Board members, be more rigorous. Personswho have been convicted of offences specifiedunder the ALRA, or who have a serious criminalrecord, or a very poor record of management orleadership of a LALC or of other corporationsshould be excluded from standing for election tothe NSWALC.
14.3.4 Removal of a NSWALC Board member from office
The Act currently provides for the removal of aCouncillor from office by a petition to the Minister(s.112). This provision has never been used.
The Task Force view is that NSWALC Councillorsshould not be subject to removal ‘by popular vote’.The role of NSWALC Councillor calls forleadership and unbiased decision-making; like otherdemocratically elected representatives, NSWALCCouncillors should serve their terms and beaccountable to constituents through the electionprocess.
In the case of wrong-doing, the Act should clearlyspecify the grounds for disqualification or dismissalfrom office, clearly defined offence provisions anda clear process for dealing with improper conduct.
Preferred Option 48 – remove petitions forremoval of NSWALC Councillors
Preferred Option 47 – Disqualificationfrom office as NSWALC Councillor
14.4 Ineligibility for employment at aLALC or at NSWALC
The Task Force considers that there should besome restrictions on employment to key positionsin LALCs (the Executive Officer) and NSWALC(the CEO).
The Act should clearly set out the specific groundson which a person would be ineligible foremployment, or the grounds on which they shouldbe dismissed from these senior positions.
14.4.1 Ineligibility for employment and groundsfor dismissal as a LALC Executive Officer
At present, the restrictions on employment of staffmembers and consultants to LALCs are set out ins.79. A person who is a NSWALC Councillor orstaff member, or is an office bearer of a RALC or LALC, cannot be employed by a LALC.Consultants cannot be employed as a LALC staffmember at the same time, and persons who havebeen convicted of certain offences under theCrimes Act are ineligible for employment for fiveyears. The Task Force preferred option is thatrestrictions on employment of LALC ExecutiveOfficers should be broader and more rigorous.
14.4.2 Ineligibility for employment and groundsfor dismissal as NSWALC CEO
At present the only restriction on the employmentof NSWALC staff is that a person who has beenconvicted of certain offences under the Crimes Actmust not be employed for a period of five years.The Task Force has proposed broader and morerigorous restrictions on the employment of theNSWALC CEO.
Preferred Option 50 – Ineligibility foremployment as NSWALC CEO
Preferred Option 49 – Ineligibility foremployment as LALC Executive Officer
14.5 Offence provisions
The Act presently includes a small number ofspecific offences, mainly aimed at ensuringcompliance by LALC officers, NSWALCCouncillors and land council staff (ss 235-236).
The Corporations Act 2001 (Cth) and the AboriginalCouncils and Associations Act 1976 (Cth) have a farmore comprehensive range offences relating to theconduct of officers of corporations andincorporated Aboriginal associations.
In Issues Paper 1, the Task Force recommendedthat the Act include offence provisions directedtowards preventing corruption and dishonesty inland dealings. Further careful thought needs to begiven to whether the Act should contain additionaloffence provisions in relation to the conduct ofLALC officers and NSWALC councillors and staff.
14.6 ALC planning
In Issues Paper 1 – Land Dealings, the Task Forceproposed that LALCs should be required toprepare periodic ‘Community Land and BusinessPlans’ that would classify a LALC’s landholdingsand set out its future plans for the use andmanagement of the land.
In this Issues Paper, the Task Force has builtfurther on the planning concept to includeconsideration of how the proceeds of land salesmight be used, including planning for investmentsand business enterprises, community benefitsschemes and community housing. More broadlybased plans that cover the broad activities of theLALC would encourage good decision-making atboth the membership and Board level, and willprovide a framework for accountability.
Preferred Option 52 – Planning
Preferred Option 51 – Offence provisions
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annual reports
Key issues in this section
• Should there be any changes to the financialaccountability or reporting mechanisms for landcouncils?
14.7.1 Financial accountability regime for LALCs
The financial accountability regime is primarily set out in Part 8 of the Act. Broadly, the financialreporting requirements of land councils andNSWALC are:
• LALCs must keep “records” and provideNSWALC with audited financial statements;
• LALCs must submit detailed annual operationalbudgets to NSWALC;
• LALCs must submit quarterly or six-monthlyreports on expenditure of funds provided byNSWALC;
• NSWALC must provide quarterly or six-monthlyreports on LALC funding and compliance withthe Act to the Minister;
• All land councils must produce annual reports;
• NSWALC is to immediately cease funding whencertain breaches of the accountability regimeoccur, or where an investigator recommends that funding cease.
14.7.2 Lack of clarity of current provisions
Some important key terms in the financialaccountability sections of the Act are not clearlydefined, and the Act provides little guidance toNSWALC to help it determine whether a LALC isin breach of its obligations, which breaches requireNSWALC to cease funding the LALC, whenfunding should cease or when it may berecommenced. For example, if a LALC submits abudget, but it is not approved, is the LALC inbreach of the Act, and if so, when did the breachhappen? Nor is it clear exactly which records andother documents must be kept by LALCs.
The obligation to cease funding for breaches placesan onerous administrative burden on NSWALC. It is therefore very important that these issues beclarified. In equal fairness to LALCs, it must beclear to them what their obligations are and inwhat circumstances funding would cease.
All LALCs must provide an annual report toNSWALC that includes all the requirements setout in Schedule 1 to the Annual Reports (StatutoryBodies) Regulation 2000 (s.161).8 Many of theserequirements relate to much larger corporationsand are not appropriate to the circumstances oractivities of LALCs. There is little guidance toLALCs to help them provide a clear view of whatthey have achieved in the reporting year. Annualreports are an important tool of accountability, butthe current requirements may not be appropriatefor LALCs.
8 This Regulation has been repealed and replaced by the Annual Reports(Statutory Bodies) Regulation 2005. The ALRA has not, however, beenamended to refer to the new Regulation.
The Act does not have a provision that requiresLALC officers and staff to allow the auditor accessto the LALC’s records and provide information orassistance the auditor may need, such as, forexample, the Local Government Act 1993 and theCorporations Act 2001 provide. It would be helpfulif the Act were to clarify the powers of the auditorand the obligations of LALC staff and officers.
Preferred option 53 suggests how the financialaccountability provisions for LALCs, annualreporting and responsibilities to assist the auditormay be more clearly set out in the Act.
14.7.3 Financial accountability regime – NSWALC
There are similar problems in the financialaccountability regime for NSWALC. For example,NSWALC must prepare a detailed budget andsubmit it to the Minister for approval. There couldbe some time lapse between NSWALC submittingits budget and the Minister giving approval. WouldNSWALC be in breach of the Act if the Ministerfinally decided not to approve the budget? If so,when did the breach occur? Another issue thatshould be clarified is the nature and content ofLALC quarterly or six-monthly reports toNSWALC, and NSWALC’s quarterly or six-monthly reports to the Minister on LALCexpenditure.
Preferred Option 54 – NSWALC financial accountability
Preferred Option 53 – LALC financialaccountability and annual reports
14.7.4 Complaints and compliance directions
The Registrar has the power to issue compliancedirections to a land council, a LALC officer or aNSWALC Councillor, requiring them to complywith a provision or provisions of the Act (s.235).Any person or body may request that the Registrarissue a compliance direction. This could mean thatthe Registrar cannot issue a compliance directionunless he or she has first received a request to doso. The Task Force view is that the Registrar’spower to issue compliance directions should notbe limited in this way and that this issue should be clarified.
14.7.5 Administrators and investigators
It can be very difficult for NSWALC to obtain the information it needs to perform its supervisoryand compliance functions, unless the Minister hasappointed an investigator to the LALC concerned.This formal process is invasive to LALCs and iscumbersome and expensive. It should only be usedwhen a thorough examination of a LALC’s affairsis needed.
The Registrar has similar supervisory andcompliance functions, and can issue compliancedirections and investigate complaints, but does nothave any power to obtain information if it is notgiven voluntarily. The Task Force view is that bothNSWALC and the Registrar should have powersunder the Act to request information and the Actshould require that land councils or individualsmust comply with such requests.
Preferred Option 56 – Investigativepowers of NSWALC and Registrar
Preferred Option 55 – Complaints andcompliance direction
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Ongoing review of the Act
Ongoing review of the Act
The Act should be amended to include a provision that requires a mandatoryreview of the Act and the Regulations every four years by a committee madeup of appointees of the Minister, the Registrar and NSWALC.
Amendments to the purposes of the Act
Purposes of the Act
The purposes of the Act as set out in section 3 should be amended to includea paragraph stating that it is a purpose of the Act to provide for the use of theland held by Aboriginal Land Councils for the benefit of Aboriginal people inNew South Wales.
Reduction in the number of LALCs
Reduction of number of LALCs
Having regard to the need to ensure the sustainability of the land rightssystem, the number of LALCs should be substantially fewer than at present.
The reduction in the number of LALCs should be brought about by a processof amalgamations that should be completed by no later than the end of 2006.
The Act should provide for the amalgamations process as follows:
• there should be a consultative process;
• the Registrar will make recommendations for the amalgamations andforward this to the Minister;
• the Act will set out the matters to be taken into consideration by theRegistrar in arriving at the amalgamation recommendations, and thesematters will include:– the sustainability of the land council system;– the wishes of members of each LALC in relation to amalgamation;– the geographic size of the LALC areas;– the size of the Aboriginal population living within each of the
LALC areas;– the number, nature and location of towns and community centres in
each of the LALC areas;– the number and nature of Aboriginal communities in the area;– the number of members of each LALC;– the assets and income of the each LALC;– operational performance and compliance with the requirements of
the Act of each LALC;– known cultural boundaries; and– any other relevant matter.
• the Minister will then be required to make a determination as to theamalgamation of LALCs.
Preferred option 3
Preferred option 2
Preferred option 1
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Table of preferred options 15
Regional Forums
Replace RALCs with Regional Forums
There should be no RALCs constituted by and incorporated under the Act atthis time. In their place, there should be provision in the Act for RegionalElectoral Forums and ad hoc Regional Forums.
The ad hoc Regional Forums will be meetings of two or more LALCChairpersons, meeting for the purpose of discussing matters of significance.Where the Regional Forum is comprised of Chairpersons of LALCs in the sameRegional Area, it will be chaired by the elected NSWALC Councillor for thatRegional Area.
Reducing the number of Regional Areas
Reduction of number of Regional Areas
The number of Regional Areas should be six.
Regional Area boundaries
The boundaries of the Regional Areas should be as described in a schedule to the Act.
The Regional Area boundaries should be drawn so as not to cross existing LALC boundaries.
There should be scope to adjust Regional Area boundaries followingamalgamation of LALCs.
Funding models
Funding and grants to LALCs
The determination of what funds, if any, should be allocated by NSWALC to a LALC should remain a matter for NSWALC to determine in accordance withits policies.
NSWALC may make additional grants and loans to LALCs for any lawfulpurpose including administrative activities.
Fees for NSWALC approvals
The Act should prescribe that a fee or charge may be levied on a LALC that seeksan approval from NSWALC for a land dealing, business enterprise, investment orbenefits scheme. Those levies or fees would be used to establish a fund forredistribution within the land rights network.
Preferred option 8
Preferred option 7
Preferred option 6
Preferred option 5
Preferred option 4
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Eligibility to vote and stand for election
A LALC member must have attended at least two general meetings of the LALCin the preceding 12 month period to be eligible to:
• stand for election as a Board Member of that LALC; or
• vote in the election of Board Members of that LALC
Annual review of membership roll
The Act should provide that a LALC must make an annual review of itsmembership roll for the purpose of updating the roll, including removing thenames of persons who no longer qualify for membership.
The LALC must provide the updated membership roll to the Registrar by aspecified date prior to the end of the financial year.
Qualifications for membership
The Act should be amended to clarify that any adult Aboriginal person who:
• is resident in a LALC’s area; or
• the members of the LALC are satisfied has a sufficient association with theLALC’s area; or
• an adult Aboriginal person whose name is on the Register of AboriginalOwners in relation to land in a LALC area is entitled to be a member of the LALC.
Registrar to maintain membership roll
NSWALC’s function to compile and maintain a consolidated roll of LALCmembers should be transferred to the Registrar.
Regional and state representation
Election of Regional Forum and NSWALC members
LALC Board Members and NSWALC Councillors should be elected by thefollowing process:
• LALC members elect a Board;
• LALC Board members elect a Chairperson and Deputy Chairperson of theLALC;
• in each Regional Area, LALC Chairpersons and the incumbent NSWALCCouncillor meet as the Regional Electoral Forum convened by the Registrar;
• the Regional Electoral Forum shall elect one member of the Forum to be theelected Councillor of NSWALC for that Regional Area;
• if the person elected as NSWALC Councillor is a LALC Chairperson theymust then resign their position on their LALC Board, and that LALC mustconduct a further election to fill the vacant Board position;
• the next Board meeting of the LALC will then elect a new Chairperson.
Preferred option 13
Preferred option 12
Preferred option 11
Preferred option 10
Preferred option 9
Elected and appointed NSWALC members
NSWALC should be constituted by six elected Councillors (representing the sixRegional Areas) and two Councillors appointed by the Minister.
Roles and functions of land councils
LALC provision of government services
A LALC may agree to provide a service as an agent of a State or Commonwealthgovernment agency on a fee for service basis.
LALC functions
The functions of LALCs should be redrafted so as to clearly describe the LALCs’areas of activities and minimise misunderstandings about the limitations of theLALCs’ powers.
LALCs should have functions in relation to:
• land acquisition
• land holding, land use and management, and land dealing;
• policy advice and advocacy;
• land held under Part 4A of the NPW Act;
• culture and heritage;
• financial stewardship, including community land and business planning;
• business enterprise and investment;
• provision of material benefits, including subsidised community services;
• miscellaneous
Transfer RALC functions to NSWALC
RALC functions should be transferred to NSWALC.
Preferred option 17
Preferred option 16
Preferred option 15
Preferred option 14
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The functions of NSWALC should be clearly set out in the Act (according tocategories of functional areas), should clearly describe NSWALC’s areas ofactivity, and be drafted so as to minimise misunderstandings about the role ofNSWALC and its powers and responsibilities.
NSWALC should have functions in relation to:
• policy advice and advocacy
• land acquisition
• land holding, land use and management, and land dealing
• land under Part 4A of the NPW Act
• culture and heritage
• financial stewardship
• business enterprises and investment
• provision of material benefits including subsidised community services
• ALC system underwriting
• ALC funding
• ALC administrative support and assistance
• ALC supervision and compliance
• ALC operational approvals
• ALC record keeping
• ALC network dispute resolution
• Native Title Representative Body*
• miscellaneous
Roles and functions of Registrar
Independent role of Registrar
The Registrar of the Act should remain an independent statutory office holder onthe terms of the current Act.
Changes to the Registrar’s functions
In addition to the Registrar’s current functions, the Registrar should undertakethe following additional functions:
• to compile and maintain a consolidated roll of LALC members;
• to receive annual reports and financial statements;
• in consultation with NSWALC, recommend the appointment of investigators.
Preferred option 20
Preferred option 19
Preferred option 18
* The Act permits NSWALC to perform the functions of a Native TitleRepresentative Body (as set out in the Native Title Act) if it is determined tobe a representative body under that Act (s.106(v)). NSWALC is not presentlydetermined to be a Native Title Representative Body.
LALC Business enterprises and investment
Regulating LALC business enterprises and other investments
There should be a system of assessments and certifications for LALC investmentsand commercial ventures as follows:
• LALCs should be permitted to invest in a wider range of relatively safe passiveinvestments (including investment with NSWALC) without restriction as toamount;
• a LALC should be permitted to invest up to a prescribed sum in any singleinvestment, business enterprise or venture if it first obtains and providesNSWALC with an assessment report and certificate from a professionaladvisor (selected from a list of qualified experts kept by NSWALC and the Minister);
• a LALC should be permitted to invest more than the prescribed sum in aninvestment, business enterprise or venture if, in addition to the assessmentreport and certificate, it first receives NSWALC’s approval;
• a LALC wishing to invest more than the prescribed sum in any financial yearin a range of business enterprises may only do so if it first obtains NSWALC’sapproval.
NSWALC’s approval should be given or withheld, after examining any certificate and/or assessment report, on the basis of broadly defined criteria set out in the Act.
Related corporate entities to run LALC enterprises
LALCs themselves should not be permitted to operate business enterprises intheir own name but be permitted to establish and be involved in the operationof business enterprises through the vehicle of related corporate entities.
Financial affairs of related entities
For the avoidance of doubt, the Act should make clear that a LALC is requiredto account for the financial affairs of a related corporate entity as if the activitiesof the related corporate entity were activities of the LALC itself. Where a LALChas related corporate entities, it must provide consolidated financial statements.The related corporate entity must be required to:
• provide the LALC with all of the records and information that it requires toprepare the consolidated financial statements; and
• provide access to its records and provide other assistance to the LALC’sauditor.
Preferred option 23
Preferred option 22
Preferred option 21
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NSWALC may invest on behalf of LALCs
NSWALC’s functions should be expanded to allow it to invest funds on behalfof LALCs. The Act should establish or provide for the establishment of anappropriate fund structure for this purpose such as a NSWALC unit trust.
NSWALC enterprises
NSWALC’s functions with respect to the use of its lands should be modified toclarify that NSWALC may not use its lands by itself operating a commercialenterprise. NSWALC should be permitted, however, to establish related corporateentities for this purpose, or as a vehicle for operating any other commercialenterprises.
Financial affairs of NSWALC-related entities
For the avoidance of doubt, the Act should make clear that NSWALC is requiredto account for the financial affairs of a related corporate entity as if the activitiesof the related corporate entity were activities of the NSWALC itself. WhereNSWALC has related corporate entities, it must provide consolidated financialstatements. The related corporate entity must be required to:
• provide NSWALC with all of the records and information that it requires toprepare the consolidated financial statements; and
• provide access to its records and provide other assistance to NSWALC’sauditors.
Provision of material benefits
Provision of benefits to members
The Act should be amended so that it is clear that LALCs should have the abilityto provide material benefits to their members and other Aboriginal people intheir area (including by providing subsidised community services), subject tocommunity benefits schemes receiving NSWALC approval.
The prohibition in s.52(1)(n) on the direct or indirect distribution of income orproperty by way of profit of a LALC to its members should be modified so thatLALCs are prohibited from distributing income or profit to their members orother Aboriginal people in their areas, including by supporting the operation of a subsidised community service, except in accordance with an approvedcommunity benefits scheme.
Preferred option 27
Preferred option 26
Preferred option 25
Preferred option 24
Approval of LALC community benefits schemes
NSWALC should have the function of assessing and approving a communitybenefits scheme proposed by a LALC.
When a LALC seeks NSWALC’s approval for a community benefits scheme, itshould be required to provide its proposal to the Registrar and the Minister.
NSWALC approval should be given or withheld after considering all informationprovided to it in connection with the proposal by the LALC, and any commentmade by the Registrar or the Minister, in accordance with broad criteria set outin the Act and any formal guidelines or policies of NSWALC.
The broad criteria should be directed to ensuring that approved schemes shall be:
• consistent with the purposes of the Act;
• financially sustainable;
• equitable;
• capable of being administered in an open and transparent manner; and
• unlikely to expose the LALC or the ALC network to any significant liability.
NSWALC should be able to recover its reasonable costs of assessing andapproving proposed benefits schemes from the LALC concerned.
NSWALC community benefits schemes
NSWALC’s grant and loan functions should be clarified and modified to providefor formalised community benefits schemes.
In devising its benefits schemes, NSWALC should be required to have regard tothe desirability of achieving equity across the state with respect to access to thebenefits of the land rights scheme.
NSWALC should be required to set out the details of its formalised benefitsschemes in its annual reports.
Community Housing
LALC social housing
LALCs should retain ownership of all their land and housing stock.
LALCs shall only provide subsidised residential accommodation (‘socialhousing’) with NSWALC’s approval.
When a LALC seeks NSWALC’s approval to provide social housing, it should berequired to provide its proposal to the Registrar, the Minister and the AboriginalHousing Office.
Preferred option 30
Preferred option 29
Preferred option 28
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NSWALC should be required to consider initial requests for approval of socialhousing schemes within a period of 18 months from the commencement of therelevant amendments to the Act.
NSWALC should give or withhold its approval after considering the proposal,any comment provided by the Minister, the Registrar or the Aboriginal HousingOffice, on the basis of broad criteria set out in the Act and any formalisedguidelines or policies adopted by NSWALC under the Act.
The essential criteria to be applied by NSWALC should include:
• sustainability;
• management capacity;
• provision of housing to an acceptable standard;
• the LALC concerned is not likely to default on the payment of rates andcharges and the provision of housing by the LALC is unlikely to create asignificant financial or administrative difficulty for the LALC or forNSWALC.
Transfer of management of social housing schemes
If a LALC that is currently managing the provision of social housing is notpermitted to continue to do so, it should be required to transfer responsibilityfor the management of social housing to the Aboriginal Housing Office or anapproved external body.
Culture and heritage
Culture and heritage
The culture and heritage functions of ALCs should be clarified to make clear thatALCs have a function of promoting as well as protecting Aboriginal culture andheritage.
ALCs should be required to perform their functions with respect to promotingand protecting Aboriginal culture and heritage, having regard to the interests andthe views of any persons listed on the Register of Aboriginal Owners in relationto the land concerned.
Part 6 of the National Parks and Wildlife Act and other legislation (includingnatural resource management legislation) affecting the protection of Aboriginalculture and heritage should be reviewed with a view to recognising the role ofALCs in relation to the protection of Aboriginal culture and heritage and toensuring that ALCs are given opportunities to promote the protection ofAboriginal culture and heritage in their areas.
Preferred option 33
Preferred option 32
Preferred option 31
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Constitutional structure of LALCs
The constitutional structure of LALCs should be modified so that LALCs aremade up of:
• the membership; and
• an elected Board,
each with defined areas of authority.
Functions of LALC members
The members of a LALC will meet four times per year, including an annualmeeting; meetings should ordinarily be held approximately every three months.
The membership of a LALC should be entitled to periodic reports on theLALC’s performance and financial affairs, and have authority to:
(a) admit or refuse to admit persons as members of the LALC;
(b) approve and amend the Rules and Code of Conduct of the LALC (subjectto the Act and Regulations and the approval of the Registrar);
(c) approve and amend the periodic community land and business plans of theLALC (see recommendations of Issues Paper 1 – Land Dealings);
(d) receive the annual financial statements of the LALC;
(e) approve the annual budgets of the LALC;
(f) elect and remove Board Members; and
(g) suspend members from attending or voting at LALC meetings.
The LALC Board
The Board should generally consist of ten elected Board Members. The Rules ofa LALC approved by the Registrar may, however, permit them to have less thanten but not less than seven Board Members.
The Board Members should be eligible voting members of the LALC who areelected by the membership every two years at an annual meeting of themembership. Casual vacancies should be able to be filled at any meeting of themembership.
Subject to those matters that are expressly reserved for the Membership, the Board should have general responsibility for the control and direction of the LALC.
The Board should be entitled to act only through formal resolutions of theBoard. Board Members are to have no authority or role in the management ofthe LALC other than when meeting with the other Board Members as the Board.
The Board should be required to meet as often as required and at least once amonth unless the LALC’s Rules specify that the Board may meet once every two months.
Preferred option 36
Preferred option 35
Preferred option 34
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The LALC Board will elect its Chairperson and Deputy Chairperson at its firstmeeting after being elected, and at the next annual general meeting (AGM).
LALC Executive Officer and staff
If the LALC employs staff, the most senior staff member (the “ExecutiveOfficer”) should have responsibility for implementing the resolutions of theBoard and for the day to day administration of the LALC.
The Board should be empowered to delegate, by formal resolution, a broad range of its powers and functions to the Executive Officer.
The selection and appointment of staff should be on a publicly advertisedcompetitive process
Four year terms for NSWALC members
NSWALC Councillors should hold office as Councillors for four years.
Election of Chairperson and Deputy Chairperson
The NSWALC Chairperson and Deputy Chairperson should be elected every two years.
The position of Chairperson should be a full-time salaried position. The positionof Councillor should be a part-time salaried position.
Chief Executive Officer and delegation of Board powers
The substance of the current provisions of the Act relating to the Chief ExecutiveOfficer should be retained. NSWALC should be able to delegate any of itspowers or functions to:
• a sub-committee of NSWALC;
• the Chairperson; or
• the Chief Executive Officer
other than in relation to specified matters or beyond specified limits
Frequency of NWALC meeting
NSWALC should be required to meet at least once every two months.
Ensuring good governance
Duties and training of elected NSWALC Councillors
All elected LALC Board members and NSWALC Councillors should be requiredto undertake training in their particular duties and responsibilities under the Act.
Preferred option 43
Preferred option 42
Preferred option 41
Preferred option 40
Preferred option 39
Preferred option 38
Preferred option 37
Duties of ALC members, officers and staff
LALC Board members and Executive Officers, and NSWALC Councillors andthe NSWALC CEO should be subject to duties:
(a) to act honestly;
(b) to act in good faith and for a proper purpose;
(c) to disclose their pecuniary interests in matters with which the ALC isconcerned;
(d) not to make improper use of their position to gain an advantage forthemselves or cause detriment to the ALC; and
(e) to exercise a reasonable degree of care and diligence in relation to theexercise of their authority
The current provision in s.176(2) should be repealed but careful thought isrequired as to how each of these duties should be enforceable and by whom.
It should be a condition of employment of all ALC staff, and engagement ofconsultants, that they be subject to similar duties.
Disqualification of LALC Board members
A person should be disqualified from standing for election or from continuing to hold office as a LALC Board member if they:
(a) cease to be a voting member of the LALC;
(b) are suspended from attending or voting at meetings of the membership ofthe LALC;
(c) have at any time in the past five years, or while they are in office as a Boardmember, been convicted of a specified range of offences under the Act orany other Act;
(d) have at any time in the past five years, or while they are in office as a Boardmember, been convicted of any offence involving dishonesty and sentencedto imprisonment (whether or not the sentence is suspended);
(e) are disqualified by the Registrar from holding office in a LALC;
(f) are disqualified from managing corporations under the Corporations Act 2001or the Aboriginal Councils and Associations Act (Cth);
(g) have been a Board member of a LALC immediately prior to theappointment of an administrator to that LALC on two prior occasions;
(h) are a NSWALC Councillor.
Preferred option 45
Preferred option 44
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ns Removal from office of a LALC Board member
The grounds on which a LALC Board member may be removed from officeshould be specified clearly. These should include:
(a) breach of a provision of the LALC’s Code of Conduct which the code hasdeclared to be a dismissal provision;
(b) breach of the officer’s duties as set out in the Act,
(c) breach of another provision of the Act, the Regulations or the Rules, thathas had or may have a substantial detrimental effect on the interests of the LALC;
(d) failure to attend a specified minimum number of Board meetings; and
(e) where the Board member has become mentally or physically unable toperform their duties.
It should be clear that a LALC Board member may not be removed unless theyhave previously received notice setting out clearly the grounds on which it isproposed that they be removed.
Disqualification from office as NSWALC Councillor
A person should be disqualified from holding office as a NSWALC Councillor if they:
(a) cease to be a voting member of a LALC in the Regional Area they represent;
(b) have at any time in the past five years, or while they are in office as aCouncillor, been convicted of a specified offence under the Act or any other Act;
(c) have at any time in the past five years, or while in office as a Councillor,been convicted of any offence involving dishonesty which carries a penaltyof imprisonment (whether or not the sentence is suspended);
(d) they are disqualified by the Registrar from holding office in an ALC;
(e) they have been a Board member of a LALC immediately prior to theappointment of an Administrator to that LALC on two occasions; or
they are disqualified from managing corporations under the Corporations Act 2001or the Aboriginal Councils and Associations Act (Cth).
Deletion of s.112 – petitions for removal of NSWALC Councillors from office
Section 112 of the Act, which provides for dismissal of NSWALC Councillors by a petition process, is unworkable and should be deleted. Councillors shouldremain in office for their four-year term unless disqualified.
Preferred option 48
Preferred option 47
Preferred option 46
Ineligibility for employment as LALC Executive Officer
A LALC should not be permitted to employ as its Executive Officer any person who:
(a) has at any time in the past five years been convicted of a specified range ofoffences under the Act or any other Act;
(b) has at any time in the past five years been convicted of any offenceinvolving dishonesty and sentenced to imprisonment (whether or not thesentence is suspended);
(c) is disqualified by the Registrar from holding office in a LALC;
(d) is disqualified from managing corporations under the Corporations Act 2001or the Aboriginal Councils and Associations Act (Cth);
(e) has been a Board member of a LALC immediately prior to the appointmentof an Administrator to that LALC on two prior occasions; or
(f) is a NSWALC Councillor.
It should be a condition of employment of a LALC Executive Officer that theyshall be dismissed if any of the above occurs during the period of theiremployment, or that their employment will cease if they are elected as a Boardmember of that LALC or as a NSWALC Councillor.
Ineligibility for employment as NSWALC CEO
NSWALC should not be permitted to employ as its CEO any person who:
(a) has at any time in the past five years been convicted of a specified range ofoffences under the Act or any other Act;
(b) has at any time in the past five years been convicted of any offenceinvolving dishonesty and sentenced to imprisonment (whether or not thesentence is suspended);
(c) is disqualified by the Registrar from holding office in a LALC;
(d) is disqualified from managing corporations under the Corporations Act 2001or the Aboriginal Councils and Associations Act (Cth);
(e) has been a Board member of a LALC immediately prior to the appointmentof an Administrator to that LALC on two prior occasions; or
(f) is a NSWALC Councillor.
It should be a condition of employment of the NSWALC CEO that they shallbe dismissed if any of the above occurs during the period of their employment,or that their employment will cease if they are elected as a NSWALC Councillor.
Preferred option 50
Preferred option 49
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ns Offence provisions
Careful thought should be given to the introduction of specific offenceprovisions directed to deterring corrupt conduct by ALC officers, staff,consultants and third parties that may have a serious deleterious effect on theinterests of an ALC or of the ALC network generally.
Planning
The community land and business plans referred to in the Task Force’s discussionpaper on Land Dealings should make provision for all of the LALC’s operations,including its business and investment activities and the provision of materialbenefits to members and other Aboriginal people in the LALC’s area.
Financial accountability and reporting
LALC financial accountability and annual reports
The standards to be met by a LALC in relation to the various aspects of itsfinancial accountability obligations should be clearly specified so that it is easy to determine whether the obligations have been performed ‘satisfactorily’.
For the avoidance of doubt, the Act should make it clear that a LALC and itsofficers and staff should be required to allow the LALC’s auditor to have accessto the LALC’s books and records and to give the auditor any information,explanation or assistance that the auditor may reasonably require.
The provisions of the Act concerning the obligation of NSWALC to ceasefunding a LALC upon certain breaches should be modified so that it is clear:
• which breaches of the Act are intended to result in cessation of funding; and
• in relation to each such breach, when the obligation to cease funding arisesand when funding may recommence.
A LALC’s obligations in relation to the preparation and submission of annualreports should not be tied to the requirements of the Annual Reporting(Statutory Bodies) Act or Regulation, but should be directed to achieving ameaningful picture of the affairs and performance of a LALC by reference to itsfunctions and its obligations.
Preferred option 53
Preferred option 52
Preferred option 51
NSWALC financial accountability and reporting
The Act should be amended to clarify that NSWALC should not be consideredto be in breach of its obligations with respect to the preparation of an annualbudget in any period between the submission of a budget to the Minister and theMinister’s determination of whether or not to approve the budget.
The provisions in s.159 of the Act should be modified to clarify the purpose andnature of any quarterly or six monthly report that NSWALC is to be required toprovide to the Minister in relation to the LALCs and to ensure that the quarterlyor six monthly report that the LALCs are required to submit to NSWALC issufficient to enable NSWALC to prepare and submit that report.
Compliance directions and investigations
Complaints and compliance direction
The Registrar should have the power to issue compliance directions without acomplaint having been made where he or she is satisfied that an ALC, a BoardMember of a LALC, a NSWALC Councillor or the Chief Executive Officer ofNSWALC has failed to comply, or is not complying with, a provision of the Act.
Investigative powers of NSWALC and Registrar
To better enable NSWALC and the Registrar to perform their regulatoryfunctions, they should have the power to request an ALC, or a person associatedwith an ALC, to supply them with information, and the ALC or the personshould be required, so far as practicable, to comply with the request.
Preferred option 56
Preferred option 55
Preferred option 54
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