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1
Community Services Legislation Amendment
COMMUNITY SERVICES LEGISLATION
AMENDMENT BILL 1999
A Bill to amend the Community Services (Aborigines) Act 1984 and the
Community Services (Torres Strait) 1984
EXPLANATORY NOTES
POLICY OBJECTIVES OF BILL
The policy objectives of the Bill are:
� to detail the powers of intervention by the State in the affairs of
Aboriginal or Island councils and to describe in detail how such
powers are to be exercised so that the legislation reflects the
requirements of due process and natural justice,
� to assist Aboriginal or Island Councils which are in financial
difficulty by enabling the appointment of financial controllers with
limited powers in respect to councils' expenditure thus
forestalling insolvency and or dissolution of the council,
� to allow the Minister to make accounting standards to prescribe
the principles of financial management and accountability to be
observed by Aboriginal and Island councils,
� to provide a simpler system of financial management for
Aboriginal and Island councils by allowing councils to amend
budgets,
� to clarify that an Aboriginal or Island council's jurisdiction
extends over all types of land tenure which currently exist, or may
exist in the future, within an Aboriginal or Island council's area, it
is proposed to remove the nexus between land tenure type and the
area for which an Aboriginal or Island council is established,
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Community Services Legislation Amendment
� to provide the power to make a regulation creating new
Aboriginal and Island councils which will allow an Aboriginal
council to be established for the Old Mapoon community,
� to allow for the extension of an Aboriginal or Island council's
area, and
� to re-name the Tamwoy community referred to in the Community
Services (Torres Strait) Act 1984 as the Tamwoy, Rosehill,
Aplin, Waiben, Quarantine (TRAWQ) communities.
HOW BILL WILL ACHIEVE POLICY OBJECTIVES
To reflect the imperatives of due process and natural justice pertaining to
intervention by the State in the affairs of Aboriginal and Island councils the
Bill mirrors the comprehensive provisions of the Local Government Act
1993 which relate to the intervention by the State in local governments.
As a mechanism to impose controls over expenditure by Aboriginal or
Island councils that are, or may be, at risk of insolvency the Bill proposes
that the Governor in Council possess the power to appoint financial
controllers to such councils. The creation of financial controllers was
recommended by the Parliamentary Accounts Committee in its Report 42:
Aboriginal Councils and Torres Strait Island Councils: Review of
Financial Reporting Requirements. The Bill proposes that the powers of
financial controllers derive from a very narrow delegation of the Governor
in Council's powers. The existing provisions of the Local Government Act
1993 which allow the Governor in Council to revoke or suspend a
resolution or order of a local government have been used as the basis for the
amendment. A financial controller will have the power to revoke or suspend
a resolution or order of a council if the financial controller reasonably
believes that the resolution or order will result in expenditure which has not
been provided for in the council's budget, or will result in the wrongful
expenditure of grant monies, or will cause the council to become insolvent.
A financial controller will also be able to undertake administrative duties as
directed by the Minister or at the request of the Aboriginal or Island council.
The Bill proposes that the Minister have the power to make accounting
standards to enhance financial accountability in Aboriginal and Island
councils. The Bill will enable accounting standards to be made as
subordinate legislation which defines the principles of financial management
and accountability to be observed by councils. The existing accounting
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Community Services Legislation Amendment
standards approved by the Minister in 1991 were made under a regulation
which has since been found to be ultra vires. Therefore there is no power in
the Community Services Acts to make legally enforceable accounting
standards. The existing accounting standards are useful as a guide only.
The proposed Bill will provide a simpler financial management
framework for Aboriginal and Island councils by allowing them to amend
annual budgets rather than having to declare all non-budgeted expenditure as
emergent or extraordinary. A council's budget will be able to be amended to
compensate for unforseen expenditure provided the amended budget
remains balanced. The proposal mirrors a provision of the Local
Government Act 1993 that allows local governments to amend budgets.
To remove the nexus between land tenure type and the area for which an
Aboriginal or Island council is established, the Bill simply allows for a
regulation to declare a part of the State to be a council area and that each
council area must have an Aboriginal or Island council. This mirrors the
Local Government Act 1993. The Bill also clarifies the terminology used by
describing the area for which an Aboriginal or Island council has local
government jurisdiction as simply a "council area". This will address the
ambiguous nature of the various terms used to describe a council's area in
the existing legislation. These provisions will enable the establishment of an
Aboriginal council at Old Mapoon. The provisions will also allow the
extension of various Island council areas in the Torres Strait to include
islands that are currently nominally within the Torres Shire but in practice
are not under any local government jurisdiction.
Existing council areas and their respective Aboriginal and Island councils
will be preserved through transitional provisions in the Bill.
Tamwoy is a suburb of Thursday Island which is afforded representation
on the Island Coordinating Council along with the chairpersons of the 17
Island councils. The Tamwoy community was established soon after the
Second World War when Torres Strait Islanders were first permitted to
permanently reside on Thursday Island. Over the years the Torres Strait
Islander community has expanded to encompass a further four localities on
the Northern side of Thursday Island. These communities are
predominantly comprised of Torres Strait Islanders and possess a collective
identity (commonly referred to as TRAWQ) which is distinctly different to
the other parts of Thursday Island which are more multicultural. The
residents believe the term "Tamwoy" is too narrow a definition for the five
communities involved, hence the proposal to substitute Tamwoy with
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Community Services Legislation Amendment
Tamwoy, Rosehill, Aplin, Waiben, Quarantine (TRAWQ) communities.
ADMINISTRATIVE COST OF THE IMPLEMENTING THE
BILL
There are no foreseeable administrative costs to government in
implementing the Bill. There will be a one-off capital cost to construct
council chambers and staff housing when the Aboriginal council proposed
for the Old Mapoon community is established in the future. This will be
sought in a separate and distinct submission at the appropriate time. The
level of recurrent funding will not need to increase as a result of this Bill as
the Marpuna Community Aboriginal Corporation already receives funding
under the Department of Aboriginal and Torres Strait Islander Policy and
Development's State Government Financial Aid Program to provide local
government services at Old Mapoon.
CONSISTENCY WITH FUNDAMENTAL LEGISLATIVE
PRINCIPLES
It is the Department's view that the Bill is consistent with fundamental
legislative principles.
Some concern over fundamental legislative principles in relation to three
separate provisions was raised as a result of the circulation of the advance
draft of the Bill.
1. Legislative Standards Act 1992, section 4(3)(h)--Whether
legislation confers immunity from proceeding or prosecution
without adequate justification
The Department received advice that sections 13B and 13C as
drafted may not be consistent with section 4(3)(h) of the
Legislative Standards Act 1992. Section 13B was drafted as a
mirror of the Local Government Act 1993, section 161. This
section provided for the Governor in Council to revoke or
suspend a resolution or order of an Aboriginal (or Island) council.
Section 13C was drafted as a mirror of the Local Government Act
1993, section 162. This section, which remains unchanged,
provides that where the Governor in Council revokes or suspends
a resolution or order of a council, the State is not legally liable for
any loss or expense to a person. Advice was received that as
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Community Services Legislation Amendment
section 13B contained no object or limitation to the Governor in
Council's powers, the State's actions could not be tested by
judicial review.
As a remedy the Bill now proposes that the Governor in
Council's power conferred by section 13B can only be exercised
if the Minister is satisfied, on reasonable grounds, that a
resolution or order of a council is unlawful or has been made for
an improper purpose.
This allows the State's actions to be legally tested under the
provisions of the Judicial Review Act 1991.
It is the Department's view that the section 13B and section 13C
as now drafted are now consistent with the Legislative Standards
Act 1992.
2. Legislative Standards Act 1992, section 4(3)(h)--Whether
legislation confers immunity from proceeding or prosecution
without adequate justification
Similarly, section 13T provides for a financial controller to revoke
or suspend a resolution or order of a council, but only if the
resolution or order will result in unlawful expenditure or wrongful
expenditure of grant monies or will cause the council to become
insolvent. Section 13U indemnifies the State and a financial
controller for loss or expense incurred by a person because of the
revocation or suspension of a council's resolution or order. The
Department regards the financial controller's powers as a
delegation of the powers conferred upon the Governor in Council
under section 13B.
It follows that any loss or expense to a person will be a result of
illegal or wrongful actions by the council and any liability
therefore will lie with the council or the councillors.
A further justification for the provision of indemnity to a financial
controller is that if a financial controller is not afforded indemnity
under the legislation, it is unlikely that anyone qualified for
appointment would accept such an appointment.
It is the Department's view that section 13T and section 13U are
consistent with the Legislative Standards Act 1992.
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Community Services Legislation Amendment
3. Legislative Standards Act 1992, section 4(3)(k)--Whether
legislation is unambiguous and drafted in a sufficiently clear and
precise way
Section 13I(1) provides that an administrator of a council has all
the jurisdiction, powers and duties of the council concerned.
Section 13I(4) provides that this Act and other Acts apply to the
administrator, with all necessary changes, as if the administrator
were the council. An opinion has been expressed that this section
may not be sufficiently clear and precise. The alternative, to enact
a mass of provisions solely applicable to the administrator, is
considered by the Department to be impractical. Section 13I(4) is
similar to section 179 of the Local Government Act 1993 (which
in addition provides for changes to be prescribed by regulation).
It is the Department's view that the there is sufficient justification
for section 13I(4) for it to be consistent with the Legislative
Standards Act 1992.
EXTENT OF CONSULTATION
Consultation on all facets of the proposed Bill was undertaken with the
Aboriginal Coordinating Council (ACC) and the Island Coordinating
Council (ICC), the peak bodies for Aboriginal councils and Island councils
respectively.
The ACC supported the proposed amendments to allow the Aboriginal
councils to amend budgets and to allow the creation of Aboriginal councils
but did not offer a view on the other proposed amendments. The ICC
supported all the proposed amendments.
The development of the proposal for financial controllers was undertaken
with the assistance of the Aboriginal and Torres Strait Islander Commission
and the Torres Strait Regional Authority. Both agencies strongly support the
proposal.
During the preparation of the Authority to Prepare Submission a copy of
the draft instructions for the Parliamentary Counsel was circulated to the
following government departments and agencies;
Department of Premier and Cabinet,
Department of Justice and Attorney-General,
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Community Services Legislation Amendment
Department of Communication and Information, Local
Government and Planning,
Department of Training and Industrial Relations,
Department of Natural Resources,
Queensland Treasury, and
Queensland Audit Office.
The Bill as proposed incorporates the views, advice and requirements of
all agencies consulted.
Comments received as a result of the circulation of the Authority to
Prepare Submission were all favourable.
The circulation of the advance draft of the Bill evoked an assessment of
the draft Bill's compliance with fundamental legislative principles from the
Office of the Parliamentary Counsel. The issues raised have been addressed
in the preceding section.
COMMUNITY SERVICES (ABORIGINES) ACT 1984
EXPLANATION OF AMENDED SECTIONS
Section 6 (Meaning of Terms) has been amended to remove definitions
for area and trust area and replace them with a definition for a council area.
Section 6(2) has been omitted. These amendments are a consequence of the
amendment to section 14.
Section 6A (Meaning of "conclusion" of election for Aboriginal council)
is derived from the Local Government Act 1993 which defines what is
meant by the conclusion of an election. Its inclusion is made desirable by
the use of the concept in section 14B.
Section 11 (Appointment of magistrates to trust areas) has been amended
to replace references to "trust areas" with "council areas" This amendment
is a consequence of the amendment to section 14.
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Community Services Legislation Amendment
PART 2A--INTERVENTION BY THE STATE
This new part mirrors Part 2--Intervention by the State of the Local
Government Act 1993 with the addition of provisions (sections 13E, 13S,
13T, 13U, 13V, 13 W, 13X) in respect to financial controllers. That part of
the Local Government Act 1993 provision which allows the Governor in
Council to exclude part of a council's area from the Act has been omitted.
Section 13A (Procedures before exercise of certain powers) is derived
from the Local Government Act 1993 and requires that written notice of the
intention to exercise a power of intervention must be given to the Aboriginal
council unless the Aboriginal council has requested the intervention or
where giving notice would be counterproductive or otherwise serve no
useful purpose. The section also requires the Minister to take into account all
submissions received from the Aboriginal council within the stated time.
After the stated time has elapsed intervention may proceed without further
notice to the Aboriginal council.
Section 13B (Revocation and suspension of resolutions and orders) is
derived from the Local Government Act 1993 and provides for the
Governor in Council, by regulation, to revoke or suspend, indefinitely or
not, a resolution or order of an Aboriginal council. The Governor in
Council's power can only be exercised if the Minister is satisfied, on
reasonable grounds, that the resolution or order is unlawful or was made for
an improper purpose.
Section 13C (Effect of revocation or suspension) is derived from the
Local Government Act 1993 and states that a resolution or order of an
Aboriginal council that is revoked by regulation ceases to have effect on the
day stated by the regulation or if no day is stated the resolution or order is
deemed never to have taken effect. A resolution or order which is
suspended by regulation does not have any effect while it is suspended. The
section also indemnifies the State from any liability arising from any such
revocation or suspension.
Section 13D (Overruling by-laws) is derived from the Local Government
Act 1993 and enables the Governor in Council by regulation to declare that
an Aboriginal council's by-law or a provision of such a by-law has no effect
if it is necessary to protect State interests. Such declaration may be later
revoked by regulation if it is no longer necessary to protect State interests.
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Community Services Legislation Amendment
Section 13E (Appointment of financial controller) is a new provision
which has no counterpart in the Local Government Act 1993. The provision
provides that the Governor in Council (subject to section 13A) may by
regulation appoint a financial controller if the Minister is satisfied that a
council has made non-budgeted disbursements which are not of an
emergent or extraordinary nature, or has wrongfully spent grant monies or
has not prepared financial statements as required or as a result of its actions
is at risk of insolvency.
Section 13F (Dissolution of Aboriginal council) is derived from the
Local Government Act 1993 and provides the power for the Governor in
Council to dissolve by regulation an Aboriginal council if it has acted
unlawfully, or is corrupt, or is at risk of not properly exercising its
jurisdiction, or is incompetent.
Section 13G (Abolition of joint Aboriginal council and its area) is derived
from the Local Government Act 1993 and provides for the abolition of a
joint Aboriginal council. The power to create a joint Aboriginal council is
provided by sections 42 and 43 of the Local Government Act 1993.
Section 13H (When an administrator may be appointed) is derived from
the Local Government Act 1993 and requires that when an Aboriginal
council is dissolved an administrator must be appointed by the Governor in
Council by gazette notice.
Section 13I (Jurisdiction, powers and duties of administrator) is derived
from the Local Government Act 1993 and provides that an administrator of
an Aboriginal council has all the jurisdiction, powers and duties of the
council concerned however the extent of these may be limited by regulation.
The section further provides that the administrator is required or permitted
to exercise the powers of the council's chairperson. The administrator does
not have a duty of an Aboriginal council appropriate only to a body of
persons such as establishing a quorum for a meeting for example.
Section 13J (Title of Administrator) is derived from the Local
Government Act 1993 and stipulates the title of an administrator.
Section 13K (Committee to help administrator) is derived from the Local
Government Act 1993 and provides for the Minister to appoint a committee
to assist the administrator.
Section 13L (Conditions of appointment as administrator or member of
committee) is derived from the Local Government Act 1993 and provides
for the level of fees, allowances and expenses for administrators or
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Community Services Legislation Amendment
members of committees to be decided by the Governor in Council but
payable by the Aboriginal council. The section also provides that a public
service officer who is appointed as the administrator or a member of a
committee can continue to hold a public service office during the period of
the appointment.
Section 13M (Recovery of amounts from Aboriginal councils) is derived
from the Local Government Act 1993 and provides for the Governor in
Council to direct an Aboriginal council to pay to the Minister the costs and
expenses of the administrator. In the case of a public service officer who is
appointed as administrator or committee member the stated amount may
include the salary and allowances payable to that officer.
Section 13N (Role of committee) is derived from the Local Government
Act 1993 and requires the administrator to implement a committee's
decision as soon as practicable. However if the administrator believes that
the decision is not in the best interests of the area, the administrator may,
within 14 days, refer the committee's decision to the Minister for decision.
Section 13O (Decision by Minister on referral by administrator) is
derived from the Local Government Act 1993 and provides that the
Minister, when in receipt of a referral described in section 13N, may direct
the department's chief executive to investigate the issue. The section also
provides that the Minister's decision on the issue is final and must be
implemented by the administrator as soon as possible.
Section 13P (Procedures of committee) is derived from the Local
Government Act 1993 and provides that any provision which applies to an
Aboriginal council or members of an Aboriginal council applies to the
committee or the members of the committee and that any provision which
applies to the chairperson of an Aboriginal council applies to the
administrator or the person acting as chairperson of the committee.
Section 13Q (Termination of administrator's appointment) is derived
from the Local Government Act 1993 and requires that a fresh election for
the Aboriginal council should occur as soon as practicable after the
appointment of the administrator. The section also provides that the
appointment of an administrator ceases upon the conclusion of a fresh
election or may be terminated by the Governor in Council for any reason in
the interim.
Section 13R (Termination of appointment of committee member etc.) is
derived from the Local Government Act 1993 and provides that a member
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Community Services Legislation Amendment
or all members of a committee may have their appointment to the
committee terminated for any reason by the written notice of the Minister. A
committee ceases to exist upon conclusion of the fresh election for the
Aboriginal council concerned.
Section 13S (Functions of financial controller) is a new provision which
has no counterpart in the Local Government Act 1993. The provision
describes the functions of a financial controller appointed under section 13E
which are to ensure the Aboriginal council adheres to its budget and to
undertake administrative duties directed by the Minister. A financial
controller may also provide advice to the Aboriginal council about financial
management and may, at the request of the Aboriginal council, undertake
other administrative duties.
Section 13T (Power of financial controller to revoke or suspend
resolutions and orders) is a new provision which has no counterpart in the
Local Government Act 1993. The power accorded the financial controller in
this section derives from a very narrow delegation of the Governor in
Council's power described in section 13B which mirrors section 161 of the
Local Government Act 1993. The financial controller can, by written notice
to the council clerk, revoke or suspend, indefinitely or not, a resolution or
order of an Aboriginal council. This may only occur if the financial
controller reasonably believes that the resolution or order will result in
expenditure not provided for in the budget, or the misuse of grant monies
irrespective of source, or the Aboriginal council becoming insolvent.
Section 13U (Effect of revocation or suspension) is a new provision
derived from section 13C which provides that the effect of a revocation or
suspension made by a financial controller is the same as a revocation or
suspension made by the Governor in Council. The section also indemnifies
both the State and the financial controller from any liability arising from any
revocation or suspension made by the financial controller.
Section 13V (Financial controller's employment conditions) is a new
provision which states that a financial controller for an Aboriginal council is
to be employed under the Public Service Act 1996.
Section 13W (Recovery of amounts from Aboriginal councils) is a new
section and provides for the Governor in Council to direct an Aboriginal
council to pay to the Minister the costs and expenses of a financial controller
as can be done in the case of an administrator.
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Community Services Legislation Amendment
Section 13X (Termination of financial controller's appointment) is a new
section which provides that the appointment of a financial controller may be
terminated by the Governor in Council for any reason.
PART 3--LOCAL GOVERNMENT OF AREAS
Section 14 (Declaration of council areas) together with section 14A and
section 14B replace section 14 (Requirement of Aboriginal councils). The
new section 14 is derived from the Local Government Act 1993 and
provides that a regulation may declare a part of the State to be an Aboriginal
council area. This provision removes the requirement that the area for which
an Aboriginal council is declared must be a trust area thus confirming an
Aboriginal council's jurisdiction over non trust land within the Aboriginal
council's area. There are now a number of different land tenures which
exist within Deed of Grant in Trust areas which may not have existed in the
areas at the commencement of the Act in 1984. These include Aboriginal
land, leased land, unallocated State land, and Native Title land. This section
consequentially allows the declaration of an Aboriginal council area at Old
Mapoon.
Section 14A (Aboriginal council required for each council area) is
derived from the Local Government Act 1993 and requires an Aboriginal
council to be established for each Aboriginal council area.
Section 14B (Implementation of council area) provides that the same
regulation which declares a part of the State to be an Aboriginal council area
may also implement the Aboriginal council. The section lists a number of
matters in regard to the implementation of an Aboriginal council which may
be provided for in the regulation. The section also provides that where the
election for the first Aboriginal council for an area is less than 18 months
prior to a triennial election then the Aboriginal council is exempt from that
triennial election.
Insertion (after section 27A) of new Division 1A--Financial Operations
of Aboriginal Councils
Section 27B (Issue of standards) is derived from the Local Government
Act 1993 and provides for the Minister to make accounting standards for
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Community Services Legislation Amendment
Aboriginal councils. The section lists the matters which may be included in
accounting standards. The section also requires the Minister to consult with
the auditor-general and have regard to the standards of professional bodies
before making standards. Accounting standards are to be made as
subordinate legislation.
Section 27C (Standards must be complied with) requires that an
Aboriginal council must comply with the accounting standards.
Section 29A (Separate budgets for funds) has been omitted as the
Community Services (Aborigines) Regulation 1998 requires councils to
maintain only a general fund for which a budget is required and a trust fund
for which no budget is required to be made.
Section 29C (Framing of budget) has been amended to reflect that
councils only have one fund for which a budget is required.
Section 29CA (Amendment of budget) is a new section derived from the
Local Government Act 1993 and provides for an Aboriginal council to
amend its budget during a financial year.
Section 29E (Budget provisions apply to other funds) has been omitted
as the Community Services (Aborigines) Regulation 1998 requires councils
to have only a general fund for which a budget is required and a trust fund
for which no budget is required to be made.
Section 29F (Provisions in respect of loan repayments) has been
amended to reflect that councils only have one fund for which a budget is
required.
Section 29G (Illegal expenditure) has been amended to reflect the
adoption of the term "council area" in section 6 and section 14 and to reflect
that councils only have one fund for which a budget is required.
Section 68 (Power of Aboriginal council to regulate presence in area) has
been amended to reflect the adoption of the term "council area" in section 6
and section 14. Consequentially, this section requires that prior to making a
by-law regulating presence in a council area an Aboriginal council must
gain, in addition to the approval of the grantees of Aboriginal land within the
council area, the approval of people who have the right to exclude persons
from certain land within the council area. This section recognises that a
variety of land tenures may exist within a council's area and that the council
may not be the trustee for all land within its council area.
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Community Services Legislation Amendment
Section 77B (Aborigines' right to certain forest products and quarry
material--non-Aboriginal land) has been amended as a consequence of the
adoption of the term "council area" in section 6 and section 14. The section
has been amended to ensure that the rights extended to a member of a
community of Aborigines in respect to the taking of forest and quarry
products from non-Aboriginal land have not been extended as a result of the
adoption of the term "council area". The rights may still only be exercised
over trust land for the benefit of Aboriginal or Torres Strait Islander
inhabitants or for Aboriginal or Torres Strait Islander purposes under the
Land Act 1994.
PART 10--TRANSITIONAL PROVISION
Section 85 (Transitional provision for council areas) ensures that
Aboriginal councils and their areas established prior to this amendment act
survive the commencement of this amendment act.
COMMUNITY SERVICES (TORRES STRAIT) ACT
1984
EXPLANATION OF AMENDED SECTIONS
Section 6 (Meaning of Terms) has been amended to remove definitions
for area and trust area and replace them with a definition for council area.
This amendment is a consequence of the amendment to section 14.
Section 6A (Meaning of "conclusion" of election for Island council) is
derived from the Local Government Act 1993 which defines what is meant
by the conclusion of an election. Its inclusion is made desirable by the use
of the concept in section 14B.
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Community Services Legislation Amendment
Section 11 (Visiting justices) has been amended to replace references to
"trust areas" with "council areas" This amendment is a consequence of the
amendment to section 14.
PART 2A--INTERVENTION BY THE STATE
This new part mirrors Part 2--Intervention by the State of the Local
Government Act 1993 with the addition of provisions (sections 13E, 13S,
13T, 13U, 13V, 13 W, 13X) in respect to financial controllers. That part of
the Local Government Act 1993 provision which allows the Governor in
Council to exclude part of a council's area from the Act has been omitted.
Section 13A (Procedures before exercise of certain powers) is derived
from the Local Government Act 1993 and requires that written notice of the
intention to exercise a power of intervention must be given to the Island
council unless the Island council has requested the intervention or where
giving notice would be counterproductive or otherwise serve no useful
purpose. The section also requires the Minister to take into account all
submissions received from the Island council within the stated time. After
the stated time has elapsed intervention may proceed without further notice
to the Island council.
Section 13B (Revocation and suspension of resolutions and orders) is
derived from the Local Government Act 1993 and provides for the
Governor in Council, by regulation, to revoke or suspend, indefinitely or
not, a resolution or order of an Island council. The Governor in Council's
power can only be exercised if the Minister is satisfied, on reasonable
grounds, that the resolution or order is unlawful or was made for an
improper purpose.
Section 13C (Effect of revocation or suspension) is derived from the
Local Government Act 1993 and states that a resolution or order of an Island
council that is revoked by regulation ceases to have effect on the day stated
by the regulation or if no day is stated the resolution or order is taken never
to have taken effect. A resolution or order which is suspended by regulation
does not have effect while it is suspended. The section also indemnifies the
State from any liability arising from any such revocation or suspension.
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Community Services Legislation Amendment
Section 13D (Overruling by-laws) is derived from the Local Government
Act 1993 and enables the Governor in Council by regulation to declare that
an Island council's by-law or a provision of such a by-law has no effect if it
is necessary to protect State interests. Such declaration may be later revoked
by regulation if it is no longer necessary to protect State interests.
Section 13E (Appointment of Financial Controller) is a new provision
which has no counterpart in the Local Government Act 1993. The provision
provides that the Governor in Council (subject to section 13A) may by
regulation appoint a financial controller if the Minister is satisfied that the
council has made non-budgeted disbursements which are not of an
emergent or extraordinary nature, or has wrongfully spent grant monies, or
has not prepared financial statements as required, or as a result of its actions
is at risk of insolvency.
Section 13F (Dissolution of Island council) is derived from the Local
Government Act 1993 and provides for the Governor in Council to dissolve
by regulation an Island council if it has acted unlawfully, or is corrupt, or is
at risk of not properly exercising its jurisdiction, or is incompetent.
Section 13G (Abolition of joint Island council and its area) is derived
from the Local Government Act 1993 and provides for the abolition of a
joint Island council. The power to create a joint Island council is provided by
sections 42 and 43 of the Local Government Act 1993.
Section 13H (When an administrator may be appointed) is derived from
the Local Government Act 1993 and requires that when an Island council is
dissolved an administrator must be appointed by the Governor in Council
by gazette notice.
Section 13I (Jurisdiction, powers and duties of administrator) is derived
from the Local Government Act 1993 and provides that an administrator of
an Island council has all the jurisdiction, powers and duties of the council
concerned however the extent of these may be limited by regulation. The
section further provides that the administrator is required or permitted to
exercise the powers of the council's chairperson but that the administrator
does not have a duty of an Island council appropriate only to a body of
persons such as a quorum for meetings for example.
Section 13J (Title of Administrator) is derived from the Local
Government Act 1993 and stipulates the title of an administrator.
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Community Services Legislation Amendment
Section 13K (Committee to help administrator) is derived from the Local
Government Act 1993 and provides for the Minister to appoint a committee
to assist the administrator.
Section 13L (Conditions of appointment as administrator or member of
committee) is derived from the Local Government Act 1993 and provides
for the level of fees, allowances and expenses for administrators or
members of committees to be decided by the Governor in Council but
payable by the Island council. The section also provides that a public service
officer who is appointed as the administrator or a member of a committee
can continue to hold a public service office during the period of the
appointment.
Section 13M (Recovery of amounts from Island councils) is derived
from the Local Government Act 1993 and provides for the Governor in
Council to direct an Island council to pay to the Minister the costs and
expenses of the administrator. In the case of a public service officer who is
appointed as administrator or committee member the stated amount may
include the salary and allowances payable to that officer.
Section 13N (Role of committee) is derived from the Local Government
Act 1993 and requires the administrator to implement a committee's
decision as soon as practicable. However if the administrator believes that
the decision is not in the best interests of the area, the administrator may,
within 14 days, refer the committee's decision to the Minister for decision.
Section 13O (Decision by Minister on referral by administrator) is
derived from the Local Government Act 1993 and provides that the
Minister, when in receipt of a referral described in section 13N, may direct
the department's chief executive to investigate the issue. The section also
provides that the Minister's decision on the issue is final and must be
implemented by the administrator as soon as possible.
Section 13P (Procedures of committee) is derived from the Local
Government Act 1993 and provides that any provision which applies to an
Island council or members of an Island council applies to the committee or
the members of the committee and that any provision which applies to the
chairperson of an Island council applies to the administrator or the person
acting as chairperson of the committee.
Section 13Q (Termination of administrator's appointment) is derived
from the Local Government Act 1993 and requires that a fresh election for
the Island council should occur as soon as practicable after the appointment
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Community Services Legislation Amendment
of the administrator. The section also provides that the appointment of an
administrator ceases upon the conclusion of a fresh election or may be
terminated by the Governor in Council for any reason in the interim.
Section 13R (Termination of appointment of committee member etc.) is
derived from the Local Government Act 1993 and provides that a member
or all members of a committee may have their appointment to the
committee terminated, for any reason, by the written notice of the Minister.
A committee ceases to exist upon conclusion of the fresh election for the
Island council concerned.
Section 13S (Functions of financial controller) is a new provision which
has no counterpart in the Local Government Act 1993. The provision
describes the functions of a financial controller appointed under section 13E
which are to ensure the Island council adheres to its budget and to undertake
administrative duties directed by the Minister. A financial controller may
also provide advice to the Island council about financial management and
may, at the request of the Island council, undertake other administrative
duties.
Section 13T (Power of financial controller to revoke and suspend
resolutions and orders) is a new provision which has no counterpart in the
Local Government Act 1993. The power accorded the financial controller in
this section derives from a very narrow delegation of the Governor in
Council's power described in section 13B which mirrors section 161 of the
Local Government Act 1993. The financial controller can, by written notice
to the council clerk, revoke or suspend, indefinitely or not, a resolution or
order of an Island council. This may only occur if the financial controller
reasonably believes that the resolution or order will result in expenditure not
provided for in the budget or the misuse of grant monies irrespective of
source or the Island council becoming insolvent.
Section 13U (Effect of revocation or suspension) is a new provision
derived from section 13C which provides that the effect of a revocation or
suspension made by a financial controller is the same as a revocation or
suspension made by the Governor in Council. The section also indemnifies
both the State and the financial controller from any liability arising from any
revocation or suspension made by the financial controller.
Section 13V (Financial controller's employment conditions) is a new
provision which states that a financial controller for an Island council is to
be employed under the Public Service Act 1996.
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Community Services Legislation Amendment
Section 13W (Recovery of amounts from Island councils) is a new
section and provides for the Governor in Council to direct an Island council
to pay to the Minister the costs and expenses of a financial controller as can
be done in the case of an administrator.
Section 13X (Termination of financial controller's appointment) is a new
section which provides that the appointment of a financial controller may be
terminated by the Governor in Council for any reason.
PART 3--LOCAL GOVERNMENT OF AREAS
Section 14 (Declaration of council areas) together with section 14A and
section 14B replace section 14 (Requirement of Island councils). The new
section 14 is derived from the Local Government Act 1993 and provides
that a regulation may declare a part of the State to be an Island council area.
This provision removes the requirement that the area for which an Island
council is declared must be a trust area thus confirming an Island council's
jurisdiction over non trust land within the Island council's area. There are
now a number of different land tenures which exist within Deed of Grant In
Trust areas which may not have existed in the areas at the commencement
of the Act in 1984. These include Torres Strait Islander land, leased land,
unallocated State land, and Native Title land.
Section 14A (Island council required for each council area) is derived
from the Local Government Act 1993 and requires an Island council to be
established for each Island council area.
Section 14B (Implementation of council area) provides that the same
regulation which declares a part of the State to be an Island council area may
also implement the Island council. The section lists a number of matters in
regard to the implementation of an Island council which may be provided
for in the regulation. The section also provides that where the election for the
first Island council for an area is less than 18 months prior to a triennial
election then the Island council is exempt from that triennial election.
Section 23 (Functions of Island Councils) has been amended to reflect
the adoption of the term "council area" in section 6 and section 14. It has
also been amended by the addition subsection 3B which unequivocally
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Community Services Legislation Amendment
provides an Island council with the power to run business enterprises which
can be profitably or effectively carried on. Aboriginal councils already have
this power under the Community Services (Aborigines) Acts 1984.
Insertion (after section 25A) of new Division 1A--Financial Operations
of Island councils
Section 25B (Issue of standards) is derived from the Local Government
Act 1993 and provides for the Minister to make accounting standards for
Island councils. The section lists the matters which may be included in the
accounting standards. The section also requires the Minister to consult with
the auditor-general and have regard to the standards of professional bodies
before making standards. Accounting standards are to be made as
subordinate legislation.
Section 25C (Standards must be complied with) requires that an Island
council must comply with the accounting standards.
Section 27A (Separate budgets for funds) has been omitted as the
Community Services (Torres Strait) Regulation 1998 requires councils to
have a general fund for which a budget is required and a trust fund for
which no budget is required.
Section 27C (Framing of budget) has been amended to reflect that
councils only have one fund for which a budget is required.
Section 27CA (Amendment of budget) is a new section derived from the
Local Government Act 1993 and provides for an Island council to amend its
budget during a financial year.
Section 27E (Budget provisions apply to other funds) has been omitted
as the Community Services (Torres Strait) Regulation 1998 requires
councils to have only a general fund for which a budget is required and a
trust fund for which no budget is required.
Section 27F (Provisions in respect of loan repayments) has been
amended to reflect that councils only have one fund for which a budget is
required.
Section 27G (Illegal expenditure) has been amended to reflect the
adoption of the term "council area" in section 6 and section 14 and to reflect
that councils only have one fund for which a budget is required.
Section 45 (Membership of council) has been amended with the effect
that the Tamwoy community representative on the Island Coordinating
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Community Services Legislation Amendment
Council becomes known as the TRAWQ communities (Tamwoy, Rosehill,
Aplin, Waiben, Quarantine) representative.
Section 66 (Power of Island council to regulate presence in area) has been
amended to reflect the adoption of the term "council area" in section 6 and
section 14. Consequentially, this section requires that prior to making a
by-law regulating presence in a council area an Island council must gain, in
addition to the approval of the grantees of Torres Strait Islander land within
the council area, the approval of people who have the right to exclude
persons from land within the council area. The section recognises that a
variety of land tenures may exist within a council's area and that the council
may not be the trustee for all land within its council area.
Section 76B (Islanders' right to certain forest products and quarry
material--non-Torres Strait Islander land) has been amended as a
consequence of the adoption of the term "council area" in section 6 and
section 14. The section has been amended to ensure that the rights extended
to a member of a community of Torres Strait Islanders in respect of the
taking of forest and quarry products from non-Torres Strait Islander land
have not been extended as a result of the adoption of the term "council
area". The rights may still only be exercised over trust land for the benefit of
Aboriginal or Torres Strait Islander inhabitants or for Aboriginal or Torres
Strait Islander purposes under the Land Act 1994.
PART 10--TRANSITIONAL PROVISION
Section 84 (Transitional provision for council areas) ensures that Island
councils and their areas established prior to this amendment act survive the
commencement of this amendment act.
SCHEDULE
The Schedule to the Bill lists a number of minor amendments to both the
Community Services (Aborigines) Act 1984 and the Community Services
(Torres Strait) Act 1984.
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Community Services Legislation Amendment
The amendments are consequential to the adoption of the term "council
area" in sections 6 and section 14 and the adoption PART
2A--INTERVENTION BY THE STATE.
There are also amendments which update cross references and update
references to penalties in accordance with current drafting practice.These
amendments do not change the nature or intent of any section.
� The State of Queensland 1999