35Application of money of Land Council

#### 35 Application of money of Land Council (1) A Land Council must spend the following amounts in meeting its administrative costs or capital costs, in accordance with section 34, in the financial year in which the amounts are received or in the next financial year: (a) money paid to the Council under subsection 64(1); (b) fees the Council receives under section 33A or 33B; (c) other income the Council receives in relation to performing functions or exercising powers under this Act. (1A) Paragraph (1)(c) does not apply to: (a) a payment made to a Land Council as mentioned in subsection (2), (3), (4) or (4B); or (b) interest received by a Land Council as mentioned in subsection (11) in relation to such a payment. (2) Subject to this section, money paid to a Land Council under subsection 64(3) must be paid, within 6 months of its receipt by the Land Council, to any Aboriginal and Torres Strait Islander corporations whose members live in, or are the traditional Aboriginal owners of, the area affected by those mining operations, in such proportions as the Land Council determines. (3) Subject to this section, within 6 months after money is paid to a Land Council under an agreement made under section 42, 43, 44, 46, 48A, 48B or 48D, it must: (a) be applied by the Land Council in accordance with the agreement; or (b) if the agreement makes no provision in relation to the application of the money—be paid to any Aboriginal and Torres Strait Islander corporations whose members are affected by the agreement, in such proportions as the Land Council determines. (4) Where a Land Council receives a payment in respect of Aboriginal land (including a payment under section 15 or 16 or a payment under a lease or licence under section 19 or 20, but not including a payment under section 33A, 33B or 64 of this Act), the Land Council shall, within 6 months after that payment is received, pay an amount equal to that payment to or for the benefit of the traditional Aboriginal owners of the land. (4A) If: (a) a Land Council receives a payment as mentioned in subsection (4); and (b) the payment is made by the Commonwealth, the Northern Territory or an Authority; and (c) the payment is of a kind prescribed by the regulations for the purposes of this subsection; and (d) under subsection (4), the Land Council pays an amount equal to that payment to a person; the Land Council must, at the time it pays that amount, advise the person in writing that the amount is an accountable amount. > Note: Sections 35B and 35C impose requirements on a body corporate in relation to accountable amounts. (4B) If a Land Council receives a payment in respect of Aboriginal land under a lease under section 19A, the Land Council must, within 6 months of receiving the payment, pay an amount equal to that payment to an Aboriginal and Torres Strait Islander corporation for the benefit of the traditional Aboriginal owners of the land. (5) Where a Land Council has not, before the expiration of the period specified in subsection (2) or (3), disbursed any amount that it is, under that subsection, required to disburse because it has not been able to make a determination under that subsection, the Land Council shall, as soon as practicable after the expiration of that period, but not later than one month after the expiration of that period, give to the Minister a report, in writing, setting out its reasons for not having made that determination. (6) Where the Minister receives a report from a Land Council under subsection (5), the Minister may, after having regard to the matters set out in that report and to any other matters that the Minister considers relevant, make a determination in relation to the amount to which the report relates, being a determination that could have been made by the Land Council, and, upon the Minister’s so doing: (a) the determination shall have effect, for all purposes of this Act, as if it were a determination that had been duly made by the Land Council; and (b) subject to this section, the Land Council shall cause the amount to which the determination relates to be disbursed forthwith in accordance with the determination. > Note: Sections 35B and 35C impose requirements on a body corporate that receives an amount under a determination. (6A) If: (a) a body corporate spends an amount it received under a determination under subsection (2), (3) or (6); and (b) the Land Council concerned is satisfied that the body corporate has not complied with section 35C in respect of the financial year in which the body corporate spent the amount; the Land Council may, by notice in writing given to the body corporate, suspend payments under a determination under subsection (2), (3) or (6) of this section, as the case may be, to the body corporate until the body corporate does so comply. (6B) If a Land Council gives a notice under subsection (6A), the Council must: (a) hold an amount that would have been paid to the body corporate, apart from the giving of that notice, in trust for the body corporate; and (b) hold the amount in trust until it is paid to the body corporate. (6C) During the period of a suspension under subsection (6A), the Land Council may, under subsection 35A(3) or (4): (a) vary a determination under subsection (2), (3) or (6) of this section, as the case may be, so that the determination no longer applies in respect of the body corporate and instead applies in respect of another body corporate; or (b) revoke a determination under subsection (2), (3) or (6) of this section, as the case may be, in respect of the body corporate and make a new determination under subsection (2) or (3) of this section, as the case may be, in respect of another body corporate. (6D) If subsection (6C) applies, the Land Council must pay to the other body corporate any amount held in trust in accordance with subsection (6B). This subsection applies despite subsection (6B). > Note: Interest may also be payable to the other body corporate under subsection (11). (6E) A notice under subsection (6A) is not a legislative instrument. (8) Each amount of money that is paid to a Land Council as mentioned in subsection (2), (3), (4) or (4B) shall be held in trust for the bodies to which or persons to whom that amount is eventually to be paid in accordance with this section until that amount is so paid. (9) Where an Aboriginal and Torres Strait Islander corporation or the traditional Aboriginal owners of an area of Aboriginal land to which or to whom an amount of money would, but for this subsection, be required to be paid by a Land Council in accordance with subsection (2), (3), (4), (4B) or (6) requests or request the Land Council, in writing, before that amount is so paid, to hold, or to continue to hold, that amount in trust for it or for them, the Land Council shall, notwithstanding that subsection, hold, or continue to hold, that amount in trust accordingly until that request is revoked. (10) While an amount of money referred to in subsection (6B), (8) or (9) is held in trust in accordance with that subsection, the Land Council shall cause that amount to be invested in investments of the kind authorised by section 58 of the Public Governance, Performance and Accountability Act 2013. (11) Where a Land Council pays out an amount of money that it has held in trust and invested in accordance with this section, the Land Council shall, so far as is practicable, pay to the body or person to whom that amount is paid the interest received by the Land Council in respect of the investment of that amount. > Note: Sections 35B and 35C impose requirements on a body corporate that receives an amount under this subsection.