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Tuesday, 28 June 1994
Page: 2075


Senator BOLKUS —Senator O'Chee asked me a question with respect to native title processes and legal aid. I have both a one and a half page answer and some guidelines that I wish to incorporate in Hansard.

  Leave granted.

  The documents read as follows—

ATTORNEY-GENERAL

SENATE QUESTION WITHOUT NOTICE

  Senator Nick Bolkus—On 27 June 1993 (Hansard page 1996) Senator O'Chee asked me as the Minister representing the Attorney-General the following question without notice:

Will councils affected by native title claims be assured that the Commonwealth will pay their legal expenses in the same way as it is paying the legal expenses of Aboriginal claimants?

  The Attorney-General has provided the following answer to the honourable Senator's question:

Councils affected by native title claims may apply for financial assistance for the payment of legal expenses under the guidelines approved by the Minister for Justice.

There are broadly three guidelines which must be satisfied before a grant of financial assistance will be made to a party affected by a native title claim. They are that the applicant for funding is not eligible for funding from another source, that the applicant for the financial assistance will suffer hardship if the application is refused and lastly that it is reasonable for a grant of financial assistance to be made.

Hardship means financial hardship. While each application is considered on its own facts, in an ordinary case, to show hardship a council would have to show that it could not raise funds from its usual funding base.

In deciding the last criterion—reasonableness—three factors are considered, that is the prospects of success (or whether there is a good case to argue), whether the costs of the case will be worth the benefit to the applicant for financial assistance and the benefit to the general public from a decision in the case.

If the Minister for Justice, who has responsibility for legal assistance matters, considers that the case is a test case, more weight will be given to the reasonableness criterion than the hardship criterion. This is because test cases will resolve important issues of Commonwealth law and are of benefit to the general community.

I have attached a copy of the guidelines for granting Financial Assistance by the Attorney-General in Native Title cases and an explanatory note on the Provision of Financial Assistance by the Attorney-General in Native Title Matters for information for Senator O'Chee.

Provision of Financial Assistance by the Attorney-General in Native Title Matters

In certain circumstances, the Attorney-General may provide financial assistance to people involved in native title cases.

Applications for assistance made by representative bodies under section 203 of the Native Title Act 1993 should be made to ATSIC.

Statutory Native Title Scheme

The main scheme for the provision of financial assistance by the Attorney-General for native title matters is established under section 183 of the Native Title Act 1993. This allows the Attorney-General to provide financial assistance to respondents and non-claimant applicants under the Act, provided they meet certain eligibility criteria.

As currently drafted, section 183 of the Act only allows provision of financial assistance to people who are involved in an inquiry before the National Native Title Tribunal (NNTT) or in proceedings before the Federal Court.

It has been decided that applicants for assistance in matters before recognised State courts and tribunals and applicants who need assistance prior to the inquiry stage may apply to the Attorney-General under a separate scheme. The Native Title Financial Assistance Scheme guidelines will be applied to applications to determine whether a grant is made under the Special Circumstances Scheme.

Non-statutory Common Law Native Title Scheme

The government believes that the Native Title Act, and the National Native Title Tribunal established under the Act, are the best way of reaching determinations of native title. The government believes the Native Title Act regime will deliver determinations in a way that benefits the whole Australian community, in a quick manner which is less costly than the courts. However, the government realises that some claimants will nevertheless wish to seek remedies from the Supreme, Federal or High Courts which they cannot get through the Native Title Act regime. And the respondents in those cases will not be able to get financial assistance through the Native Title Act schemes.

Accordingly, a non-statutory scheme administered by the Attorney-General to provide assistance for respondents in common law native title matters has been established. Assistance may also be provided, in very limited circumstances, to claimants under common law.

Claimants may seek funding for injunctions under this scheme. However, the availability of funding from other sources would have to be considered, along with other guidelines. No indemnity for costs or damages can be offered.

Test Cases

A test case is a case brought to test a principle of law that, once established, can be applied to other similar cases. For native title matters, this means a case where an important question about the Native Title Act, or another Commonwealth law, will be resolved.

A committee has been established to advise the Attorney-General regarding whether certain cases are test cases. Membership of the committee comprises representatives of ATSIC, the Attorney-General's Department, the Australian Mining Industry Council (AMIC), and the National Farmers' Federation (NFF). Other representatives may be invited to sit on the committee as appropriate i.e. representatives of the tourism or fishing industries. The Attorney-General will consider advice from the committee when determining financial assistance grants.

Financial Assistance

The grant of assistance will be either a percentage of reasonable professional costs (usually 80% of Federal Court Scale fees) or a lump sum fee that the Attorney-General agrees will be paid.

Financial assistance, whether it be provided under the Native Title Act or under the common law native title scheme, is subject to the applicant meeting certain eligibility guidelines. These guidelines are set out separately and are available from:

The Director

Legal Aid and Family Services

Attorney-General's Department

National Circuit

BARTON ACT 2600

Guidelines for granting Financial Assistance by the Attorney-General in Native Title Cases

In certain circumstances, the Attorney-General may provide financial assistance to people involved in native title cases under the Native Title Act 1993. The Attorney-General may also provide financial assistance to respondents or plaintiffs in common law matters who are unable to obtain funding from elsewhere under a native title common law financial assistance scheme.

These guidelines apply to applications for financial assistance under both schemes.

Definitions

Under these guidelines, the following definitions apply:

a "party" is either an individual, company, partnership or trust that is involved directly in a native title matter;

an "applicant" is a party who is making a native title claim, otherwise known as a "claimant";

a "respondent" is a party who is opposing a claim; and

a "non-claimant applicant" is a party who applies to the National Native Title Tribunal (NNTT) to make a native title determination.

The Grant of Assistance

Applications for financial assistance in native title matters will be decided by the Attorney-General or someone who the Attorney-General has authorised to make the decision for him or her.

A person applying for financial assistance will need to provide detailed information about the costs that they think they will have to pay and the reasons that they think each cost will be necessary. They will also need to give details of the way that the amount of each item has been calculated.

Any grant of assistance may be made either with or without conditions. If there are any conditions they will be described at the time that the grant is made.

Before the Attorney-General will grant assistance a person must show that it will cause hardship to them if the application is not granted. They must also show that it is reasonable for a grant of assistance to be made to them. They must also be ineligible for financial assistance from any other source, such as a prescribed Aboriginal/Torres Strait Islander representative body.

Hardship

Hardship means financial hardship. Hardship refers to whether the person applying for assistance is able to meet the cost of the case without getting into serious financial difficulty. In deciding whether refusing a grant will involve hardship to an applicant all relevant information is taken into account.

For this reason people applying for assistance will need to provide information about their income, expenditure, assets and liabilities and the amount that it is estimated the case will cost. When assessing a person's financial situation, the assets that are in dispute as a result of the native title claim will not be taken into account although these must be listed in the application.

If the person applying for assistance is a respondent in a test case the Attorney-General also considers how important it is that the law that is being tested is made clearer by a decision of a court. A test case is a case where the Court is being asked to decide the meaning of an important question about some part of the Native Title Act or another Commonwealth law. For this reason much more importance is given to whether it is reasonable to grant assistance than is given to hardship.

The application for assistance must provide full details of the case including the question that will be answered by the Court and any other matters a Court decision will make clearer.

Reasonableness

To decide whether a grant of assistance is reasonable the Attorney-General considers all of the following things:

(1)  the prospects of success, which means

  (a)for the applicant, whether or not they are likely to win the case

  (b)for the respondent, whether they have a good case to argue

  (c)for the non-claimant applicant, whether it is necessary to have a native title determination made; and

(2)whether the benefit to the applicant or non-claimant applicant is worth the cost of the case, or whether the respondent is likely to lose an interest in his/her land; and

(3)how much benefit the general public will gain from a decision in the case.

The Attorney-General may ask for advice from other government agencies or industry bodies to help him or her decide whether it would be reasonable to grant the request for financial assistance.

Payment of costs

If the Attorney-General decides to grant assistance he will only agree to pay costs that are reasonable and proper.

The person asking for assistance will need to nominate a lawyer to conduct the case. The lawyer chosen must be experienced in conducting cases in the Federal Court or a superior court of a State or Territory.

The amount of assistance granted will be either a percentage of reasonable professional costs (usually 80% of Federal Court Scale fees) or a lump sum fee that the Attorney-General agrees will be paid. It is very important that your legal adviser understands what costs will be paid and the amount that will be paid for each item before he or she starts work.

The grant of assistance may be made in stages. Because costs for one stage of the case are paid this does not mean that all the costs will be paid. For example, a limited grant may be made to investigate the reasonableness of the case or a grant may be made for mediation only.

It may be a condition of the grant that the parties who are assisted by the Attorney-General make some payment towards the cost of the case. This is called a contribution. Any contribution will be based on the party's ability to pay. If you have to make a contribution, the amount to be paid will be clear from the information that is given at the time that the grant is made.

You will always be asked to repay any amount that the Court awards to you as costs if you win.

All grants of assistance are monitored by the Attorney-General who may ask for information from time to time. If this information is not provided the grant of aid may be suspended which means that any work that is done after the date it is suspended may not be paid for.

Applications for Assistance

If you are applying for assistance you should make sure that you have provided all the information that will be needed before the Attorney-General can make a decision. Because of the strict timeframes under the Native Title Act it is essential that you include all relevant details in your application for assistance, as a decision may be based only on the information that is provided.

You should include:

a statement giving the reasons you have been refused assistance from another source, if any (ie a prescribed Aboriginal/Torres Strait Islander representative body);

a full financial statement including all assets, income from all sources, your expenses including loan repayments and living expenses and business expenses. You should list separately the assets that will be affected by the claim for native title;

full details of all costs including the way each cost has been calculated;

full details of the case, including the things that the Tribunal or Court will have to decide and, if it is a test case, why these are important;

a statement giving the reasons that you think you will win the case or the defences that you will argue, or if you are a non-claimant applicant, why you need a determination made; and

the name and address of your solicitor, if you have one.

You will also need to provide a statement that the information you have provided in your application is true and correct.

If you want to apply for assistance or you would like more information you should write to:

The Director

Legal Aid and Family Services

Attorney-General's Department

National Circuit

Barton ACT 2600