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Wednesday, 13 June 2007
Page: 125

Senator LUDWIG (5:38 PM) —I rise to speak on the Native Title Amendment (Technical Amendments) Bill 2007. This bill makes a raft of changes to Australia’s native title regime. I will not have the opportunity to touch on all of those changes in detail, so I will touch very briefly on the provisions of the bill before I proceed to outline Labor’s support for the bill and to articulate some of the concerns we have.

Before I do that, I would like to thank the government for moving significantly towards Labor’s position on this bill. I am sure that is the sort of praise they do not often get. The government’s amendments have picked up two of Labor’s key concerns about this bill. They are, firstly—and this is the view of the Senate Standing Committee on Legal and Constitutional Affairs—that the National Native Title Tribunal, rather than the registrar, hear appeals against decisions of the registrar not to register an application and, secondly, that the Federal Court retain the role of determining prescribed bodies corporate and that this role not be taken over by regulation, which is appropriate and was the view expressed in the minority report by Labor senators. I will touch on these two areas again in a moment, but Labor still has a number of minor concerns about this bill and I will go to those this evening.

Before I do that, I note that this bill, and the amendments which the government is moving, really does underscore the value of committees as part of the whole Senate process. The committee that examined the bill made a number of recommendations, and I will take the chamber to these a little further on. Also, Labor made a number of recommendations in the minority report, as I have noted. The government has now moved amendments which would put into effect two of those recommendations. It is a sensible position that the government has now adopted in agreeing to those recommendations. It is helpful when the government is prepared to take up sensible amendments to improve its legislation. Rather than commend the government, I note that it has done that and I recognise that it also joined in the committee process itself.

Returning to the bill, I will firstly provide a short overview. Schedule 1 will introduce the majority of the changes in this bill. These include amendments to the process for future Indigenous land use agreements and the making and resolving of native title claims, changes to the obligations of the registrar and a range of other changes that I will not have time this evening to go to in any detail.

Schedule 2 simplifies a range of procedures relating to representative Aboriginal and Torres Strait Islander bodies, ensuring that legal obligations on those bodies are not duplicated, improving processes for reviewing decisions, and clarifying the process for transferring documents from a superseded body to a replacement body.

Schedule 3 introduces a range of amendments to the operation of prescribed bodies corporate. It will close a loophole relating to the placement of these prescribed bodies corporate with other PBCs and prescribe a regime for the charging of fees by those prescribed bodies corporate.

Schedule 4 is composed entirely of minor technical amendments. The title of this bill goes to ‘technical amendments’, and the bill also has a technical amendments schedule within it. I do not see any need to go to those this evening.

Schedule 5 is a new schedule to the bill which has been introduced by the government in a later set of amendments. The explanatory memoranda state that this schedule ‘would rectify a drafting oversight in the transitional and application provisions of the Native Title Amendment Act 2007 (2007 Act) relating to the dismissal of unregistered claims’. Again, these appear to be mainly ‘technical amendments’, which again go to the title of this bill.

As I said earlier, and as my colleagues stated in the other place, Labor supports the vast majority of the changes in this bill and we will be voting for them, as they are technical amendments designed to streamline and improve the operation of the Native Title Act rather than to radically alter or amend it. In addition, the government moved towards Labor’s position in two key areas which I outlined earlier. This is also of value and underpinned how Labor would address this bill. However, there are still changes in this bill which we do not agree with and which we believe could be clarified and improved in the best interests of all those who will have to operate under this scheme.

I will start with a concern that was identified in the submissions to the Senate committee—that is, the new fee system that is proposed in schedule 3 of the bill. Labor can certainly understand the arguments in favour of having a fee regime. The bodies are performing a statutory function and, as such, it is reasonable to expect at least some level of statutory prescription of fees. According to the bill, the scheme would work in this way. A registered native title body corporate would be entitled to charge a fee for the cost it incurs for certain negotiations, including negotiations for a right to negotiate an agreement or its equivalent under a state or territory scheme, or negotiations for an Indigenous land use agreement. A body corporate would be entitled to charge fees for costs it incurred in these negotiations. There are a limited number of persons of whom a body corporate cannot charge a fee, and they are set out in proposed section 60AB(4) of the bill. There are also certain types of negotiations for which a body corporate would not be entitled to charge a fee and the ability prescribed by regulation or other circumstance for which a fee cannot be charged, which is sensible.

Of course, concerns about this bill were raised in submissions to the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs that the proposed fee scheme represented a restriction rather than a facilitation of the ability for bodies corporate to charge fees. The Department of Families, Community Services and Indigenous Affairs, in response, indicated otherwise. In evidence given at the Senate inquiry, their representatives argued as persuasively as they could that the statutory bodies are by law required to have either explicit or implied authority to charge fees. Having looked at the evidence of the department on this matter, Labor will not oppose proposed section 60AB.

However, the subsequent proposed section, 60AC, is not, quite frankly, good law. We call on the government to have a closer look in dealing with this area. We think the problems with proposed section 60AC revolve around the fact that it provides that a person who has been charged a fee may go to the registrar to obtain an opinion about whether or not the fee is payable. The registrar then gives an opinion, which may agree or disagree with that fee being payable. If the registrar decides that the fee is not payable, that opinion is binding on the body corporate. The government, in its latest round of amendments, has moved, as I said earlier, technical changes to this section to clarify that the registrar always retains the discretion to not give an opinion. This section also provides that the regulations may set out the scheme in greater depth. It would certainly be helpful if that were available. Usually these matters come later, but, in any event, if the department turns its mind to ensure that the regulations ensure a smooth operation in this area, it would be helpful.

In any event, though, it is our view that there are still quite a few unanswered questions about the fee system that at this stage preclude the ability for Labor to wholeheartedly give it a tick. These questions include—and these may be matters that we can raise in committee: is there a right of merit review for a native title body that believes that the registrar may have made an incorrect decision; will the regulations set fee scales; what procedures will the registrar have in place to assess the matters that are brought before them; what assurances are there that they will make consistent decisions; will precedent be relevant; will it be based on only merit; will it be the practice of the registrar to give an opinion which includes what they think might be an appropriate fee or will they simply provide a yes or no answer; and, will they provide reasons for their decisions and will those decisions be publicly available? In addition: if so, will it eventually evolve into a situation where the registrar effectively acts as a de facto agency which sets fees? Will they be given that authority at some point or will the body of decisions that are made point to the registrar providing, in fact, an opinion method of setting fees? Other questions of this nature present themselves and the department and the minister need to be able to answer these questions before Labor can give this a tick.

We understand why such a scheme is necessary, but we do not believe that a fee scheme provides certainty for all stakeholders. If the eventual aim is to ensure there is certainty, that certainty is not apparent on the record here. However, we will not move to strike out either section from this bill, because of the complex nature of the way in which the bill has been put together, and because, in essence, it is a technical amendment to a provision.

Proposed section 60AB is necessary to allow the statutory authority to charge fees, but it is incumbent upon the government and the minister to develop a workable system and bring that back before parliament, certainly by way of regulation. It is not our role in this instance to try to come up with an alternative model that is workable; it is really incumbent upon the government to make sure that those matters that I have raised as concerns are addressed appropriately and that it certainly works reasonably for the parties and the stakeholders, because that is ultimately where we want to be. We want to ensure that the stakeholders have certainty, that the fees that are charged are reasonable and that everybody knows the process. Therefore, I repeat the request that the government, in truth, takes this away and devises a proper and more comprehensive process for the review of fees that sets out the rights of each participant and how they might exercise those rights. I appreciate that will not happen. I appreciate that the department and the minister are not going to accede to that, but I think it is still incumbent upon the government to put its case and ensure that it does work.

A second area of some minor contention in this bill relates to the provisions in the act which deal with cases in which applicants are found to be not properly authorised. As senators in this chamber may know, certain types of native title claims and applications must be made by a person who has been properly authorised. The problem under the current regime is that there is no clear indication of what would happen if it became clear during the proceedings that the applicant was not properly authorised. The proposed scheme—which we support, as I have said—would fix and clarify this situation. It would allow for the court to make an order that evidence must be produced by an applicant to show that they were authorised to make the application. If the court determined that the person was not authorised to make the application, a range of orders would be made. The court would also be entitled to continue to hear and determine the application if it believed that such a course of action were in the interests of justice.

Labor supports these provisions. I note from submissions to the Senate inquiry that these provisions are supported and welcomed by the stakeholders. However, one suggestion that was made in submissions which we think has merit—and it is never too late for the government to pick it up—is that a person who is making an application to the court for an order to produce evidence is required to show cause as to why it should be made. This would help to make sure that such applications are not open to abuse. I will give the government an opportunity to have a second think about that. I foreshadow that I will move amendments in the committee stage to achieve that.

Another area of difficulty with this bill, minor as it may be, relates to the potential for non-Indigenous persons to be members of bodies corporate which oversee native title rights for native title holders. Native title is an area which is distinctly Indigenous and is based on Indigenous customs and laws. It is appropriate that this section be clarified to make sure that only corporations with solely Indigenous members are entitled to become prescribed bodies corporate.

Turning to the right of review—and I think my colleague Jenny Macklin flagged in the House another concern regarding the right of review—the bill before us today would introduce a right of review for persons who have had their registration refused. Initially the government proposed to give the right of review to the registrar. That would have meant that the same body that had originally refused the registration would be conducting the review. Submissions to the Senate inquiry indicated that it would be more appropriate for the scheme to allow the review to be conducted by the National Native Title Tribunal. Of course, that would mean allowing a fresh set of eyes to look over the application. The committee concluded that this was an appropriate change and made such a recommendation. In the latest set of amendments, the government has picked up the suggestion of the Senate committee, as I mentioned earlier. I thank the government for that. It is a sensible amendment and it has Labor’s support.

I will now turn to the proposed amendments that deal with and validate alternative state regimes. As the submission by the Human Rights and Equal Opportunity Commission pointed out, there are concerns that this section would act to retrospectively remove the rights of native title holders. As such, Labor believes that these items that relate to the validation of the alternative state regimes should be delayed pending consultation with native title holders.

Finally, I turn to the issue of default prescribed bodies corporate. The new provisions essentially allow for the appointment of prescribed bodies corporate in circumstances where no functioning body corporate has been nominated by the native title holder. This will mean that the functions that a prescribed body corporate normally undertakes will continue to operate in circumstances where for a variety of reasons they currently do not.

Originally, the Senate committee identified problems with this scheme, which were picked up in Labor’s minority report. The concern was that the regulations would allow the prescription of not only the types of bodies corporate that may be determined as the default PBC under the scheme but also the exact bodies corporate. The department indicated to the committee that this was not intended to be the case and that it did not believe that the powers would ever be exercised by a body other than a court. Labor picked up these comments in its minority report. I note that the government—perhaps taking a belt-and-braces approach—has also moved to rectify these concerns by foreshadowing amendments to deal with them. Again, I thank the government for at least taking those matters seriously and fixing them up.

Despite the concerns I have outlined, I indicate that Labor supports this bill. We do believe that it can be a positive development towards cutting down the time it takes for native title matters to be resolved, which is far too long at the moment. I think that everybody recognises that and I think it is in everybody’s interests as well that we cut down the time used in making determinations. If the technical amendments go some way in granting certainty for stakeholders, I think they are worthy of support. Having both certainty and a streamlined system—although I am not convinced it is as streamlined as it could be—will ensure that decisions can be made quicker by allowing the greater use of the system in the exercise of people’s rights earlier and with some greater certainty.

I foreshadow, of course, that Labor will move amendments in line with the issues I have outlined. We do so because we believe that these will improve rather than hinder the operation of the bill. When the amendments are moved in the Senate, I hope the government will—perhaps I will put it more strongly than that: I think the government should—look at them in greater detail and support them because they will improve the operation of the scheme in more general terms than this bill currently does.