Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIVE TITLE LEGISLATION AMENDMENT BILL 2019
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
AMENDMENT TO THE NATIVE TITLE LEGISLATION AMENDMENT BILL 2019
(Government)
GENERAL OUTLINE
Evaluation mechanism
1. This amendment to the Native Title Legislation Amendment Bill 2019 ('the Bill')
and the Explanatory Memorandum to the Bill would amend the Native Title Act 1993
to require an evaluation to be conducted within five years of the commencement of
Schedule 6 to the Bill on the operation of the amendments made by the Bill.
2. The purpose of the amendment is to provide a formal legislative mechanism to assess
the impact of measures in the Bill on the operation of the native title system,
including to ensure the Bill is achieving its objectives, and to provide an opportunity
to consider whether there is a need for any adjustments to measures in the Bill.
3. The scope of the evaluation mechanism is broad and will allow consideration of the
practical operation of the amendments, as well as the effect of the amendments on the
rights of Aboriginal and Torres Strait Islander peoples.
Parties to an expedited procedure objection inquiry
4. The purpose of this amendment to the Bill is to clarify who the parties to an
expedited procedure objection inquiry are. Schedule 6 of the Bill is amended to insert
new subsection 141(2A) to the Native Title Act 1993.
5. Under the Native Title Act, native title parties have a 'right to negotiate' before
certain acts can be validly done on native title land. The 'right to negotiate' applies to
the grant of some mining tenements and compulsory acquisitions and requires parties
to negotiate in good faith with a view to reaching agreement.
6. The 'expedited procedure' is a streamlined process for the grant of 'low-impact'
future acts. Native title parties can object to the application of the 'expedited
procedure'. An objection can be resolved by agreement, or by a determination of the
relevant arbitral body.
7. The original amendment proposed by Schedule 6 of the Bill to s 141(2) of the Native
Title Act clarifies that only native title parties who object to an act attracting the
expedited procedure process are party to the relevant inquiry.
8. This amendment clarifies that if a registered native title claimant lodges an objection
to the use of the expedited procedure and is later succeeded - in relation to any of the
land or waters that will be affected by the act - by a registered native title body
corporate (RNTBC) because of an approved determination of native title, that
RNTBC becomes a party to the inquiry in place of the registered claimant.
2
FINANCIAL IMPACT
9. Nil.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Native Title Legislation Amendment Bill 2019
1. The amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
Evaluation mechanism
2. This amendment would amend the Native Title Act 1993 to insert new section 209A.
This new section would require an evaluation to be conducted within five years of the
commencement of Schedule 6 of the Native Title Legislation Amendment Bill 2019
(the Native Title Legislation Amendment Act 2020 if passed by Parliament), to assess
the operation of the measures in the Bill.
3. The responsible Commonwealth Minister must cause to be prepared a report of this
evaluation, and this report must be tabled in each House of the Parliament within 15
sitting days of that House after the completion of the preparation of the report.
4. By making this change, the amendment to the Bill will give effect to a number of
recommendations from the following reviews of the Bill:
the Parliamentary Joint Committee on Human Rights (PJCHR)'s Report 1 of 2020
on the Native Title Legislation Amendment Bill 2019, published February 2020
(PJCHR Initial Report);
the PJCHR's Report 4 of 2020 on the Native Title Legislation Amendment Bill
2019, published April 2020 (PJCHR Report 4 of 2020); and
the Minority Report by Labor Senators of the Senate Legal and Constitutional
Affairs Legislation Committee on the Native Title Legislation Amendment Bill
2019 [Provisions], published August 2020 (Labor Senators' Report).
Parties to an expedited procedure objection inquiry
5. These amendments would amend Schedule 6 of the Native Title Legislation
Amendment Bill to insert new s 141(2A) to the Native Title Act 1993 to clarify who
the parties to an expedited procedure objection are.
6. Under the Native Title Act, native title parties have a 'right to negotiate' before
certain acts can be validly done on native title land. The 'right to negotiate' generally
applies to the grant of some mining tenements and compulsory acquisitions and
requires parties to negotiate in good faith with a view to reaching agreement.
7. The 'expedited procedure' is a streamlined process for the grant of low-impact
tenements. Native title parties can object to the application of the 'expedited
procedure'. An objection can be resolved by agreement, or by a determination of the
relevant arbitral body.
4
8. This amendment clarifies that if a registered native title claimant lodges an objection
to the use of the expedited procedure and is later succeeded - in relation to any of the
land or waters that will be affected by the act - by a registered native title body
corporate (RNTBC) because of an approved determination of native title, that
RNTBC becomes a party to the inquiry in place of the registered claimant.
9. This will ensure registered native title claimants and RNTBCs are not unduly or
unnecessarily precluded from having their objections to the use of an expedited
procedure application considered by the relevant arbitral body.
Human rights implications
10. The amendments to the Bill engage the following rights:
the right to enjoy and benefit from culture in Article 27 of the ICCPR and
Article 15 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR);
the right to self-determination in Article 1 of the ICCPR;
the right to an effective remedy in Article 2(3) of the International Covenant
on Civil and Political Rights (ICCPR);
the right to equality before courts and tribunals in Article 14 of the ICCPR;
and
the right to a fair and public hearing by a competent, independent and
impartial tribunal in Article 14(1) of the ICCPR.
The rights to self-determination and to enjoy and benefit from culture
11. The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR
and Article 15 of the ICESCR. 1 Article 27 of the ICCPR protects the rights of
individuals belonging to minorities within a country to enjoy their own culture.
Article 15 of the ICESCR protects the right of all persons to take part in cultural life.
12. The United Nations Committee on Economic, Social and Cultural Rights (UNESCR)
specifically refers to Indigenous peoples' cultural values and rights associated with
their ancestral lands and states that their relationship with nature should be regarded
with respect and protected.2
13. UNESCR has also provided guidance on the communal and individual aspects of the
right to culture, in particular that the reference to 'everyone' in Article 15 of the
ICESCR may denote either individual or collective rights to culture.3 UNESCR has
noted, in particular, that Indigenous peoples have the right to act collectively to
protect their cultural heritage, traditional knowledge and cultural expressions.4
14. The right to self-determination is a collective right, in that it pertains to groups of
people, as opposed to individuals within a group. The right to self-determination, as
1
International Covenant on Civil and Political Rights (n 1) art 27; International Covenant on Economic, Social
and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976)
art 15.
2
UNESCR, General Comment No. 21 (2009) at paragraph 36.
3
UNESCR, General Comment No. 21 (2009) at paragraphs 9 and 37.
4
UNESCR, General Comment No. 21 (2009) at paragraph 37.
5
set out in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement
of peoples to have control over their destiny and to be treated respectfully.5 This
includes peoples being free to collectively pursue their economic, social and cultural
development without outside interference.
15. Although the right to self-determination is a collective right, it is important that
individuals are heard with regard to contributing to the direction of the group. This
may include adequately consulting and giving appropriate consideration to minority
views to ensure that genuine agreement is reached.6
16. As noted in the Statement of Compatibility with Human Rights for the Bill, there are
a number of measures in the Bill which engage the right to culture and the right to
self-determination. As also noted in that Statement, the Bill contains a number of
safeguards to ensure that those measures do not unduly limit those rights. Those
safeguards are enhanced by the amendment to the Bill to require an evaluation to be
conducted within five years to assess the operation of the measures in the Bill.
The rights to an effective remedy
17. The right to an effective remedy is contained in Article 2(3) of the ICCPR.7 Article 6
of the Convention on the Elimination of All Forms of Racial Discrimination (CERD)
also provides a right to an effective remedy for acts of discrimination contrary to that
Convention.8
18. The right to an effective remedy provides a right to appropriate reparation where
rights have been breached. This may include compensation, restitution and changes
to laws and practices to protect against repetition of breaches of rights.
The rights to equality before courts and tribunals, and to a fair and public hearing
19. Article 14(1) of the ICCPR enshrines the right of a person to have a fair and public
hearing by a competent, independent and impartial tribunal established by law.9 This
article also sets out the general guarantee of equality before courts and tribunals that
applies regardless of the nature of proceedings before such bodies.10 Therefore, this
right applies to civil matters.
5
International Covenant on Civil and Political Rights (n 1) art 1; International Covenant on Economic, Social
and Cultural Rights (n 5) art 1.
6
Parliamentary Joint Committee on Human Rights comment on Native Title Amendment (Indigenous Land Use
Agreements) Bill 2017 (Scrutiny Report 1 of 2020) at paragraph 1.87.
7
International Covenant on Civil and Political Rights, opened for signature 16 Decmeber 1966, 999 UNTS 171
(entered into force 23 March 1976) art 2(3).
8
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature
21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) art 6.
9
International Covenant on Civil and Political Rights (n 1) art 14(1).
10
UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts
and tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32.
6
The amendments to the Bill - evaluation mechanism
20. The PJCHR noted that the measures in the Bill were a proportionate limit on the right
to culture, in light of the safeguards in the Bill and because "the effect of the
measures on certain individuals' enjoyment of their right to culture must be balanced
against the fact that such measures also promote the right to culture for the group as a
whole".11 The Committee also noted that the measures may promote the right to self-
determination.
21. However, the report also noted that the amendments in the Bill which allow the
applicant to act by majority as the default may profoundly affect the interests of
certain individuals or sub-groups in relation to the right to culture. The report also
noted that whether the rights to culture and self-determination are limited will depend
on how the proposed amendments are implemented in practice.
22. In light of these concerns, the report suggested an evaluation be conducted within an
appropriate timeframe to assess the impact of these measures on the rights to culture
and self-determination.
23. In response to the PJCHR, the Attorney-General advised he did not consider a formal
review mechanism to be necessary at the time, given existing formal and informal
consultation mechanisms between Government and stakeholders provide opportunity
for feedback to be received on the operation of the provisions of the Bill once
enacted.
24. The PJCHR noted that while a formal review mechanism would be preferable from
the perspective of international human rights law, the Attorney-General's
commitment to further consultation on the Bill and amending the legislation if there
is evidence of a negative impact on the rights to culture and self-determination assists
with the human rights compatibility of the Bill.12
25. Similar concerns about the impacts of the Bill on the rights to culture and
self-determination were raised in a minority report by Labor Senators on the Senate
Legal and Constitutional Affairs Legislation Committee.13 Labor Senators
recommended the Bill be amended to include a formal evaluation mechanism
consistent with the terms set out by the PJCHR (recommendation 4 - minority
report).
26. The amendment to the Bill seeks to enhance existing safeguards in the Bill by
requiring an evaluation to be conducted on the operation of amendments made by the
Bill within five years of the commencement of Schedule 6 of the Bill.
27. The timeframe allows the effects of the Bill's reforms to be meaningfully evaluated,
noting native title determinations and agreements generally take several years to be
finalised.
11
PJCHR Scrutiny Report 1 of 2020 at paragraph 1.162.
12
PJCHR Scrutiny Report 4 of 2020 at paragraph 2.267.
13
Senate Legal and Constitutional Affiars Legislation Committee report on Native Title Legislation Amendment
Bill 2019 [Provisions], released on 19 August 2020 and tabled on 24 August 2020, pages 49 to 58.
7
28. The evaluation mechanism will complement existing ongoing consultation
mechanisms between the Australian Government and the native title sector, which
provide opportunity for ongoing dialogue on the operation of the Native Title Act
and native title system more broadly.
The amendments to the Bill - parties to expedited procedure objection inquiry
29. The Bill amends subsection 141(2) to clarify that only native title parties who object
to an act attracting the expedited procedure process are party to the relevant arbitral
bodies' inquiries into those objections. The expedited procedure is a streamlined
approval process for future acts done under Subdivision P, Division 3, Part 2 of the
Native Title Act.
30. This amendment will clarify that a registered native title claimant who lodges an
objection to the use of the expedited procedure and is later succeeded - in relation to
any of the land or waters that will be affected by the act - by an RNTBC because of
an approved determination of native title, that RNTBC becomes a party to the inquiry
in place of the registered claimant.
31. This will promote the rights to an effective remedy, to equality before courts and
tribunals and to a fair and public hearing by ensuring that the concerns of a party who
originates an objection application can be considered during the relevant arbitral
bodies' inquiry into the objection application, and that the party is not excluded from
proceedings following an approved determination of native title and their transition
from a native title claimant to an RNTBC.
32. Both the registered native title claimant (before a native title determination is made)
and RNTBCs (established following a determination of native title) are the
representatives or vehicles for common law holders to advance their economic, social
and cultural development through the management and use of native title rights.
33. The rights to self-determination and to benefit from culture will be supported by this
amendment by ensuring there is continuity between a registered claimant and the
relevant RNTBC, particularly to ensure an RNTBC can progress an objection lodged
by the relevant claimant following a determination of native title.
CONCLUSION
34. The amendments to the Bill are compatible with human rights as they promote the
protection of human rights.
8
NOTES ON AMENDMENTS
Amendments to Schedule 6
Amendment 1 (Sheet QW110)
Item 1
1. Item 1 adds Part 3 to Schedule 6 of the Bill to insert new section 209A into the Native
Title Act 1993.
2. New section 209A would require an evaluation on the operation of the amendments
made by the Bill (the Native Title Legislation Amendment Act 2020, if passed by
Parliament). This would include an evaluation of all amendments made by the Bill,
including amendments to the Native Title Act 1993 and the Corporations (Aboriginal
and Torres Strait Islander) Act 2006.
3. Subitem (1) requires the Commonwealth Minister to cause an evaluation of the
operation of the amendments in the Bill to be undertaken within five years of the
commencement of Schedule 6 of the Bill. Schedule 6 commences on Proclamation, or
6 months after the Bill receives Royal Assent if a commencement date is not
proclaimed, as per clause 2, table item 10 of the Bill.
4. Subitem (2) requires the Commonwealth Minister to cause a report of the evaluation
conducted under subsection (1) to be prepared.
5. Subitem (3) requires the Commonwealth Minister to table the report in both Houses
of Parliament within 15 sitting days of the completion of the report.
Amendment 2 (Sheet QW111)
Item 1
6. Item 1 amends Schedule 6, Part 1, Item 2 of the Bill to insert new subsection (2A)
after subsection 141(2) of the Native Title Act.
7. The purpose of this amendment is to clarify who the parties to an expedited procedure
objection are, in circumstances where a registered native title claimant lodges an
objection to the use of the expedited procedure and is later succeeded - in relation to
any of the land or waters that will be affected by the act - by an RNTBC because of
an approved determination of native title.
8. This amendment clarifies the operation of the proposed amendment to subsection
141(2) of the Native Title Act by Schedule 6, Part 1, Item 2 of the Bill. The original
amendment to subsection 141(2) clarifies that only native title parties who object to
an act attracting the expedited procedure process are party to inquiries into those
objection applications.
9
9. New subsection (2A) provides for circumstances where a native title party (the
original party) has lodged an expedited procedure objection application and is, at the
time the objection is lodged, a registered native title claimant in relation to the land or
waters to which the objection application relates, but then later ceases to be a native
title party due to an approved determination of native title.
10. In these circumstances, where a body corporate (or the replacement party) becomes
an RNTBC in relation to land or waters affected by the act to which the original
party's expedited procedure objection application relates, the RNTBC becomes a
party to the relevant inquiry into the objection application, in place of the original
party.
10
Index]
[Search]
[Download]
[Bill]
[Help]