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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIVE TITLE AMENDMENT BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
Abbreviations used in the Explanatory Memorandum
Bill Native Title Amendment Bill 2009
Court Federal Court of Australia
Evidence Act Evidence Act 1995
Evidence Amendment Act Evidence Amendment Act 2008
Federal Court Act Federal Court of Australia Act 1976
Native Title Act Native Title Act 1993
Native Title Amendment Act Native Title Amendment Act 2007
Native Title
(Technical Amendments) Act Native Title (Technical Amendments) Act 2007
NNTT National Native Title Tribunal
NTRB Native Title Representative Body
PBC Prescribed Body Corporate
RTN Right to negotiate
Native Title Amendment Bill 2009
Outline
On 17 October 2008, the Attorney-General announced institutional reform to
improve the operation of the native title system. This Bill would amend
the Native Title Act to implement the institutional reform to give the
Court a central role in managing native title claims.
Under the new provisions, the Court would determine which body, whether the
Court, the NNTT, or another individual or body, should mediate. Giving one
body control over the direction of each case, from start to end, means that
the Court could more readily identify the opportunities available to
resolve each claim. This new approach would improve the operation of the
native title system by encouraging more negotiated settlements of native
title claims, and encouraging the Court and parties to find new ways to
resolve claims. It would ultimately result in better outcomes for
participants in the system.
Schedule 1 of the Bill makes a number of amendments to the Native Title
Act. Most of the amendments would implement the institutional change.
Consequential amendments accompanying this change would govern the manner
in which mediations are conducted and would generally expand the scope of
the existing provisions concerning the conduct of mediation undertaken by
the NNTT to apply to all native title claim-related mediation.
While the Act already allows parties to achieve significant native title
outcomes, the Bill would also make minor amendments to encourage and
facilitate more negotiated settlements of native title claims. These
changes would create a more flexible native title system and one that
produces broad benefits to Indigenous people and certainty to stakeholders.
Schedule 2 of the Bill would make changes to the powers of the Court. The
changes would:
. enable the Court to rely on a statement of facts agreed between the
parties, and
. enable the Court to make consent orders that cover matters beyond
native title so that parties can resolve a range of native title and
related issues at the same time, enabling maximum derivation of
benefits from native title rights and interests including economic
development opportunities.
Schedule 3 of the Bill would allow the amended evidence rules made by the
Evidence Amendment Act that concern evidence given by Aboriginal and Torres
Strait Islander people to apply to native title claims where evidence has
been heard and either the parties agree the rules should apply or the Court
has considered the views of the parties and considers it is in the
interests of justice for the rules to apply.
Consistent with the changes in Schedule 1, Schedule 4 would expand the
current assistance provisions to allow assistance in relation to all
mediations.
Schedule 5 would make amendments to Part 11 of the Native Title Act which
deals with representative Aboriginal and Torres Strait Islander bodies.
These bodies are established to perform a number of functions that assist
Aboriginal and Torres Strait Islander people to undertake action in
relation to native title. The amendments in Schedule 5 would improve the
operation of the representative body provisions by streamlining and
improving these processes.
The Bill would also make minor and technical amendments to improve or
clarify the operation of existing provisions. Schedule 6 would:
. clarify that the Court is required to make a determination as to
whether a native title determination is to be held on trust or by a
PBC at the same time as, or as soon as practicable after, making a
determination that native title exists in an area
. simplify the provisions governing the cancellation of bank guarantees
held as payments held under a RTN process to avoid unnecessary
banking costs to future act proponents
. provide that alternative State and Territory regimes will have the
option of providing for a bank guarantee or a trust regime in
relation to compensation held for RTN payments under an alternative
State or Territory regime to rectify an oversight in the Native Title
Amendment (Technical Amendments) Act which had intended to give
States and Territories the option of either a bank guarantee or a
trust regime but mistakenly removed the trust option
. correct a typographical error to change paragraph 66C(1)(c) from 'in
relation to the applicant' to 'in relation to the application', and
. clarify the penalty provisions.
2 The Court will also be able to utilise new provisions in other Bills to
assist with the resolution of native title claims, such as changes to the
Federal Court Act to allow the Court to refer a proceeding, or one or more
questions arising in a proceeding, to a referee for report. This could
assist in native title claims to assist to resolve overlaps, specific legal
questions and to determine claim group membership.
Financial impact statement
There is no direct financial impact on Government revenue from this Bill.
NOTES ON CLAUSES
Clause 1: Short title
Clause 1 provides for the Act to be cited as the Native Title Amendment Act
2009.
Clause 2: Commencement
This clause contains a table which sets out when each of the provisions of
the Bill commences. Item 1 of the table provides that sections 1-3 (the
short title, commencement and schedule provisions) and anything in the Act
not covered elsewhere by the table commence on Royal Assent.
Item 2 of the table provides that Schedules 1, 2, 3, and 4 will commence on
the later day of the day after this Act receives the Royal Assent and
1 July 2009. Item 3 of the table provides that Part 1 of Schedule 5 will
commence on the later day of the day after this Act receives the Royal
Assent and 1 July 2009. Item 5 of the table provides that Schedule 6 will
commence on the later day of the day after this Act receives the Royal
Assent and 1 July 2009. This is because the Government intends the
amendments to be in force by 1 July 2009 however it is not intended that
the Bill have retrospective commencement should the Bill not be passed by 1
July 2009.
Table item 4 provides that Part 2 of Schedule 5 will commence immediately
after the commencement of the provision(s) covered by table item 3.
Clause 3: Schedule(s)
This clause provides that the Schedules to the Bill will amend the Acts set
out in those Schedules in accordance with the provisions set out in each
Schedule.
Schedule 1 - Amendments relating to mediation
Overview
Schedule 1 of the Bill would make a number of amendments to the native
title mediation provisions in the Native Title Act. The amendments would
give the Court the role of managing all native title claims, including
whether claims will be mediated by the Court or referred to the NNTT or
another Court-appointed individual or body for mediation. The Schedule
contains a number of separate measures that primarily set out the powers
and functions of mediators. A number of the amendments would expand the
existing NNTT mediation powers to apply to all mediators.
The aim of the amendments is to emphasise the importance of mediation and
draw on the Court's significant alternative dispute resolution experience
to achieve more negotiated outcomes. The importance of resolving native
title matters through negotiated outcomes has been a central object of the
Native Title Act since it was introduced in 1994. The preamble to the Act
states:
A special procedure needs to be available for the just and
proper ascertainment of native title rights and interests which
will ensure that, if possible, this is done by conciliation and,
if not, in a manner that has due regard to their unique
character.
Having one body actively control the direction of each case with the
assistance of case management powers means opportunities for resolution can
be more easily identified. Parties that are behaving with less than good
faith can also be more forcefully pulled into line. Where parties are
deadlocked or unwilling to see common ground, the Court can bring a
discipline and focus on issues through the use of its case management
powers to ensure that matters do not languish.
A number of the amendments relate to Court processes that would assist with
the resolution of claims. For example, amendments would:
. require the Court to refer all native title applications for mediation,
subject to exceptions in line with current provisions
. allow the Court to refer a whole or any part of a proceeding for
mediation to a Court mediator, the NNTT or another individual or body
. allow the Court to consider the relevant training, qualifications and
experience of potential mediators
. allow the Court to cease a mediation in a number of situations in line
with current provisions and add a new ground where it considers it
appropriate, the Court may also refer it to another mediator following a
cessation order
. allow the Court to make any orders about the way in which the mediation
is to be provided, what assistance may be provided to the mediator or any
other matter it considers relevant when referring a matter for mediation,
and
. allow the Court to refer for review by the NNTT the issue of whether a
native title group that is a party in the proceeding holds native title
rights or interests.
Other amendments in this Schedule relate to processes for mediations by a
mediator. For example, amendments would:
. allow mediators to hold such mediation conferences as necessary to help
in resolving the native title matter
. require mediators to hold mediation conferences in private
. give mediators control over who attends a mediation conference
. allow mediators to refer a question of fact or law relating to a
proceeding to the Court
. allow mediators to prohibit the disclosure of information or statements
provided during a conference, and
. require mediators to provide written reports to the Court about
mediations.
Part 1-Amendments
Native Title Act 1993
Item 1 - Paragraph 4(7)(aa)
This item would insert new paragraphs 4(7)(aa) and (ab) in section 4 of the
Native Title Act. Section 4 sets out an overview of the Act, and
subsection 4(7) concerns the role of the Court and the NNTT. This item
would clarify that the Act allows the Court to refer native title and
compensation matters to mediation and provides for the Court to make orders
that give effect to terms of agreements including matters other than native
title.
Current subsection 4(7) sets out the role of the Court and NNTT. It
provides that the Native Title Act allows the Court to make determinations
of native title and compensation, establishes the NNTT which is empowered
to make determinations about certain future acts and agreements as well as
provide assistance or undertake mediation on matters related to native
title, and deals with other matters including the role of NTRBs.
Paragraph 4(7)(aa) would set out that the role of the Court includes
referring native title and compensation applications for mediation.
Paragraph 4(7)(ab) would set out that the Court has a role to make orders
to give effect to the terms of agreements reached by parties to a
proceeding involving matters other than native title. This would make
clear that where parties reach agreement about matters other than native
title, the Court can make orders that reflect those agreements.
The proposed amendments are associated with the proposed amendments in
item 6, which would give the Court a central role in the management of all
native title claims, including deciding what individual or body should
carry it out.
Items 2 and 3 - Paragraph 79A(a)
These two items amend paragraph 79A(a) and insert paragraph 79A(e). These
amendments are consequential to item 6.
Section 79A contains an overview of Part 4 of the Native Title Act which
contains a range of Divisions that set out procedures and rules associated
with native title determinations by the Court.
Item 2 would amend paragraph 79A(a) by removing the reference to the NNTT.
The paragraph provides that Division 1B of Part 4 contains the general
rules for referring native title applications for mediation. The amendment
would remove the reference to the NNTT in line with the amendment at item
6.
Item 3 would insert a new paragraph 79A(e). This paragraph would provide
that Division 4 of Part 4 contains the rules and procedures which govern
the manner and methods of mediation by a mediator under the Native Title
Act. This item is consequential upon item 35, which would create a new
Division 4 of Part 4. Division 4 would replicate and expand many of the
existing rules and procedures in relation to mediation undertaken by the
NNTT to apply to all mediators. These amendments are necessary to effect
the institutional changes as set out at item 6.
Item 4 - Division 1B of Part 4 (heading)
This item would amend the existing heading of Division 1B of Part 4. Part
4 contains a number of Divisions which set out procedural matters
concerning native title determinations made by the Court. The amendment
would change the heading to Division 1B to make it clear that the Division
deals with the matters that are referred to mediation. The amendment would
remove the reference to the NNTT in the heading of this Division to make it
consistent with the institutional changes that will allow the Court to
decide whether to mediate a matter or to refer it for mediation by an
appropriate person or body.
Item 5 - Subsections 86A(1) and (2)
Item 5 would amend subsections 86A(1) and (2) which set out the purpose of
mediation under the Native Title Act. This item would remove the
references to the NNTT in the existing sections. These amendments are
associated with the institutional changes as set out by item 6.
Item 6 - Subsection 86B(1)
This item would amend the referral to mediation function of the Court and
is necessary to effect the institutional changes. The amendment aims to
provide new ways for parties to resolve native title claims and to achieve
better outcomes from that process.
Subsection 86B(1) provides that the Court must refer each native title
application made under section 61 for mediation to the NNTT, unless an
order has been made that no mediation take place under the Act. This
amendment would repeal the existing provision and insert a new section 86B
to provide that the Court, unless an order has been made that no mediation
take place under the Act, must refer each native title application made
under section 61 to a mediator for mediation. Section 61 concerns the
manner in which each native title determination application, revised native
title determination application and compensation application may be made.
The effect of this amendment would be to grant the Court a central role in
managing all native title claims. This would assist to manage and resolve
claims more efficiently and result in better outcomes for participants.
Having one body control the direction of each native title case will mean
that opportunities for resolution can be more readily identified and the
interests of parties best focussed. The Court will be able to oversee all
stages of a native title claim, from the point of application to
finalisation.
The amendments would not require the Court to automatically refer each
native title case to the NNTT for mediation. Instead the Native Title Act
would require the Court to refer each application to 'an appropriate person
or body for mediation'. Mediation would continue to be an important way
for parties to reach agreement about beneficial ways to resolve native
title claims. An 'appropriate person or body' could include a Registrar of
the Court. The Court in particular has significant alternative dispute
resolution experience. An 'appropriate person or body' could also include
the NNTT, which has experience in native title mediations. It could also
include another body, such as a specialised mediation body, or any other
person or body the Court considers appropriate.
Item 6 would also include a new subsection 86B(2) which would insert a
further provision which allows the Court to consider the relevant
'training, qualifications and experience' of the person who will mediate in
deciding whether to refer the application to a particular person or body
under subsection 86B(1). The Court could take such skills into account,
whether or not the training, qualifications or experience relate
specifically to native title or specifically to mediation. This would
allow the Court flexibility in referring a matter to mediation to an
appropriate person. Such a person could be a mediator who would bring
particular mediation expertise to the mediation, or a person who is an
accredited mediator, for example under the National Mediator Accreditation
System. Similarly, the Court could refer an application for mediation to a
person who has particular experience or expertise that would assist to
resolve the issue at hand. This could include experience in native title
law, experience in resolving overlapping claims, or knowledge of the areas,
Indigenous groups or issues involved in a particular case. The amendments
would also allow the Court to engage people who have special knowledge in
relation to Aboriginal or Torres Strait Islander societies or Indigenous
dispute resolution methods.
The wording of the subsection to the effect that the Court may take into
account the training, qualifications and experience of 'the person who is
to be, or is likely to be, the person conducting the mediation' is
necessary due to the effect of proposed subsection 94D(2) at item 35.
Subsection 94D(2) would set out who must conduct a mediation conference
when a matter has been referred by the Court for mediation. As the Court
will not always know the identity of the person who will conduct the
mediation, for example, where the Court refers the matter to the NNTT or
'in any other case' which could include a Court appointed mediating
company, partnership, body corporate or similar entity, the Court may take
into account the training, qualifications and experience of the person who
is likely to be conducting the mediation. For example, the membership of a
particular mediating organisation may require certain qualifications or
experience, in which case the Court could consider those membership
requirements.
Item 12 would insert an equivalent provision applicable to matters referred
under 86B(5).
Item 6 would also include a new subsection 86B(2A) which would clarify that
a referral by the Court for mediation under subsection 86B(1) may include a
referral to the Registrar, a Deputy Registrar, a District Registrar or a
Deputy District Registrar of the Court. This list is not intended to be
limiting in any way. Item 12 would insert an equivalent provision
applicable to matters referred under 86B(5).
This item also includes a note to amend the heading to section 86B to omit
the reference to referral to the NNTT for mediation.
This amendment requires a substantial number of consequential amendments to
sections of the Native Title Act concerning mediation because mediation
under the Native Title Act is currently undertaken by the NNTT.
Consequential amendments to this item are intended to replicate and expand
the majority of existing provisions concerning mediation so that they apply
to the broader range of mediators that this item creates. These
consequential amendments include further amendments to Division 1B of Part
4, the inclusion of a newly created Division 4 of Part 4 which essentially
replicates and expands provisions dealing with mediation conferences to
apply to all mediators that may conduct mediation under the NTA, and the
inclusion of additional consequential definitions.
Item 7 - Subsection 86B(3)
This item would remove references to mediation 'by the NNTT' and replace
this phrase with the words 'under this Act' so that the provision covers
mediations to all mediators, not just the NNTT. Subsection 86B(3) concerns
the Court's power to order that no mediation take place, and sets out
certain situations when the Court can order that no mediation take place in
relation to the whole or part of a native title proceeding. This
subsection would cover any mediation.
This item is a consequence of item 6 which would give the Court the power
to decide which individual or body would mediate. The item would expand
the scope of the Court's power to decide that no mediation take place to
apply to all mediations undertaken under the Act.
Item 8 - Paragraph 86B(3)(a)
Item 8 would remove '(whether or not by the NNTT)' to ensure the paragraph
applies to any mediation.
Item 9 - Paragraph 86B(3)(b)
Item 9 would remove 'by the NNTT' and replace this phrase with the words
'under this Act' to ensure the paragraph applies to any mediation.
Item 10 - Subsection 86B(4)
Subsection 86B(4) sets out factors that the Court is to take into account
when deciding to make an order under subsection 86B(3) that no mediation
take place under the Act. This item would remove references to mediation
'by the NNTT' so that it applies to all mediations.
Item 11 - Paragraph 86B(4)(ea)
This item would repeal paragraph 86B(4)(ea). Paragraph 86B(4)(ea) provides
that the Court is to take into account any submission prepared by the NNTT
under subsection 86BA(1) consequential on item 13 which would repeal the
current subsection 86BA(1).
Item 12 - Subsection 86B(5)
This item would repeal existing subsection 86B(5) and insert new
subsections 86B(5), 86B(5A), 86B(5B) and 86B(5C).
Existing subsection 86B(5) empowers the Court, after referring a matter to
the NNTT for mediation, to refer the whole or part of the proceeding to the
NNTT for mediation if the Court considers parties would be assisted to
reach agreement on the matters listed in subsections 86A(1) or (2), such
as the existence of native title rights and interests. This power is in
addition to the power to refer a matter for mediation in subsection 86B(1),
and would allow the Court to refer a matter at any time in a proceeding.
This item is consequential upon item 12, and would amend the Native Title
Act to clarify that the Court may make such a referral at any time to a
mediator.
Subsection 86B(5) would allow the Court to undertake a subsequent referral
to a mediator where the Court has ordered that mediation cease under
proposed new paragraph 86C(1)(c) in item 21A. Proposed new 87C(7) would
provide that the Court could use the power to refer following the cessation
of a mediation in subsection 86C(1). The intention of the combined effect
of the proposed subsection 86B(5) and paragraph 86C(1)(c) is to allow the
Court to effectively manage native title matters in the mediation process.
For example, the Court could consider it appropriate to make an order that
a mediation cease then subsequently refer the mediation to a different
individual or body under subsection 86B(5).
Subsection 86B(5A) is an equivalent provision to proposed subsection 86B(2)
at item 6, which would allow the Court to consider the training,
qualifications or experience of the person who is to, or who is likely to,
mediate in deciding whether to refer the application to a particular person
or body under subsection 86B(5).
Subsection 86B(5B) is an equivalent provision to proposed subsection
86B(2A). This item would clarify that a referral by the Court for
mediation under subsection 86B(5) may include a referral to the Registrar,
a Deputy Registrar, a District Registrar or a Deputy District Registrar of
the Court. The list is not intended to be limiting in any way.
Section 86B(5C) would allow the Court, where the Court has referred a
matter for mediation under subsections 86B(1) or 86B(5), to make orders
concerning the mediation. The Court may make the orders at any time after
the referral of the mediation. This proposed subsection includes powers to
make orders about the way in which the mediation is to be provided, whether
the person conducting the mediation may be assisted, and any other matter
the Court considers relevant. The purpose of this amendment is to provide
flexibility to the Court in allowing it to make any orders it deems
necessary to effectively manage each native title matter.
Item 13 - Section 86BA
This item would repeal existing section 86BA which gives the NNTT the right
to appear before the Court and replace it with a new section that sets out
that a mediator may appear before the Court.
Subsection 86BA(1) currently gives the NNTT the right to appear before the
Court where the Court is considering whether to make an order under
subsection 86B(3) that there be no mediation by the NNTT in a native title
matter. The existing subsection applies in the situation where the Court
has not yet referred the matter for mediation under subsection 86B(1). The
replacement provisions would not replicate this right. Consistent with the
Court's overall case management powers of native title matters in
mediation, it is appropriate that the Court have the discretion to decide
that a matter should not be referred to mediation where the Court is
considering whether to make an order under subsection 86B(3). This is
consistent with the intention to give the Court control over all aspects of
native title matters.
The item would set out, in new subsection 86BA(1), that a mediator may
appear before the Court at a hearing where a matter is currently before the
mediator, where the Court considers the mediator could assist the Court.
This provision would cover all mediators that the Court has referred a
matter to under section 86B.
The intention of this amendment is to allow mediators to assist the Court
in any hearing in respect of a mediation that the mediator is involved
with. The assistance that a mediator could bring to the Court may include,
for example, a specialised knowledge of contested issues in the native
title matter resulting from their involvement in the proceeding through the
mediation process. This amendment aims to facilitate open communication
between mediators and the Court, and to assist the Court in its role of
overseeing the management of all native title claims. It may be
appropriate for a mediator conducting the mediation to appear before the
Court in a number of situations because the mediator will be aware of the
progress of the mediation and any specific issues pertaining to the
mediated matter that the Court would benefit from hearing. Including the
discretion for the Court to grant leave for a mediator to appear, rather
than allowing a mediator to have an automatic right of appearance, would be
consistent with granting the Court control over native title mediations.
Item 13 would also replicate the effect of current subsection 86BA(3).
Proposed subsection 86BA(2) would make it clear that all mediators are
bound by the restriction in subsection 86BA(2) when appearing before the
Court. Existing subsection 86BA(3) provides that subsection 136A(4)
applies to the NNTT when it exercises the right to appear before the Court.
Existing subsection 136A(4) provides that in a proceeding before a Court,
evidence may not be given nor statements made concerning any word spoken or
act done during a mediation conference conducted by the NNTT, unless
parties agree. Item 13 would not replicate the reference to existing
subsection 136A(4) that would be repealed and instead refers to proposed
new equivalent subsection 94D(4). Proposed subsection 94D(4) would
replicate existing subsection 136A(4) (see item 35) which provides that in
a proceeding before the Court, evidence may not be given nor statements
made concerning any word spoken or act done during a mediation conference
conducted by the NNTT, unless parties agree.
Item 39 would repeal the Division containing subsection 136A(4). Item 35
would insert a new Division that replicates the effects of all of the
provisions contained in existing Division 4A of Part 6 and would expand the
scope of those provisions to apply to the range of mediators consequential
to the proposed amendments made by item 6.
Item 13 would also replicate the effect of current subsection 86BA(4).
Subsection 86BA(4) provides that existing subsection 136A(5) does not
prevent the presiding member of the NNTT from representing the NNTT when it
exercises its right to appear before the Court, unless parties agree.
Proposed subsection 86BA(3) would not preclude the person conducting the
mediation from representing the mediator, for example, where the mediator
is a body to which the Court has referred a mediation, to appear before the
Court under subsection 86BA(1).
Subsection 86BA(3) would refer to new subsection 94D(5) which is the
proposed new equivalent to current subsection 136A(5), concerning the
requirement that unless the parties to the mediation agree, the person
conducting the mediation cannot take any further part in the proceeding.
Item 39 would repeal the Division containing subsection 136A(5). Item 35
would insert a new Division to replicate the effect of all of the
provisions contained in existing Division 4A of Part 6 and would expand the
scope of those provisions to apply to the range of mediators consequential
to the proposed amendments made by item 6. Item 35 would also give the
Court the discretion to allow a party to appear.
Existing subsection 136A(5) would be replicated in the proposed subsection
94D(5) (see item 35) which provides that unless parties agree, the person
conducting the mediation (see proposed new subsection 94D(2) at item 35)
may not take any further part in the proceeding in any capacity.
Items 14, 15, 16, 17, 18, 19, 20 and 21 - Section 86C
Section 86C provides for the cessation of mediation in certain
circumstances.
Items 14 and 16 would amend subsection 86C(1) by expanding the scope of
this subsection to the effect that the Court may order the cessation of any
mediation which has been referred to any mediator consistent with the
amendments made in item 6.
Item 15 would remove the words '(whether or not by the NNTT)' in subsection
86C(1). This would clarify that the Court may order that mediation by a
mediator cease if the Court considers that any further mediation, whether
by the mediator or by someone else under, for example, the Federal Court
Act, is unnecessary.
Item 17 would amend subsection 86C(1) by inserting a new ground upon which
the Court may order that mediation cease. Subsection 86C(1) currently
provides that the Court may, at its own initiative, order that mediation
cease over the whole or part of an application if it is satisfied that
further mediation is unnecessary, or where it considers that the parties
are unlikely to reach agreement on either factual issues relating to the
claim or the substance of the native title claimed. This item would amend
the Native Title Act to allow the Court to also order a mediation to cease
if it considers it is appropriate to do so for any reason. This change is
associated with the institution reforms set out in item 6. Consistent with
the Court's overall management role of native title matters in mediation,
it is appropriate that the Court have the power to assess and decide that
mediation cease if the Court considers that order to be suitable.
Subsection 86C(2) provides that once mediation has been underway for three
months, a party may apply to the Court for an order that mediation cease.
Item 18 would amend subsection 86C(2) to expand the scope of this
subsection by substituting the reference to the NNTT with a reference to a
mediator, which has the effect that a party to a proceeding may apply to
the for the cessation of any mediation which has been referred to any
mediator consistent with the amendments made in item 6.
Subsections 86C(3) and (4) set out when the Court must order mediation to
cease in circumstances where the party requesting this is either the
applicant who has made the native title claim or a government party
(subsection 86C(3)), or where the requesting party is any other person
(subsection 86C(4)). Item 19 would amend subsections 86C(3) and (4) by
substituting the references to the NNTT with references to the mediator,
which clarifies that the Court's power to order that mediation ceases where
requested is applicable to any mediation which has been referred to any
mediator consistent with the amendments made in item 6.
Subsection 86C(5) sets out that the Court, in deciding whether or not
mediation should cease, must take into account any report or work plan
provided to the Court under existing subsections 136G(2), (2A), (3), (3A)
or (3B). Item 20 would substitute those existing provisions (which item 39
will repeal) with the relevant new proposed provisions that set out the
reports to be given to the Court (see proposed section 94N at item 35).
Consistent with the proposed amendments expanding the persons and bodies to
which the Court may refer matters for mediation, this item ensures that the
Court takes into account any relevant report by a mediator in deciding
whether to order that mediation cease.
Item 21 would insert subsection 86C(6), which is a general power for the
Court to make any additional orders when making an order that mediation
cease under section 86C. The purpose of this amendment is to allow the
Court to address any matters that may be required following the order to
cease mediation, such as setting out what is to take place in the event of
cessation where, for example, a mediator has previously been ordered to
prepare a report for the Court on the progress of mediation under section
86E.
The Court's power to cease mediation under section 86C is linked to the
Court's power to refer a matter to mediation at any time during the
proceeding as set out by subsection 86B(5). That is, the Court may use
these powers conjunctively to cease a mediation and subsequently make a
further order directing the matter to mediation, which may be before
another meditator.
Items 22, 23, 24, 25, 26 and 27 - Section 86D
Section 86D sets out the Court's powers to determine questions of fact or
law that arise during mediation, and to adopt any agreement on facts
between the parties reached during mediation.
These items would amend section 86D by expanding the scope of this
provision to apply to matters being mediated by all mediators consistent
with the amendments made in item 6.
Items 22 and 23 would amend subsection 86D(1) by substituting the
references to the NNTT with references to a mediator. The effect of this
amendment is that the Court may determine a question of fact or law that is
referred to it by the mediator conducting a mediation.
Item 24 would amend the note to subsection 86D(1) by substituting the
reference to 136D(1) with subsection 94H(1). The note to subsection 86D(1)
cross refers the Court's power to determine a question of fact or law to
the provision in existing subsection 136D(1) which provides that the NNTT
may refer to the Court a question of fact or law related to a proceeding
that arises during the mediation. Item 39 would repeal the Division that
contains 136D(1). Item 35 would create a new Division 4 of Part 4 that
would replicate and expand many of the existing rules and procedures in
relation to mediation undertaken by the NNTT to apply to a range of
mediators. Section 94H replicates the effect of a similar provision to the
existing subsection 136D(1) which would allow the person conducting the
mediation to refer a question of fact or law to the Court in certain
circumstances.
Item 25 would amend subsection 86D(2) by substituting the reference to the
NNTT with a reference to the mediator. This is consistent with the
amendment made by item 6.
Items 26 and 27 are consequential amendments to the repeal of Division 4A
of Part 6 (item 39) and the insertion of Division 4 of Part 4 (item 35).
The effect of the items would be to extend the provisions to cover all
mediators.
Items 28, 29, 30 and 31 - Section 86E
Subsection 86E(1) provides that the Court may request a report on the
progress of any mediation being undertaken by the NNTT. Items 28 and 29
would amend subsection 86E(1) by substituting the reference to the NNTT
with a reference to the mediator, so that the Court may request a mediator
appointed under section 86B to provide a report on the progress of any
mediation they are undertaking.
Subsection 86E(2) provides that the Court may request the NNTT to provide
specialised reports to assist the Court in progressing proceedings in a
certain area, including a State or region of Australia. Subsection 86E(2)
defines the terms 'regional mediation progress report' and 'regional work
plans'. Items 30 and 31 would amend subsection 86E(2) by substituting the
reference to the NNTT with a reference to one or more mediators, so that
the Court may request that one or more mediators appointed by the Court
under section 86B provide a regional mediation progress report and/or a
regional work plan.
The reports prepared under section 86E would assist the Court in its
overall case management role. In particular, the ability of the Court to
request reports from one or more mediators is likely to result in the
provision of useful insights into the management of claims within a
particular region. The Court can specify when and how these reports are to
be provided. This would provide another way for the Court to monitor both
the progress of individual cases and cases in a region. It would also
complement the Court's management and prioritisation of native title
matters.
Items 32, 33 and 34 - Section 94B
Section 94B provides that the Court must take into account certain reports
where an application has been referred to the NNTT for mediation under
section 86B.
Item 32 would omit the reference to the NNTT to expand the section to all
mediators and is a consequential amendment to item 6.
Items 33 and 34 are consequential amendments to the repeal of Division 4A
of Part 6 (item 39) and the insertion of Division 4 of Part 4 (item 35).
Item 35 - At the end of Part 4
Division 4 of Part 4-Mediation conferences
Item 35 would insert proposed Division 4 of Part 4. This item would insert
proposed sections 94D, 94E, 94F, 94G, 94H, 94J, 94K, 94L, 94M, 94N, 94P,
94Q, 94R and 94S.
The proposed inclusion of Division 4 at the end of Part 4 is consequential
upon both the changes to the Court's referral to mediation functions under
section 86B (refer item 6) and the repeal of Division 4A of Part 6 (refer
item 39).
Existing Division 4A of Part 6 sets out the powers of the NNTT in relation
to mediation conferences. As the Court would be given a central role in
managing native title matters, it is necessary to set out the powers of
mediators in relation to mediation conferences. The existing Division 4A
of Part 6 contains the relevant provisions relating to mediation
conferences undertaken by the NNTT. The existing Division 4A of Part 6
would be repealed (refer item 39) and the proposed new Division 4 would be
located at the end of Part 4. Part 4 concerns determinations of the Court,
including rules for processing Court applications and making determinations
relating to native title. Separate Divisions located in Part 4 cover such
matters as the referral of matters for mediation, agreements, conferences
and orders.
The purpose of this item is to essentially replicate the existing
provisions of Division 4A of Part 6 and expand their scope to clarify that
the operation of the new Division covers mediation by a mediator, as
defined by the proposed amendments to section 86B. This item is
consequential upon item 6. If the Court refers the whole or part of a
proceeding for mediation under section 86B, the following provisions will
regulate the conduct of mediation conferences undertaken by a mediator.
Mediation conferences
Section 94D would replicate the effects of the provisions concerning
mediation conferences of the existing section 136A would expand the scope
of its application to confirm that the provision applies to all mediators
undertaking mediation subject to a referral from the Court under section
86B.
. Subsection 94D(1) would provide that a mediator may hold such conferences
as the mediator considers would assist in resolving the native title
matter.
. The note to subsection 94D(1) provides that the person conducting the
mediation may make a request to the Court that a review be undertaken by
the NNTT in relation to whether there are native title rights and
interests. Item 40 would amend section 136GC to set out the
circumstances in which the Court can refer a matter for review.
. Subsection 94D(2) would set out who must conduct mediation conferences.
The existing subsection 136A(2) sets out that a mediation conference must
be presided over by a member of the NNTT. This item would clarify who
must conduct a mediation conference in reference to each category of
mediators that the Court may refer a matter to for mediation under
section 86B (refer item 6). Subsequent proposed provisions such as
94D(3) would utilise the term 'person conducting the mediation' which
refer back to the definition provided in this proposed subsection 94D(2).
Paragraph 94D(2)(c) is intended to apply in situations where the Court
has referred a matter to a mediator who is not an individual or the NNTT,
such as an appropriate company, body corporate or partnership. The
intended effect of this amendment is that the mediator appointed by the
Court then nominates an appropriate person within their organisation to
be the person who conducts the mediation. The amendment in paragraph
94D(2)(c) is not intended to interfere with or override the Court's
referral to an appropriate mediator under section 86.
. Subsection 94D(3) would set out that the person conducting the mediation
may be assisted, and who that person may be assisted by. The operation
of the section is subject to any order that the Court may have made
involving the issue of whether the person conducting the mediation is to
be assisted by another person under the proposed new paragraph
86B(5C)(b). If the mediator is a member of the NNTT, that mediator may
be assisted by another member or staff member of the NNTT. In any other
situation, the person conducting the mediation may be assisted by someone
who, in the mediator's opinion, is an appropriate person to assist in the
mediation. However, the provision does not allow a person assisting the
mediation to conduct the mediation in place of the mediator. The
assistance provided by other individuals might include research
assistance or organising the venue for a mediation conference. This
replicates the effect of existing 136A(3).
. Subsection 94D(4) would provide that anything said or done at a
conference cannot be used in evidence before the Court, unless the
parties agree. This replicates the effect of existing subsection
136A(4).
. Subsection 94D(5) would provide that the person conducting the mediation,
or assists at a conference, may not take part in relation to the
proceedings, other than in the mediation process, without the agreement
of the parties or without the leave of the Court. This replicates the
effect of existing subsection 136A(5) but expands the scope of its
application to confirm that the provision applies to all mediators under
section 86B. It also gives the Court a discretion to allow a person who
has conducted the mediation, or assisted to conduct the mediation, to
take further part in a proceeding. This is consistent with granting the
Court control over mediations.
. Subsection 94D(6) would provide that participation in a conference may be
by telephone, closed-circuit television, or any other communication.
This replicates the effect of existing subsection 136A(6).
. Subsection 94D(7) would clarify that if the mediator is the NNTT, and a
consultant has been engaged under subsection 131A(1) to conduct mediation
under this Division, the consultant would be treated as if he or she were
a member of the NNTT.
Parties at conferences
Section 94E would replicate the effect of the provisions concerning parties
at mediation conferences of the existing section 136B and would expand the
scope of its application to confirm that the provision applies to all
mediators undertaking mediation subject to a referral from the Court under
section 86B.
. Subsection 94E(1) would empower the mediator to require parties to attend
conferences. This replicates the effect of existing subsection 136B(1A).
. Subsection 94E(2) would empower the mediator to direct that only one or
some parties attend a particular conference. This replicates the effect
of existing subsection 136B(1).
. Subsection 94E(3) would provide that the mediator may direct that some
parties and their representatives be excluded from a conference. This
replicates the effect of existing subsection 136B(2).
. The effect of the amendments in proposed subsections 94E(1), (2) and (3)
is that a mediator could require or disallow a party's attendance at a
conference and this would assist the mediator to adequately control a
mediation and provide the mediator with flexibility to conduct the
mediation. For example, the mediator can ensure that disruptive
behaviour by a party is not rewarded by allowing such behaviour to stop
or delay a conference.
. Subsection 94E(4) would provide that parties may be represented by a
legal practitioner or another person. This replicates the effect of
existing subsection 136B(3).
. Subsection 94E(5) would provide that parties to a mediation and their
representatives are under a statutory obligation to act in good faith in
native title mediations. This replicates the effect of existing
subsection 136B(4).
Other persons attending or participating in conferences
Proposed section 94F would replicate the effect of the provisions
concerning other persons attending or participating in mediation
conferences of the existing section 136C and expand the scope of its
application so that the provision applies to all mediators undertaking
mediation subject to a referral from the Court under section 86B.
Producing documents
Proposed section 94G would replicate the effects of provisions concerning
the production of documents at mediation conferences of the existing
section 136CA and would expand the scope of its application to confirm that
the provision applies to all mediators undertaking mediation subject to a
referral from the Court under section 86B.
Referral of questions of fact or law
Proposed section 94H would contain provisions about the referral of
questions of fact or law to the Court on any matter that is the subject of
mediation. This would replicate the effect of existing section 136D and
expand the scope of its application to confirm that the provision applies
to all mediators undertaking mediation subject to a referral from the Court
under section 86B. This amendment also removes the existing requirement
that if a party wishes to refer a question of law or fact to the Court, the
agreement of the presiding member of the NNTT conducting the mediation is
required. This amendment will allow parties in the mediation to raise a
question of fact or law with the mediator who may then refer it to the
Court if the mediator considers that the act of referral would assist in
facilitating an expeditious resolution of any matter that is the subject of
mediation.
. Subsection 94H(1) would provide that a question of law or fact arising in
the context of a mediation may be referred to the Court by the person
conducting the mediation, where the mediator considers that it would
expedite the reaching of an agreement. This replicates the effect of
existing subsection 136D(1).
. The note to subsection 94H(1) cross refers to the Court's power to
determine a question of fact or law referred to it by the mediator under
subsection 86D(1).
. Subsection 94H(2) would provide that if the mediation is not conducted by
a consultant, questions of law or fact may be referred to the Court
either at the request of a party to the mediation, or at the initiative
of the mediator. This replicates the effect of existing subsection
136D(2).
. Subsection 94H(3) would provide that where a mediation is being conducted
by a consultant, questions of law or fact may be referred either at the
initiative of that mediator if a presidential member agrees, or at the
request of a party to the mediation. This replicates the effect of
existing subsection 136D(3) and would not be expanded as it only applies
to NNTT consultants engaged under section 131A.
. Subsection 94H(4) would provide that mediation may continue while the
Court determines the question if the person conducting the mediation
considers this is appropriate. This replicates the effect of existing
subsection 136D(4).
Referral of questions about whether a party should be dismissed
Proposed section 94J would replicate the effects of existing section 136DA
concerning the referral of questions about whether a party should be
dismissed and expands the scope of its application to confirm that the
provision applies to all mediators undertaking mediation subject to a
referral from the Court under section 86B.
. Subsection 94J(1) would allow the person conducting the mediation to
refer questions to the Court about whether a party should continue to be
a party to proceedings. This replicates the effect of existing
subsection 136DA(1).
. Subsection 94J(2) would create a limited exception to the 'without
prejudice' protection that generally applies to words spoken or acts done
at mediation, as set out by proposed section 94D (which replicates the
effect of existing subsection 136A(4)). The effect of this subsection
would be that the 'without prejudice' protection would not apply when the
Court is considering the question of whether a party should be dismissed
from a proceeding, when a mediator has referred that question because the
mediator considers the person does not have a relevant interest. This
replicates the effect of existing subsection 136DA(2).
. Subsections 94J(3) and (4) would set out who may refer a question to the
Court under subsection 94J(1) and when the question may be referred.
Subsection 94J(3) would replicate the effect of existing subsection
136DA(3) and expand the scope of its application to confirm that the
provision applies to all mediators undertaking mediation subject to a
referral from the Court under section 86B. Proposed subsection 94J(4)
would replicate the effect of existing subsection 136DA(4). Subsection
94J(4) would not be expanded as it only applies to the NNTT and would not
be expanded as it only applies to NNTT consultants engaged under section
131A.
. Subsection 94J(5) would provide that mediation may continue following a
referral of a question to the Court under this subsection if the mediator
considers it would be appropriate to continue. Subsection 94J(5) would
replicate the effect of existing subsection 136DA(5) and expand the scope
of its application to confirm that the provision applies to all mediators
undertaking mediation subject to a referral from the Court under section
86B.
. Subsection 94J(6) would clarify that for the purpose of determining
whether an existing party should continue to be a party to the
proceedings, the party must have an interest that may be affected by a
determination in the proceedings. Subsection 94J(6) would replicate the
effect of existing subsection 136DA(6) and expand the scope of its
application to confirm that the provision applies to all mediators
undertaking mediation subject to a referral from the Court under section
86B.
Conferences to be held in private
Proposed section 94K would replicate the effect of the existing section
136E, which sets out the requirement that mediation conferences be held in
private, unless parties agree. This amendment would expand the scope of
its application to confirm that the provision applies to all mediators
undertaking mediation subject to a referral from the Court under section
86B.
Person conducting the mediation may prohibit disclosure of information etc
Proposed section 94L would replicate the effect of existing section 136F,
which sets out provisions concerning the discretion that the person
conducting the mediation has in prohibiting the disclosure of information
given or statements made during a mediation conference, or the contents of
any document produced at a mediation conference. This amendment would
expand the scope of its application to confirm that the provision applies
to all mediators undertaking mediation subject to a referral from the Court
under section 86B. This amendment would further incorporate the existing
offence provisions, currently located in section 176, that apply in a
situation where a person discloses in contravention of the person
conducting the mediation's direction that such material not be disclosed.
. Subsection 94L(1) would provide that the person conducting the mediation
may give directions to preserve the confidentiality of the mediation.
This replicates the effect of existing subsection 136F(1). This allows
parties to present information about matters that they consider sensitive
or confidential, but which are nevertheless essential to the
establishment of their claim.
. Subsection 94L(2) would provide that directions prohibiting the
disclosure of information by a member can be made at the request of a
party as well as on the person conducting the mediation's own initiative.
This replicates the effect of existing subsection 136F(2).
. Subsection 94L(3) would provide that the person conducting the mediation
may, if the parties agree, disclose information which would otherwise be
unable to be disclosed due to the existence of an order. This replicates
the effect of existing subsection 136F(3).
. Subsection 94L(4) would provide that that the disclosure of any material
within the context of a mediation which is contrary to the direction of
the person conducting the mediation and not authorised by under
subsection (1) is an offence. Contravention of a direction prohibiting
disclosure is an offence with a penalty of 40 penalty units. This
replicates the effect of existing subsection 176(1).
. Subsection 94L(5) would provide that an offence under subsection 94L(4)
is an offence of strict liability. The offence is an offence of strict
liability because the punishment for this offence, not involving fault,
is likely to improve the overall efficiency, effectiveness and integrity
of the mediation process, and ensure that parties have confidence in the
process. There are legitimate grounds for penalising a person lacking
fault under these circumstances given the ramifications of breaching the
confidentially of a mediation, and such persons will be put on notice to
guard against the possibility of any contravention. This replicates the
effect of existing subsection 176(2).
Person conducting the mediation etc must not be required to give evidence
or produce documents to a court
Proposed section 94M would replicate the effect of existing section 181.
Existing section 181 sets out that NNTT members, officers and consultants
shall not be required to give evidence to a court relating to a matter if
doing so would be contrary to either a NNTT direction under section 155
(which prohibits the disclosure of evidence) or a presiding member's
direction in a mediation under subsection 136F(1) (which prohibits the
disclosure of evidence). Consequential to item 6, which expands the range
of persons or bodies to which the Court can refer a matter to for
mediation, subsection 94M(1) would provide that a person conducting the
mediation must not be required to give evidence to a court if doing so
would be contrary to a direction made under subsection 94L(1). This
amendment would further provide that a person conducting the mediation must
not be required to give evidence to a court in the situation where an
application has been made under subsection 94L for the person conducting
the mediation to make such a direction, and the person conducting the
mediation has not finalised that decision.
In a similar manner, the effect of subsection 94M(2) would be that a person
conducting the mediation is prevented from being required to produce or
permit access to relevant documents when the documents are subject to a
direction, or an application has been made for a direction but not
finalised, as outlined above.
Report etc. to be given to the Federal Court
Proposed section 94N would replicate the existing section 136G and would
expand the scope of its application so that the provision applies to all
mediators undertaking mediation subject to a referral from the Court under
section 86B. This section sets out provisions about the production of
mediation reports. Reports can be useful for the Court in the mediation
process because they can provide an appraisal of the conduct, progress and
priorities of matters in mediation. It has become standard practice for
the Court to request regional mediation reports at regular call overs.
. Subsection 94N(1) would provide that the person conducting the mediation
must report in writing to the Court about the results of the mediation as
soon as practicable after a mediation concludes successfully (that is,
where the parties are able to reach an agreement on the matters, or part
of the matters, set out in subsections 86A(1) or (2)).
. Subsection 94N(2) would provide that the person conducting the mediation
is also required to report to the Court on progress in the mediation
where requested to do so by the Court under subsection 86E(1).
. Subsection 94N(3) would replicate the effect of existing subsection
136G(2A) and expand its scope so that the Court may request one or more
mediators to provide the type of reports set out at subsection 86E(2).
. Subsection 94N(4) would enable the mediator to provide a progress report
to the Court if the mediator considers the report would assist the Court
to progress the proceeding. This would replicate the effect of existing
subsection 136G(3).
. Subsection 94N(5) would provide that the mediator could provide the Court
with a report that provides details about the failure to comply with a
direction under subsection 94E(1) or section 94G. This would replicate
the effect of the existing subsection 136G(3B).
. Subsection 94N(6) would provide that a report provided under subsections
(1), (2) or (3) must contain any agreement on facts as reached between
the parties during the course of the mediation being reported on. This
replicates the effect of existing subsection 136G(4).
. The Bill does not replicate existing subsection 136G(3A). That
subsection provides that the NNTT may also provide a report to the Court
on the progress of a mediation where the person conducting the mediation
considers that such a report would assist the Court. It is unnecessary
for the NNTT to provide the type of mediation reports under subsection
86E(2) that are not requested by the Court, given the purpose of these
amendments is to give the Court overall control of native title claims.
Reports about breaches of the requirement to act in good faith
Proposed section 94P would replicate the effect of existing section 136GA,
which enables the NNTT member presiding over a mediation conference to make
reports to the Court and various other entities where that member considers
a party or their representative did not act in good faith, or is not acting
in good faith in relation to the conduct of a mediation. This amendment
would expand the scope of its application to confirm that the provision
applies to all mediators. This amendment is related to proposed subsection
94E(4), which imposes a statutory obligation on parties and their
representatives to act in good faith in relation to the conduct of
mediation before a mediator.
Subsection 94P(1) would provide that the person conducting the mediation
may make a report about persons who did not act or are not acting in good
faith and would replicate the effect of the provisions of existing
subsection 136GA(1). The Minister or the Secretary who receives the report
will continue to have the discretion to decide how he or she will deal with
a report about persons who are or did not act in good faith.
. Where the person conducting the mediation considers a legal practitioner
has acted, or is acting, in bad faith, subsection 94P(2) will enable the
mediator to make a report to the relevant legal professional body.
Similar to reports to the Minister or the Secretary, addressing
allegations of bad faith would be left to the discretion of the legal
professional body. This would replicate the effect of existing
subsection 136GA(2).
. Subsection 94D(4) would provide that in proceedings before the Court,
unless parties otherwise agree, no evidence can be given or statements
made about words spoken or acts done at mediation conferences.
Subsection 94P(3) would create a limited exception to the 'without
prejudice' protection that generally applies to words spoken or acts done
during mediation. It would provide that the without prejudice protection
does not apply to any report provided by the person conducting the
mediation to a legal professional body under subsection 94P(2). This is
to ensure the legal professional body is not prevented from pursuing
disciplinary action on receipt of a report if this would involve a
proceeding before the Court. This would replicate the effect of existing
subsection 136GA(3).
. Subsection 94P(4) would provide that person conducting the mediation may
also make a report to the Court if it considers the party has breached
the obligation to act in good faith. Similar to subsection 94P(3),
subsection 94P(4) would provide that subsection 94D(4) would not apply to
a report provided to the Court under this section. The person conducting
the mediation may make a report to the Court regardless of whether or not
a report has been provided to another entity under subsections 94P(1) or
(2). This would replicate the effect of existing subsection 136GA(4).
. Subsection 94P(5) would provide that reports provided under section 94P
must include details of the failure to act in good faith and information
about the context in which the conduct occurred. This would allow the
person receiving the report to determine if the allegation of bad faith
should be pursued further. This would replicate the effect of existing
subsection 136GA(5).
. Subsection 94P(6) would provide that when a report is made to a
government Minister, a legal professional body or to the Court, a copy of
the report must be provided to the person to whom the report relates.
This would replicate the effect of existing subsection 136GA(6).
. Subsection 94P(7) would provide that, where the person conducting the
mediation is not a consultant engaged under subsection 131A(1), a report
may only be provided under section 94P on the initiative of the person.
However, where the person is a consultant, proposed subsection 94P(8)
would provide that a report could only be provided on the initiative of
the person where a presidential member agrees. These subsections would
replicate the effect of the provisions at subsections 136GA(7) and (8).
. Subsection 94P(9) would confer a discretion on the person conducting the
mediation to, where a report has been provided under the section, to
continue mediation if that person considers it would be appropriate to do
so. This replicates the effect of existing subsection 136GA(9).
Public reporting about breaches of the requirement to act in good faith
Proposed section 94Q would replicate the effect of existing section 136GB
and would continue to only apply to NNTT mediations. The section would
provide that if an NNTT member is conducting a mediation and considers that
a Government party, or the party's representative, did not act in good
faith or is not acting in good faith, the annual report of the NNTT may
include details about the failure to act in good faith. The intention of
this section is to ensure that Government parties are publicly accountable
for their actions and the actions of their representatives in the course of
native title mediations.
Subsection 94Q(3) would require the NNTT person conducting the mediation to
inform the Government party or the party's representative before including
information in the annual report about a failure to act in good faith.
Protection of person conducting the mediation
Proposed section 94R would replicate the effect of existing subsection
180(1). It would expand the protection and immunity to all persons
mediating under the Act.
The protection and immunity afforded is the same as is given to a Justice
of the High Court. This is justified because the work of all persons
mediating under the Native Title Act is closely integrated with judicial
proceedings.
Existing subsection 180(1) will be retained to afford protection to NNTT
members in the performance of other duties under the Native Title Act.
Regulations about mediation
Section 94S would provide that regulations may be made under the Native
Title Act about the way in which mediation is provided. The section would
also require any such regulations to be consistent with the Division.
Item 36 - Subsection 108(1A)
Section 108 concerns the functions of the NNTT. Item 36 would amend
subsection 108(1A) as a consequence of items 35 (which inserts proposed
Division 4 of Part 4) and 39 (which repeals Division 4A of Part 6).
Item 37 - Paragraph 123(1)(ca)
This item would replace 'are to' with 'may' in paragraph 123(1)(ca).
Section 123(1) provides that the President of the NNTT may give directions
in certain circumstances. Paragraph (ca) covers directions about persons
who are to appear on behalf of the NNTT under section 86BA. This item is
consequential upon item 13 which would change the right of appearance in
section 86BA to an ability to appear before the Court where the Court
considers the mediator could assist the Court.
Item 38 - Subsection 133(2A)
Item 38 would amend subsection 133(2A) as a consequence of items 35 (which
would insert proposed Division 4 of Part 4) and 39 (which would repeal
Division 4A of Part 6).
Item 39 - Division 4A of Part 6
This item would repeal Division 4A of Part 6 and is consequential upon both
the amendments made by item 6, which would allow the Court to refer matters
to a range of mediators for mediation, and amendments made by item 35,
which would insert a new Division 4 of Part 4. The provisions of Division
4 of Part 4 would effectively replicate the effect of the majority of the
provisions currently contained in Division 4A of Part 6 concerning
mediation conferences. As item 6 would allow the Court to refer native
title applications made under section 61 to a range of mediators for
mediation, it is necessary to expand the existing provisions relating to
mediation undertaken by the NNTT to apply to all mediators who may mediate
pursuant to the Court's referral under section 86B.
Item 40 - Subsections 136GC(1), (2) and (3)
Proposed subsection 136GC(1) would enable the Court, at its own initiative,
to refer for review by the NNTT the issue of whether a native title claim
group that is a party in a proceeding holds native title rights and
interests in relation to land or waters within the area that is the subject
of the proceeding. This amendment would transfer the power of referral
from the President of the NNTT to the Court, which is consistent with the
institutional reform giving the Court full control of native title matters.
In addition, allowing the Court to refer matters at its own motion would
assist its ability to identify issues that might assist to resolve the
native title claim. The outcome of the review by the NNTT under this
section would further assist the Court in the case management and
prioritisation of native title matters.
Proposed subsection 136GC(2) would set out that the Court may refer an
issue for review on request of a mediator if the issue arises in the course
of mediation and the person conducting the mediation makes such a request.
The Court would retain the discretion to refer the issue to the NNTT when
requested to by a mediator, consistent with the Court's overall case
management role.
Section 136GC would provide that the person conducting the mediation may
only make a request under subsection 136GC(2) if that person considers,
after consultation with the parties, that the review would assist parties
reach agreement on any matters mentioned in subsection 86A(1). This would
replicate the effect of existing subsection 136GC(3) and expand the scope
of the provisions to apply to all mediators.
Item 41 - Subsection 136GC(9)
Current subsection 136GC(9) enables the presiding member of the NNTT to
continue mediation while a review is being conducted where he or she
considers it appropriate to do so. This item would expand the scope of the
subsection to apply to all mediators.
Item 42 - Paragraph 136GE(1)(a)
Paragraph 136GE(1)(a) sets out that the NNTT member conducting the review
about whether there are native title rights and interests under the
Division must provide a report to the 'presiding member' of the mediation,
and the participating parties. Item 42 would amend the paragraph to
replace the term 'presiding member' with 'person conducting the mediation'.
This item would clarify that a written report of the review findings must
be provided to the mediator as appointed under section 86B conducting the
conference pursuant to subsection 94D(2).
Item 43 - Subsection 136GE(3)
Subsection 136GE(3) sets out that the NNTT member conducting the review of
whether there are native title rights and interests under the Division may
provide a report to the 'presiding member' conducting the mediation. Item
43 would amend the subsection to replace the term 'presiding member' with
'person conducting the mediation'. This item would clarify that a written
report of a review may be provided to the mediator where the mediator
considers it appropriate to do so in respect of assisting the progress of
the mediation.
Item 44 - Subsection 136H(2)
Section 136H provides that regulations may be made about assistance,
mediation or review and states that such regulations must not be
inconsistent with the mediation provisions of Division 4 of Part 4,
Division 4AA or any other provision of this Act. Item 44 would amend the
subsection so the term 'Division 4 of Part 4, Division 4AA of this Part'
would replace 'Division 4A, Division 4AA'. This is consequential upon
items 35 and 39 which alter the location of the relevant provisions
relating to mediation as referred under section 86B of the NTA.
Items 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57 - Paragraph
138A, 138B, 138C, 138D, 138E
The provisions in Part 6, Division 5, Subdivision AA concern the NNTT
conducting native title application inquiries. The amendments made by
items 45 to 57, detailed below, would result in the following changes:
. the power to direct that a native title application inquiry be held would
be transferred from the NNTT to the Court
. the Court would be able to direct that a native title application inquiry
be held at its own motion, and
. the person conducting the mediation would be able to request that the
Court direct a matter to the NNTT for a native title application inquiry.
Item 45 - Paragraph 138A(a)
Item 45 would remove the term 'to the Tribunal' in paragrpah 138A(a) to the
effect that the subdivision applies if a matter has been referred to
mediation under section 86B. This is consistent with the Court's expanded
power to refer proceedings for mediation to the full range of mediators
under section 86B.
Item 46 - Subsection 138B(1)
Item 46 would replace the term 'President' with 'Federal Court' to provide
that the Court would have the authority to direct the NNTT to hold an
inquiry in relation to an issue or matter relevant to the determination of
native title under section 225.
Item 47 - Paragraph 138B(1)(a)
Item 47 would repeal paragraph 138B(1)(a) and replace it with a new
paragraph that would allow the Court to initiate a native title application
inquiry in the NNTT at its own initiative. This is consistent with the
Court's proposed central role in managing native title matters, and would
enable the Court to refer matters to the NNTT for a native title
application inquiry at any time and subject to the requirements under
subsection 138B(2).
Item 48 - Paragraph 138B(1)(c)
Item 48 would repeal paragraph 138B(1)(c) and replace it with a new
paragraph that would enable the Court to initiate a native title
application inquiry in the NNTT where the person conducting the mediation
makes a request to the Court.
Item 49 - Subsection 138B(2)
Subsection 138B(2) sets out alternative criteria to be met before the NNTT
President may direct the NNTT inquiry to be held. Consistent with the
amendment that transfers the power to direct the NNTT to hold such an
inquiry from the NNTT President to the Court, this item would replace the
term 'President' with 'Court'. This amendment would clarify that the Court
must address the alternative criteria in order to direct that the NNTT
undertake a native title application inquiry.
Item 50 - Paragraph 138B(2)(a)
This item would replace the term 'he or she' with 'the Court' and is
consequential upon item 45.
Item 51 - Subsection 138B(3)
The item would omit the term 'to the Tribunal' and is consequential upon
item 45.
Item 52 - Subsection 138C(1)
Section 138C sets out when the NNTT must hold a native title application
inquiry. The provision currently requires the NNTT to conduct a native
title application inquiry if directed to do so by the President. This item
would replace the term 'President' with the 'Federal Court', which would
require the NNTT to hold an inquiry at the direction of the Court and is
consequential upon item 46.
Item 53 - Subsection 138D(1)
Section 138D would set out notification requirements for conducting a
native title application inquiry. This item would amend the subsection to
replace the term 'directing that an inquiry be held, the President' with
'beginning the inquiry, the Tribunal' which would have the effect that
after the Court directs the NNTT to undertake an inquiry, the NNTT must,
before commencing the inquiry, comply with the notification requirements of
the subsection. The Native Title Act currently provides that the NNTT
President can direct an inquiry be held. This item is consequential upon
item 46.
Item 54 - Paragraph 138D(1)(c)
This item would repeal the requirement for the NNTT to give written notice
to the Chief Justice of the Federal Court before directing that a native
title application inquiry be held and is consequential upon item 46. This
requirement would be unnecessary as the Court would have initiated the
inquiry.
Item 55 - Subsection 138E(1)
This item would extend the discretion to continue mediation while a native
title application inquiry is underway to apply to all persons conducting
the mediation, if he or she considers it appropriate. The term 'person
conducting the mediation' would replace 'presiding member' and this item is
consequential upon item 6.
Item 56 - Subsection 138E(2)
Subsection 138E(2) currently prohibits the NNTT from conducting a review on
referral from the President under subsection 136GC(1) simultaneously to a
native title application inquiry. This item would replace the cross
reference to subsection 136GC(1) with a cross reference to section 136GC
and is consequential upon item 40.
Item 57 - Subsection 138E(2) (note)
This item would replace the reference in the note to 'Subsection 136GC(1)
allows the President' with 'Section 136GC allows the Federal Court' and is
consequential upon item 40.
Item 58 - Subsection 176(1)
Section 176 is an offence provision concerning a contravention of a
direction which prohibits the disclosure of evidence. This item would omit
the cross reference to section 136F and is consequential upon items 35 and
39. The proposed addition of section 94L in item 35 would incorporate the
existing offence provisions under current section 176 and would avoid
duplicating this offence provision.
Items 59, 60, 61, 62, 63 and 64 - Section 181
Section 181 sets out provisions concerning the non disclosure of
confidential information by a member or officer of the NNTT or a consultant
employed by the NNTT. Items 59 to 64 would remove references to the
'presiding member' and the cross references to section 136F in subsections
181(2) and (3) and are consequential upon items 35 and 39.
Item 62 would remove 'or to a direction of the presiding member under
subsection 136F(1)'. The effect of existing section 181 would be
replicated by proposed section 94M. Section 94M expands the scope of
section 181 to include all mediators in the scope of its application.
Item 65 - After subparagraph 207B(9)(a)(i)
Section 207B sets out provisions concerning equivalent State or Territory
bodies. Subsection 207B(9) sets out the equivalent body provisions
contained in the Act. This item would insert subparagraph (ia) to exclude
'the provisions of Division 4 of Part 4, other than subsection 94H(1)'.
This item is consequential upon items 35 and 39 and would replicate the
effect of the existing subsection.
Item 66 - Subparagraph 207B(9)(a)(iii)
This item would remove 'subsection 136D(1) and' from the excluded
equivalent body provisions of the Act and is consequential upon item 39.
Item 67 - Section 253
Section 253 is a definition section of the Act and this item would insert a
definition of 'mediator' in relation to the range of mediators which will
undertake the role of mediation under Division 4 of Part 4. This item
provides that the definition of a mediator is the person or body to which
an application or proceeding has been referred under section 86. The
definition refers to both the mediator to which an application has been
referred to under subsection 86B(1) and the mediator to which an proceeding
has been referred under subsection 86B(5).
Item 68 - Section 253
This item would insert a definition of the 'person conducting the
mediation' as the person referred to in proposed subsection 94D(2) who
conducts a mediation conference under proposed section 94D. This item
would assist the interpretation of which person is to be the person
conducting the mediation after the matter has been referred to mediation by
the Court under proposed amendments to section 86B at item 12.
Part 2-Application provisions
Item 69 - Application of subsection 86B(1) of the Native Title Act
This item provides that the proposed amendments to subsection 86B(1), the
effect of which would be that the Native Title Act would not require the
Court to automatically refer each native title case to the NNTT for
mediation, and instead the Act would require the Court to refer each
application to an appropriate person or body for mediation, apply in
respect of an application made under section 61 regardless of whether that
application was made before or after the commencement of this item. The
intention of this item is to clarify that the amendments apply to all
future applications and to existing applications still in progress.
Item 70 - Application-subsection 86B(5C) and Division 4 of Part 4 of the
Native Title Act
This item provides that the provisions contained in the proposed amendments
of subsection 86B(5C) and in Part 4 of Division 4 of the Native Title Act
apply in relation to a referral by the Court for mediation made under
subsection 86B(1) or (5) of the Act regardless of whether that referral was
made before or after the commencement of this item.
This item further provides that anything done under or for the purposes of
Division 4A of Part 6, which is the existing Division that sets out the
conduct of mediation conferences under the Act, would be taken as done
under or for the purpose of Division 4 of Part 4 of the Act, which would be
the proposed new Division setting out the conduct of mediation conferences.
The purpose of this item is to clarify that a thing done for the purposes
of the current provisions relating to the mediation conferences are taken
to be done as under the proposed amended provisions relating to the
mediation conferences. For example, if a person has been directed to
attend a mediation conference under the current subsection 136B(1A) before
the commencement of these amendments, the direction remains current as it
will be taken to have been given under the new proposed subsection 94E(1).
Item 71 - Application-section 86C and subsection 136GC(2) and 138B(1) of
the Native Title Act
This item provides that the provisions of section 86C, subsection 136GC(2)
and subsection 138B(1) apply in relation to a mediation that has commenced
before or after the commencement of these proposed amendments. Section 86C
concerns the Court's power to order the cessation of mediation; subsection
136GC(2) sets the Court's discretion to refer an issue for review to the
NNTT on whether there are native title rights and interests where the Court
is requested to do so by the mediator; and subsection 138B(1) concerns the
Court's discretion to direct the NNTT to hold a native title application
inquiry in certain circumstances. This item clarifies that these
provisions apply whether or not the relevant mediation commenced before or
after the commencement of these amendments.
Item 72 - Referral for review under subsection 136GC(1) of the Native Title
Act
This item provides that if an issue has been referred to the NNTT for
review on whether there are native title rights and interests under the
existing subsection 136GC(1), and that review has not been completed before
the commencement of these proposed amendments, the referral is taken as
having been made under the new proposed subsection 136GC(2). This item
clarifies that the operative provisions concerning the review that will
apply after the commencement of these amendments apply to those reviews
that were referred prior to the commencement of these amendments, in
circumstances where the review has not been completed.
Item 73 - Direction to hold an inquiry under subsection 138B(1) of the
Native Title Act
This item provides that if a direction has been made to the NNTT to hold a
native title application inquiry under subsection 138B(1) before the
commencement of these proposed amendments, and that inquiry has not been
completed, the direction has effect and is taken as having been made under
the new proposed subsection 136B(1). This item clarifies that the
operative provisions concerning the inquiry that will apply after the
commencement of these amendments apply to those inquiries that the NNTT was
directed to undertake prior to the commencement of these amendments, in
circumstances where the inquiry has not been completed.
Schedule 2 - Powers of the Court
Overview
Schedule 2 contains minor amendments to enhance the powers of the Court.
The changes would encourage and facilitate more negotiated settlements of
native title claims. These changes would also create a more flexible
native title system and one that produces broad benefits to Indigenous
people and certainty to stakeholders.
Schedule 2 would enable the Court to make orders that cover matters beyond
native title. The amendments would allow the Court to make separate
orders, under sections 87 and 87A, covering matters beyond native title.
The parties would have to agree on these further matters. The change would
allow the Court to assist parties to resolve native title and related
matters at the same time and would therefore result in certainty, more
finalised native title claims and better outcomes for stakeholders.
This Schedule also contains amendments that would enable the Court to rely
on a statement of facts agreed between the parties. While at least the
applicant and the principal government respondent must agree before the
Court may accept an agreed statement of facts, more parties can agree and
any party can object to the statement. The Court would be given a
discretion to accept the statement.
Schedule 2 would also correct a typographical error to remove an
unnecessary 'and' from paragraph 87(1)(c).
Native Title Act 1993
Item 1 - Subsection 87(1)
1. This item would omit the word 'if' and add the words 'This section
applies' to the start of subsection 87(1). It would also amend the
heading of the subsection from 'Power of the Court' to 'Application'.
These amendments would make the provision consistent with subsection
87A(1).
Item 2 - Paragraph 87(1)(c)
2. This item would remove an 'and' from paragraph 87(1)(c). The current
paragraph incorrectly inserts 'and' after the last listed criterion.
Items 3 and 4 - Paragraphs 87(1) and 87(1)(c)
3. These items would remove the words after paragraph (c) and insert a new
heading 'power of the Court' with a new subsection 87(1A) that would
replicate the words that would be removed and expand the provision to
cover new subsection (5). The new subsection would allow the Court to
act in accordance with either subsections (2) or (3) as well as
subsection (5) if it considered it appropriate to do so.
Item 5 - At the end of section 87
Orders about matters other than native title
4. Proposed subsections 87(4), (5), (6) and (7) would amend the Act to
clarify that the Court may make orders that cover matters beyond native
title where parties reach an agreement. These amendments would recognise
the broader nature of agreements currently being made and encourage this
approach. Parties would be able to resolve a range of native title and
related issues through native title agreements. These amendments would
clearly provide that it is within the Court's jurisdiction to make
separate orders dealing with the determination of native title and the
matters covered by the agreement, including matters other than native
title. The Court would also therefore have scope to use existing powers
to control the time parties spend on these wider agreements.
5. Section 87 currently provides that the Court may make consent
determinations if it is satisfied that the order proposed is 'within the
power of the Court' and 'appropriate'. Under these amendments the Court
would retain that discretion in making orders about matters other than
native title.
6. New subsection 87(4) would allow the Court to give effect to the terms
of the agreement between parties about matters other than native title,
even where the Court makes no determination about the existence of native
title if it is within the Court's power and appropriate to do so. This
order would be made under subsections (2) or (3).
7. New subsection 87(5) would allow the Court to give effect to the terms
of the agreement between parties about matters other than native title
under that subsection, where the Court makes a determination about the
existence of native title under subsections (2) or (3) if it is within
the Court's power and appropriate to do so.
8. New subsection 87(6) would set out that the Court's jurisdiction allows
the Court to make separate orders to give effect to the terms of an
agreement under paragraphs 87(2), (3) and (5).
9. New subsection 87(7) would allow for regulations to specify the kinds of
matters other than native title that a Court order under subsections
87(2), (3) or (5) may give effect to. While the parties may decide to
include any matters other than native title that assist to resolve the
claim in an agreement, and the Court may make orders on these, this
subsection allows regulations to give guidance about what types of
matters this could include.
10. Examples of matters other than native title that may be covered by
agreements include matters such as economic development opportunities,
training, employment, heritage, sustainability, the benefits for parties,
and existing industry principles or agreements between parties or parties
and others that might be relevant to making orders about matters other
than native title.
Agreed statement of facts
11. The Court has regard to many considerations when deciding whether or
not to make a consent determination, not least of these is the agreement
reached by the parties. In some circumstances, a State or Territory has
agreed to accept oral accounts from key members of native title claimant
groups, and on this basis, to agree to a determination. In such a
situation, it should be open to the Court to accept the statements of
facts as agreed by the parties, without requiring such evidence to be
brought before the Court and without the Court needing to make
independent inquiries to be satisfied as to the basis of the agreed
statement of facts. The Court could advise parties about what it
considers should be contained within an agreed statement of facts,
without limiting the ability of the parties to prepare such a statement
independently of such advice from the Court.
12. Proposed subsections 87(8), (9), (10) and (11) would allow parties to
save time in negotiations by allowing the Court, in making a consent
determination, to accept a statement of facts that has been agreed to by
at least the party the Court considers to be the principal government
respondent and the applicant. The amendments would allow other parties
to the proceeding to agree to the statement of facts or to make
objections to the statement of facts.
13. Section 87 currently provides that the Court may make consent
determinations if it is satisfied that the order proposed is 'within the
power of the Court' and 'appropriate'. Under these amendments the Court
would retain its discretion to accept an agreed statement of facts and
therefore would be consistent with the Court satisfying itself that it is
both within its power and appropriate to do so.
14. New subsection 87(8) would allow a party, where some or all parties to
a proceeding have reached agreement on a statement of facts, to file that
statement with the Court. This would assist the parties and the Court to
resolve native title claims more quickly.
15. New subsection 87(9) would require the Registrar of the Court to
notify, within 7 days, other parties to the proceeding that the statement
has been filed with the Court. This would allow all relevant parties to
know about the statement of facts and allow such parties time to consider
whether they choose to become a party to that agreement, not participate
or make an objection to the Court about the content of the statement of
facts.
16. New subsection 87(10) would give the Court a discretion to accept the
agreed statement of facts in making orders under subsections 87(2), (3)
or (5). This new subsection would also provide that some or all parties
to a proceeding may agree to a statement of facts, but that at least the
applicant and the principal government respondent must agree to the
statement of facts before the Court may exercise its discretion to accept
the statement.
17. The principal government respondent could be the Commonwealth, a State,
a Territory, the Commonwealth Minister, a State Minister or a Territory
Minister depending on the case, including the type of interests or the
area of the claim. Where a claim relates to an area wholly within the
limits of a State or Territory, the principal government respondent might
normally be that State or Territory, or the State Minister or Territory
Minister. However, this may not always be the case because non-
geographical factors may also be relevant in determining the principal
government respondent. For example, the Commonwealth might be the
principal government respondent in particular proceedings, such as where
a native title claim is made over Commonwealth-owned land. Where two or
more States or Territories, or a State or Territory and the Commonwealth,
have significant interests, whether in subject matter or area, the Court
could use its discretion and only accept an agreed statement of facts
where all major government respondents agree to those facts.
18. New subsection 87(11) would allow any party to the proceeding who did
not participate in preparing the agreed statement of facts, or who
disagreed with that statement, to lodge an objection with the Court
within 21 days of being notified by the Registrar under new subsection
87(9). This new subsection would require the Court to consider any
objections in deciding whether to accept under subsection 87(10) an
agreed statement of facts.
Item 6 - Subsection 87A(4)
19. This item would amend subsection 87A(4) to insert the words 'the terms
of' for consistency with section 87 which currently requires the terms of
orders to be consistent with those terms.
20. This item would also include a note to expand the current heading
'Order' to 'Orders' to capture the expansion of these subsections to show
that the Court would also have the power to make orders about matters
other than native title.
Item 7 - Subsection 87A(5)
21. Proposed subsections 87A(5), (6) and (7) would amend the Act to clarify
that the Court may make orders that cover matters beyond native title
where parties reach an agreement about part of an area. These amendments
would recognise the broader nature of agreements currently being made and
encourage this approach. Parties would be able to resolve a range of
native title and related issues through native title agreements. These
amendments would clearly provide that it is within the Court's
jurisdiction to, where it is within its power and appropriate to do so,
make separate orders dealing with (1) the determination of native title
and (2) the matters covered by the agreement, including matters other
than native title. The Court will have scope to use existing powers in
relation to these wider agreements.
22. New subsection 87A(5) would allow the Court to make an order that gives
effect to the terms of the agreement that involves matters other than
native title if it is within the Court's power and appropriate to do so.
23. New subsection 87A(6) sets out that the Court's jurisdiction allows the
Court to make separate orders to give effect to the terms of an agreement
under paragraphs 87(4) and (5).
24. New subsection 87A(7) provides for regulations to specify the kinds of
matters other than native title that a Court order under subsection
87A(5) may give effect to. While the parties may decide to include any
matters other than native title that assist to resolve the claim in an
agreement, and the Court may make orders on these, this subsection allows
regulations to give guidance about what types of matters this could
include.
25. Examples of non-native title matters that may be covered by agreement
include matters such as economic development opportunities, training,
employment and heritage, sustainability, viability, the benefits for
parties and existing principles or agreements that might be relevant to
in making orders about matters other than native title.
26. New subsection 87A(8) allows the Court to take into account any
objections made by other parties in deciding whether to make an order
under subsection (4) or (5). This would replicate the effect of existing
subsection 87A(5) and would expand it to cover agreements under
subsection 87A(5).
Agreed statement of facts
27. Consistent with the proposed amendments under s87 to allow the Court to
accept a statement of facts agreed by some or all parties to a proceeding
in making a consent determination, proposed new subsections 87A(9), (10),
(11) and (12) would allow parties to save time in negotiations by
allowing the Court, in making a determination for part of an area, to
accept a statement of facts agreed by some or all of the parties. The
amendments would allow other parties to the proceeding to agree to the
statement of facts or to make objections to the statement of facts.
28. The intent behind these amendments is to allow the Court to accept a
statement of facts as agreed by the parties, without requiring evidence
to be brought before the Court and without the Court needing to make
independent inquiries to be satisfied as to the basis of the agreed
statement of facts. The Court could advise parties about what it
considers should be contained within an agreed statement of facts,
without limiting the ability of the parties to prepare such a statement
independently of such advice from the Court.
29. New subsection 87A(9) would allow a party, where some or all parties to
a proceeding have reached agreement on a statement of facts, to file that
statement with the Court. This would assist the parties and the Court to
resolve native title claims more quickly.
30. New subsection 87A(10) would require the Registrar of the Court to
notify, within 7 days, other parties to the proceeding that the statement
has been filed with the Court. This would allow all relevant parties to
know about the statement of facts and allow such parties time to consider
whether they will make an objection to the Court about the content of the
statement of facts.
31. New subsection 87A(11) would set out that the Court has a discretion to
accept the agreed statement of facts in making orders under subsections
87A(4) or (5). This new subsection would also provide that some or all
parties to a proceeding may agree to a statement of facts, but that at
least the applicant and the principal government respondent must agree to
the statement of facts before the Court may exercise its discretion to
accept the statement.
32. The principal government respondent could be the Commonwealth, a State,
a Territory, the Commonwealth Minister, a State Minister or a Territory
Minister depending on the case, including the type of interests or the
area of the claim. Where a claim relates to an area wholly within the
limits of a State or Territory, the principal government respondent might
normally be that State or Territory, or the State Minister or Territory
Minister. However, this may not always be the case because non-
geographical factors may also be relevant in determining the principal
government respondent. For example, the Commonwealth might be the
principal government respondent in particular proceedings, such as where
a native title claim is made over Commonwealth-owned land. Where two or
more States or Territories, or a State or Territory and the Commonwealth,
have significant interests, whether in subject matter or area, the Court
could use its discretion and only accept an agreed statement of facts
where all major government respondents agree to those facts.
33. New subsection 87A(12) would allow any party to the proceeding who did
not participate in preparing the agreed statement of facts, or who
disagreed with that statement, to lodge an objection with the Court
within 21 days of being notified by the Registrar under new subsection
87A(10). This new subsection would require the Court to consider any
objections in deciding whether to accept under subsection 87A(11) an
agreed statement of facts.
Schedule 3 - Rules of evidence
Overview
Schedule 3 would allow the Commonwealth Evidence Act as amended by the
Evidence Amendment Act to apply to native title proceedings which had
commenced prior to 1 January 2009. The amendments to the hearsay, opinion
and narrative rules for evidence given by Aboriginal and Torres Strait
Islander people are of particular relevance in the native title context.
Only native title proceedings that commence after 1 January 2009 can rely
on the recently amended rules of evidence. The amendments made by Schedule
3 to the Native Title Act would allow the Court to admit evidence in a
native title proceeding under the new evidence rules where part of the
evidence in the proceeding had been taken prior to 1 January 2009 and
either the parties consent to the application of these new provisions, or
the Court, after considering the views of the parties, considers it is in
the interests of justice for these new provisions to apply.
Native Title Act 1993
Item 1 - Before section 215
1. Item 1 would insert a new section 214 into the Native Title Act. It
would have the effect that the amendments made by the Evidence Amendment
Act can apply to native title proceedings which had commenced prior to 1
January 2009 in prescribed circumstances.
2. The Evidence Amendment Act made changes to the Commonwealth Evidence Act
which have the potential to greatly assist Aboriginal and Torres Strait
Islander people to give evidence in native title matters. The amendments
recognise the manner in which Indigenous communities record traditional
laws and customs.
3. The Evidence Amendment Act provides that the hearsay rule and the
opinion rule will not apply to evidence of a representation about the
existence or
non-existence, or the content, of traditional laws and customs of an
Aboriginal or Torres Strait Islander group (see sections 72 and 78A of
the Evidence Act). 'Traditional laws and customs' of an Aboriginal or
Torres Strait Islander group (including a kinship group) are defined to
include any of the traditions, customary laws, customs, observances,
practices, knowledge and beliefs of the group. The intention behind
these amendments is to make it easier for a court to hear evidence of
Aboriginal and Torres Strait Islander traditional laws and customs, where
appropriate.
4. The transitional provisions in the Evidence Amendment Act provide that
the amendments do not apply to proceedings the hearing of which began
before 1 January 2009. A significant number of native title claims have
been lodged with the Court and many of these are in the process of
mediation. For the purposes of the Evidence Amendment Act, a hearing may
have commenced as soon as any evidence has been taken.
5. Section 214 would provide an exception to the transitional provisions of
the Evidence Amendment Act so that, for the purposes of a native title
proceeding that has commenced prior to 1 January 2009, the Court may
utilise the new evidence rules in two circumstances. First, the evidence
rules would apply where the parties to the proceeding consent to the
amendments applying in relation to the proceeding. This would require
all parties to consider whether their case may be assisted or
disadvantaged by the rules and make a decision accordingly. Where all
parties agreed, the Court would be required to apply the new evidence
rules. Second, the Court would have discretion to decide that, having
considered the views of all of the parties, it is in the interests of
justice for the new evidence rules to apply.
6. This item would cover both substantive hearings and matters where early
evidence or preservation evidence has been adduced to or admitted by the
Court before a substantive hearing has commenced.
7. This provision is intended to be broad to allow the Court and the
parties to make the best use of the new evidence rules. However, the
views of the parties is an important determinant for the Court to
consider. In the first exception, where all parties agree, the Court
must automatically apply the evidence rules. In the second exception,
the Court would still be required to have regard to the views of all of
the parties.
Schedule 4 - Assistance in relation to inquiries etc.
Overview
Schedule 4 would extend the assistance provisions to cover all mediations
in line with the institutional change in Schedule 1. Schedule 4 also
contains transitional and savings provisions to address current
applications in the system.
Native Title Act 1993
Item 1 - Section 183
1. Item 1 would repeal section 183 as it is located in Part 6 which governs
that NNTT. The existing section 183 allows for the provision of
assistance in relation to inquiries, mediation or proceedings. This
section would be replicated and expanded to apply to all mediations
conducted by all mediators. This section would be relocated to Part 13
under proposed item 2.
Item 2 - Before section 213
2. Item 2 would insert new section 213A.
3. Section 213A would replicate the effect of existing section 183 and
relocate the provisions to Part 13 of the Native Title Act. The
provision is currently located in Part 6 of the Act which concerns the
NNTT. This amendment would clarify that assistance may be sought in
relation to any inquiry, mediation or proceeding, not just those before
the NNTT. The effect of the amendment would be that applications for
assistance could be made under the equivalent to 183(1) in relation to a
mediation conducted by any mediators under section 86B. Subsection
183(1) allows for assistance to be sought in relation to inquiries and
proceedings, and 183(2) and 183(2A) provides that assistance can be
sought in relation to agreements and disputes. These subsections would
be replicated in the new section 213A.
Item 3 - Transitional and savings provisions relating to section 183 of the
Native Title Act
4. Item 3 would provide that where an application has been made under
current subsection 183(1) for the provision of assistance, but the
application has not been determined before this item commences, the
application is taken to have been made under the proposed new subsection
213A(1).
5. Item 3 would also provide that where an application has been made under
current subsection 183(2) for the provision of assistance, but the
application has not been determined before this item commences, the
application is taken to have been made under the proposed new subsection
213A(2).
6. Item 3 would further provide where an application has been made under
current subsection 183(2A) for the provision of assistance, but the
application has not been determined before this item commences, the
application is taken to have been made under the proposed new subsection
213A(3).
7. The item would provide that if Attorney-General has authorised the
provision of assistance under subsection 183(3) but that assistance has
not yet been provided to the applicant before the item commences, the
authorisation to provide assistance remains valid under the proposed new
subsection 213A(4). This would prevent the need for re-authorisation of
the provision of financial assistance.
8. The item would also provide that guidelines determined under subsection
183(4) that were in force before the amendments commence will continue to
have effect after commencement as if they were determined under the
proposed new subsection 213A(5). This would prevent the need for a re-
determination of the any guidelines provision of financial assistance.
9. The item would further provide that a delegation that was in force under
subsection 183(7) prior to the commencement of the amendments continues
to have effect after commencement as if they were determined under the
proposed new subsection 213A(8). This would prevent the need for a
further exercise of this delegation power.
Schedule 5 - Amendments relating to representative bodies
Overview
Schedule 5 would make amendments to Part 11 of the Native Title Act. Part
11 deals with representative Aboriginal and Torres Strait Islander bodies.
These bodies are established to perform a number of functions that assist
Aboriginal and Torres Strait Islander people to undertake action in
relation to native title.
In 2007, the Native Title Amendment Act introduced changes to the manner in
which representative bodies were recognised and to determine the areas over
which they performed their functions. With the benefit of nearly two years
of operation and the experience of administering the process of recogntion
of a number of representative bodies in this period, the opportunity is now
taken to streamline these processes to allow for more timely and less
administratively burdensome arrangements to be put in place.
These amendments would:
. repeal all spent provisions relating to the former transition period
that ended on 30 June 2007
. provide for the Commonwealth Minister to make written invitations that
are individually tailored to a specific eligible body's circumstances
by removing the need for a one size fits all Ministerial determination
. allow for applications for recognition to be made in any form that is
convenient for the applicant, as long as all information requested in
the invitation is provided
. reduce the time periods in which the Commonwealth Minister must make
decisions while allowing for extensions of time to these periods in
appropriate cases
. simplify the procedures for recognition of representative bodies and
withdrawal of recognition
. reduce the number of processes for varying a representative body's
area from three to a single process that retains the requirement to
give notice to bodies and Aboriginal and Torres Strait Islander people
who would be directly affected by any variation to an area; the
process provides that submissions may be made to the Commonwealth
Minister before a decision is made, and
. remove overlapping requirements for assessing matters against fairness
criteria.
Part 1 - Removal of transitional arrangements
Native Title Act 1993
Items 1- 3 - Section 201A
1. The Native Title Amendment Act made amendments that provided for the
introduction of fixed terms for recognition of representative bodies.
As a consequence of the changes to recognition periods, extensive
transitional arrangements were required to provide for on going
recognition of representative bodies that had been recognised prior to
the 2006/07 amendments coming into effect. These transitional
arrangements are no longer necessary as the transition period ended on
30 June 2007.
2. Items 1 to 3 would repeal the definitions contained in section 201A
relating to transitional provisions as they are spent. These include
the definition of transitional commencing day, the definition of
transitionally affected area, and the definition of transition period.
Item 4 - Section 201C
3. This item would repeal Section 201C, which is related solely to
transitionally affected areas, and is no longer necessary as it is
spent.
Item 5 - Subsection 203A(1)
4. This item would amend subsection 203A(1) by repealing the reference to
subsection 203AA. This item is consequential upon the repeal of
section 203AA at item 6.
Item 6 - Section 203AA
5. This item would repeal section 203AA as it is spent.
Item 7 - Subsection 203AB(1)
6. This item would amend subsection 203AB(1) by omitting a reference to a
subsection 203AB(3). This item is consequential upon the repeal of
section 203AB(3) at item 8.
Item 8 - Subsection 203AB(3)
7. This item would repeal section 203AB(3) as it is spent.
Item 9 - Subsection 203AC(1A)
8. This item would repeal subsection 203AC(1A) which makes provision for
applications made during the transition period to be dealt with by
the Commonwealth Minister and would insert a new provision.
9. The new provision would require the Commonwealth Minister to determine
applications as soon as practicable after one of three events occurs,
either:
1. the initial time for making an application has passed, or
2. any extended time given under subsection 203AB(2) for making an
application has passed, or
3. the Commonwealth Minister has asked for more information under
subsection (1), which extends the time for finalising an application by
not less than 21 days.
Item 10 - Subsection 203AD(1)
10. This item would amend subsection 203AD(1) by omitting a reference to a
subsection 203AD(1A). This item is consequential upon the repeal of
section 203AB(3) at item 11.
Item 11 - Subsections 203AD(1A), (1B), (2), (2A), (2B) and (2C)
11. This item would repeals subsections 203AD(1A), (1B), (2), (2A) and
(2C) as they are spent and would replace them with subsection
203AD(2).
12. Proposed subsection 203AD(2) would provide that recognition of a
representative body is in effect for the period specified in the
instrument of recognition. Recognition would take effect on the date
specified in the instrument and cease to have effect on the date
specified in the instrument unless the representative body has its
recognition withdrawn earlier than the date specified under section
203AH.
Item 12 - Saving provision-recognition under subsection 203AD(1A) of the
Native Title Act 1993
13. Item 12 is a savings provision and would operate to the effect that a
representative body that was recognised at the time of these
amendments coming into effect would continue to be recognised as if
the amendments had not been made. This would mean that the period of
recognition of a representative body that was recognised on the day
these amendments come into effect will continue for the period
specified in the instrument of recognition of the representative body
unless its recognition is withdrawn under section 203AH before the
specified expiry date in that instrument.
Part 2- Recognition of representative bodies
Native Title Act 1993
14. This part would commence immediately after the commencement of the
provisions set out in Part 1 of this Schedule.
Item 13 - Paragraph 201B(1)(b)
15. Only an "eligible body" may be invited to apply for recognition as a
representative body under section 203A. Section 201B defines an
eligible body. This item would extend the definition of an eligible
body to include at paragraph 201B(1)(b) all representative bodies.
Previously, only those representative bodies that were recognised at
the commencement of that paragraph came within the definition.
Inviting applications for recognition
Items 14 and 15 - Subsection 203A(1)
16. Section 203A prescribes to whom and the manner in which the
Commonwealth Minister may invite applications to be made to an
eligible body to apply to be recognised as a representative body.
17. Items 14 and 15 would amend subsection 203A(1) and paragraph
203A(1)(a) to remove the requirement that the Commonwealth Minister
must "determine" a way in which applicants may be invited to apply for
recognition as a representative body. This change would allow the
Commonwealth Minister to make a written invitation tailored to the
specific circumstances of the eligible body to which the invitation is
addressed. The effect of these items would be that if an eligible
body is already a recognised representative body the invitation may
simply ask whether the representative body would like to be considered
for recognition for a further period. In other cases some additional
information, such as about continuing workloads may be sought. Where
an eligible body is not recognised, more substantial information may
be requested.
Item 16 - Paragraph 203A(1)(b)
18. This item would amend paragraph 203A(1)(b) to reflect the changes to
the introductory phrase in subsection 203A(1) included by item 14,
which includes the words "in writing".
Item 17 - After subsection 203A(1)
19. The current process for inviting applications for recognition is
considered to be unnecessarily cumbersome and inflexible as the
Minister is required to make a "determination" in writing before
making an invitation to any eligible body and any determination would
then apply to all invitees irrespective of their circumstances.
20. Items 17 and 18 would amend subsections 203A(1), (3A), (3B) and (4)
and are designed to streamline the invitation process and provide
greater flexibility in the making of invitations to existing
recognised representative bodies to allow for more timely decision
making and reducing the paperwork burden on representative bodies.
21. This item would insert a provision that would allow the Commonwealth
Minister to issue an invitation to an eligible body whether or not
there is already a recognised representative body for the area covered
in the invitation.
22. This change would allow the Commonwealth Minister to invite
applications in advance of changes to the representative body for an
area. However, a second representative body may not be recognised for
the same period as an existing representative body. The instrument of
recognition may be made in advance, but it would specify the date from
which the eligible body would be recognised for the area.
Item 18 - Subsections 203A(3A), (3B), and (4)
23. This item would repeal subsections 203A(3A), (3B) and (4) and
substitute new provisions.
24. Subsections 203A(3A) and (3B) currently provide that the Minister may
specify the period for which an eligible body would be recognised in
the invitation. If a period was specified in the invitation,
paragraph 203AD(2D)(a) provided that the recognition can only be for
the same period specified in the invitation. The period could be
between 1 and 6 years.
25. In considering the period to specify for recognition in the invitation
the Commonwealth Minister could take into account matters going to the
performance of an eligible body. These matters are the same as those
the Commonwealth Minister would subsequently be required to consider
in deciding the period of recognition after an application was made
and all relevant information was available to the Commonwealth
Minister.
26. It is considered unnecessary for the Commonwealth Minister to make a
decision on the period of recognition at the earlier invitation stage.
The changes proposed by this item remove a risk that the Commonwealth
Minister could pre-empt a decision on the period for which the
applicant body would be recognised by deciding at the invitation stage
and on the same grounds the period for which for which an eligible
body would be invited to be recognised. Under the changes proposed by
this item, only once all the information in its application is
available for consideration will the Commonwealth Minister determine
the period for which an eligible body will be recognised.
27. Proposed subsection 203A(4) would provide that all invitations must
specify the information that must be included in the application.
Once a representative body starts to perform its functions, the
Commonwealth Minister's department collects a significant amount of
information about the performance of a representative body of its
functions. It is unnecessary for this information to be reproduced at
the time the representative body applies for recognition for a further
period.
28. On the other hand, the Commonwealth Minister may know very little
about an eligible body that has not previously been recognised as a
representative body, so much more material would be needed to
determine whether it could successfully perform the functions of a
representative body. The changes to the process proposed by this item
would allow each invitation to be tailored to the specific
circumstances of the invitee.
29. Proposed subsection (5) would specify the information that must be
contained in the invitation, which is set out in detail in section
203AA (see under item 19, below). This would include information
advising that an invitation may be revoked before it is determined.
30. Proposed subsection (6) would provide that an invitation must advise
that if the eligible body does not respond to the invitation it will
be taken to have given notice that it does not want to apply for re
recognition. See the proposed effect of section 203AAA at Item 19.
31. Proposed subsection (7) would provide that the Commonwealth Minister
may arrange for the publication of general invitations. This would
allow the Commonwealth Minister to publicise invitations to eligible
bodies without the need to make a specific invitation to each possible
body that may be eligible to apply to be recognised as a
representative body. There would be no special form that the
publication must take. It is envisaged that the invitation will be
published in the most appropriate manner to enable eligible bodies in
a particular area to receive notice of the invitation. The method may
vary between different communities throughout Australia.
Item 19 - after Section 203A
32. This item would insert two new provisions: section 203AA and section
203AAA.
33. Proposed section 203AA would allow the Commonwealth Minister to revoke
an invitation for any appropriate reason, but only if the period for
making an application has not expired. This would allow for some
flexibility if circumstances change after an invitation has been made,
for example if a recognised representative body in an adjoining area
asks to have its recognition terminated during the invitation period
and it is desirable that the invitee be asked to apply in relation to
the vacated area.
34. Alternatively, a representative body may run into unexpected financial
difficulties during the invitation period and it may be considered
that it may no longer be able to perform the functions of a
representative body or the Commonwealth Minister may require further
information or like to consider whether other eligible bodies should
also be invited to apply for recognition without delay.
35. The amendment would mean that if an invitation was revoked, it would
be taken never to have been made. The amendment would provide that an
invitation may be revoked by writing to the eligible body individually
or by publishing a general notice that the invitation has been
revoked.
36. Proposed section 203AAA would provide that an eligible body to which
an invitation has been made under paragraph 203A(1)(b) must notify the
Commonwealth Minister in writing if it intends not to apply for
recognition. If the body does not notify the Commonwealth Minister
and it does not make an application before the date specified in the
invitation it will be taken to have notified the Commonwealth Minister
that it intends not to apply for recognition.
37. This provision allows the Commonwealth Minister to issue an invitation
to other eligible bodies without delay to avoid having periods of time
where there is no recognised representative body for a particular
area.
Application for recognition
Item 20 - Subsection 203AB(1)
38. This item would remove the requirement that an application must be
made in the form approved by the Minister, which would introduce the
opportunity for information to be provided in a way that best suits
the applicant and the Commonwealth Minister. For example, there are a
number of slightly different accounting computer packages on the
market and an eligible body may keep its accounts in a particular
manner. This flexibility would allow for the body to readily provide
information in a particular format without any additional work on its
part.
Items 21 and 22 - Subsection 203AD(1)
39. These items would insert the words "or areas" into subsection 203AD(1)
to make it clear that a an eligible body may be recognised in respect
of one or more areas for which it has either been specifically invited
to apply or for which it has applied following a general invitation
published under subsection 203A(7).
Item 23 - Subsection 203AD(2)(b)
40. This item would insert the words "subject to subsection (3)" into the
provision amended by item 11 of Part 1 of this Schedule.
Item 24 - Subsections 203AD(2D) and (2E)
41. This item would repeal subsections 203AD(2D) and (2E). Proposed
section 203AE (see item 26) would provide for the variation of areas
for which a recognised representative body is recognised. A variation
made under this section could have the effect that an area for which a
representative body was recognised was varied to zero.
42. As representative bodies are recognised only in respect of specific
areas proposed subsection 203AD(3) provides that if a representative
body's area is reduced to zero the recognition of that representative
body ceases immediately after the variation takes effect. Without an
area in respect of which to perform its functions the representative
body can serve no purpose.
Variations to areas take effect on the date specified in the instrument.
43. Proposed subsection (3A) would provide that the period of recognition
is to be between 1 and 6 years. This would be no different from the
period of recognition that has been available to the Commonwealth
Minister in the past, but the amendments would provide more
flexibility to the Commonwealth Minister in making a decision as to
the appropriate recognition period.
44. Proposed subsection (3B) would set out the matters that the
Commonwealth Minister must take into account in deciding on the period
of recognition. These would include financial matters relevant to the
performance of the representative body's functions and also the
appropriate period that would promote the efficient performance of the
representative body functions.
45. Proposed subsection (3C) would provide that the Commonwealth Minister
may also take into account information already in his or her
possession or in the possession of his or her department. For
example, this could include information that was acquired during the
period of recognition of an existing representative body as part of
the approval of funding agreement processes for the current or a
previous financial year.
46. Proposed subsection (3D) would provide that subsections (3B) and (3C)
do not preclude the Commonwealth Minister from taking into account any
other matters that he or she may consider necessary or relevant in
deciding the length of the period of recognition. These may include
such considerations such as the volume of work anticipated to be
available to the representative body.
Item 25 - Subsection 203AD(5)
47. This item would inserts the words "or areas" into subsection 203AD(5)
to ensure the Commonwealth Minister advises the applicant in relation
to all areas for which it applied for recognition.
Variation of representative body areas
Item 26 - Sections 203AE, 203AF and 203AG
48. This item would repeal sections 203AE, 203AF and 203AG.
49. Sections 203AE, 203AF and 203AG provide for mechanisms to vary the
areas of representative bodies.
50. Section 203AE provides that the Commonwealth Minister may extend the
boundary of an area where there was no representative body adjoining
the boundary to be extended.
51. Section 203AF provides that the Commonwealth Minister may vary the
areas for which two bodies were a representative body where the
boundaries of the bodies adjoined. If one area was extended, the
adjoining area would be affected. For example if area A was extended
then adjoining area B would be reduced by the same area as the
extension to area A. If area A was reduced then, if there was an
adjoining area, area B would be extended. The Commonwealth Minister
could make the changes at the request of the bodies affected or on her
own initiative. In the case of Section 203AF, both adjoining bodies
have to make the request jointly.
52. Section 203AG allows the Minister on his or her own initiative to
reduce an area if in his or her opinion the existing representative
body was not performing its functions satisfactorily.
53. If an area was extended or varied on the request of the relevant
representative body or bodies, no notification to third parties was
required. In all cases where the proposed change was to be made on
the Commonwealth Minister's own initiative, he or she was required to
notify the public of any changes proposed and invite submissions.
This would include circumstances where the Commonwealth Minister
wanted to change a boundary between adjoining representative bodies'
areas and they did not jointly request a change.
54. In making an application to have its area varied, a representative
body was required to determine which section was to apply. After
receiving submissions the Minister may have wanted to vary adjoining
areas to make the best decision, but the legislation was not
sufficiently flexible to allow this to occur in a timely way. The
consultation period, in aggregate, was 120 days, which also prevented
timely responses to requests.
55. These existing provisions would be replaced with a single process for
making a variation to the area over which a representative body
performs its functions. This will apply irrespective of how the area
is to be varied.
56. Under the proposed changes an area may be varied for any reason,
either at the request of relevant representative body or bodies or on
the Commonwealth Minister's own initiative. The submission period
must be specified but it must be at least 60 days. After this time
the Commonwealth Minister will be required to consider the submissions
of persons or bodies who would be directly affected by any change.
Commonwealth Minister may vary an area for which a body is the
representative body
57. Proposed subsection 203AE(1) would provide that the Commonwealth
Minister may vary an area for which a body is the representative body.
Variation would be made by legislative instrument. The variation may
only be made if the Commonwealth Minister is satisfied that the body
will satisfactorily perform its functions in relation to the varied
area, unless subsection (4) applies, where the area is varied to zero
and then this criterion need not be met.
Variation to add the whole or a part of another area
58. Subsection 203AE(2) would provide that any variation can only be made
in respect of adjoining areas. This means that if an area is extended
the final result can only be one larger single area and one smaller
adjoining area; in doing this subsection 203AE(3) provides that the
variation can result in an adjoining area being eliminated entirely.
59. For example, area A (the original area) may be extended in only those
directions where it shares a boundary with area B (the additional
area). There cannot be a variation that results in a representative
body's area being extended to include an area with which it would not
share a boundary after the variation. It is possible that after the
variation there remains only one area, ie area A is extended into area
B as far as all the outer boundaries of area B. This would result in
only one area, area A, remaining. The representative body for area B
would cease to be recognised by operation of proposed section
203AE(3). Subsection 203AE(4) would specify that in these
circumstances the provisions of subsection 203AE(1) do not apply,
which is the logical outcome given that only one area and one
representative body will remain.
60. Area A may also be extended where it shares a boundary with another
area, area C, but that would require separate a variation process as
there would be two variations to area A. It is possible that after
both variations are completed only one area, area A, may remain. The
variations would be given effect by a legislative instrument that
reflected that two separate variations were being made to area A and
one variation each to areas B and C.
61. Proposed subsection (5) would allow the Commonwealth Minister to vary
an area for which a body is the representative body either on an
application of that body to the Minister or on the Commonwealth
Minister's own initiative. If a representative body's request would
affect an adjoining area for which there is a representative body then
both bodies would have to request the change. If a request is not
made by both bodies that would result in an agreed outcome the
notification process in section 203AF would apply.
62. Proposed subsection (6) would provide that if an application is made
by the relevant representative body the Commonwealth Minister may vary
the area as appropriate. The Commonwealth Minister is not required to
vary the area in the manner requested or if it would not be
appropriate to do so.
63. Proposed subsections (7) and (8) would provide that in considering
whether to vary an area the Commonwealth Minister may take into
account a variety of information including matters relating to the
financial affairs of the body and any information in the possession of
the Minister or the department that is relevant to the variation.
Over the period that a representative body is recognised it is
required to provide a number of reports and plans to the Commonwealth
Minister or the department regarding its operations and conduct of
cases. The information in reports such as these could be relevant to
the Commonwealth Minister's decision. Information provided to the
Commonwealth Minister from persons affected by the performance of its
functions by the representative body may also be relevant.
64. Proposed subsection (9) would require the Commonwealth Minister,
before making a decision on whether or not to vary an area, to take
into account any submissions made by affected parties if they were
made within the time allowed under subsection 203AF(6). This section
would not apply to variations made at the request of all the
representative bodies whose area will be varied.
65. Following consideration of submissions the Commonwealth Minister may
vary an area as proposed initially or in a different way. If the
Commonwealth Minister decides to vary an area the variation takes
effect either on the day on which the legislative instrument is made
or on a date specified in the instrument: see proposed subsection
(10).
Notification requirements for the variation of area on the Commonwealth
Minister's own initiative
66. Proposed section 203AF would detail the requirements for notifying
relevant bodies and persons if the Commonwealth Minister is
considering whether to vary an area where there is no request from the
representative body for that variation.
67. Under existing provisions the representative body that would be
affected is notified and a notice to the public is required. In the
main members of the general public are not affected by any changes to
representative body areas. However, members of the Aboriginal and
Torres Strait Islander community for whom the representative body
performs its functions will be directly affected. In some cases
individual members of these communities may be affected differently
from the majority of the community and may wish to provide their own
comments to the Commonwealth Minister.
68. Proposed subsection 203AF(1) would provide that (subject to the
exception in subsection (7), see paragraph 1.76) each of the persons
or bodies listed must be notified that the Commonwealth Minister is
considering varying an area on the Minister's own initiative. They
may then make a submission which the Commonwealth Minister must take
into account before making a decision.
69. Proposed subsection 203AF(2) would have the effect that the
representative body for the area that is being considered for
variation and any representative body for an area that has a boundary
that would be changed as a consequence of the change to the first area
that adjoins the area that is to be varied must be notified
individually in writing and advised that they make a submission on
whether the area should be varied. Relevant Aboriginal people and
Torres Strait Islanders must also be notified. There would also be a
requirement to publish a notice in a newspaper(if any) that circulates
in the area to be varied advising that consideration is being given to
varying an area or area so that members of the public are aware that
changes may be made
70. Proposed subsection 203AF(3) would provide that there is no
requirement that the notification to Aboriginal and Torres Strait
Islander people must be made to each individual. This notification
need not be in a newspaper but may be for example on a community
notice board or on an appropriate website. However the publication of
any general notification would need to bring the proposed variation to
the attention the persons who may be affected by any variation.
71. Proposed subsection 203AF(5) would require that this notice must state
that an Aboriginal or Torres Strait Islander living in the area to be
varied may make submissions within the period specified in the notice
to the Commonwealth Minister about whether the area should be varied.
72. The combined effect of these provisions would be that the Aboriginal
people or Torres Strait Islanders who live in the area that is to be
varied and areas that may be varied as a consequence of a variation to
another adjoining area must also be notified. It could be contained
in a separate part of the notice that would be made under subparagraph
203AF(1)(a)(iii).
73. Subsection 203AF(4) would specify the information that must be
contained in any notice to the representative bodies. It must
identify the variation that is being considered. The notice must
state the reasons why the variation is being considered and it must
state that the body may make submissions about whether the area should
be varied to the Commonwealth Minister within the period specified in
the notice.
74. Proposed subsection 203AF(6) would provide that the period for making
submissions must be at least 60 days from the date of the notice.
75. Proposed subsection 203AF(7) would provide an exception to the
notification requirements if prior notification has already been given
to the representative body whose area is to be varied as a result to
the relevant variation process.
Notice of decision on variation
76. Proposed subsection 203AG(1) would provide that following the making
of the decision, the Commonwealth Minister must notify all the
relevant representative bodies of the decision. The representative
body whose area was varied and any body whose area adjoins the varied
area must be notified individually in writing. It will be sufficient
in relation to persons or bodies other than these that a notice of the
decision is published in an appropriate manner that would bring it to
the attention of persons who may be affected by the change: see
subsection 203AG(2).
Items 27, 28, 29, 30, 31, 32, 33 and 34 - Section 203AH
Withdrawal of recognition
77. Section 203AH prescribes the circumstances in which recognition may be
withdrawn from a recognised representative body. Subsection (1)
provides for mandatory withdrawal of recognition and subsection (2)
provides discretionary grounds. The proposed amendment under these
items would remove the previous more cumbersome process and replace it
with a more streamlined one to be inserted in new subsection
203AH(1A).
78. Subsection 203AH(1) provides that the Commonwealth Minister must
withdraw recognition in circumstances where the body has ceased to
exist or the body makes a written request for its recognition to be
withdrawn. A request by a representative body for its recognition to
be withdrawn only applies if the request was authorised by a meeting
of the body open to all its members and evidence of this is included
in the representative body's request to the Commonwealth Minister.
79. It is considered to be undesirable that the legislation prescribes a
particular manner in which the representative body obtains
authorisation for its request. Instead it is considered to be
sufficient that any authorisation is given in accordance with the
usual procedures and process of the representative body for making
decisions of this kind. It would be expected that where it is
necessary for members to be consulted the representative body should
be satisfied that they understand and consent to any course of action
that the representative body takes on their behalf in relation to its
continued recognition.
80. Item 28 would insert a new subsection 203AD(1A), which proposes that
any request for withdrawal or recognition must be accompanied by a
signed statement that the request for withdrawal of recognition is
accompanied by a statement that the request is authorised in
accordance with the body's own procedures.
Items 29, 30, 31 and 32 - Subsection 203AH(3)
81. Subsection 203AH(2) provides that the Commonwealth Minister may
withdraw recognition if the representative body is not satisfactorily
performing its functions or there are serious or repeated
irregularities in the financial affairs of the body. Subsection
203AH(3) provides that the Commonwealth Minister is required to notify
the representative body that withdrawal is being considered. This
item amends paragraph 203AH(3)(b) to provide that the notice must be
accompanied by a statement that the body may make submissions to the
Commonwealth Minister about whether its recognition should be
withdrawn. The period for making submissions is 30 days. Proposed
new subsection 203AH(3A) will allow the Commonwealth Minister to
extend the period for making a decision if the representative body
applies for an extension in writing before the expiration of the 30
day period.
Item 33 - At the end of subsection 203AH(4)
82. Subsection 203AH(4) provides that the Commonwealth Minister may
consider certain material in deciding whether to withdraw recognition.
In addition to matters that were previously considered this item
would add new paragraph (d) to enable information in possession of the
Minister or the department that is relevant to the decision to also be
taken into account.
83. This provision would give notice to the representative body that any
information previously provided to the department may be taken into
account and it would also allow the representative body to refer to
that information without the need to go to the time and expense of
providing information already available to the Commonwealth Minister
or the department. Information provided by affected persons for whom
the representative body performs its functions would be considered.
The rules of natural justice would apply to any decision.
Item 34 - Subsection 203AH(6)
84. This item would insert paragraphs (a) and (b) which would have the
effect that the Commonwealth Minister must take into account any
submissions made by the body within the original period specified in
the notice or within any extended period granted by the Commonwealth
Minister.
Matters to which the Commonwealth Minister must have regard
Item 35 - Subsection 203AI(1)
85. Subsection 203AI(1) provides that in making any decision under this
Division the Commonwealth Minister must have regard to certain matters
relating to the satisfactory performance by a representative body of
its functions specified in the Act. Subsection (2) describes the
matters that should be taken into account in assessing fairness.
86. Section 203BA(2)(c) deals with how functions of representative bodies
are to be performed which includes criteria relating to fairness of
processes and governance. It is considered that there is an
undesirable overlap between these two provisions and it is unnecessary
to repeat these in the context of applying fairness criteria in
relation to recognition of representative bodies and the area over
which they perform their functions.
87. This item would amend subsection 203AI(1) to require that the
Commonwealth Minister must be satisfied that a representative body
meets the criteria set out in section 203BA. Section 203BA specifies
how a representative body is to perform its functions.
Item 36 - Subsection 203AI(2)
88. This item would repeal subsection 203AI(2) as it is no longer
necessary.
Item 37 - Paragraph 203BA(2)(c)
89. This item would amend subsection 203BA(2)(c) to include matters
previously contained in subsection 203AI(2) that were not included in
paragraph 203BA(2)(c).
Item 38 - Subsection 203FC(5) (definition of former area)
90. Item 38 would amend the definition of former area in subsection
203FC(5) to make it clear that this section it refers to a whole or
part of an area.
Application - sections 203AE, 203AFand 203AG of the Native Title Act
Item 39 - sections 203AE, 203AF and 203AG of the Native Title Act
1.91 Item 39 contains savings provisions in relation to new sections
203AE, 203AF and 203AG. In the event that at the time of commencement of
these amendments any matters relating to extension, variation or reduction
of a representative body area are outstanding, the provisions of sections
203AE, 203AF and 203AG that were in force prior to the commencement of
these amendments would apply to those decisions.
Schedule 6 - Other amendments
Overview
Schedule 6 would make minor and technical amendments to improve or clarify
the operation of existing provisions in the Native Title Act.
Schedule 6 would:
. clarify that the Court is required to make a determination about
whether a native title determination is to be held on trust or by a
PBC at the same time as, or as soon as practicable after, making a
determination that native title exists in an area
. simplify the provisions about cancelling bank guarantees held as
payments under a RTN process. This would avoid unnecessary banking
costs to future act proponents
. amend the provisions that govern trust arrangements under alternative
State and Territory regimes. Section 43 of the Native Title Act
enables a State or Territory to establish right to negotiate
procedures that may operate to the exclusion of the provisions in the
Act. The Native Title (Technical Amendments) Act had intended to
include new provisions to allow these alternative regimes to use bank
guarantees in addition to trusts. However, the trust option was
mistakenly removed and this Schedule would reinsert provisions about
trusts to restore the option of using either for the purposes of
compensation payments to be held under the right to negotiate
provisions. These amendments would ensure existing alternative trust
regimes are valid, and
. clarify the penalty provisions.
Schedule 6 would also correct typographical errors.
Part 1-Amendments
Native Title Act 1993
Item 1 - Paragraphs 28(2)(a) and (b)
1. Item 1 would repeal existing paragraphs 28(2)(a) and (b) and replace
them with new paragraphs. Section 28 provides that where there has been
a failure to comply with the RTN processes outlined in paragraphs
28(1)(a) to (h) the act will only be invalid to the extent that it
affects native title.
2. Subsection 28(2) provides further qualifications to subsection 28(1).
Subsection 28(2) provides that even where the processes under paragraphs
28(1)(c) to (h) are met, the act may nonetheless be invalid where the
Government party, in the situation where an amount is to be secured by a
bank guarantee in favour of the Registrar, informs the Registrar that it
no longer proposes to do the act, but the Government party does the act
anyway without complying with the requirements in the Subdivision.
3. Item 1 would replicate the effect of existing subsection 28(2) and
expand the scope to include cases where an amount is secured by either a
bank guarantee or is held in trust by the Registrar. The Native Title
(Technical Amendments) Act had intended to give the States and
Territories an option of utilising either a bank guarantee regime or a
trust regime, however, the trust option was mistakenly removed in that
Act.
Item 2 - After subsection 36C(5A)
4. Item 2 would include a rule for conditions about payments that are to be
held on trust. The rule would apply where there is a condition in a
ministerial determination that an amount is to be paid and held in trust.
This item would restore the option for States to secure an amount by
either a trust or bank guarantee and therefore would amend the subsection
to cover both options. The trust regime option was mistakenly removed in
the Native Title (Technical Amendments) Act. States and Territories
would then be able to use either a trust regime or a bank guarantee
regime and comply with either the trust condition or the bank guarantee
condition.
Item 3 - At the end of section 41
5. Section 41 sets out the effect of an arbitral body determination or an
agreement made in accordance with the RTN provisions. Broadly the
negotiation parties and all members of an affected native title claim
group are bound by any conditions in such a determination or agreement as
if it were a contract between them. Item 2 relates to the situation
where a condition of a determination by an arbitral body is that an
amount be held on trust. Such an amount must be determined by the
arbitral body and held in trust until dealt with in accordance with
section 52A of the Native Title Act.
6. Item 3 would add subsection 41(5) to reinsert the trust condition
mistakenly removed in the Native Title (Technical Amendments) Act.
States and Territories would then be able to use either a trust regime or
a bank guarantee regime and comply with either the trust condition or the
bank guarantee condition.
Item 4 - After subsection 42(5A)
7. Item 4 would insert a new subsection 42(5B) to reinsert the trust
condition mistakenly removed in the Native Title (Technical Amendments)
Act. States and Territories would then be able to use either a trust
regime or a bank guarantee regime and comply with either the trust
condition or the bank guarantee condition.
Item 5 - Paragraph 43(2)(j)
8. Proposed paragraph 43(2)(j) would provide that alternative State and
Territory regimes will have the option of providing for a bank guarantee
or a trust regime for the purposes of compensation payments to be held
under the RTN provisions. Currently, only the option of a bank guarantee
is specified in the provision. The exclusion of the trusts option was
mistakenly removed in the Native Title (Technical Amendments) Act.
9. Proposed paragraph 43(2)(j) would prevent alternative State regimes that
only provide a trust regime from being found invalid for the sole reason
that they do not provide a bank guarantee option. Under this amendment
any doubt about the validity of any pre-existing State trust regimes
would be removed.
Items 6-8 - Subsection 52(2) (paragraph (a), (b) and (c) in column 3 of
table item 5)
10. Subsection 52(2) of the Act provides for a bank guarantee regime for
payments held under a RTN process. The amount secured by bank guarantee
in effect provides security for any compensation that may be determined
to be payable to native title holders in the area affected by a future
act. Subsection 52(2) outlines what is to happen to the bank guarantees
in various scenarios.
11. Where a sum less than the amount of money that has been secured by the
bank guarantee is to be paid as compensation, the Registrar is required
to call on the bank to pay the full amount of the guarantee to the
Registrar. The Registrar is then required to distribute the money as
follows:
. First, to pay an amount equal to the compensation amount that was
determined to the native title holders, and
. Second, to pay the remainder to the person who secured the original
amount by bank guarantee (that is, the future act proponent).
12. This means that the full amount of the guarantee needs to be drawn
despite the fact that a portion of the drawn funds will be directed back
to the future act proponent. This results in unnecessary cost to the
future act proponent.
13. The amendments in items 6-8 would provide that the Registrar should
call for the amount required to satisfy the compensation amount to be
drawn. The Registrar would then request the bank to cancel the
guarantee, which would return the remainder to the future act proponent.
This would avoid unnecessary banking costs to future act proponents.
Item 9 - After section 52
14. Proposed section 52A replicates the effect of section 52 of the NTA as
it was enacted prior to it mistakenly being removed in the Native Title
(Technical Amendments) Act. Section 52A would set out how a trust regime
for payments held under the RTN process operates in a range of
circumstances where an alternative State or Territory regime has a trust
regime.
Items 10-12 - Section 55
15. Section 55 provides that if the Court proposes to make a determination
of native title and the determination is that native title exists at the
time of making the determination, the Court must as soon as practicable
afterwards make the determinations in section 56 and 57. Section 56
involves a determination by the Court about whether native title is to be
held on trust and if so, by whom and section 57 involves the
determination of a PBC if the section 56 determination was that native
title was to be held on trust by a PBC.
16. In practice, the Court often makes a determination that native title
exists, but that it does not come into effect until a PBC is registered.
This raises a question about whether a determination of native title can
be made prior to a determination being made under section 56 or 57. This
amendment would add the words 'as soon as practicable after' to the
timing requirement on the Court and therefore avoid concerns about
determinations when a section 56 or 57 determination is not made at the
same time as the native title determination.
Item 13 - Paragraph 66C(1)(c)
17. Paragraph 66C(1)(c) currently provides that paragraph 94C(1)(c) must be
satisfied before the Registrar may advise the Registrar of the Federal
Court of facts in relation to certain applications relating to future
acts. The amendment would omit the term 'in relation to the applicant'
and insert 'for each future act identified in the future act notice
referred to in that paragraph'. The current term is not accurate as it
should refer to the future act identified in the future act notice, not
the applicant. The amendment would replicate the wording in paragraph
94C(1)(c).
Item 14 - Subsections 171(1) and 172(1) (penalty)
18. The item 14 amendments would replace existing references to 'Maximum
Penalty' with 'Penalty', in accordance with Drafting Direction 3.5 issued
by the Office of Parliamentary Counsel, which states that this change
should be made if offence provisions are amended.
Item 15 - Section 173 (penalty)
19. The amendments to the offence provisions would replace existing
references to 'Maximum Penalty' with 'Penalty', in accordance with
Drafting Direction 3.5 issued by the Office of Parliamentary Counsel,
which states that this change should be made if offence provisions are
amended.
Item 16 - Subsections 174(1) and 176(1) (penalty)
20. The amendments to the offence provisions would replace existing
references to 'Maximum Penalty' with 'Penalty', in accordance with
Drafting Direction 3.5 issued by the Office of Parliamentary Counsel,
which states that this change should be made if offence provisions are
amended.
Item 17 - Section 177 (penalty)
21. The amendments to the offence provisions would replace existing
references to 'Maximum Penalty' with 'Penalty', and reflect OPC Drafting
Direction 3.5, which states that this change should be made if offence
provisions are amended.
Part 2 - Application etc. provisions
Item 18 - Application of amendment
22. Item 18 provides that item 5 of Schedule 6 applies in relation to
both a situation where the Minister has made a determination under
paragraph 43(1)(b) that alternative State or Territory provisions comply
with the Native Title Act after the commencement of the item, and also a
situation where the Minister revokes such determination, regardless of
whether the determination was made before or after item 5 commenced.
Item 19 - Validation etc. of pre-commencement determinations
23. Item 19 provides that a determination made under paragraph 43(1)(b)
before the commencement of this item is valid, and is taken to have
always been valid, as if the determination had been made with the
proposed amendments to paragraph 43(2)(j) being in force at that time.
The effect of this item would be that the mistaken repealing of the trust
regime option in paragraph 43(2)(j) by the Native Title (Technical
Amendments) Act would not affect the validity of such a determination.