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This is a Bill, not an Act. For current law, see the Acts databases.


ABORIGINAL HOUSING LEGISLATION AMENDMENT BILL 2009

                     Western Australia


Aboriginal Housing Legislation Amendment
               Bill 2009

                        CONTENTS


      Part 1 -- Preliminary matters
 1.   Short title                                               2
 2.   Commencement                                              2
      Part 2 -- Housing Act 1980 amended
 3.   Act amended                                               3
 4.   Section 4 amended                                         3
 5.   Section 5 amended                                         3
 6.   Section 12A replaced                                      3
      12A.      Joint ventures                            3
 7.   Section 13 replaced                                       4
      13.       Delegation: powers and duties generally   4
 8.   Section 22 amended                                        5
 9.   Part VIIA inserted                                        6
      Part VIIA -- Housing on Aboriginal land
      Division 1 -- Preliminary matters
      62A.      Terms used                                 6
      Division 2 -- Housing management agreements
      62B.      Authority may enter into housing
                management agreement                      7
      62C.      Wishes of Aboriginal inhabitants to be
                ascertained                               8
      62D.      Lots and houses to which housing
                management agreement applies              8
      62E.      Rent for nominated lots and nominated
                houses                                    9
      62F.      Other terms of housing management
                agreement                                 9
      62G.      Application of Residential Tenancies
                Act 1987                                  10


                          086--2                                page i
Aboriginal Housing Legislation Amendment Bill 2009



Contents



              62H.      No interest in land created, property
                        acquired or compensation payable               11
              62I.      No fees or charges payable in respect of
                        housing management agreement                   11
              62J.      Authority may act through agent                12
              62K.      Delegation: powers and duties in relation
                        to housing management agreement                12
              Division 3 -- Miscellaneous matters
              62L.      Approval of Minister for Indigenous Affairs,
                        AAPA or ALT not required                       13
              62M.      Application of Land Administration
                        Act 1997                                       14

              Part 3 -- Aboriginal Affairs Planning
                   Authority Act 1972 amended
      10.     Act amended                                                   15
      11.     Section 33A inserted                                          15
              33A.      Power to grant leases over Part III land       15




page ii
                           Western Australia


                     LEGISLATIVE ASSEMBLY

              (As amended during consideration in detail)


   Aboriginal Housing Legislation Amendment
                  Bill 2009


                               A Bill for


An Act to amend --
•  the Housing Act 1980; and
•  the Aboriginal Affairs Planning Authority Act 1972,
and for related purposes.



The Parliament of Western Australia enacts as follows:




                                                            page 1
     Aboriginal Housing Legislation Amendment Bill 2009
     Part 1         Preliminary matters

     s. 1



 1                   Part 1 -- Preliminary matters
 2   1.       Short title
 3            This is the Aboriginal Housing Legislation Amendment
 4            Act 2009.

 5   2.       Commencement
 6            This Act comes into operation as follows --
 7             (a) Part 1 -- on the day on which this Act receives the
 8                   Royal Assent;
 9             (b) the rest of the Act -- on a day fixed by proclamation,
10                   and different days may be fixed for different provisions.




     page 2
                              Aboriginal Housing Legislation Amendment Bill 2009
                                         Housing Act 1980 amended         Part 2

                                                                                    s. 3



 1                Part 2 -- Housing Act 1980 amended
 2   3.     Act amended
 3          This Part amends the Housing Act 1980.

 4   4.     Section 4 amended
 5          In section 4:
 6            (a) after paragraph (b) insert:
 7

 8                     (ca)    the letting and leasing of houses, the provision
 9                             of services relating to the letting and leasing of
10                             houses and the entry into arrangements for the
11                             provision of such services;
12

13               (b)    in paragraph (d) after "encouragement of " insert:
14

15                      and participation in
16

17   5.     Section 5 amended
18          In section 5(1) insert in alphabetical order:
19

20                     Crown land has the meaning given in the Land
21                     Administration Act 1997 section 3(1);
22

23   6.     Section 12A replaced
24          Delete section 12A and insert:
25

26        12A.         Joint ventures
27          (1)        To further the objects of this Act or the Government
28                     Employees' Housing Act 1964, subject to
29                     subsection (3), the Authority may enter into a joint
30                     venture arrangement.

                                                                              page 3
     Aboriginal Housing Legislation Amendment Bill 2009
     Part 2         Housing Act 1980 amended

     s. 7



 1                (2)   Without limiting the powers that the Authority may
 2                      exercise under either of those Acts for the purposes of
 3                      participating in and giving effect to a joint venture
 4                      arrangement relating to a project, the Authority may --
 5                        (a) seek and maintain appropriate representation on
 6                              a board or other body having responsibility for
 7                              carrying out, managing or controlling the
 8                              project; and
 9                        (b) subject to any contract relating to the project --
10                                (i) receive contributions or other moneys
11                                      relating to the project; and
12                               (ii) disburse or distribute, or arrange for the
13                                      disbursement or distribution of, those
14                                      contributions or other moneys.
15                (3)   The Authority can only enter into a joint venture
16                      arrangement --
17                        (a) with the approval of the Minister; and
18                        (b) on terms and conditions approved by the
19                             Treasurer.
20


21   7.           Section 13 replaced
22                Delete section 13 and insert:
23


24          13.         Delegation: powers and duties generally
25                (1)   The Authority may delegate under this section to an
26                      officer of the Authority --
27                        (a) any power or duty of the Authority under this
28                              Act, except a power or duty referred to in
29                              section 62K(1); or
30                        (b) any power or duty of the Authority under the
31                              Government Employees' Housing Act 1964.


     page 4
                       Aboriginal Housing Legislation Amendment Bill 2009
                                  Housing Act 1980 amended         Part 2

                                                                             s. 8



 1        (2)    The delegation must be in writing executed by the
 2               Authority.
 3        (3)    An officer to whom a power or duty is delegated under
 4               this section cannot delegate that power or duty.
 5        (4)    An officer exercising or performing a power or duty
 6               that has been delegated to the officer under this section
 7               is taken to do so in accordance with the terms of the
 8               delegation unless the contrary is shown.
 9        (5)    This section does not limit the ability of the Authority
10               to perform a function through an officer of the
11               Authority or an agent.
12


13   8.   Section 22 amended
14        In section 22(1):
15          (a) delete "has power --" and insert:
16

17                has these powers --
18

19         (b)    in paragraph (a) delete "any area in which land held by
20                the Authority is situated, and with the consent of the
21                Minister," and insert:
22

23                      any land except Crown land not held by the
24                      Authority and
25

26         (c)    in paragraph (b) delete "with the consent of the
27                Minister,";
28         (d)    in paragraph (b) delete "held by the Authority";
29         (e)    in paragraph (d) delete "with the consent of the
30                Minister,";




                                                                       page 5
     Aboriginal Housing Legislation Amendment Bill 2009
     Part 2         Housing Act 1980 amended

     s. 9



 1                 (f)    after paragraph (h) insert:
 2

 3                        (ia)   to arrange, effect or take out insurance in
 4                               connection with a matter referred to in
 5                               paragraphs (a) to (h);
 6


 7   9.       Part VIIA inserted
 8            After section 61 insert:
 9


10             Part VIIA -- Housing on Aboriginal land
11                          Division 1 -- Preliminary matters
12          62A.         Terms used
13                       In this Part --
14                       AAPA means The Aboriginal Affairs Planning
15                       Authority continued in existence under the AAPA Act
16                       section 8(1);
17                       AAPA Act means the Aboriginal Affairs Planning
18                       Authority Act 1972;
19                       Aboriginal entity means any of these entities --
20                         (a) AAPA;
21                         (b) ALT;
22                         (c) a corporation registered under the Corporations
23                                (Aboriginal and Torres Strait Islander)
24                                Act 2006 (Commonwealth);
25                         (d) an incorporated association under the
26                                Associations Incorporation Act 1987 the
27                                membership of which is wholly or principally
28                                composed of persons of Aboriginal descent as
29                                defined in the AAPA Act section 4;


     page 6
                      Aboriginal Housing Legislation Amendment Bill 2009
                                 Housing Act 1980 amended         Part 2

                                                                          s. 9



 1              (e)    an entity prescribed by the regulations for this
 2                     definition;
 3             Aboriginal land means --
 4               (a) Crown land; or
 5               (b) freehold land that is owned by AAPA, ALT or
 6                     the State,
 7             over which an Aboriginal entity has power to grant a
 8             lease;
 9             ALT means the Aboriginal Lands Trust established by
10             the AAPA Act section 20(1);
11             housing management agreement means an agreement
12             entered into under section 62B(1);
13             lease includes a sublease;
14             nominated house, in relation to a housing management
15             agreement, has the meaning given in section 62D(2);
16             nominated lot, in relation to a housing management
17             agreement, has the meaning given in section 62D(1);
18             residential tenancy agreement has the meaning given
19             in the Residential Tenancies Act 1987 section 3.

20          Division 2 -- Housing management agreements
21   62B.      Authority may enter into housing management
22             agreement
23     (1)     The Authority may enter into a housing management
24             agreement in respect of Aboriginal land with an
25             Aboriginal entity.
26     (2)     The purpose of a housing management agreement is to
27             enable the Authority to control and manage, on behalf
28             of the Aboriginal entity, the letting and leasing of
29             housing on the Aboriginal land.




                                                                   page 7
     Aboriginal Housing Legislation Amendment Bill 2009
     Part 2         Housing Act 1980 amended

     s. 9



 1            (3)   This Part does not require the Authority to enter into a
 2                  housing management agreement with an Aboriginal
 3                  entity.

 4          62C.    Wishes of Aboriginal inhabitants to be ascertained
 5                  The Authority cannot --
 6                   (a) enter into a housing management agreement; or
 7                   (b) list under section 62D a lot or house as a lot or
 8                        house in relation to which a housing
 9                        management agreement applies,
10                  unless the Authority is satisfied that doing so would
11                  accord with the wishes of the Aboriginal inhabitants of
12                  the Aboriginal land to the extent those wishes can be
13                  ascertained and are practicable.

14          62D.    Lots and houses to which housing management
15                  agreement applies
16            (1)   A housing management agreement applies in relation
17                  to a lot (a nominated lot) that is listed in the housing
18                  management agreement for the period specified for the
19                  lot in the housing management agreement.
20            (2)   A housing management agreement applies in relation
21                  to a house (a nominated house) that --
22                    (a) is on a nominated lot; and
23                    (b) is listed in the housing management agreement,
24                  for the period specified for the house in the housing
25                  management agreement.
26            (3)   A housing management agreement must provide for
27                  these matters --
28                    (a) a lot to be added to, or removed from, the list
29                         referred to in subsection (1);



     page 8
                     Aboriginal Housing Legislation Amendment Bill 2009
                                Housing Act 1980 amended         Part 2

                                                                         s. 9



 1            (b)     a house to be added to, or removed from, the
 2                    list referred to in subsection (2)(b);
 3             (c)    a period referred to in subsection (1) or (2) to
 4                    be varied.

 5   62E.    Rent for nominated lots and nominated houses
 6     (1)   In this section --
 7           rent has the meaning given in the Residential
 8           Tenancies Act 1987 section 3.
 9     (2)   Rent for the let or lease of a nominated lot or
10           nominated house is payable to the Authority.
11     (3)   The amount of rent payable is the amount determined
12           by the Authority and approved by the Minister.
13     (4)   A determination under subsection (3) may provide for
14           all or any of these matters --
15             (a) the payment of different rents in respect of
16                    different nominated lots or nominated houses or
17                    different classes of nominated lots or
18                    nominated houses;
19             (b) the payment of different rents by tenants of
20                    different classes;
21             (c) the allowance of rebates in the circumstances
22                    and subject to the conditions specified in the
23                    determination.

24   62F.    Other terms of housing management agreement
25           A housing management agreement must provide for
26           these matters --
27             (a) the Authority to determine, subject to this Part
28                  and the Residential Tenancies Act 1987 as
29                  applied by section 62G(1), the terms of a
30                  residential tenancy agreement in respect of a
31                  nominated lot or nominated house;

                                                                     page 9
     Aboriginal Housing Legislation Amendment Bill 2009
     Part 2         Housing Act 1980 amended

     s. 9



 1                    (b)    the Authority to decide, having regard to the
 2                           wishes of the Aboriginal inhabitants of the
 3                           Aboriginal land to the extent those wishes can
 4                           be ascertained and are practicable, to whom a
 5                           nominated lot or nominated house can be let or
 6                           leased;
 7                    (c)    the Authority to execute, on behalf of the
 8                           Aboriginal entity as lessor, a residential tenancy
 9                           agreement in respect of a nominated lot or
10                           nominated house;
11                    (d)    the period for which the housing management
12                           agreement has effect;
13                    (e)    the early termination of the housing
14                           management agreement, but only if the parties
15                           to the agreement agree to the early termination;
16                     (f)   the variation of the housing management
17                           agreement, but only if the parties to the
18                           agreement agree to the variation;
19                    (g)    the effect of early termination or variation of
20                           the housing management agreement on a
21                           residential tenancy agreement executed by the
22                           Authority under the housing management
23                           agreement;
24                    (h)    any other matters prescribed by the regulations
25                           for this section.

26          62G.     Application of Residential Tenancies Act 1987
27             (1)   Subject to this Part and the housing management
28                   agreement, the Residential Tenancies Act 1987 applies
29                   in relation to the let or lease of a nominated lot or
30                   nominated house as if --
31                     (a) the nominated lot or nominated house were
32                            residential premises as defined in section 3 of
33                            that Act; and


     page 10
                     Aboriginal Housing Legislation Amendment Bill 2009
                                Housing Act 1980 amended         Part 2

                                                                        s. 9



 1             (b)    the Authority were the owner, as defined in
 2                    section 3 of that Act, of those premises.
 3      (2)   However, the Authority is not to be treated as the
 4            owner of a nominated lot or nominated house for any
 5            other purpose.

 6   62H.     No interest in land created, property acquired or
 7            compensation payable
 8      (1)   A housing management agreement does not create any
 9            interest in Aboriginal land in favour of the Authority.
10      (2)   A housing management agreement is not an acquisition
11            of property.
12      (3)   Compensation is not payable under any written law to
13            an Aboriginal entity or other person because --
14              (a) an Aboriginal entity enters into a housing
15                  management agreement; or
16              (b) the Authority does anything that it is required
17                  or permitted to do under a housing management
18                  agreement.

19   62I.     No fees or charges payable in respect of housing
20            management agreement
21            A party to a housing management agreement cannot
22            require the payment of a fee or charge for --
23              (a) entering into the housing management
24                    agreement; or
25              (b) doing anything that the party is required or
26                    permitted to do under the housing management
27                    agreement.




                                                                    page 11
     Aboriginal Housing Legislation Amendment Bill 2009
     Part 2         Housing Act 1980 amended

     s. 9



 1          62J.     Authority may act through agent
 2             (1)   The Authority may enter into an agreement (an agency
 3                   agreement) with a person or body under which the
 4                   person or body is authorised to exercise as the
 5                   Authority's agent all or any of the powers conferred on
 6                   the Authority under a housing management agreement.
 7             (2)   The powers conferred on the Authority's agent under
 8                   the agency agreement are exercisable by the
 9                   Authority's agent in accordance with this Act, the
10                   housing management agreement and the agency
11                   agreement.
12             (3)   The agency agreement may provide for the payment of
13                   a fee by the Authority to the Authority's agent or
14                   another person for anything that the Authority's agent
15                   is required or permitted to do under the agency
16                   agreement.

17          62K.     Delegation: powers and duties in relation to housing
18                   management agreement
19             (1)   The Authority may delegate under this section to an
20                   officer of the Authority any power or duty of the
21                   Authority under any of these provisions --
22                     (a) another provision of this Division;
23                     (b) a provision of a housing management
24                           agreement;
25                     (c) a provision of a residential tenancy agreement
26                           in respect of a nominated lot or nominated
27                           house;
28                     (d) a provision of the Residential Tenancies
29                           Act 1987 as applied by section 62G(1).
30             (2)   The delegation must be in writing executed by the
31                   Authority.



     page 12
                   Aboriginal Housing Legislation Amendment Bill 2009
                              Housing Act 1980 amended         Part 2

                                                                          s. 9



 1     (3)   An officer to whom a power or duty is delegated under
 2           this section cannot delegate that power or duty.
 3     (4)   An officer exercising or performing a power or duty
 4           that has been delegated to the officer under this section
 5           is taken to do so in accordance with the terms of the
 6           delegation unless the contrary is shown.
 7     (5)   This section does not limit the ability of the Authority
 8           to perform a function through an officer of the
 9           Authority or an agent.

10             Division 3 -- Miscellaneous matters
11   62L.    Approval of Minister for Indigenous Affairs, AAPA
12           or ALT not required
13     (1)   In this section --
14           Minister for Indigenous Affairs means the Minister to
15           whom the administration of the AAPA Act is
16           committed.
17     (2)   Subsection (3) applies despite --
18            (a) the AAPA Act and any other written law; and
19            (b) the terms and conditions of the grant of any
20                  interest, licence, right, title or estate under any
21                  written law by --
22                     (i) the Minister for Indigenous Affairs; or
23                    (ii) AAPA; or
24                   (iii) ALT.
25     (3)   The prior approval or consent of the Minister for
26           Indigenous Affairs, AAPA or ALT is not required for a
27           person --
28             (a) to enter into --
29                     (i) a housing management agreement; or



                                                                   page 13
     Aboriginal Housing Legislation Amendment Bill 2009
     Part 2         Housing Act 1980 amended

     s. 9



 1                           (ii)   a residential tenancy agreement in
 2                                  respect of a nominated lot or nominated
 3                                  house;
 4                          or
 5                    (b)   to do anything the person is required or
 6                          permitted to do under an agreement referred to
 7                          in paragraph (a).

 8          62M.     Application of Land Administration Act 1997
 9             (1)   In this section --
10                   reserved Aboriginal land means Aboriginal land that is
11                   Crown land reserved for the purpose of the use and
12                   benefit of Aboriginal inhabitants (however that purpose
13                   is described).
14             (2)   This Part does not affect the application of the Land
15                   Administration Act 1997 in relation to Aboriginal land
16                   that is Crown land.
17             (3)   To avoid doubt, it is declared that the letting and
18                   leasing of housing on reserved Aboriginal land is, and
19                   always has been, consistent with the purpose for which
20                   that land is reserved.
21




     page 14
                            Aboriginal Housing Legislation Amendment Bill 2009
           Aboriginal Affairs Planning Authority Act 1972 amended       Part 3

                                                                            s. 10



 1         Part 3 -- Aboriginal Affairs Planning Authority
 2                      Act 1972 amended
 3   10.     Act amended
 4           This Part amends the Aboriginal Affairs Planning Authority
 5           Act 1972.

 6   11.     Section 33A inserted
 7           At the end of Part III insert:
 8


 9         33A.    Power to grant leases over Part III land
10           (1)   To avoid doubt, it is declared that the Authority has,
11                 and has always had, power to grant a lease over land
12                 whenever vested in the Authority under section 27.
13           (2)   To avoid doubt, it is declared that the powers delegated
14                 to the Trust by a proclamation whenever made under
15                 section 24 in respect of land to which this Part applies
16                 include, and have always included, power to grant a
17                 lease over that land unless the proclamation expressly
18                 excludes that power.
19


20




 


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