Aboriginal Land Rights Regulation 2020

The Regulation defines several key terms in clause 3. A “deputy electoral officer” is a person appointed as such for an election of a councillor of the New South Wales Aboriginal Land Council. A “regional electoral officer” is similarly appointed for such an election. “Rules”, in relation to an Aboriginal Land Council, means rules for the time being in force under the Act and applying to that Council. “The Act” is defined as the Aboriginal Land Rights Act 1983. “The rules of the Court” means rules made under the Land and Environment Court Act 1979 in relation to proceedings brought before that Court under the Act or this Regulation. Notes included in the Regulation are expressly stated not to form part of the Regulation (cl 3(2)). Part 2 introduces “land dealing approval application”, meaning an application under section 42F of the Act by a LALC for approval by NSWALC of a land dealing. The community development levy is a levy imposed on certain dutiable transactions involving land vested in an Aboriginal Land Council, calculated as a percentage of the duty that would be chargeable under the Duties Act 1997. The levy percentages are set out in the table in clause 15: for threshold ranges 4 or 5 the levy is 100% of the amount of duty; for threshold range 6 it is 150% of the amount of duty; the levy does not apply if the dutiable value is the minimum threshold amount for threshold range 4 or less. The “administrator appointment list” is the list of persons who may be appointed as an administrator of a LALC, maintained by NSWALC after inviting expressions of interest at least once every five years (cl 105). “Performance improvement criteria” (cl 108) are the factors NSWALC must consider before making a performance improvement order in respect of a LALC; they include whether the LALC has failed to comply with the Act, the Regulation or any NSWALC policy, whether meetings are being conducted properly, whether an adviser is reasonably likely to assist, whether behaviour of Board members or staff has adversely affected performance, and whether significant risks are not being addressed. The Regulation also prescribes “model rules” for LALCs (Schedule 1) and for NSWALC (Schedule 2). These model rules cover matters such as the procedure for suspension of members (secret ballot, majority vote), calling of ordinary and extraordinary meetings, voting at Council meetings (no proxy votes), minutes, attendance lists, sub-committees, financial management (two signatories for cheques over $50, monthly financial reports to the Board), access to documents, use of the common seal, amendment of rules (requiring Registrar’s written approval), and the duties of the Chairperson and chief executive officer. The prescribed codes of conduct for LALCs (Schedule 3) and for NSWALC (Schedule 4) require officers and councillors to observe the highest standards of conduct and ethical behaviour, to uphold the Act and associated legislation, to refrain from conduct that detracts from the council’s reputation, to exercise probity, honesty and diligence, not to use confidential information for personal gain, and not to assault, threaten, insult, move unlawful motions or act inconsistently with maintaining order at meetings.

The Regulation directly affects the New South Wales Aboriginal Land Council and all Local Aboriginal Land Councils constituted under the Act. Within NSWALC, it affects councillors (including those elected to represent each Region), the Chief Executive Officer, and other staff. For LALCs, it affects Board members (including the Chairperson and Deputy Chairperson), the chief executive officer, and members of the LALC (both voting and non-voting). Persons who are eligible to vote in LALC elections or in elections for NSWALC councillors are affected by the detailed electoral provisions, including the rules on nominating candidates (requiring six proposers, a $50 deposit, a statutory declaration of non-disqualification), the process for postal voting, and the scrutiny and recount procedures. Persons who apply to have an area constituted as a LALC area are affected by the application and objection process in Part 3 Division 1, which requires an application by ten or more adult Aboriginal persons residing in or associated with the area, and allows objections by ten or more adult Aboriginal persons. The Land and Environment Court may become involved if objections are not resolved within 120 days (cl 27). Persons seeking to be included on the expert advisory panel register (cl 11) are affected by the eligibility criteria (expertise in land valuation, property development, planning, business, finance, corporate governance, Aboriginal heritage or culture, or other relevant expertise) and by the pecuniary interest disqualification in clause 14. Persons seeking to be included on the administrator appointment list (cl 105) must respond to expressions of interest and will be assessed against criteria including knowledge of public sector governance, understanding of Aboriginal culture and heritage, understanding of the role of Aboriginal Land Councils, and experience in not-for-profit administration. LALCs that wish to engage in land dealings are affected by the approval process in Division 1 of Part 2, including the requirement to give at least seven clear days’ notice of a meeting to approve a land dealing (cl 7) and the requirement to submit an application in the approved form accompanied by a valuation (unless the dealing is a social housing management lease), a copy of the resolution, evidence of compliance with section 42G(5) of the Act, and a $250 application fee (cl 8). LALCs that make a development application for work on vested land with an estimated cost of less than $500,000 are exempt from NSWALC approval (cl 6). LALCs are also required to pay assessment fees determined by NSWALC (cl 9). Persons acquiring land from an Aboriginal Land Council may be liable to pay the community development levy under Division 2 of Part 2, with payment periods set out in clause 16 (settlement for agreements for sale, or three months after liability arises in other cases). LALC members are entitled to request and inspect information contained in the land register that relates to their LALC (cl 110). Auditors of LALCs must be members of certain professional bodies (registered company auditor, Institute of Public Accountants, CPA Australia, or Institute of Chartered Accountants Australia) (cl 102). The Regulation also affects the Minister, who receives recommendations from the Registrar or the Court regarding LALC area constitutions and alterations, and who may make orders under section 87 of the Act.

The Regulation imposes numerous duties on NSWALC and LALCs, and confers rights on members and other stakeholders. NSWALC must establish a register of persons who may be appointed to expert advisory panels (cl 11), forward a copy to the Minister at least once every 12 months and whenever a person is added or removed, and ensure the register is publicly available. NSWALC must, as soon as practicable after receiving a land dealing approval application, provide written notice to the LALC setting out how it intends to assess the application, the assessment fee (or how it will be determined), the time for payment and any security required, the estimated determination time, and that NSWALC is not required to determine the application unless the LALC agrees to the proposed fee, security and manner of determination (cl 10). NSWALC may refuse to assess or determine an application if the LALC does not agree to those terms, if security has not been provided, or if the application does not comply with section 42F(2) of the Act. NSWALC must arrange training for first-time NSWALC councillors (cl 54) and for LALC Board members (cl 45), with content specified (principles of governance, rules, roles and functions, provisions relating to misbehaviour and NCAT’s role), and must review and update training materials at least once every two years. NSWALC must consider the performance improvement criteria in clause 108 before making a performance improvement order. LALCs have a duty to hold an annual meeting between 1 July and 30 September each year (cl 46), to give at least seven clear days’ notice of meetings (cl 46(5)), to provide at least seven clear days’ notice of a meeting to approve a land dealing (cl 7), and to maintain a membership roll with specified particulars (cl 47) and send a copy to the Registrar at least ten weeks before the start of each financial year. The chief executive officer of a LALC must provide a current certified copy of the membership roll to the Registrar at least 48 hours before a meeting at which an election for Board members is to take place (cl 37(2)). LALCs must furnish to NSWALC copies of all insurance policies and any audit management letter (cl 103). LALCs must pay assessment fees determined by NSWALC (cl 9) and may be required to provide security. LALCs that pass a resolution under clause 19 declaring land to be of spiritual or cultural significance must obtain an 80% majority at a meeting called specifically for the purpose and the Minister must approve the resolution. Rights of members include the right to inspect the membership roll (implied by cl 47) and to request information from the land register (cl 110). Members also have the right to nominate candidates for election (cl 37(5) for LALC Board; cl 60 for NSWALC councillor) and to vote in elections. Candidates for NSWALC councillor have the right to have their deposit returned if they are elected, if their nomination is rejected, if they obtain more than 4% of first preference votes, or if they withdraw before close of nominations (cl 62). Candidates may request a recount within 24 hours of being informed of the result (cl 91). A LALC may request NSWALC to provide copies of minutes by resolution (cl 112), and NSWALC may similarly request minutes from a LALC; the receiving council must comply.

The Regulation creates a specific offence in clause 98: a person must not vote or attempt to vote in an election in which the person is not entitled to vote, vote or attempt to vote more than once, make a false or wilfully misleading statement to the returning officer, a regional electoral officer or a deputy electoral officer in connection with an election, or in any document supplied for the purposes of an election, obstruct proceedings at a polling place or at the office of an electoral officer, or enter a compartment while another person is recording a vote. The maximum penalty is five penalty units. This is a relatively modest financial penalty; under the Crimes (Sentencing Procedure) Act 1999 a penalty unit is currently $110, so the maximum fine is $550. The Regulation does not create other offences beyond clause 98, though the Act itself contains more serious offences and civil penalty provisions. Enforcement of the land dealing approval process is achieved through the mechanism of refusal to assess or determine an application (cl 10) and through the requirement for certificates (cl 5) before a dealing can be registered. If a LALC fails to provide a certified copy of its membership roll for an NSWALC councillor election, the Registrar may compile and certify a copy (cl 56(4)). If a LALC does not pay an assessment fee or provide security, NSWALC may refuse to assess or determine the application (cl 10(2)). The community development levy is enforced through the Duties Act 1997 and the Taxation Administration Act 1996; clause 16 provides that a tax default does not occur if the levy is paid within the specified periods (settlement for agreements, or three months after liability arises in other cases). The provision regarding interim payment of duty (cl 18) allows the Chief Commissioner to make an assessment by estimate if the full dutiable value cannot be immediately ascertained, and the instrument may be stamped “interim stamp” only. The performance improvement criteria in clause 108 underpin the making of a performance improvement order under section 234A of the Act; failure to comply with such an order could lead to more serious consequences under the Act, including appointment of an administrator. The prescribed codes of conduct (Schedule 3 and Schedule 4) do not themselves carry penalties, but a breach may be relevant to proceedings under the Act for removal of a councillor or board member, or to other disciplinary processes. The model rules (Schedule 1) provide for suspension of members (rule 5) by secret ballot with a majority vote. The Regulation also provides for the forfeiture of a candidate’s deposit if the candidate is not elected and receives 4% or less of first preference votes (cl 62).

The Regulation operates as subordinate legislation under the Aboriginal Land Rights Act 1983, which is the primary Act. It repeatedly references and must be read consistently with that Act. Definitions in the Act and the Interpretation Act 1987 affect the interpretation of the Regulation (cl 3 note). The community development levy provisions in Division 2 of Part 2 directly incorporate concepts from the Duties Act 1997: clause 15 uses the “threshold ranges” from Chapter 2 of that Act, clause 17 applies sections 15-18, 25 and 31 of the Duties Act with modifications to the levy, and Part 1 of Chapter 12 of the Duties Act (dealing with payment of duty and associated instruments) is applied with modifications. Clauses 16 and 18 also refer to the Taxation Administration Act 1996, providing that a tax default does not occur if the levy is paid within the prescribed period, and allowing the Chief Commissioner to make an assessment by estimate under section 11(2) of that Act. The Regulation interacts with the Local Government Act 1993, the Hunter Water Act 1991, the Sydney Water Act 1994 and the Water Management Act 2000 through clause 19, which declares certain Aboriginal lands exempt from rates and charges under those Acts. In relation to elections, clause 87(1)(a) refers to the official mark prescribed for the purposes of section 165(3)(c) of the Electoral Act 2017 for the rejection of informal ballot-papers. The Regulation interacts with the Land and Environment Court Act 1979 through the definition of “the rules of the Court” and through clauses 27, 28 and 30, which provide for the Court to make recommendations on LALC area constitution and to hear appeals from the Registrar’s recommendations. Clause 109 modifies the application of the Commercial Arbitration Act 2010 to arbitrations under the Act, providing that the arbitration agreement is taken to provide for a single arbitrator only and that provisions providing for more than one arbitrator do not apply. The Regulation also interacts with the Real Property Act 1900 and the Conveyancing Act 1919 through the registration approval certificates in Forms 3 and 4 of Schedule 5, which certify that registration of an instrument under those Acts is authorised. Financial provisions in clause 100 allow investment of NSWALC Account moneys in any manner authorised for trust funds, and clause 101 allows LALC accounts to be invested in public funds, government stock, securities of the Commonwealth or States, debentures guaranteed by NSW, or interest-bearing deposits with an authorised deposit-taking institution. The Commonwealth Income Tax Assessment Act 1997 is referenced in Schedule 1 rule 23, which requires a LALC to transfer gifts to another LALC if it ceases to be a deductible gift recipient. The Public Finance and Audit Act 1983 is referenced in Schedule 2 rule 8(5) regarding records of receipts, payments and financial transactions. The Act and Regulation also engage the Civil and Administrative Tribunal (NCAT) as referenced in the training content (cl 45(1)(e) and cl 54(1)(e)).

The Regulation was originally made on the date of its publication on the NSW legislation website and commenced on 1 September 2020. It has been amended by two subsequent instruments. The first amendment was by Act No 68 of 2022, which made various changes as indicated by the marginal notes throughout the Regulation: clause 3 was amended by Sch 2.2[1]; clause 49 was repealed by Sch 4.2[1]; clause 50 was amended by Sch 4.2[2] and [3]; clauses 52 and 53 were repealed by Sch 4.2[4]; clause 55 was amended by Sch 2.2[2]; clause 57 was repealed by Sch 2.2[3]; clause 65 was amended by Sch 2.2[4]; clause 66 was amended by Sch 2.2[5]; clause 74 was amended by Sch 2.2[6]; clause 96 was amended by Sch 2.2[7]; clause 99 was amended by Sch 2.2[8]-[11]; and Schedule 2 (model rules for NSWALC) was amended by Sch 4.2[5]. The second amendment was by the Aboriginal Land Rights Amendment Regulation 2023 (NSW) (referenced as “2023 (600)” in the text), which amended clause 56 (inserting subclauses (1A) and amending (2) and (4)), inserted a new clause 57 and later repealed it (note that the current text shows clause 57 was inserted by 2023 (600) and then repealed by the original clause 57(5) - this appears to be a drafting complexity; the marginal note indicates clause 57 as originally enacted was repealed by 2022 No 68, then a new clause 57 was inserted by 2023 (600) and then that clause repealed by clause 57(5) - careful reading is required). The 2023 amendment also amended clauses 70, 72, 73, 84, and made changes to the forms and schedules as indicated. Practitioners should check the current version on the NSW legislation website for the consolidated text.

The Regulation itself is not a statute that generates its own litigation. However, it provides for significant court involvement in the process of constituting LALC areas. Clause 27 requires the Registrar to refer an application and any unresolved objection to the Land and Environment Court if more than 120 clear days have passed since publication of the notice in the Gazette. The Court may make any recommendation that the Registrar could make, and may do so without requiring the consent of the applicants (unlike the Registrar who requires consent for partial constitution or name change). Clause 28 allows applicants to appeal to the Court within 14 clear days after notice of the Registrar’s recommendation. The Court must notify the Minister of its recommendation. Under clause 30, the Minister must make an order constituting an area in accordance with a determination of the Court. These provisions mean that the Land and Environment Court may become the forum for disputes about LALC boundaries, names, and the validity of applications and objections. The Regulation also references the rules of the Land and Environment Court (cl 3 definition) and provides for notices and withdrawals in accordance with those rules (cl 22, 24). While there is no specific case law cited in the Regulation, the Court’s involvement creates a potential source of litigation. Additionally, the community development levy is administered under the Duties Act 1997 and the Taxation Administration Act 1996, and disputes about the levy could be litigated in the usual manner for tax matters, including through the Chief Commissioner’s assessment and review processes. The electoral provisions (Part 5) provide for decisions of the returning officer to be final subject to the Act (cl 95), which may limit judicial review, but the Act itself may provide for challenges to elections. The offence in clause 98 carries a penalty of only five penalty units, so it is unlikely to generate significant litigation. The prescribed codes of conduct may be relevant in proceedings under the Act for removal of councillors or Board members, and the model rules provide for suspension of members. The Regulation’s savings provision (cl 113) ensures continuity and may avoid litigation about the effect of the repeal of the 2014 Regulation.

Several provisions contain traps for the unwary. First, the exemption from NSWALC approval for LALC land dealings under clause 6 applies only to a “development application” with an estimated cost of less than $500,000; it does not extend to any other type of land dealing, and the exemption only applies to the making of the application, not to the subsequent development approval or disposal. Second, for a land dealing approval application, while a valuation must generally accompany the application, clause 8(3) provides a specific exception for a social housing management lease; however, that exception is narrow. Third, the community development levy can be up to 150% of the duty that would be chargeable (cl 15, threshold range 6), which is a substantial impost; but it does not apply if the dutiable value is at or below the minimum threshold amount for threshold range 4. The levy applies only to “dutiable transactions” as defined in the Duties Act, and practitioners must check whether the transaction is within scope. Fourth, the rates exemption under clause 19 only applies to land vested in an Aboriginal Land Council that is not being used for a commercial or residential purpose, unless a resolution has been passed declaring the land to be of spiritual or cultural significance under clause 19(2)(b). Such a resolution requires an 80% majority at a meeting called specifically for the purpose, and the Minister must approve it (cl 19(4)). The resolution has no effect until Ministerial approval is given. Fifth, the nomination process for NSWALC councillor elections requires six proposers, a $50 deposit, and a statutory declaration that the candidate is not disqualified under section 132 of the Act (cl 60). The deposit is forfeited if the candidate receives 4% or less of first preference votes and is not elected (cl 62(4)). The nomination paper is not open for public inspection (cl 60(3)). Sixth, the electoral roll for NSWALC elections is closed between 14 and 21 days after notice of the election (cl 55(3)), and chief executives of LALCs must send certified membership rolls within seven clear days after the closing date (cl 56(1)); failure to do so may result in the Chairperson or Registrar compiling the roll (cl 56(3)-(4)). Seventh, postal ballot-papers must be received by the returning officer by 6 pm on the thirteenth day immediately following the close of the poll (cl 73(1)); late postal votes are not accepted. Eighth, the recount provisions (cl 91) require a written request within 24 hours of being informed of the result, with reasons, lodged in person, by fax or by email. Ninth, the model rules in Schedule 1 provide that a LALC meeting must be held within the boundaries of its area and must not be held in a residence unless a previous meeting allows it (rule 9); an extraordinary meeting requested by members lapses if 80% of the signatories and a quorum are not present within half an hour (rule 7(6)). Tenth, the financial management rules for LALCs require two signatories for cheques over $50 (rule 15(2)) and monthly financial reports to the Board (rule 15(5)). The chief executive officer must draw the Board’s attention to any expenditure that contravenes the Act (rule 21(1)(d)). Eleventh, the amendment of model rules for LALCs requires the Registrar’s written approval (Schedule 1 rule 18(2)); an amendment is not effective until that approval is given. Similarly, amendment of NSWALC’s model rules requires Registrar approval (Schedule 2 rule 11(2)). Twelfth, the prescribed codes of conduct prohibit officers and councillors from, among other things, moving a motion with an unlawful purpose or dealing with a matter outside the council’s jurisdiction, and from insulting another officer (Schedule 3 rule 2(11); Schedule 4 rule 2(11)). These provisions can be used to maintain order at meetings but also impose risks for councillors who may inadvertently breach them.

Compliance with the Regulation requires attention to several distinct areas. For LALCs involved in land dealings, the key steps are: (a) ensure any development application with estimated cost of $500,000 or more, or any other type of land dealing, receives prior approval from NSWALC (Div 1 Pt 2); (b) give at least seven clear days’ notice of the meeting to approve the dealing, clearly identifying the land and stating the manner of dealing (cl 7); (c) submit an application in the approved form with the required attachments including a valuation (unless the dealing is a social housing management lease), a copy of the resolution, evidence of compliance with s 42G(5) of the Act, and a $250 application fee (cl 8); (d) pay any assessment fee determined by NSWALC, provide security if required, and agree to the proposed manner of determination (cl 9-10); (e) after approval, ensure that a dealing approval certificate (Forms 1 or 2 of Schedule 5) is obtained, and for registration, a registration approval certificate (Forms 3 or 4). For the community development levy, the person liable must calculate the levy using the rates in clause 15 based on the duty that would be chargeable under the Duties Act 1997, and pay it within the periods specified in clause 16: for an agreement for sale, by settlement; otherwise within three months of the liability arising. For rates exemption, LALCs should identify land that is not used for commercial or residential purposes, or, if seeking exemption for land used for residential purposes, must pass a resolution with an 80% majority at a meeting called specifically for the purpose, obtain Ministerial approval, and have the CEO advise the Minister in writing (cl 19). For compliance with electoral rules, LALC CEOs must maintain accurate membership rolls and provide certified copies to the Registrar at required times (cl 37, 47, 56). Board elections must follow the procedures in Division 3 of Part 3, including the returning officer’s role, nomination requirements, secret ballots where there are more candidates than positions, and counting by “first past the post” (cl 40). For NSWALC councillor elections, candidates must be nominated by six eligible persons, pay a $50 deposit, provide a statutory declaration of non-disqualification, and comply with the nomination and withdrawal timeline (cl 60). Voters may apply for postal votes (cl 69) and must follow the witnessing procedure in clause 72. Polling places must be appointed (cl 74), and deputy electoral officers must follow the procedures for initialling ballot-papers, marking rolls, and handling disputed votes (cl 80, 84). Scrutineers are entitled to be present (cl 85). The scrutiny must reject informal ballot-papers according to clause 87, and votes must be counted using the preferential system with absolute majority (cl 89). Recounts may be requested within 24 hours (cl 91). For financial compliance, LALCs must invest moneys only in permitted securities (cl 101), appoint auditors who are members of prescribed professional bodies (cl 102), and furnish copies of insurance policies and audit management letters to NSWALC (cl 103). Both NSWALC and LALCs must adhere to the prescribed codes of conduct (Sch 3 and 4). Board members and councillors must undertake required training arranged by NSWALC (cl 45, 54). Where NSWALC makes a performance improvement order, the LALC should note the criteria in clause 108 that NSWALC must have considered. The model rules in Schedule 1 specify the procedural requirements for meetings, voting, financial management and other governance matters; LALCs that have adopted rules differing from the model rules must still ensure that any rule that is inconsistent with the Act or Regulation yields to the superior instrument (Schedule 1 rule 22).