Administrators and investigators may be appointed to Local Aboriginal Land Councils (LALCs) to solve problems and to ensure they operate in the best interests of their members.
They are appointed by the Minister for Aboriginal Affairs, under the terms of the Aboriginal Land Rights Act 1983 (ALRA). However, the Minister must have the approval of the NSW Aboriginal Land Council. The Minister also has the right to extend appointments for various reasons, but also only with the consent of the NSW Aboriginal Land Council.
Administrators are appointed from a list of persons prepared by the NSW Aboriginal Land Council based on the criteria set out in the Aboriginal Land Rights Regulation 2014. The list must be reviewed every five years following a public expression of interest process.
Administrators and investigators are independent of the Minister, Aboriginal Affairs and the NSW Aboriginal Land Council. Their roles and duties are set out in their Instruments of Appointment.
The Instrument of Appointment sets out the term of the appointment, functions and duties, reporting requirements, and specific matters that require addressing to re-establish compliance with the ALRA.
The NSW Aboriginal Land Council covers the wages and costs of appointing an administrator and/or investigator. These funds may be recovered from the relevant land council where the appointment was made. The NSW Government does not pay for appointments.
The ALRA indemnifies appointees from personal liability where they act in good faith for the purpose of executing the Act or any other legislation.
Investigators and administrators may be removed by the Minister with the approval of NSWALC.
The role of investigators
Investigators look at problems within a land council and advise the Minister and the NSW Aboriginal Land Council on actions that will help the council operate in the best interest of its members, including the efficient management of their funds and properties. Investigators must also report any maladministration or misappropriation to the appropriate authorities.
The Chairperson of the relevant land council, and others with possession or control of the land council’s records, must provide an investigator with access to the records, as well as information and authorities to the records. A person must not hinder, obstruct or delay the investigation.
Investigators are appointed from a list of persons jointly prepared by the NSW Aboriginal Land Council and Aboriginal Affairs. The list is made up of professionals appropriately qualified to undertake corporate investigations. The list is regularly reviewed. Additions to the list can be made on application and assessment.
The role of administrators
Administrators are only appointed to a land council to handle serious governance and financial administration matters, as set out in the Aboriginal Land Rights Act 1983 (ALRA).
They are usually appointed to remedy administrative and financial problems and to restore effective operations, administration, and governance.
Administrators are usually appointed to take over the functions of the relevant land council and its Board and the Council. Exceptions include those powers reserved for members, such as the disposal (sale) of, or other dealings with land.
When an administrator is appointed with full functions, the sitting Board is removed from office.
Administrators may also be appointed to perform only specified functions of the relevant land council, while the Board remains in office to carry out the remaining functions.
All persons with possession or control of a land council’s records must provide the administrator with access to the records, as well as information and authorities to the records. A person must not hinder, obstruct or delay the administration.
There are several steps to appointing an administrator, under the ALRA. The Minister must first give the relevant land council notice and ask for submissions as to why an administrator should or should not be appointed.
The grounds upon which the Minister may appoint an administrator to Local Aboriginal Land Councils are set out in section 222(1) of ALRA. Section 223A of the ALRA provides that procedural fairness be afforded to a land council when the Minister is considering appointing an administrator.
Local Aboriginal Land Councils under administration
If an administrator is appointed to perform all of the functions of a Local Aboriginal Land Council (LALC) the Board members are removed from office and a new Board is appointed before the end of the administrator’s term. However, administrators must not deal with LALC land. Administrators must seek the approval of members by resolution at a constituted land dealing meeting to deal with LALC land.
However, an administrator can execute certain land dealings in relation to housing without the approval of the Council’s members. This can occur if the grounds on which the administrator was appointed include that the relevant land council has failed to obtain the approval of the NSW Aboriginal Land Council to operate social housing, as a community benefit scheme.