Senator MINCHIN (Special Minister of State and Minister Assisting the Prime Minister)(11.10 a.m.) —I move:

(77)   Schedule 3, item 11, page 224 (before line 19), before subsection (1), insert:

   (1A)   The Commonwealth Minister must determine applications under section 203AB:

      (a)   as soon as practicable after:

         (i)   the period specified under subsection 203A(3); or

         (ii)   if a further period applies under subsection 203AB(2) in relation to one or more of those applications—the last such further period to end; or

         (iii)   if the Commonwealth Minister has, in relation to one or more of those applications, given to a body a notice under subsection (1) requiring the body to giver further information within a specified period—the last such period to end;

      whichever occurs last; and

      (b)   if the applications are in respect of an invitation to which subsection 203AA(3) applied—in any event before the end of the transition period.

      Note about Schedule 3, item 11: The heading to section 203AC (page 224, line 18) is replaced by the heading "Dealing with applications ".

(78)   Schedule 3, page 232 (after line 15), after item 18, insert:

18A Subsection 108(1B)

   Repeal the subsection, substitute:

      Assistance and mediation generally

   (1B)   The Tribunal has the functions of:

      (a)   providing assistance, or mediating, in accordance with any provision of this Act; and

      (b)   entering into agreements as mentioned in subsection 203BK(3) in relation to assistance of the kind referred to in that subsection.

(79)   Schedule 3, item 30, page 250 (after line 19), at the end of section 203BK, add:

      Assistance in performing dispute resolution functions

   (3)   Without limiting subsection (1), in performing its dispute resolution functions in a particular case, a representative body may be assisted by the NNTT, but only if the representative body and the NNTT have entered into an agreement under which the representative body is liable to pay the NNTT for the assistance.

(80)   Schedule 3, item 30, page 250 (lines 27 and 28), omit "in respect of a financial year or part of a financial year to the representative body,", substitute "to the representative body".

(81)   Schedule 3, item 30, page 250 (after line 29), at the end of section 203C, add:

   (3)   The grant of money may be:

      (a)   in respect of a financial year; or

      (b)   in respect of a part of a financial year; or

      (c)   in respect of any other period not exceeding 3 years.

(82)   Schedule 3, item 30, page 251 (after line 20), after subsection (1), insert:

      Repayment of part of grant on withdrawal of recognition

   (1A)   The grant is also subject to a condition that if:

      (a)   the representative body's recognition as a representative body is withdrawn under section 203AH; and

      (b)   the withdrawal takes effect during the period to which the grant relates;

      the representative body must repay to ATSIC an amount equal to so much (if any) of the grant as is uncommitted at the time the recognition is withdrawn.

      Uncommitted amount of the grant

   (1B)   For the purposes of subsection (1A), the amount of the grant that is uncommitted is the difference (if any) between:

      (a)   the portion (if any) of the grant that has, at the time the recognition is withdrawn, been paid to the representative body by ATSIC; and

      (b)   the sum of:

         (i)   the portion (if any) of the grant that has, at that time, been spent by the representative body in connection with the performance of its functions and the exercise of its powers; and

         (ii)   the portion (if any) of the grant that the representative body is, at that time, liable to pay to other persons in connection with the performance of its functions and the exercise of its powers.

(83)   Schedule 3, item 30, page 253 (lines 13 and 14), omit the definition of bank , substitute:

bank means:

      (a)   a person who carries on the business of banking, either in Australia or outside Australia; or

      (b)   any other institution:

         (i)   that carries on a business in Australia that consists of or includes taking money on deposit; and

         (ii)   the operations of which are subject to prudential supervision or regulation under a law of the Commonwealth, a State or a Territory.

(84)   Schedule 3, item 30, page 259 (after line 28), at the end of section 203DF, add:

      Report not to contain matters subject to legal professional privilege

   (6)   A report under subsection (4) must not contain any information, or include any document or record, that is subject to legal professional privilege or that is derived from information that is subject to legal professional privilege.

      Legal professional privilege must be claimed

   (7)   For the purposes of subsection (6), information, or a document or record, is not taken to be subject to legal professional privilege unless, at or before the time it was obtained by the person appointed under subsection (1), it was claimed to be subject to legal professional privilege by a person entitled to make such a claim.

      Auditor or investigator taken to be a Commonwealth officer

   (8)   To avoid doubt, a person appointed under subsection (1) of this section is taken, for the purposes of sections 70, 72, 73, 74 and 75 of the Crimes Act 1914 , to be a Commonwealth officer.

(85)   Schedule 3, item 30, page 259 (line 29) to page 260 (line 12), omit section 203DG, substitute:

203DG Access to information

      General

   (1)   For the purpose of conducting an inspection and audit, or an investigation, of a representative body under section 203DF, the person appointed under section 203DF(1):

      (a)   is entitled at all reasonable times to full and free access to documents relating to the representative body; and

      (b)   may make copies, or take extracts from, any such document; and

      (c)   may require a representative body:

         (i)   to answer such questions; and

         (ii)   to produce such documents in the representative body's possession or to which the representative body has access;

      as the person so appointed considers necessary for that purpose.

      Use of legally professionally privileged documents

   (2)   A representative body must produce a document or record or disclose information as required under paragraph (1)(c), whether or not the document, record or information is the subject of legal professional privilege.

      Production does not affect legal professional privilege

   (3)   A document, record or information does not cease to be the subject of legal professional privilege merely because it is produced under paragraph (1)(c).

      Failure to comply with paragraph (1)(c)

   (4)   A representative body who, without reasonable excuse, refuses or fails to comply with the requirement under paragraph (1)(c) is guilty of an offence punishable upon conviction by a fine not exceeding 20 penalty units.

      Self-incrimination

   (5)   For the purposes of subsection (4), it is not a reasonable excuse for a representative body to refuse or fail:

      (a)   to give information; or

      (b)   to produce a record or document;

      in accordance with a requirement under paragraph (1)(c), on the ground that the information or the production of the document or record, as the case may be, might tend to incriminate the representative body or make the representative body liable to a penalty.

      Admissibility in criminal proceedings

   (6)   Despite subsection (5):

      (a)   giving the information or producing the document or record; or

      (b)   any information, document, record or thing obtained as a direct or indirect consequence of the giving of the information or production of the document or record;

      is not admissible in evidence against the person in any criminal proceedings, other than proceedings against, or arising out of, subsection (4) or (7).

      Knowingly making a statement that is false or misleading

   (7)   A representative body who, in purported compliance with the requirement under paragraph (1)(c), makes a statement that it knows to be false or misleading in a material particular, is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.

I take this opportunity to speak in respect of Senator Margetts's quite legitimate interest in the question of funding of rep bodies. There are currently 26 determined representative bodies. The funds allocated over the last three financial years were: 1994-95, $20.7 million; 1995-96, $28.4 million; and 1996-97—in our first budget—$42.1 million. So there has been a more than doubling in the first two years, and we are maintaining it at that level. So we think the resource allocation to those bodies is quite significant.

In terms of representative bodies, I think this is one area of the bill where there is, broadly speaking, general agreement. We have rejected the assertions put by some in the Aboriginal community that we should not enhance the role and place of representative bodies in the system. We do not agree; we think that the management of the native title process is enhanced by having well-resourced, professional and accountable representative bodies who are genuinely representative and accountable. Our provisions generally achieve that end in a way which does ensure that accountability and effectiveness—accountability, essentially, to ATSIC on a day to day basis, but ultimately to the minister in the strategic sense. There is an allocation of mandatory and other functions to the rep bodies.

I think the big difference of opinion is over our proposal to re-examine the status of current rep bodies against the new criteria. We do think that, to ensure the confidence of everybody in the current representative bodies, they should be required to demonstrate that they can meet these new responsibilities. They are given priority in the system. They are given the first opportunity to apply for recognition and a 12-month period in which to do so, so we do think that, to ensure that level of confidence and appropriate accountability, there is no reason that existing rep bodies should not go through a re-recognition process, given the completely changed arrangements. So we will not be supporting amendments which would seek to remove that re-recognition process.

I now turn to the government amendments, which are essentially technical. Amendment 77 provides for a new subsection 203AC(1A), which explains the time frames for the minister to make decisions about recognition applications. Generally, the minister must make decisions as soon as practicable after an invitation period, extension, or further information request period has expired. Where the application is made by an existing rep body during the transition period in response to such an invitation the application must be decided before the end of the transition period. I guess that was the intent, but that will now be given direct effect to by this amendment and it obviously acknowledges that current rep bodies do need to know by the end of that period whether they have been so recognised or not.

Amendment 78 gives the National Native Title Tribunal from the end of the transition period the new functions of assisting or mediating under any provision of the act and of entering into contracts with representative bodies to assist with their dispute resolution functions. Again, I would have thought that should be acceptable.

Amendment 79, which is linked to Labor amendment 81, provides that the tribunal may assist a representative body in its dispute resolution functions if there is an agreement between the body and the tribunal under which the body pays the tribunal for that professional assistance.

Amendment 80, again linked to 81, removes the requirement that grants be made in respect of a financial year or part of a financial year, because under 81 grants may be able to be made for a period of up to three years.

Amendment 81 provides a new subsection 203C(3) which allows ATSIC to make grants for periods of up to three years, consistent with other grant provisions relating to ATSIC. It enables ATSIC to make grants for the same duration as the strategic plan required to be prepared by the rep body.

Amendment 82 simply makes it clear that funding given to rep bodies is to be subject to a condition that, if a rep body loses its recognition, the rep body must return any uncommitted funds to ATSIC. Again, I would have thought this was an unexceptionable amendment. It does not require the rep body to repay any money actually paid out by or to another person, nor does it prevent the rep body from meeting any liabilities already incurred before de-recognition.

Amendment 83 is the technical amendment that arose out of the parliamentary committee inquiry in relation to the definition of a bank to make sure that it includes credit unions.

Amendment 84 provides protection for certain information disclosed during the audit or investigation of a rep body. New subsections 203DF(6) and (7) restrict the uses that can be made by the auditor or investigator of documents or information subject to legal privilege, and that auditors or investigators are to be regarded as Commonwealth officers for the purposes of certain secrecy provisions under the Crimes Act.

Amendment 85, the final government amendment, makes it clear that a rep body must allow an auditor or investigator full access to all documents relating to the rep body whether or not such documents contain legally privileged information, but a rep body will still be able to claim in other proceedings that such documents are subject to legal professional privilege.