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Community Services Legislation Amendment Bill 2001
COMMUNITY SERVICES LEGISLATION
AMENDMENT BILL 2001
A Bill to amend the Community Services (Aborigines) Act 1984 and the
Community Services (Torres Strait) Act 1984
EXPLANATORY NOTES
POLICY OBJECTIVES OF THE BILL
The policy objectives of the Bill are to provide clarification in relation to
the current uncertainty as to the exact circumstances where Aboriginal and
Island Councils have power to make loans, to provide a legislative
framework which assists Councils to make loans in an accountable manner
consistent with established standards of financial management, to increase
the maximum penalty that can be stipulated for breach of an Aboriginal or
Island Council by-law so that penalties become and remain commensurate
with the by-laws offences, and to improve the corporate governance and the
commercial prospects of the Island Industries Board (IIB).
The objectives of the Bill will be achieved by:
(a) clarifying any uncertainty as to the power of Aboriginal and
Island Councils to make loans by providing that an Aboriginal or
Island Council can make loans to adult residents of its council
area;
(b) ensuring that an Aboriginal or Island Council will only be able to
make loans in accordance with an adopted lending policy which
has been approved by the Minister;
(c) regulating the content of Aboriginal and Island Council lending
policies through an accounting standard in the proposed
Aboriginal Council Accounting Standards and the proposed
Island Council Accounting Standards;
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Community Services Legislation Amendment Bill 2001
(d) increasing the maximum penalty that can be stipulated for breach
of an Aboriginal or Island Council by-law from the existing 7
penalty units (currently $525) to 20 penalty units (currently
$1500);
(e) requiring all Island Industries Board members and the
Chairperson be appointed by the Governor-in-Council;
(f) requiring that recommendations on appointments have regard to
the needs of the Island Industries Board for commercial viability
and sound governance;
(g) changing the number of Island Industries Board members from
the current prescribed 8 members, to a minimum of 5 in number
with the capacity to appoint additional specific expertise up to a
maximum of 8 as required;
(h) providing for a panel of 5 potential members to be proposed by
the Island Co-ordinating Council (ICC) to the Minister for
consideration for appointment of 2 from that panel;
(i) requiring appointees to have commercial, management or other
relevant skills and experience;
(j) introducing terms of appointment for up to 4 years;
(k) limiting the number of successive appointments of a person as
Chair to two;
(l) removing the `executive officer' role from the Chair and provide
for a Chief Executive Officer who will be responsible to the
Island Industries Board; and
(m) requiring the Island Industries Board to seek the Minister's
approval in regard to any intended transfer of Board business to
an Island Council or community member.
CONSISTENCY WITH LEGISLATIVE PRINCIPLES
Two clauses may appear to be inconsistent with the fundamental
legislative principle: Whether legislation has sufficient regard to rights and
liberties of individuals.
Clause 26 amends section 56 of the Community Services (Torres Strait)
Act 1984 by removing the requirement to appoint a secretary to the board
and replacing it with a requirement to appoint a chief executive officer.
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Community Services Legislation Amendment Bill 2001
However, a secretary to the board has never been appointed, making the
inclusion of transitional provision in relation to this matter unnecessary.
Clause 32 amends the Community Services (Torres Strait) Act 1984 by
inserting a new section 84A which provides that, on the commencement,
the existing members of the Island Industries Board go out of office and no
compensation is payable to an existing member of the Board because of the
removal from office. The question of the expectations of the Board
members to continue in their role may be considered a possible breach.
This expectation to remain on the Board however does not amount to a
right. It is however, the right of the Executive to set policy and to introduce
legislation into the Parliament with the intention of giving effect to that
policy. This provision is regarded as justifiable on the basis that existing
members of the Board have been given substantial advance notice of the
change in membership of the Board and are aware that the changes are a
crucial part of the strategy for the Island Industries Board's recovery and
improved future management.
EXTENT OF CONSULTATION
Loans
The Aboriginal and Torres Strait Islander Commission (ATSIC) and the
Torres Strait Regional Authority (TSRA) were advised of the proposed
amendments and invited to comment. No comments were received.
Consultation on the issue of regulating the loan making powers of
Aboriginal Councils has been undertaken with the Aboriginal Co-
ordinating Council (ACC) through the Aboriginal Councils' Financial
Accountability Improvement Program Steering Committee of which the
ACC is a member. The Minister also advised her intention to amend
Council's loan making provisions at a meeting of the ACC at which all
elected members of Aboriginal Councils were present.
Consultation on the issue of regulating the loan making powers of Island
Councils has been undertaken with the Island Co-ordinating Council (ICC)
through the Island Councils' Financial Accountability Improvement
Program Steering Committee, of which the ICC is a member.
Neither the Aboriginal Co-ordinating Council nor the Island Co-
ordinating Council has expressed any opposition to the proposal to regulate
Councils' loan making powers.
The Department of the Premier and Cabinet, Treasury Department, the
Department of Local Government and Planning, the Department of
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Community Services Legislation Amendment Bill 2001
Housing, Crown Law, and the Queensland Audit Office have been
consulted regarding the amendments to Council's loan making powers.
The Department will undertake consultation with the ACC, the ICC,
Aboriginal and Island Councils, and the Queensland Audit Office in
relation to the loans policy provisions to be incorporated in the Aboriginal
and Island Council Accounting Standards.
Penalties
Given the technical and non-controversial nature of the amendment to
increase the maximum penalty for offences under the by-laws of
Aboriginal and Island Councils, no direct consultation has taken place with
Aboriginal and Torres Strait Islander communities although the
amendment was initiated at the request of the Bamaga Island Council.
The Department of the Premier and Cabinet and the Department of
Justice and Attorney-General have been consulted over the amendment to
increase maximum penalties for by-laws offences.
Island Industries Board
The IIB was consulted on the preparation of the changes to the
legislation and supported the changes. The proposed changes to the Act
were also forwarded to the Island Co-ordinating Council (ICC) for their
information and comment. Recent meetings with ICC representatives have
not identified any areas of concern.
The draft Bill was discussed with the Community Services Branch of
Treasury Department and with the Social Policy Directorate of the
Department of the Premier and Cabinet.
The Bill as proposed incorporates the views, advice and requirements of
all the government agencies consulted.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 provides that the name of the Act is the Community Services
Legislation Amendment Act 2001.
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Community Services Legislation Amendment Bill 2001
Clause 2 provides that the clauses concerning the making of loans by
Aboriginal and Island Councils, 6(1), 7, 8, 16(1), 17 and 18, are to
commence by proclamation. This will allow the Department and the
Councils to make any necessary arrangements pursuant to the provisions of
section 17 of the Acts Interpretation Act 1954, prior to commencement.
PART 2-- AMENDMENT OF THE COMMUNITY
SERVICES (ABORIGINES) ACT 1984
Clause 3 provides that Part 2 amends the Community Services
(Aborigines) Act 1984.
Clause 4 amends section 6 (Definitions) to include a reference to
Aboriginal Council Accounting Standards as the section on Aboriginal
Council Accounting Standards and their application to a Council's power to
lend (27AA) appears before the section which provides a head of power to
the Minister to make Accounting Standards (27B).
Clause 5 amends section 17 (Times for election of councillors) to correct
an incorrect cross-reference arising from a previous renumbering of the
subsections (1999 No. 53 s 35 sch) and to correct a reference that was
missed in a previous amendment (1999 No. 59 s 60 sch).
Clause 6 amends section 25 (Functions of Aboriginal councils). Clause
6(1) clarifies Aboriginal Councils' existing loan making powers by
providing Councils with a definite head of power to make loans to adult
residents of a Council's area. Clause 6(2) increases the maximum penalty
that can be stipulated for breach of the by-laws of Aboriginal Councils
from the existing 7 penalty units to 20 penalty units.
Clause 7 inserts a new section, section 27AA (Power of council to lend
an amount to an adult resident) to provide for the conditions under which
an Aboriginal Council may make a loan to an adult resident of its area.
Subsection (1) requires that a loan may only be made if a Council has
adopted a lending policy and the lending policy has been approved by the
Minister in writing given to the Council. The section also provides that the
only ground on which the Minister may refuse to approve an adopted
lending policy is that the policy does not comply with the Aboriginal
Council Accounting Standards. The Minister must make a decision on
whether to approve an adopted lending policy submitted for approval as
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Community Services Legislation Amendment Bill 2001
soon as practicable. The Minister, in the event of a policy not being
approved, must inform an Aboriginal Council how its adopted lending
policy does not comply with the Aboriginal Council Accounting Standards.
Clause 8 amends section 27B (Issue of standards) to clarify that
accounting standards may include provisions about lending policies which
Aboriginal Councils must adopt and comply with before making a loan to
an adult resident of its area. A standard about the content of a lending
policy may include a model lending policy or model provisions of a
lending policy.
Clause 9 amends section 50 (Divisions of Aboriginal communities) to
correct an incorrectly cited reference to section 48(1)(c).
Clause 10 amends section 51 (Selection of board members) to correct
incorrectly cited references. In section 51(1) an incorrectly cited reference
to section 48(1)(c) is corrected and in section 51(1A) an incorrectly cited
reference to section 48(1)(d) is corrected.
Clause 11 amends section 66 (General authority to be in area) to correct
a numbering error.
Clause 12 amends section 84 (Use of churches etc. for provision of
assistance) to correct a numbering error.
PART 3--AMENDMENT OF THE COMMUNITY
SERVICES (TORRES STRAIT) ACT 1984
Clause 13 provides that Part 3 amends the Community Services (Torres
Strait) Act 1984.
Clause 14 amends section 6 (Definitions) to include a reference to Island
Council Accounting Standards as the section on Island Council Accounting
Standards and their application to a Council's power to lend (25AA)
appears before the section which provides a head of power to the Minister
to make Accounting Standards (25B).
Clause 15 amends section 17 (Times for election of councillors) to
correct an incorrect cross-reference arising from a previous renumbering of
the subsections (1999 No. 53 s 35 sch) and to correct a reference that was
missed in a previous amendment (1999 No. 59 s 60 sch).
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Community Services Legislation Amendment Bill 2001
Clause 16 amends section 23 (Functions of Island councils). Clause
16(1) clarifies Island Councils' existing loan making powers by providing
Councils with a definite head of power to make loans to adult residents of a
Council's area. Clause 16(2) increases the maximum penalty that can be
stipulated for breach of the by-laws of Island Councils from the existing 7
penalty units to 20 penalty units.
Clause 17 inserts a new section, section 25AA (Power of council to lend
an amount to an adult resident) to provide for the conditions under which
an Island Council may make a loan to an adult resident of its area.
Subsection (1) requires that a loan may only be made if a Council has
adopted a lending policy and the lending policy has been approved by the
Minister in writing given to the Council. The section also provides that the
only ground on which the Minister may refuse to approve an adopted
lending policy is that the policy does not comply with the Island Council
Accounting Standards. The Minister must make a decision on whether to
approve an adopted lending policy submitted for approval as soon as
practicable. The Minister, in the event of a policy not being approved, must
inform an Island Council how its adopted lending policy does not comply
with the Island Council Accounting Standards.
Clause 18 amends Section 25B (Issue of standards) to clarify that
accounting standards may include provisions about lending policies which
Island Councils must adopt and comply with before making a loan to an
adult resident of its area. A standard about the content of a lending policy
may include a model lending policy or model provisions of a lending
policy.
Clause 19 is a consequential amendment to section 46 (Functions of
Council) arising from the change in the number and way in which members
of the Island Industries Board will be selected. Currently there are five
who come from the Island Co-ordinating Council. This clause deletes the
reference to the five members in section 46(1)(c)
Clause 20 amends section 48 (Divisions of Torres Strait) by deleting
reference to the Island Industries Board in section 48(1) in accordance with
the new way of nominating and appointing Board members.
Clause 21 amends section 49 (Selection of Board Members) by omitting
reference to the Board in accordance with the new appointment
arrangements but leaves the existing arrangements for the executive
committee of the Island Co-ordinating Council intact.
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Community Services Legislation Amendment Bill 2001
Clause 22 amends section 50 (Casual vacancy in office of selected
member) by omitting reference to the Board in relation to the filling of
casual vacancies.
Clause 23 amends section 51 (Particular functions of council) to remove
redundant provisions applying to the Island Co-ordinating Council.
Clause 24 amends section 52 (The board) by deleting provisions which
refer to the membership of the Board.
Clause 25 replaces sections 53, 54, 55 and inserts new sections 55A,
55B, 55C, 55D, 55E, 55F, 55G, 55H, 55I, 55J, 55K, 55L, which make
provision for the new Board arrangements.
These include setting the size of the Board to a minimum of 5 and a
maximum of 8 members all of whom are appointed by the Governor-in-
Council. It provides that for persons to be qualified for nomination by the
Minister the person must have either commercial or management skills and
experience or other skills and experience relevant to the performance of the
Board's functions. A person must not be one who is disqualified by virtue
of the new provision relating to bankruptcy. It further provides that the
Board must include 2 members nominated by the Minister from a panel of
not less than 5 qualified persons proposed by the Island Co-ordinating
Council.
The Minister must give the Council reasonable time to consider and
propose their panel of 5 qualified persons for Board membership.
In the event that the Council does not propose a panel within the period
set by notice by the Minister or the Council proposes a panel of less than 5
or some or all of the panel are not qualified to be appointed then the
Minister must nominate 2 qualified persons who shall be regarded as being
persons included in the Council's panel.
The Governor-in-Council appoints the Chairperson. The term of office
of the Chairperson cannot exceed their term of appointment as a member.
A person cannot be appointed as Chairperson for more than two
consecutive terms.
The Board must appoint a Deputy Chairperson from amongst its
members and ensure that there is a Deputy Chairperson available to act as
chairperson in the absence of the Chairperson during a vacancy in that
office or when that person is absent from duty or for another reason cannot
perform the functions of the office.
An appointment to the Board cannot exceed 4 years.
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Community Services Legislation Amendment Bill 2001
Persons will be disqualified from appointment or continuing as a
member if they have been affected by bankruptcy, been convicted of either
an indictable offence or an offence against this Act. A person is affected by
bankruptcy if they are bankrupt, or have compounded with their creditors
or as a debtor have taken or applied to take advantage of the bankruptcy
laws.
Should a member become the subject of bankruptcy the member will be
deemed to have vacated their office. If a member is absent without the
Board's permission from 3 consecutive Board meetings, for which due
notice has been given, then the member will have vacated their office.
The new sections 55E, 55F and 55G are procedural provisions for the
Board's conduct.
The quorum for Board meetings is a simple majority of the members
appointed at any time. The Deputy Chairperson will preside at meetings in
the Chairperson's absence. If the Deputy Chairperson is also absent the
meeting can choose from the members present a person to preside over the
meeting.
Decisions of the Board will be decided by a majority of votes. The
presiding member will have a casting vote. The Board may meet by
teleconference or by other means using technology that allows reasonably
contemporaneous and continuous communication between members.
The Board must keep minutes of its meetings and a record of its
resolutions.
Members are required to disclose any interests relevant to the Board's
activities and interests.
Clause 26 amends section 56 (Officers and employees of board) to
provide for the appointment of a Chief Executive Officer. This replaces the
existing provision whereby the Chairperson was `the executive officer' and
therefore effectively an Executive Chairperson. The reference to `secretary'
is also removed.
Clause 27 amends section 61 (Administrator may replace board
members). This is a consequential change to the provision providing for the
appointment of an Administrator to replace the Board.
Clause 28 amends section 62 (Relinquishment of board's assets to local
control) provides for a new requirement that the Minister must give prior
approval to the terms of any contract, transaction or agreement for the
transfer of the conduct of Island Industries Board's business to an Island
Council or member of the community. This provision ensures that any
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Community Services Legislation Amendment Bill 2001
transfers are on a basis that the Minister believes are in the best interests of
the Government taking into account for example the transfer of potential
risk from one agency to another body such as an Island Council.
Clause 29 renumbers section 64 (General Authority to be in area) to
correct a numbering error.
Clause 30 amends the heading of Part 10 to account for more than one
transitional provision.
Clause 31 inserts a new division heading for an existing transitional
provision.
Clause 32 inserts a transitional provision that provides for vacation of
office of existing members upon the commencement of the Amendment
Act and excludes any member from being paid compensation.
� State of Queensland 2001