Aboriginal and Torres Strait Islander Commission Amendment Act 2001

No. 4, 2001

An Act to amend the Aboriginal and Torres Strait Islander Commission Act 1989, and for related purposes

[Assented to 20 March 2001]

The Parliament of Australia enacts:

This Act may be cited as the Aboriginal and Torres Strait Islander Commission Amendment Act 2001.

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Aboriginal and Torres Strait Islander Commission Act 1989

1 Title

Omit “an Aboriginal and Torres Strait Islander Commercial Development Corporation”, substitute “a corporation to be known as Indigenous Business Australia”.

2 Subsection 4(1) (definition of Commercial Development Corporation)

Repeal the definition.

3 Subsection 4(1) (definition of Commercial Development Corporation Board)

Repeal the definition.

4 Subsection 4(1) (definition of Commercial Development Corporation Chairperson)

Repeal the definition.

5 Subsection 4(1) (definition of Commercial Development Corporation Director)

Repeal the definition.

6 Subsection 4(1) (definition of Commercial Development Corporation General Manager)

Repeal the definition.

7 Subsection 4(1)

Insert:

Indigenous Business Australia means the body having that name that is referred to in section 145.

8 Subsection 4(1)

Insert:

Indigenous Business Australia Board means the Board of Directors of Indigenous Business Australia referred to in section 155.

9 Subsection 4(1)

Insert:

Indigenous Business Australia Chairperson means the Chairperson of the Indigenous Business Australia Board referred to in section 155.

10 Subsection 4(1)

Insert:

Indigenous Business Australia Director means a member of the Indigenous Business Australia Board.

11 Subsection 4(1)

Insert:

Indigenous Business Australia General Manager means the General Manager of Indigenous Business Australia referred to in section 168.

12 Subsection 4(2)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

13 After subsection 7(1)

Insert:

(1A) A function referred to in paragraph (1)(a) need not be performed by the Commission itself but may be performed by other persons:

(a) who are authorised by the Commission to do so under contracts or agreements entered into with the Commission; or

(b) to whom the Commission has delegated the function.

14 After paragraph 10(2)(a)

Insert:

(aa) subject to subsection (3), to enter into contracts and agreements;

15 Paragraphs 10(2)(b) and (c)

Before “to enter”, insert “without limiting paragraph (aa),”.

16 At the end of subsection 10(2)

Add:

; (f) to appoint as its agents Indigenous Business Australia or any other persons who it is satisfied have qualifications and experience that are appropriate to enable them to act on its behalf in the matter to which the appointment relates.

17 At the end of section 10

Add:

(6) In so far as a person is authorised to perform a function as an agent or delegate of the Commission, the person may exercise any of the Commission’s powers for or in connection with the performance of the function.

18 At the end of Division 5 of Part 2

Add:

45B Delegation to Indigenous Business Australia

(1) The Commission may, by writing under its seal, delegate to Indigenous Business Australia any commercial functions falling within paragraph 7(1)(a).

(2) A delegation may not be made under subsection (1) unless Indigenous Business Australia has consented to the delegation.

(3) If the Commission delegates a function under subsection (1), the Indigenous Business Australia Board may, by resolution, sub‑delegate the function to the Indigenous Business Australia General Manager.

(4) Section 34AA and paragraphs 34AB(a), (b) and (d) of the Acts Interpretation Act 1901 apply in relation to a sub‑delegation in a corresponding way to the way in which they apply to a delegation.

(5) Section 34A and paragraphs 34AB(c) and (d) of the Acts Interpretation Act 1901 apply to a sub‑delegation as if it were a delegation.

19 Section 58

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

20 Paragraph 59(6)(c)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

21 Paragraph 61(7)(c)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

22 Paragraph 63(4)(c)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

23 Paragraph 66(2)(c)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

24 Subparagraphs 76(1)(a)(iii) and (b)(iii)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

25 Paragraphs 76(1)(d) and (m)

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

26 Part 4 (heading)

Repeal the heading, substitute:

Part 4—Indigenous Business Australia

27 Division 1 of Part 4 (heading)

Repeal the heading, substitute:

Division 1—Indigenous Business Australia

28 Subsection 145(1)

Repeal the subsection, substitute:

(1) The body that was established under this subsection as previously in force by the name Aboriginal and Torres Strait Islander Commercial Development Corporation is now to be known as Indigenous Business Australia.

Note: Subsection 25B(1) of the Acts Interpretation Act 1901 provides that a body whose name is altered by an Act continues in existence under the new name so that its identity is not affected.

29 Subsection 145(2)

Omit “The Commercial Development Corporation”, substitute “Indigenous Business Australia”.

30 Subsection 145(2) (note)

Omit “the Corporation”, substitute “Indigenous Business Australia”.

31 Subsection 145(3)

Repeal the subsection, substitute:

(3) The seal of Indigenous Business Australia is to be kept in such custody as the Indigenous Business Australia Board directs and must not be used except as authorised by the Board.

32 Subsection 145(4)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

Note: The heading to section 145 is replaced by the heading “Indigenous Business Australia”.

33 Section 146

Omit “The Commercial Development Corporation”, substitute “Indigenous Business Australia”.

Note: The heading to section 146 is replaced by the heading “Purposes of Indigenous Business Australia”.

34 Division 2 of Part 4 (heading)

Repeal the heading, substitute:

Division 2—Functions of Indigenous Business Australia

35 Section 147

Repeal the section, substitute:

147 Functions of Indigenous Business Australia

(1) Indigenous Business Australia has the following functions:

(a) to engage in commercial activities;

(b) to promote and encourage Aboriginal and Torres Strait Islander self‑management and economic self‑sufficiency;

(2) Without limiting by implication the meaning of commercial activities in paragraph (1)(a), those activities include the performance of functions referred to in subsection 7(1A) that:

(a) the Commission has authorised Indigenous Business Australia to perform as an agent of the Commission; or

(b) the Commission has delegated to Indigenous Business Australia.

36 Subsection 148(1)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

37 Subsection 148(2)

Omit all the words before paragraph (a), substitute:

For the purpose of the performance of Indigenous Business Australia’s functions, the Indigenous Business Australia Board must have regard to the desirability of:

38 Subsection 149(1)

Repeal the subsection, substitute:

(1) The Indigenous Business Australia Board must from time to time prepare a corporate plan:

(a) setting out a statement of Indigenous Business Australia’s objectives; and

(b) outlining the strategies and policies that the Board intends to adopt in order to achieve those objectives, with particular reference to the Board’s intentions in relation to investments, loans, guarantees and other financial aspects of its operations.

39 Subsection 150(1)

Omit “Commercial Development Corporation Board”, substitute “Indigenous Business Australia Board”.

40 Subsection 150(2)

Omit “The Commercial Development Corporation”, substitute “Indigenous Business Australia”.

41 Subsection 150(3)

Repeal the subsection, substitute:

(3) The Minister may, by notice in writing to the Indigenous Business Australia Board, request the Board to change the corporate plan in specified respects.

42 Section 151

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

43 Section 152

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

Note: The heading to section 152 is altered by omitting “Commercial Development Corporation” and substituting “Indigenous Business Australia”.

44 Subsection 153(1)

Omit “Where the Commercial Development Corporation Board”, substitute “If the Indigenous Business Australia Board”.

45 Subsection 153(1)

Omit “the Commercial Development Corporation may”, substitute “Indigenous Business Australia may”.

46 Subsection 153(3)

Omit “The Commercial Development Corporation”, substitute “Indigenous Business Australia”.

47 Section 154

Omit “Commercial Development Corporation Board” (wherever occurring), substitute “Indigenous Business Australia Board”.

48 Subsection 154(1)

Omit “the Commercial Development Corporation’s”, substitute “Indigenous Business Australia’s”.

49 Division 3 of Part 4 (heading)

Repeal the heading, substitute:

Division 3—Board of Directors of Indigenous Business Australia

50 Subsection 155(1)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

Note: The heading to section 155 is altered by omitting “Commercial Development Corporation” and substituting “Indigenous Business Australia”.

51 Subsection 155(3)

Repeal the subsection.

52 Section 156

Repeal the section, substitute:

156 Responsibilities of Indigenous Business Australia Board

It is the responsibility of the Indigenous Business Australia Board to ensure the proper and efficient performance of the functions of Indigenous Business Australia and to determine the policy of Indigenous Business Australia with respect to any matter.

53 Section 157

Repeal the section, substitute:

157 Appointment of Indigenous Business Australia Directors

(1) The Indigenous Business Australia Chairperson is to be appointed by the Minister on a full‑time basis or a part‑time basis.

(2) The other Indigenous Business Australia Directors are to be appointed by the Minister on a part‑time basis.

(3) The Indigenous Business Australia Chairperson and at least 4 other Indigenous Business Australia Directors are to be Aboriginal persons or Torres Strait Islanders.

(4) At least one Indigenous Business Australia Director must be a Commissioner.

(5) Each Indigenous Business Australia Director is to be a person who the Minister is satisfied has experience in:

(a) industry, commerce or finance; or

(b) Aboriginal or Torres Strait Islander community life or enterprises.

54 Section 158

Repeal the section, substitute:

158 Selection of Indigenous Business Australia Directors

Whenever there is, or is expected to be, a vacancy in an office of Indigenous Business Australia Director, the Minister:

(a) must consult Indigenous Business Australia about a suitable appointee; and

(b) may consult the Commission about a suitable appointee.

55 Subsection 159(1)

Omit “A Commercial Development Corporation Director”, substitute “An Indigenous Business Australia Director”.

56 Subsection 159(2)

Omit “a Commercial Development Corporation Director” (wherever occurring), substitute “an Indigenous Business Australia Director”.

57 Section 160

Omit “A Commercial Development Corporation Director”, substitute “An Indigenous Business Australia Director”.

58 Section 161

Repeal the section, substitute:

161 Leave of absence

(1) If the Indigenous Business Australia Chairperson was appointed on a full‑time basis:

(a) the Chairperson has the recreation leave entitlements that are determined by the Remuneration Tribunal; and

(b) the Minister may, by writing, grant to the Chairperson leave of absence (other than recreation leave) on the terms and conditions as to remuneration or otherwise that the Minister determines.

(2) The Minister may, by writing:

(a) if the Indigenous Business Australia Chairperson was appointed on a part‑time basis—grant to the Chairperson leave of absence from a meeting of the Indigenous Business Australia Board; and

(b) grant to any other Indigenous Business Australia Director leave of absence from a meeting of the Indigenous Business Australia Board.

(3) The Minister may delegate to the Indigenous Business Australia Chairperson the power under paragraph (2)(b) to grant leave of absence to other Indigenous Business Australia Directors.

59 Subsection 162(1)

Omit “Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

60 Subsections 162(2) and (3)

Repeal the subsections, substitute:

(2) The Minister may appoint an Indigenous Business Australia Director to act as the Deputy Chairperson of the Indigenous Business Australia Board:

(a) during a vacancy in the office of Deputy Chairperson of the Board, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Deputy Chairperson of the Board is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office;

but a person appointed to act during a vacancy must not continue so to act for more than 6 months.

(3) The Minister may appoint a person to act as an Indigenous Business Australia Director (other than the Chairperson or Deputy Chairperson) of the Indigenous Business Australia Board:

(a) during a vacancy in an office of Indigenous Business Australia Director, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when an Indigenous Business Australia Director is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office;

but a person appointed to act during a vacancy must not continue so to act for more than 6 months.

61 Saving of appointments of acting Deputy Chairperson and acting Director

If an appointment of a person to act as the Deputy Chairperson, or as a Director, of the Board of Directors of the Aboriginal and Torres Strait Islander Commercial Development Corporation under subsection 162(2) or (3) of the Aboriginal and Torres Strait Islander Commission Act 1989 was in force immediately before the commencement of item 60, and the appointment did not end at that time, the appointment is not affected by the amendment made by that item but continues in force as if it had been made under subsection 162(2) or (3), as the case may be, substituted in that Act by that item.

62 Sections 164 and 165

Repeal the sections, substitute:

164 Resignation

An Indigenous Business Australia Director may resign by writing signed by him or her and sent to the Minister.

165 Termination of appointment

(1) The Minister may, after consulting the Commission and Indigenous Business Australia, terminate the appointment of an Indigenous Business Australia Director because of misbehaviour or physical or mental incapacity.

(2) If an Indigenous Business Australia Director:

(a) is absent, except on leave granted under section 161, from 3 consecutive meetings of the Indigenous Business Australia Board; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or

(c) fails, without reasonable excuse, to comply with section 27F or 27J of the Commonwealth Authorities and Companies Act 1997;

the Minister must terminate the Director’s appointment.

(3) If:

(a) 3 of the Indigenous Business Australia Directors are Commissioners; and

(b) a fourth Indigenous Business Australia Director becomes a Commissioner;

that fourth Indigenous Business Australia Director ceases to be an Indigenous Business Australia Director.

63 Section 166

Omit “A Commercial Development Corporation Director”, substitute “An Indigenous Business Australia Director”.

64 Division 5 of Part 4 (heading)

Repeal the heading, substitute:

Division 5—Operations of Indigenous Business Australia and Indigenous Business Australia Board

65 Subsections 167(1) and (2)

Omit “Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

66 Paragraph 167(3)(a)

Omit “a Commercial Development Corporation Director”, substitute “an Indigenous Business Australia Director”.

67 Subsection 167(3)

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

68 Subsections 167(4) to (8)

Omit “Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

69 Subsection 167(9)

Omit “a Commercial Development Corporation Director”, substitute “an Indigenous Business Australia Director”.

70 Subsections 167(9) and (10)

Omit “Commercial Development Corporation Board” (wherever occurring), substitute “Indigenous Business Australia Board”.

71 Subsection 167(11)

Omit “A Commercial Development Corporation Director”, substitute “An Indigenous Business Australia Director”.

72 Division 6 of Part 4 (heading)

Repeal the heading, substitute:

Division 6—Indigenous Business Australia General Manager

73 Section 168

Repeal the section, substitute:

168 Indigenous Business Australia General Manager

(1) There is to be a General Manager of Indigenous Business Australia, who is to be appointed by the Indigenous Business Australia Board.

(2) The Indigenous Business Australia General Manager is, subject to subsection (3), to manage the day‑to‑day administration of Indigenous Business Australia.

(3) The Indigenous Business Australia General Manager must, in managing the administration of Indigenous Business Australia and in exercising any powers conferred on him or her by this Act, act in accordance with policies determined, and any directions given, by the Indigenous Business Australia Board in writing.

74 Saving of existing appointment of General Manager

If a person held office as General Manager of the Aboriginal and Torres Strait Islander Commercial Development Corporation under subsection 168(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 immediately before the commencement of item 73 under an appointment that did not end at that time, the appointment is not affected by the amendment made by that item but continues in force as if it had been made under subsection 168(1) substituted in that Act by that item.

75 Sections 169 to 174

Omit “Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

Note: The heading to section 172 is replaced by the heading “Acting Indigenous Business Australia General Manager”.

76 Sections 175 to 178

Repeal the sections, substitute:

175 Staff

(1) The Indigenous Business Australia General Manager may, on behalf of Indigenous Business Australia, engage such employees as are necessary for the performance of Indigenous Business Australia’s functions under this Act.

(2) The terms and conditions of employment of persons engaged under this section are as determined by the Indigenous Business Australia Board in writing.

176 Arrangements for Commission staff to perform duties on behalf of Indigenous Business Australia

The Indigenous Business Australia General Manager may make arrangements with the Chief Executive Officer for the performance of duties by the staff of the Commission on behalf of Indigenous Business Australia.

177 Arrangements relating to staff

The Indigenous Business Australia General Manager may, on behalf of Indigenous Business Australia, make arrangements for the services of officers or employees of:

(a) the Commonwealth, a State or a Territory; or

(b) an authority of the Commonwealth or of a State or Territory; or

to be made available to Indigenous Business Australia.

178 Consultants

(1) The Indigenous Business Australia General Manager may, on behalf of Indigenous Business Australia, engage as consultants to Indigenous Business Australia persons having suitable qualifications and experience.

(2) The terms and conditions on which consultants are engaged are to be as determined by the Indigenous Business Australia Board in writing.

77 Saving of existing engagements of employees and consultants

Any engagement of an employee under section 175, or any engagement of a consultant under section 178, of the Aboriginal and Torres Strait Islander Commission Act 1989 that was in force immediately before the commencement of item 76 and did not end at that time is not affected by the amendment made by that item and continues in force as if it had been entered into under section 175 or 178, as the case may be, substituted in that Act by that item.

78 Section 179

Repeal the section, substitute:

179 Capital of Indigenous Business Australia

The capital of Indigenous Business Australia consists of:

(a) amounts paid under section 208 of this Act as previously in force to the body that was previously known as the Aboriginal and Torres Strait Islander Commercial Development Corporation and is now known as Indigenous Business Australia; and

(b) income derived by that body from investments; and

79 Section 181

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

Note: The heading to section 181 is altered by omitting “Commercial Development Corporation” and substituting “Indigenous Business Australia”.

80 Section 182

Repeal the section, substitute:

182 Restriction on spending by Indigenous Business Australia

The Indigenous Business Australia Board must not approve a proposal for Indigenous Business Australia to spend money (otherwise than for the purposes of the day‑to‑day administration of Indigenous Business Australia) without first considering a written assessment of the proposal that has been:

(a) prepared by a member of the staff of Indigenous Business Australia; and

(b) endorsed by or on behalf of the Indigenous Business Australia General Manager.

81 Subsection 183(1)

Omit “The Commercial Development Corporation”, substitute “Indigenous Business Australia”.

82 Section 183

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

83 Section 184

Omit “The Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

Note: The heading to section 184 is altered by omitting “Commercial Development Corporation’s” and substituting “Indigenous Business Australia’s”.

84 Section 185

Omit “The Commercial Development Corporation”, substitute “Indigenous Business Australia”.

85 Section 185

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

86 Section 187

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

Note: The heading to section 187 is altered by omitting “Commercial Development Corporation” and substituting “Indigenous Business Australia”.

87 Section 188

Omit “The Commercial Development Corporation”, substitute “Indigenous Business Australia”.

88 Section 190

Repeal the section, substitute:

190 Delegation to Indigenous Business Australia General Manager or member of staff

(1) Indigenous Business Australia may, by writing under its seal, delegate all or any of its functions and powers to the Indigenous Business Australia General Manager or to a member of its staff.

(2) If Indigenous Business Australia delegates a function or power under subsection (1) to the Indigenous Business Australia General Manager, the Indigenous Business Australia General Manager may, by writing signed by him or her, sub‑delegate the function or power to a member of the staff of Indigenous Business Australia.

(3) Section 34AA and paragraphs 34AB(a), (b) and (d) of the Acts Interpretation Act 1901 apply in relation to a sub‑delegation in a corresponding way to the way in which they apply to a delegation.

(4) Section 34A and paragraphs 34AB(c) and (d) of the Acts Interpretation Act 1901 apply to a sub‑delegation as if it were a delegation.

89 Saving of existing delegations

Any delegation that was in force under section 190 of the Aboriginal and Torres Strait Islander Commission Act 1989 immediately before the commencement of item 88 and did not end at that time is not affected by the amendment made by that item and continues in force as if it had been given under section 190 substituted in that Act by that item.

90 Paragraphs 191(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) who is or has been an Indigenous Business Australia Director or acting Indigenous Business Australia Director;

(b) who is or has been the Indigenous Business Australia General Manager or an acting Indigenous Business Australia General Manager;

91 Paragraphs 191(1)(d) and (e)

Omit “the Commercial Development Corporation”, substitute “Indigenous Business Australia”.

92 Subsection 192T(2)

Repeal the subsection, substitute:

Indigenous Business Australia staff

(2) The Indigenous Land Corporation General Manager may make arrangements with the Indigenous Business Australia General Manager for the performance of duties by the staff of Indigenous Business Australia on behalf of the Indigenous Land Corporation.

Note: The heading to section 192T is altered by omitting “Commercial Development Corporation” and substituting “Indigenous Business Australia”.

93 Subsection 196(4) (definition of decision made by the Commission)

Omit “does not include”, substitute “includes”.

94 Section 206

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

95 Section 208

Repeal the section.

96 Section 210

Omit “the Commercial Development Corporation” (wherever occurring), substitute “Indigenous Business Australia”.

Note: The heading to section 210 is altered by omitting “Commercial Development Corporation” and substituting “Indigenous Business Australia”.

97 Paragraph 211(2)(a)

Repeal the paragraph, substitute:

(a) in the case of an instrument relating to an asset or liability that has, because of section 208 of this Act as previously in force or because of section 210, become an asset or liability of the body previously known as the Aboriginal and Torres Strait Islander Commercial Development Corporation and now known as Indigenous Business Australia—Indigenous Business Australia; or

98 Paragraph 215(1)(b)

Repeal the paragraph, substitute:

(b) an asset or liability specified or described in the certificate became, because of section 208 of this Act as previously in force, an asset or liability of the body previously known as the Aboriginal and Torres Strait Islander Commercial Development Corporation and now known as Indigenous Business Australia; or

99 Paragraph 222(a)

Repeal the paragraph, substitute:

(a) under section 206 or 207, or under section 208 of this Act as previously in force, an estate or interest in land has become or becomes an asset of the new Commission, or of the body previously known as the Aboriginal and Torres Strait Islander Commercial Development Corporation and now known as Indigenous Business Australia; and

100 Subparagraph 222(b)(ii)

Repeal the subparagraph, substitute:

(ii) states that the estate or interest has, because of that section, become an asset of the new Commission, or of the body previously known as the Aboriginal and Torres Strait Islander Commercial Development Corporation and now known as Indigenous Business Australia, as the case may be; and

101 Section 222

(190/00)

Omit “the Commercial Development Corporation” (last occurring), substitute “Indigenous Business Australia”.

[Minister’s second reading speech made in—

House of Representatives on 29 November 2000

Senate on 6 February 2001]