Outback Communities (Administration and Management) Act 2009

The Act primarily affects residents and land owners in the outback areas of South Australia. Because "outback" is defined negatively as the State minus council areas (s 3), this encompasses thousands of square kilometres of remote pastoral, mining, tourism and Aboriginal community lands. Land owners are directly affected by the imposition of asset sustainability levies and, where authorised by a community affairs resourcing and management agreement, community contributions (s 21(1)). The first levy notice must be accompanied by a summary of the current business plan and an assessment of the previous year’s performance (s 21(8)).

Outback communities themselves are intended beneficiaries and participants. The Authority’s membership must include at least four members from different outback communities, selected after newspaper and website nominations (s 7(1)–(2)). Gender balance is required (s 7(3)). The objects explicitly include promoting participation by outback communities in their own administration (s 4(b)). Community organisations, usually incorporated bodies, may enter into resourcing and management agreements that govern the support they receive, their governance standards, participation in insurance schemes, and reimbursement procedures (s 17).

The seven-member Authority itself, appointed by the Governor for terms not exceeding three years (s 8(1)), is both the decision-maker and the body regulated by the Act’s internal governance rules. Members are subject to removal for breach of conditions, misconduct or incapacity (s 8(2)), and their offices become vacant on death, completion of term, resignation, disqualification under the Corporations Act 2001 (Cth), or removal (s 8(3)). The presiding member and deputy members also play specific procedural roles (ss 7(4)–(5), 10).

The Minister responsible for the Act exercises significant oversight: approving strategic plans (s 15(7)), annual business plans and budgets (s 16(5)), variations, fixed charges for levies (s 21(5)), and giving directions (s 18(2)(d)). The Minister also receives annual reports which must be tabled in both Houses of Parliament within 12 sitting days (s 18(3)).

Public servants assigned to the Authority (s 12), members of committees established under s 11, and authorised persons appointed under s 24 are all brought within the statutory framework. The Public Sector (Honesty and Accountability) Act 1995 applies to Authority members and committee members, albeit with a modified conflict-of-interest rule that prevents a member being regarded as having a direct or indirect interest merely because the matter is shared with a substantial section of an outback community (s 9 and s 11(4)).

Finally, the legislation affects the Parliament itself through the requirement that proposed increases in the asset sustainability levy (beyond CPI) be laid before both Houses with an explanation, and that no resolution prohibiting approval be passed within six sitting days (s 21(5)). Regulations made under ss 26 and 27, including those applying other Acts or imposing fines up to $5,000, also affect the broader public and regulated entities.

The Authority’s duties are extensive and interlocking. It must prepare and maintain a public consultation policy that gives interested persons a reasonable opportunity to make submissions and requires the Authority to consider them (s 14(2)(a)). This policy must comply with applicable Local Government Act 1999 requirements when used for decisions under applied provisions (s 14(2)(b)). The policy itself must be developed after public consultation unless the change is of minor significance (s 14(4)–(5)).

Strategic management plan duties are prescriptive. The plan must be submitted for the first five-year period as soon as practicable after commencement and thereafter by 30 April before the period begins (s 15(1)–(3)). It must be prepared in consultation with communities (s 15(4)) and contain the eight categories of content listed in s 15(5). Reviews are mandatory at certain points, and variations (other than those consequential on annual plans) again require consultation and Ministerial approval (s 15(9)–(10)).

Annual business plan and budget duties mirror the strategic plan requirements, with a 31 May submission deadline, mandatory consultation, detailed content requirements including proposed rates and impact assessments (s 16(3)), and a prohibition on unbudgeted expenditure without Ministerial consent (s 16(7)). Variations must also follow the consultation policy (s 16(9)).

The duty to produce an annual report by 30 September containing a summary of activities, assessment against the business plan, audited financial statements and any Ministerial directions is absolute (s 18(2)). Publication duties in s 19 are ongoing.

Rights of Authority members include the right to fees, allowances and expenses set by the Governor (s 8(4)), the right to a casting vote by the presiding member (s 10(4)), and protection that acts are not invalidated by vacancies or appointment defects (s 7(6)). Community members have the right to nominate for membership (s 7(2)), the right to be consulted in accordance with the public consultation policy before plans, budgets, agreements or certain regulations are made, and the right to inspect documents free of charge (s 19(a)).

Land owners have the right to receive a notice of the first levy accompanied by the business plan summary and prior-year assessment (s 21(8)), and the right to have any increase in the asset sustainability levy subjected to the parliamentary disallowance-style process (s 21(5)). However, s 21(9) removes the right to challenge levies on grounds of non-compliance with the section or on the basis of the contents of any plan, budget or assessment prepared under the Act.

The Authority has the right to delegate functions to persons, committees or position-holders, with further sub-delegation possible if the instrument allows (s 13). It may establish committees that include non-members (s 11) and appoint authorised persons who can administer and enforce the Act and applied legislation as if the Authority were a council (s 24(1)).

The Act itself contains relatively few direct offence provisions. The regulation-making power in s 27(2) permits regulations to impose fines not exceeding $5,000 for offences against the regulations. No specific offences are created in the body of the Act.

Enforcement instead occurs through the application of Local Government Act 1999 mechanisms. Section 22 applies Chapter 11 Part 3 (anti-pollution measures) with modifications so that the Authority can address pollution on public roads (re-defined to include any area open to or used by the public for motor vehicles) and on land vested in the Authority. Section 23 applies Chapter 12 Part 2 (orders) with the important deletion of subsections 257(4) and (7), enabling the Authority to issue orders requiring persons to take specified action in relation to land or activities in the outback. Authorised persons appointed under s 24 may exercise the same enforcement powers that council authorised officers possess under the applied provisions.

The Authority’s power to impose rates and levies carries its own compliance machinery. Because Chapter 10 Part 1 of the Local Government Act 1999 is applied with modifications (s 21(6)), the usual council rate-recovery processes—including potential sale of land for unpaid rates—are available. However, the Act expressly provides that levies cannot be challenged on grounds of non-compliance with s 21 or on the basis of the contents of any plan, budget or assessment (s 21(9)), thereby limiting judicial review avenues.

Ministerial control provides an additional layer of enforcement. The Minister may direct the Authority in most matters (s 5(5)), approve or modify plans and budgets, and the Authority is bound by any subsequent modifications even if it has commenced acting on an unapproved plan (s 15(8), s 16(6)). Removal of members for breach of conditions, misconduct or incapacity (s 8(2)) is a further accountability mechanism. The requirement to include any Ministerial direction in the annual report (s 18(2)(d)) creates reputational enforcement.

The Public Sector (Honesty and Accountability) Act 1995 applies to members and committee members, bringing with it the standard honesty and conflict obligations. Breach of conditions of appointment can lead to removal (s 8(2)(a)).

The Act is deliberately designed as a bridge statute. Its most significant interaction is with the Local Government Act 1999. Part 3 Division 2 applies selected chapters and sections with surgical modifications so that the Authority is treated as a council and the outback as a council area for those limited purposes. References to "council", "area of a council", "local government purposes", "general rate" and "separate rate" are all remapped (s 21(6)). Similar remapping occurs for anti-pollution measures (s 22), orders (s 23), authorised persons (s 24) and miscellaneous powers (s 25). These are not wholesale adoptions; specific subsections are deleted (e.g. s 257(4) and (7)) and regulations may prescribe further modifications.

Section 26 provides a regulation-making power to import any other Act’s provisions that apply to a council or council area, again with modifications. This "plug and play" mechanism allows the Governor, after the Authority has consulted using its public consultation policy, to extend planning, environmental, health or other regulatory regimes to the outback without primary legislation. The interaction is therefore both specific (the listed Local Government Act 1999 provisions) and open-ended.

The Public Sector (Honesty and Accountability) Act 1995 is applied to members and committee members, but s 9 carves out a community-interest exception to the conflict-of-interest rules. The Public Sector Management Act is applied to staff (s 9 title reference, though the text now refers to the updated honesty legislation).

The Corporations Act 2001 (Cth) is referenced in s 8(3)(d): disqualification from managing corporations under Chapter 2D Part 2D.6 automatically vacates a member’s office. This creates a direct federal–state linkage.

Transitional provisions in Schedule 1 interact with the repealed Outback Areas Community Development Trust Act 1978. The Trust’s members vacate office on commencement so fresh appointments can be made (clause 2). Pre-existing budgets are recognised until the first new budget is approved (clause 4). The regulation-making power in clause 5 allows additional savings and transitional provisions.

The Act also interacts with the Acts Interpretation Act 1915 (SA) and general administrative law principles through its meeting procedures (s 10), delegation rules (s 13), and the requirement that meetings be open to the public unless closed on grounds mirroring council closure grounds under the Local Government Act 1999 (s 10(8)).

Because the Authority holds property on behalf of the Crown (s 5(4)) and is subject to Ministerial direction (subject to exceptions), it interacts with the broader framework of Crown entities and public finance legislation, although the Act does not expressly name the Public Finance and Audit Act 1987.

The legislative history printed with the Act shows it was assented to on 10 December 2009 and commenced on 1 July 2010. No subsequent amending Acts are reproduced in the provided text, but the structure of the 2009 Act itself reveals the policy drivers for change from the 1978 regime. The repeal of the Outback Areas Community Development Trust Act 1978 and the declaration that the Authority is the same body corporate (s 5(2)) indicate a deliberate modernisation rather than abolition.

The changes were driven by the desire to improve accountability and community participation. The 2009 Act introduced mandatory five-year strategic management plans, annual business plans, public consultation policies, and detailed annual reporting—none of which appear to have been required in the same prescriptive form under the 1978 legislation. The explicit objects in s 4 (efficient and accountable administration, promotion of participation, and revenue raising) reflect a shift toward a more council-like model for the outback.

The introduction of the asset sustainability levy and community contribution regime in s 21, with its parliamentary safeguard for increases, was a significant policy expansion to ensure long-term funding rather than reliance on ad-hoc grants. The power in s 26 to apply other Acts by regulation was designed to provide flexibility as new regulatory needs arose without repeated primary legislation.

Transitional provisions (Schedule 1) were included to ensure continuity of membership and budgeting during the changeover. The requirement for at least four members from different outback communities and the nomination process (s 7) strengthened local representation compared with the previous trust model.

These changes reflect a broader Australian trend in the late 2000s toward "governance modernisation" of remote-area entities, aligning them more closely with local government standards while preserving their distinct non-municipal character.

The provided text contains no reference to any decided cases, and the Act does not itself create a statutory right of appeal or review beyond the general law. Section 21(9) is a privative clause that prevents challenges to levies on grounds of non-compliance with the section or on the contents of any plan, budget or assessment. This clause has the potential to limit judicial review, although its precise scope would fall to be determined by reference to general principles of administrative law.

No controversies are recited in the Act. However, the structure itself contains several points of potential tension. The Ministerial power to modify plans after the Authority has commenced acting on them (ss 15(8) and 16(6)) could generate disputes about the boundary between independent statutory functions and executive control. The exception in s 5(5) preserving the Authority’s independence in enforcement and report preparation is a statutory recognition that such conflicts could arise.

The gender and geographic membership requirements (s 7) and the community-interest exception to conflict rules (s 9) reflect policy choices that could be challenged if they were alleged to produce unrepresentative boards or insufficiently rigorous conflict management. The broad regulation-making power in s 26, which can effectively legislate by reference to other Acts, carries the usual democratic-controversy risks associated with Henry VIII clauses, although the mandatory public consultation step provides some safeguard.

Because the Act applies selected local government enforcement tools (orders, authorised officers, anti-pollution measures) to vast unincorporated areas, questions of procedural fairness, the precise meaning of "outback", and the interaction with native title or pastoral lease rights could generate litigation, although the statute itself is silent on these interfaces.

The open-meeting rule (s 10(8)) and the requirement to publish minutes (subject to closed-meeting exclusions) mirror council controversies about confidentiality and could give rise to disputes about whether particular information falls within the closure criteria.

Most practitioners assume the Authority is simply "another government agency". In reality it is a unique hybrid: a body corporate with the powers of a natural person, an instrumentality of the Crown, a rates-levying entity, and a body whose members are drawn predominantly from the communities it serves. This produces several traps.

First, the privative clause in s 21(9) is wider than many realise. It prevents challenge "on a ground based on non-compliance with this section, or on a ground based on the contents of a plan, budget or assessment prepared under this Act". A rates notice that recites an invalid strategic plan may still be unchallengeable.

Second, the public consultation policy is not optional window-dressing. Because it must be followed for strategic plans, annual plans, community agreements, applied Local Government Act 1999 decisions, and any prescribed class of decisions (s 14(1)), failure to follow it can invalidate downstream actions—except where the policy itself allows variation according to classes of decision (s 14(2)(d)).

Third, the delegation rules in s 13 contain a trap for outsiders. A delegation to a non-member or non-staff person, or a committee containing such a person, requires prior Ministerial approval. While failure to obtain approval does not invalidate the delegation, it creates evidentiary and procedural complexity in enforcement proceedings.

Fourth, the "same body corporate" provision (s 5(2)) means that contracts, land holdings and liabilities carried over from the 1978 Trust continue seamlessly. Due diligence on titles or agreements must therefore examine pre-2010 instruments.

Fifth, the parliamentary procedure for levy increases (s 21(5)) is not a standard disallowance mechanism. The Minister may not approve an increase (beyond CPI) unless the notice and explanation have been laid and six sitting days have passed without a prohibiting resolution. The onus is on the Minister to ensure the laying occurs; failure could render the fixed charge ultra vires.

Sixth, authorised persons appointed under s 24 exercise powers under both this Act and "any other Act that applies in relation to the Authority or the outback". Because s 26 regulations can import additional Acts at any time, the enforcement footprint can expand without notice to affected landholders.

Finally, the definition of "rates" in s 3 ties directly to s 21. Any reference in applied Local Government Act 1999 provisions to "rates" is therefore limited to the two levies created by this Act; other charges cannot be imposed without using the s 26 regulation route.

Compliance begins with governance. The Authority must ensure its membership satisfies the geographic, gender and nomination requirements of s 7 before any decisions are taken. A public consultation policy must be adopted after the process in s 14(4) and kept under review. All strategic management plans, annual business plans, community agreements and prescribed decisions must follow that policy.

Strategic and annual planning cycles must be diarised. The first strategic plan was required "as soon as practicable" after commencement; subsequent plans are due by 30 April preceding the five-year period (s 15(3)). Annual business plans and budgets must reach the Minister by 31 May (s 16(1)). Both must be prepared after consultation and contain every item listed in ss 15(5) and 16(3). If the Minister has not approved a plan before the relevant period begins, the Authority may act on the submitted version but must immediately implement any later Ministerial modifications (ss 15(8), 16(6)).

Budget discipline is strict: no expenditure outside an approved budget without Ministerial consent (s 16(7)). Long-term financial and infrastructure plans within the strategic plan must be reviewed after each annual budget approval (s 15(9)).

Levy imposition requires Ministerial approval of the fixed charge. Any increase beyond CPI in the asset sustainability levy triggers the parliamentary laying procedure (s 21(5)). The first notice each year must be accompanied by the mandated business plan summary and prior-year assessment (s 21(8)). Records must demonstrate that Chapter 10 Part 1 of the Local Government Act 1999 (as modified) has been followed.

Community affairs resourcing and management agreements must be preceded by consultation with the relevant community using the public consultation policy (s 17(4)). Each agreement is limited to one financial year.

Annual reports must be with the Minister by 30 September and contain all four categories of information in s 18(2). The Minister’s tabling obligation is 12 sitting days.

All current versions of the public consultation policy, strategic plan, annual business plan and budget, latest annual report, and every current community agreement must be available on a website, at the principal place of business during office hours, and for purchase at a fixed fee (s 19).

Delegations must be in writing, may be conditional, and require Ministerial approval where non-staff or non-members are involved (s 13). Minutes must be kept, meetings are presumptively open, and electronic meetings are permitted if connectivity and notice requirements are met (s 10).

For land owners and community organisations, compliance means paying lawfully imposed levies (which cannot be challenged on plan-content grounds) and, if entering a community agreement, observing its governance, insurance, reimbursement and reporting clauses.

Regulations made under s 26 or s 27 must be checked regularly; new applied Acts can expand obligations without amending the principal Act. Because the Authority is subject to the Public Sector (Honesty and Accountability) Act 1995, members and committee members must maintain accurate conflict registers, noting the community-interest exception in s 9.

In practice, compliance is best managed through a compliance calendar that tracks consultation deadlines, plan submission dates, reporting cut-offs, and the six-sitting-day parliamentary windows. External legal advice is prudent before any significant levy increase, delegation to non-staff, or use of the s 26 regulation power, given the layered modification regime and the potential for judicial scrutiny of whether the statutory consultation and content requirements have been strictly observed.