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NATIVE TITLE BILL 1993

Order of the day read for the further consideration of the bill in

committee of the whole.

In the committee

Clauses 46 to 49 debated and agreed to.

Clauses 50 to 53--

The Minister for Transport and Communications (Senator Collins) moved

the following amendments:

Clause 50, page 29, at end of subclause (1), add the following

paragraph:

"; (e) none of paragraphs (a), (b), (c) and (d) applies and the

Federal Court decides, on application by any person, that it

would be just and equitable in all the circumstances to pay the

negotiated compensation to that person or another person".

Clause 50, page 30, at end of clause, add the following subclause:

Paragraph (1)(e) case

"(7) In a paragraph (1)(e) case, the trustee must pay the negotiated

compensation in accordance with the decision of the Federal Court

mentioned in that paragraph.".

Clause 53A, page 32, at end of clause, add the following subclauses:

Protection of native title from debt recovery processes etc.

"(5) Subject to subsection (6), native title rights and interests held

by the body corporate are not able to be:

(a) assigned, restrained, garnisheed, seized or sold; or

(b) made subject to any charge or interest; or

(c) otherwise affected;

as a result of:

(d) the incurring, creation or enforcement of any debt or other

liability of the body corporate (including a debt or liability

owed to the Crown in any capacity or to any statutory

authority); or

(e) any act done by the body corporate.

Subsection (5) not applicable to dealings authorised by regulations

"(6) Subsection (5) does not apply if the incurring of the debt,

creation of the liability or doing of the act was in connection with a

dealing with the native title rights and interests authorised by

regulations for the purposes of paragraph (4)(c).".

Debate ensued.

Senator Collins, by leave, moved the following amendments:

Clause 4, page 5, table containing outline of Act, entry relating to

Part 2, paragraph (e), lines 16 and 17, omit the paragraph, substitute

the following paragraph:

"(e) Division 6 provides for prescribed bodies corporate to perform

functions in relation to native title, which may include

holding the native title on trust.".

Clause 28, page 18, paragraph (2)(a), line 3, omit "holder", substitute

"body corporate".

Clause 29, page 18, lines 23 to 26, omit the clause, substitute the

following clause:

"29. Each of the following is also a "native title party':

(a) any person who, within the period of 2 months starting when the

notice is given, becomes a registered native title claimant in

relation to any of the land or waters that will be affected by

the act;

(b) any body corporate that, within that period of 2 months, becomes

a registered native title body corporate in relation to any of

the land or waters that will be affected by the act.".

Clause 41, page 24, paragraph (2)(a), line 26, omit "holders",

substitute "bodies corporate".

Clause 41, page 24, paragraph (2)(d), line 31, omit "holders",

substitute "bodies corporate".

Clause 50, page 29, subparagraph (1)(c)(i), line 15, omit "by a body

corporate", substitute "in trust".

Clause 50, page 29, subparagraph (1)(c)(ii), line 18, omit "body

corporate holding the native title under Division 6", substitute

"registered native title body corporate".

Clause 50, page 29, subparagraph (1)(c)(ii), line 20, omit "it",

substitute "the native title holders".

Division 6, line 18 (page 31) to line 22 (page 33), omit the Division,

substitute the following Division:

"Division 6--Native title functions of prescribed bodies

corporate and holding of native title in trust

Determinations by NNTT and Federal Court

"53. If:

(a) the NNTT or the Federal Court proposes to make an approved

determination of native title; and

(b) the determination is that native title exists at the time of

making the determination;

the NNTT or the Federal Court must, at the same time as it makes the

determination, make the determinations in section 53A (which deals with

holding the native title on trust) and 53B (which deals with non-trust

functions of prescribed bodies corporate).

Determination whether native title to be held in trust

Trust determination

"53A.(1) One of the determinations that the NNTT or the Federal Court

must make is whether the native title is to be held in trust, and, if

so, by whom.

Steps in making determination

"(2) The NNTT or the Federal Court is to take the following steps in

making the determination:

(a) first, it must request a representative of the persons it

proposes to include in the determination of native title as the

native title holders (the "common law holders') to indicate

whether the common law holders intend to have the native title

held in trust by:

(i) nominating, in writing given to the NNTT or the Federal

Court within a specified period, a prescribed body corporate

to be trustee of the native title; and

(ii) including with the nomination the written consent of the

body corporate; and

(b) secondly, if the common law holders give the nomination within

the period, the NNTT or the Federal Court must determine that

the prescribed body corporate is to hold the rights and

interests from time to time comprising the native title in trust

for the common law holders; and

(c) thirdly, if the common law holders do not give the nomination

within the period, the NNTT or the Federal Court must determine

that the rights and interests are to be held by the common law

holders.

Native title held in trust

"(3) On the making of a determination under paragraph (2)(b), the

prescribed body corporate holds, in accordance with the regulations,

the rights and interests from time to time comprising the native title

in trust for the common law holders.

Holding of native title to be as prescribed

"(4) The regulations may also make provision in respect of the

following matters relating to the holding in trust of the native title

rights and interests:

(a) the functions to be performed by the body corporate;

(b) the nature of any consultation with, or other role for, the

common law holders;

(c) the circumstances in which the rights and interests may be

surrendered, transferred or otherwise dealt with;

(d) the determination of any other matter by the NNTT or the Federal

Court;

(e) the termination of the trust or replacement of the trustee where

the common law holders wish the trust to be terminated or the

trustee to be replaced;

(f) any other matter.

Determination of prescribed body corporate etc.

Where trustee

"53B.(1) If the determination under section 53A is that the native

title rights and interests are to be held in trust by a prescribed

body corporate, the prescribed body corporate, after becoming a

registered native title body corporate (see the definition of that

expression in section 238), must also perform:

(a) any other functions given to it as a registered native title

body corporate under particular provisions of this Act; and

(b) any functions given to it as a registered native title body

corporate under the regulations (see section 53C).

Where not trustee

"(2) If the determination under section 53A is not as mentioned in

subsection (1) of this section, the NNTT or the Federal Court must

take the following steps in determining which prescribed body

corporate is, after becoming a registered native title body corporate,

to perform the functions mentioned in subsection (3):

(a) first, it must request a representative of the common law

holders to nominate, in writing given to the NNTT or the Federal

Court within a specified period, a prescribed body corporate for

the purpose;

(b) secondly, if a prescribed body corporate is nominated in

accordance with the request, the NNTT or the Federal Court must

determine that the body is to perform the functions;

(c) thirdly, if no prescribed body corporate is nominated in

accordance with the request, the NNTT or the Federal Court must,

in accordance with the regulations, determine which prescribed

body is to perform the functions.

Functions where not trustee

"(3) After becoming a registered native title body corporate, the body

must perform:

(a) any functions given to it as a registered native title body

corporate under particular provisions of this Act; and

(b) any functions given to it under the regulations (see section

53C).

Functions under regulations

"53C. The regulations may make provision for a registered native title

body corporate to do all or any of the following:

(a) if it does not hold the native title on trust under section

53A--to act as agent or representative of the common law holders

in respect of matters relating to the native title;

(b) to perform in a specified way any functions in relation to the

native title given to it under other provisions of this Act;

(c) to hold on trust, or perform functions in relation to,

compensation under this Act for acts affecting the native title;

(d) to consult with, and act in accordance with the directions of,

the common law holders in performing any of their functions;

(e) if it does not hold the native title on trust to enter into

agreements in relation to the native title that are binding on

the common law holders, if:

(i) the common law holders have been consulted about, and have

authorised, the agreements; and

(ii) the agreements have been made in accordance with processes

set out in the regulations;

(f) to perform any other functions in relation to the native title.

Kinds of prescribed bodies corporate

"53D. The regulations may prescribe the kinds of bodies corporate that

may be determined under section 53A or 53B in either or both of the

following ways:

(a) by providing that bodies corporate may be established and

operated for the purpose in a specified way;

(b) by providing that the bodies corporate may be those that have

been or may be established by other laws of the Commonwealth, a

State or a Territory.

Replacement of prescribed bodies corporate

"53E. The regulations may make provision for the replacement of a

prescribed body corporate by another prescribed body corporate at the

initiation of the common law holders.".

Clause 55, page 34, subclause (1), table of applications, "Revised

native title determination application" entry, Persons who may make

application column, line 23, omit "holder", substitute "body corporate".

Clause 55, page 34, subclause (1), table of applications, "Compensation

application" entry, Persons who may make application column, line 35,

omit "holder", substitute "body corporate".

Clause 59, page 37, subparagraph (2)(a)(iv), line 8, omit "holder",

substitute "body corporate".

Clause 87, line 34 (page 45) to line 8 (page 46), omit the clause,

substitute the following clause:

"87. If the Federal Court makes an order that compensation is payable,

the order must set out:

(a) the name of the person or persons entitled to the compensation

or the method for determining the person or persons; and

(b) the method (if any) for determining the amount or kind of

compensation to be given to each person; and

(c) the method for determining any dispute regarding the entitlement

of a person to an amount of the compensation.".

Clause 153, page 68, lines 5 to 16, omit the clause, substitute the

following clause:

"153. If the Tribunal makes a determination that compensation is

payable, the determination must set out:

(a) the name of the person or persons entitled to the compensation

or the method for determining the person or persons; and

(b) the method (if any) for determining the amount or kind of

compensation to be given to each person; and

(c) the method for determining any dispute regarding the entitlement

of a person to an amount of the compensation.".

Clause 185, page 81, paragraph (2)(d), lines 7 to 9, omit the paragraph,

substitute the following paragraph:

"(d) the matters determined, including:

(i) who the common law holders of the native title are; and

(ii) the name of any prescribed body corporate that holds the

native title rights and interests on trust; and

(iii) the name and address of the prescribed body corporate

determined under section 53A or 53B in relation to the

native title.".

Clause 207, page 94, table containing list of definitions, after entry

for "Register of Native Title Claims", insert the following entry:

"registered native title body corporate238".

Clause 207, page 94, table containing list of definitions, line 21, omit

"registered native title holder238".

Clause 209, page 96, paragraph (a), lines 4 and 5, omit the paragraph,

substitute the following paragraph:

"(a) if a prescribed body corporate is registered on the National

Native Title Register as holding the native title rights and

interests on trust--the prescribed body corporate; or".

Clause 223, page 105, subclause (5), line 26, omit "etc. by bodies

corporate", substitute "on trust".

Clause 238, page 112, definition of "common law holders", line 6, omit

"53", substitute "53A".

Clause 238, page 114, after definition of "Register of Native Title

Claims", insert the following definition:

""registered native title body corporate' means the prescribed body

corporate whose name and address are registered on the National Native

Title Register under subparagraph 185(2)(d)(iii);".

Clause 238, page 114, definition of "registered native title holder",

lines 34 and 35, omit the definition.

Consideration resumed, by leave, of the amendment moved by Senator

Chamarette:

After clause 6, page 7, insert the following clause:

Racial Discrimination Act

Operation of RDA not affected

"6A.(1) Nothing in this Act affects the operation of the Racial

Discrimination Act 1975.

Validation provisions not affected

"(2) Subsection (1) does not affect the validation of past acts by or

in accordance with this Act.".

Debate ensued.

Declaration of urgency: The Minister for Foreign Affairs (Senator Gareth

Evans) declared the Native Title Bill 1993 an urgent bill and

moved--Thatthis bill be considered an urgent bill.

Proposed suspension of standing order 142: The Leader of the Opposition

in the Senate (Senator Hill), pursuant to contingent notice, moved--That

so much of standing order 142 be suspended as would prevent debate

taking place on the motion.

Debate ensued.

Question put.

The committee divided--

AYES, 31

Alston Bishop Boswell Brownhill Calvert Campbell Chapman Crane Crichton-Browne Ellison Ferguson Gibson Harradine Hill Kemp Knowles Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Minchin Panizza Parer Patterson Reid (Teller) Short Tambling Teague Tierney Troeth Vanstone

NOES, 33

Beahan Bell Bolkus Bourne Carr Chamarette Childs Coates Collins Cook Cooney Crowley Denman Evans, Christopher Evans, Gareth Faulkner Jones (Teller) Kernot Lees Loosley McKiernan McMullan Margetts Murphy Ray Reynolds Richardson Schacht Sherry Spindler West Woodley Zakharov

Question negatived.

Question--That the bill be declared an urgent bill--put.

The committee divided--

AYES, 33

Beahan Bell Bolkus Bourne Carr Chamarette Childs Coates Collins Cook Cooney Crowley Denman Evans, Christopher Evans, Gareth Faulkner Jones (Teller) Kernot Lees Loosley McKiernan McMullan Margetts Murphy Ray Reynolds Richardson Schacht Sherry Spindler West Woodley Zakharov

NOES, 31

Alston Bishop Boswell Brownhill Calvert Campbell Chapman Crane Crichton-Browne Ellison Ferguson Gibson Harradine Hill Kemp Knowles Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Minchin Panizza Parer Patterson Reid (Teller) Short Tambling Teague Tierney Troeth Vanstone

Question agreed to.

Allotment of time: Senator Gareth Evans moved--That the time allotted

for consideration of the remainder of the bill in committee be as

follows:

Clauses 50 to 54 (including deferred new clause 6A)30 minutes

Clauses 55 to 7260 minutes

Clauses 73 to 19160 minutes

Clauses 192 to 206 (including deferred clause 11)90 minutes

Clauses 207 to 238 (including the title and deferred clause 14)180

minutes.

Debate ensued.

Question put.

The committee divided--

AYES, 33

Beahan Bell Bolkus Bourne Burns Carr Chamarette Childs Coates Collins Colston Cook Cooney Crowley Devereux Evans, Christopher Evans, Gareth Faulkner Jones (Teller) Kernot Lees Loosley McKiernan McMullan Margetts Murphy Ray Reynolds Richardson Schacht Sherry Spindler Woodley

NOES, 31

Alston Bishop Boswell Brownhill Calvert Campbell Chapman Crane Crichton-Browne Ellison Ferguson Gibson Harradine Hill Kemp Knowles Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Minchin Panizza Parer Patterson Reid (Teller) Short Tambling Teague Tierney Troeth Vanstone

Question agreed to.

Consideration resumed of clauses 50 to 53, together with clause 54, by

leave--and of the amendments moved by Senators Collins and Chamarette.

Debate resumed.

Suspension of standing orders: Senator Kernot, pursuant to contingent

notice, moved--That so much of standing order 142 be suspended as would

prevent the questions being put in respect of any amendments circulated

by the Australian Democrats, the Opposition or Independent Senators, and

that such questions be put accordingly.

Question put and passed.

Question--That the amendments moved by Senator Collins be agreed to--put

and passed.

Question--That the amendment moved by Senator Chamarette be agreed

to--put and passed.

Question--That clauses 50 to 54, as amended, be agreed to--put.

The committee divided--

AYES, 33

Bell Bolkus Bourne Carr Chamarette Childs Coates Collins Colston Cook Cooney Crowley Denman Devereux Evans, Gareth Faulkner Foreman (Teller) Harradine Kernot Lees Loosley McKiernan McMullan Margetts Murphy Ray Reynolds Richardson Schacht Spindler West Woodley Zakharov

NOES, 29

Alston Bishop Boswell Brownhill Calvert Campbell Chapman Crane Crichton-Browne Ellison Ferguson Gibson Hill Kemp Knowles Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Minchin Panizza Patterson Reid (Teller) Short Tambling Teague Tierney Troeth Vanstone

Question agreed to.

Clauses 55 to 72 were debated and amendments considered, as follows:

The following amendment moved by Senator Chamarette was negatived:

Clause 58, page 36, subclause (1), lines 20 to 22, omit the subclause.

The following amendments moved by Senator Spindler were negatived:

Clause 67, page 40, lines 15 to 18, omit the clause, substitute the

following clause:

Applications not settled are to be referred to the Federal Court

"67.(1) Upon application of any party, a claim for a declaration of

native title currently pending but not yet at trial as at the date of

commencement of this Act in any court must be transferred to the

Tribunal.

"(2) If an application is accepted under section 57 and the Tribunal

does not make a determination under section 63, 64 or 66, the

Registrar must lodge the application to the Federal Court for

decision.".

Clause 74, page 42, at end of clause, add the following subclause:

"(2). Upon application of any party, a claim for a declaration of

native title currently pending but not yet at trial as at the date of

commencement of this Act in any court must be transferred to the

Federal Court.".

The following amendments moved by Senator Spindler were agreed to:

Clause 55, page 34, subclause (1), table of applications, "Revised

native title determination application" entry, Application column, omit

"21(1)", substitute "12(1)".

Clause 108, page 53, subclause (2), lines 1 to 5, omit the subclause.

The following amendments moved by Senator Chamarette were agreed to:

Clause 56, page 35, paragraphs (1)(a) and (b), lines 14 to 22, omit the

paragraphs, substitute the following paragraphs:

"(a) be accompanied by an affidavit sworn by the applicant that the

applicant:

(i) believes that native title has not been extinguished in

relation to any part of the area; and

(ii) believes that none of the area is covered by an entry in

the National Native Title Register; and

(iii) believes that all of the statements made in the

application are true; and

(b) contain all information known to the applicant about interests

in relation to any of the land or waters concerned that are held

by persons other than as native title holders; and

(ba) contain a description of the area over which the native title

is claimed; and".

Clause 57, line 28 (page 35) to line 17 (page 36), omit the clause,

substitute the following clauses:

Applications complying with section 56

Acceptance of applications that are not frivolous etc.

"57.(1) If the requirements of section 56 are complied with in

relation to the application, the Registrar must accept it, unless he

or she is of the opinion:

(a) that the application is frivolous or vexatious; or

(b) that prima facie the claim cannot be made out.

Reference of vexatious etc. cases to presidential member

"(2) If the Registrar is of the opinion mentioned in paragraph (1)(a)

or (b), the Registrar must refer the application to a presidential

member.

Where presidential member agrees that application is vexatious etc.

"(3) If the presidential member is of the same opinion, the

presidential member must:

(a) advise the applicant in writing of the fact and give the

applicant a reasonable opportunity to satisfy the presidential

member that the application is not frivolous or vexatious, or

that a prima facie claim can be made out, as the case requires;

and

(b) if the applicant so satisfies the presidential member --direct

the Registrar to accept the application; and

(c) if the applicant does not so satisfy the presidential

member--direct the Registrar not to accept the application.

Where presidential member considers application not vexatious etc.

"(4) If the presidential member is not of the same opinion as the

Registrar, the presidential member must direct the Registrar to accept

the application.

Applications not complying with section 56

Reference to presidential member

"57A.(1) If the Registrar considers that the requirements of section

56 are not complied with in relation to the application, the Registrar

must refer the application to a presidential member.

Where presidential member considers requirements not complied with

"(2) If the presidential member also considers that the

requirementsare not complied with, the presidential member must:

(a) advise the applicant in writing of the fact and give the

applicant a reasonable opportunity to satisfy the presidential

member that the requirements are complied with; and

(b) if the applicant so satisfies the presidential member--direct

the Registrar to accept the application; and

(c) if the applicant does not so satisfy the presidential

member--direct the Registrar not to accept the application.

Where presidential member considers requirements are complied with

"(3) If the presidential member considers the requirements are

complied with, the presidential member must direct the Registrar to

accept the application.".

The following amendments moved by Senator Gareth Evans were agreed to:

Clause 59, page 37, after subparagraph (2)(a)(iv), insert the following

subparagraph:

"(iva) any person who holds a proprietary interest in any of the

area covered by the application, being an interest that is

registered in a register of interests in relation to land or

waters maintained by the Commonwealth, a State or a

Territory; and".

Clause 60, pages 37 and 38, subclause (2), line 34 (page 37) to line 3

(page 38), omit the subclause, substitute the following subclause:

Effect if an application by native title claimants is accepted

"(2) If:

(a) within the period specified in the notice under section 59, a

person or persons claiming to hold native title give a native

title determination application (the "claimant application')

that covers any part of the area covered by the non-claimant

application to the Registrar or to a recognised State/Territory

body entitled to receive it; and

(b) the claimant application is accepted (whether initially or on

appeal and whether or not within the specified period);

then:

(c) if the non-claimant application is by or on behalf of a

Minister, the Crown in any capacity or a statutory

authority--the non-claimant application is taken to be

dismissed; or

(d) in any other case--the non-claimant application is taken, for

all purposes after the claimant application is given to the

Registrar, not to relate to the area covered by the claimant

application.".

Clause 64, page 39, paragraphs (c) and (d), lines 21 to 25, omit the

paragraphs, substitute the following paragraph:

"(c) the Tribunal is satisfied that a determination in, or

consistent with, those terms would be within the powers of the

Tribunal and would be appropriate in the circumstances;".

Clause 65, page 39, after subclause (2), insert the following subclause:

Statements at conference are without prejudice

"(2A) In proceedings before the Federal Court, and at a hearing before

the Tribunal, unless the parties otherwise agree, evidence may not be

given, and statements may not be made, concerning any words spoken or

act done at a conference.".

Clause 65, page 39, subclause (3), line 37, omit "A member", substitute

"Unless the parties otherwise agree, a member".

Clause 65, page 39, at end of clause, add the following subclause:

Participation by telephone etc.

"(4) The member may allow a person to participate by:

(a) telephone; or

(b) closed-circuit television; or

(c) any other means of communication.".

Clause 66, page 40, paragraphs (c) and (d), lines 9 to 13, omit the

paragraphs, substitute the following paragraph:

"(c) the Tribunal is satisfied that a determination in, or

consistent with, those terms would be within the powers of the

Tribunal and would be appropriate in the circumstances;".

Clause 76, page 42, subclause (1), line 19, omit "is to", substitute

"may".

Clause 80, page 43, paragraphs (c) and (d), lines 28 to 34, omit the

paragraphs, substitute the following paragraph:

"(c) the Court is satisfied that an order in, or consistent with,

those terms would be within the power of the Court;".

Clause 88, page 46, subclause (2), lines 14 and 15, omit "on the

nomination of the President".

Clause 132, page 63, paragraph (1)(a), line 1, omit "or 64", substitute

", 64 or 66".

Clause 139, page 64, paragraph (b), line 33, before "findings", insert

"report,".

After clause 141, page 65, insert the following clause:

Power of Tribunal where applicant requests dismissal

"141A. The Tribunal may dismiss an application if:

(a) the applicant requests, in writing, that the application be

dismissed; and

(b) the Tribunal is satisfied that it is appropriate to dismiss the

application.".

Clause 178, page 78, after subclause (1), insert the following note:

"Note: The person mentioned in paragraph (1)(d) is the registered

native title claimant. This is the person to whom notices, for

example under paragraph 28(2)(b), are to be given.".

Question--That clauses 55 to 72, as amended, be agreed to--put.

The committee divided--

AYES, 33

Beahan Bell Bolkus Bourne Burns (Teller) Chamarette Coates Collins Colston Cook Cooney Denman Evans, Christopher Evans, Gareth Faulkner Foreman Harradine Kernot Lees Loosley McKiernan McMullan Margetts Murphy Ray Richardson Schacht Sherry Sibraa Spindler West Woodley Zakharov

NOES, 29

Alston Bishop Boswell Brownhill Calvert Campbell Chapman Crane Crichton-Browne Ellison Ferguson Gibson Hill Kemp Knowles Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Minchin Panizza (Teller) Parer Patterson Reid Short Tambling Teague Tierney Troeth

Question agreed to.

Clauses 73 to 191 were debated and amendments considered, as follows:

The following amendments moved by Senator Chamarette were agreed to:

Clause 163, page 73, line 24, omit "Penalty: Imprisonment for 3 months",

substitute "Maximum Penalty: 20 penalty units".

Clause 164, page 73, line 32, omit "Penalty: Imprisonment for 3 months",

substitute "Maximum Penalty: 20 penalty units".

Clause 165, page 73, line 36, omit "Penalty: Imprisonment for 3 months",

substitute "Maximum Penalty: 40 penalty units".

Clause 166, page 74, line 5, omit "Penalty: Imprisonment for 3 months",

substitute "Maximum Penalty: 20 penalty units".

Clause 167, page 74, line 20, omit "Penalty: Imprisonment for 3 months",

substitute "Maximum Penalty: 40 penalty units".

Clause 168, page 74, line 24, omit "Penalty: Imprisonment for 3 months",

substitute "Maximum Penalty: 40 penalty units".

Clause 169, page 74, line 32, omit "Penalty: Imprisonment for 3 months",

substitute "Maximum Penalty: 40 penalty units".

The following amendment moved by Senator Spindler was agreed to:

After clause 195, page 85, insert the following clause:

Reports by Aboriginal and Torres Strait Islander Social Justice

Commissioner

Yearly report

"195A.(1) As soon as practicable after 30 June in each year, the

Aboriginal and Torres Strait Islander Social Justice Commissioner

(appointed under the Human Rights and Equal Opportunity Commission Act

1986) must prepare and submit to the Commonwealth Minister a report

on:

(a) the operation of this Act; and

(b) the effect of this Act on the exercise and enjoyment of human

rights of Aboriginal peoples and Torres Strait Islanders.

Reports on particular matters

"(2) The Commonwealth Minister may at any time, by written notice,

direct the Commissioner to report to the Commonwealth Minister on any

matter covered by paragraph (1)(a) or (b).".

Question--That clauses 73 to 191, as amended, be agreed to--put.

The committee divided--

AYES, 33

Beahan Bell Bolkus Bourne Burns Carr Chamarette Childs Coates Collins Cooney Denman Devereux Evans, Christopher Evans, Gareth Faulkner Foreman (Teller) Harradine Jones Kernot Lees Loosley McKiernan Margetts Murphy Reynolds Schacht Sherry Sibraa Spindler West Woodley Zakharov

NOES, 29

Alston Bishop Boswell Brownhill Calvert Campbell Chapman Crane Crichton-Browne Ellison Ferguson Gibson Hill Kemp Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Minchin Panizza (Teller) Parer Patterson Reid Short Tambling Teague Tierney Troeth Vanstone

Question agreed to.

Clauses 192 to 206 and clause 11 were debated and amendments

considered,as follows:

The following amendments moved by Senator Gareth Evans were agreed to:

Clause 194, page 84, subclause (1), line 5, after "Minister", insert "or

ATSIC".

Clause 194, page 84, subclause heading and subclause (2), lines 6 and 7,

omit the heading and "(2) If ", substitute:

Grant of assistance--Commonwealth Minister

"(2) If an application is made to the Commonwealth Minister and".

Clause 194, page 84, at end of clause, add the following subclauses:

Grant of assistance--ATSIC

"(3) If an application is made to ATSIC and ATSIC is satisfied in all

the circumstances that it is reasonable to do so, ATSIC may authorise

the provision of financial assistance, from money appropriated for the

purposes of ATSIC, to enable the body to perform its functions under

subsection 193(4).

Definition of ATSIC

"(4) In this section:

"ATSIC' means the Aboriginal and Torres Strait Islander Commission

established by the Aboriginal and Torres Strait Islander Commission Act

1989.".

Clause 199, page 86, at end of clause, add the following paragraph:

" ; (c) a revocation of a determination under paragraph 236(4)(b)".

Clause 236, page 111, paragraph (4)(b), line 11, before "revoke", insert

"in writing,".

The following amendments moved by Senator Chamarette were agreed to:

After clause 196, page 85, insert the following clause:

Preservation of certain native rights and interests

Requirements for removal of prohibition etc. on native title holders

"196A.(1) Subsection (2) applies if:

(a) the exercise or enjoyment of native title rights and interests

in relation to land or waters consists of or includes carrying

on a particular class of activity (defined in subsection (3));

and

(b) a law of the Commonwealth, a State or a Territory prohibits or

restricts persons from carrying on the class of activity other

than in accordance with a licence, permit or other instrument

granted or issued to them under the law; and

(c) the law is not one that confers rights or interests only on, or

for the benefit of, Aboriginal peoples or Torres Strait

Islanders.

Removal of prohibition etc. on native title holders

"(2) If this subsection applies, the law does not prohibit or restrict

the native title holders from carrying on the class of activity, or

from gaining access to the land or waters for the purpose of carrying

on the class of activity, where they do so:

(a) for the purpose of satisfying their personal, domestic or

non-commercial communal needs; and

(b) in exercise or enjoyment of their native title rights and

interests.

Definition of "class of activity'

"(3) Each of the following is a separate "class of activity':

(a) hunting;

(b) fishing;

(c) gathering;

(d) a cultural or spiritual activity;

(e) any other kind of activity prescribed for the purpose of this

paragraph.".

Clause 197, page 86, subclause (3), lines 1 to 5, omit the subclause,

substitute the following subclause:

Effect of confirmation under subsection (2)

"(3) Any confirmation under this section does not extinguish or impair

any native title rights and interests and does not affect any

conferral of land or waters, or an interest in land or waters, under a

law that confers benefits only on Aboriginal peoples or Torres Strait

Islanders.".

The following amendment moved by Senator Gareth Evans was negatived:

Clause 197, page 85, paragraph (1)(c), line 27, omit "fishing access",

substitute "statutory fishing".

Question--That clauses 192 to 209 and clause 11, as amended, be agreed

to--put.

The committee divided--

AYES, 34

Beahan Bell Bolkus Bourne Burns (Teller) Carr Chamarette Childs Coates Collins Cooney Crowley Denman Devereux Evans, Christopher Evans, Gareth Faulkner Foreman Harradine Jones Kernot Lees Loosley McKiernan Margetts Murphy Reynolds Schacht Sherry Sibraa Spindler West Woodley Zakharov

NOES, 30

Alston Bishop Boswell Brownhill Calvert Campbell Chapman Crane Crichton-Browne Ellison Ferguson Gibson Herron Hill Kemp Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Minchin Panizza (Teller) Parer Patterson Reid Short Tambling Teague Tierney Troeth Vanstone

Question agreed to.

Clauses 207 to 238, clause 14 and the title were debated and amendments

considered, as follows:

The following amendment moved by Senator Chamarette was withdrawn, by

leave:

Clause 218, page 102, paragraph (1)(c), lines 19 to 27, omit the

paragraph, substitute the following paragraphs:

"(c) apart from this Act it validly affects native title in relation

to the land or waters to any extent; and

(d) it is not done in relation to Aboriginal land; and

(e) it is not a grant of land to a person or body under any of the

Acts referred to in the definition of "Aboriginal land' in

section 238.".

The following amendments moved by Senator Spindler were negatived:

Clause 214, page 100, paragraph (3)(a), line 29, omit "a commercial

lease,".

Clause 214, page 100, after paragraph (3)(b), insert the following

paragraph:

"or (ba) a commercial lease to which subsection 231(3) does not apply,

and the developed part of a commercial lease to which

subparagraph 231(3)(b)(i) applies;".

Clause 231, page 108, at end of clause, add the following subclauses:

Development of commercial leases

"(3) Subsection (4) applies to a commercial lease if the lease was in

force at the beginning of 1 January 1994 and:

(a) either:

(i) substantial permanent works had been erected at that date on

only part (the "developed part') of the land or waters

covered by the lease but not on the remainder of the land or

waters (the "undeveloped part'); or

(ii) no substantial permanent works had been erected at that

date on any part of the land or waters covered by the

lease; and

(b) any erection was permitted by the lease.

Dissection of commercial lease

"(4) In a case to which subparagraph (3)(a)(i) applies, the lease is

taken instead to consist of separate leases in respect of:

(a) the developed part of the land or waters; and

(b) the remainder of the land or waters.".

Clause 213, page 99, subclause (9), lines 22 to 39, omit the subclause.

Clause 213, page 100, at end of subclause (10), add the following word

and paragraphs:

"; or (c) any grant to the Conservation Land Corporation established

under the Conservation Commission Act of the Northern

Territory, or the Northern Territory Land Corporation

established under the Northern Territory Land Corporation

Act 1986 of the Northern Territory; or

(d) any act in bad faith".

The following amendments moved by Senator Chamarette were negatived:

Clause 208, page 95, lines 12 to 23, subclause (1), omit the subclause,

substitute the following subclause:

Definition of native title

"208.(1) The expression "native title' or "native title rights and

interests' means the communal, group or individual rights and

interests of Aboriginal peoples or Torres Strait Islanders in relation

to land or waters, where the rights and interests are recognised by

the common law of Australia.".

Clause 208, page 95, at end of clause, add the following subclause:

Traditional connection with land maintained

"(4) Traditional connection with land may be regarded as having been

maintained for the purposes of this Act even if occupation or use of,

or presence on, the land was not continuous.".

Clause 214, page 100, paragraph (3)(a), lines 28 and 29, omit the

paragraph.

Clause 217, page 102, lines 6 to 8, omit the clause, substitute the

following clause:

Category D past act

"217. A "category D past act' is:

(a) the grant of a commercial lease, an agricultural lease, a

pastoral lease or a residential lease; or

(b) any past act that is not a category A past act, a category B

past act or a category C past act.".

Clause 213, page 99, subclause (9), lines 22 to 39, omit the subclause,

substitute the following subclause:

"(9) An act ("the later act') in relation to Aboriginal land that

takes place on or after 1 January 1994 is a "past act' if:

(a) the later act would be a past act under subsection (2) if that

subsection were not limited in its application to acts taking

place before a particular date; and

(b) the later act takes place in the exercise of a right created

before 1 January 1994 under the legislation under which the

right was created.".

Clause 233, page 109, at end of clause, add the following subclause:

"(2) A "pastoral lease' does not include a grazing licence.".

Clause 238, page 112, definition of "interest", paragraph (c), lines 33

and 34, omit the paragraph.

The following amendments moved by Senator Gareth Evans were agreed to:

Clause 207, page 92, table containing list of definitions, after entry

for "Aboriginal peoples", insert the following entry:

"Aboriginal/Torres Strait Islander land or waters238".

Clause 214, page 101, paragraph (3)(d), at end of paragraph, add the

following word and subparagraph:

"; or (iv) a grant over land or waters that, on 1 January 1994, are

Aboriginal/Torres Strait Islander land or waters".

Clause 215, page 102, paragraph (d), at end of paragraph, add the

following word and subparagraph:

"; or (iv) a grant over land or waters that, on 1 January 1994, are

Aboriginal/Torres Strait Islander land or waters".

Clause 218, page 102, subclause (1), line 11, omit "subsection (2)",

substitute "this section".

Clause 218, page 102, at end of clause, add the following subclause:

Acts creating or affecting Aboriginal/Torres Strait Islander land or

waters excluded

"(3) Subsection (1) does not apply to any of the following acts:

(a) an act that causes land or waters to be held by or for the

benefit of Aboriginal peoples or Torres Strait Islanders under a

law mentioned in the definition of "Aboriginal/Torres Strait

Islander land or waters' in section 238;

(b) any act affecting Aboriginal/Torres Strait Islander land or

waters.".

Clause 238, page 111, after definition of "Aboriginal peoples", insert

the following definition:

""Aboriginal/Torres Strait Islander land or waters' means land or waters

held by or for the benefit of Aboriginal peoples or Torres Strait

Islanders under:

(a) any of the following laws of the Commonwealth:

(i) the Aboriginal Land Grant (Jervis Bay Territory) Act 1986;

(ii) the Aboriginal Land (Lake Condah and Framlingham Forest)

Act 1987;

(iii) the Aboriginal Land Rights (Northern Territory) Act 1976;

or

(b) any of the following laws of South Australia:

(i) the Aboriginal Lands Trust Act 1966;

(ii) the Maralinga Tjarutja Land Rights Act 1984;

(iii) the Pitjantjatjara Land Rights Act 1981; or

(c) any other law prescribed for the purposes of the provision in

which the expression is used;".

Clause 207, page 92, table containing list of definitions, after entry

for "determination of native title", insert the following entry:

"explore238".

Clause 208, page 95, subclause (3), line 28, omit "If ", substitute

"Subject to subsection (4), if ".

Clause 208, page 95, at end of clause, add the following subclause:

Case not covered by subsection (3)

"(4) To avoid any doubt, subsection (3) does not apply to rights and

interests created by a reservation or condition (and which are not

native title rights and interests):

(a) in a pastoral lease granted before 1 January 1994; or

(b) in legislation made before 1 July 1993, where the reservationor

condition applies because of the grant of a pastoral lease

before 1 January 1994.".

Clause 227, page 106, at end of clause, add the following subclause:

References to mining lease

"(2) In the case only of references to a mining lease, the expression

"lease' also includes a licence issued, or an authority given, by or

under a law of the Commonwealth, a State or a Territory.".

Clause 228, page 106, line 36, omit "The", substitute "Subject to

subsection (2), the".

Clause 228, page 106, at end of clause, add the following subclause:

Lessee of certain mining leases

"(2) In the case of a lease that is a mining lease because of

subsection 227(2) (which covers licences and authorities given by or

under laws), the expression "lessee' means:

(a) the person to whom the licence mentioned in that subsection was

issued, or the authority so mentioned was given; or

(b) any person who, by assignment, succession or otherwise, acquires

or enjoys the licence or authority or is entitled to exercise

rights under the licence or the authority.".

Clause 238, page 112, after definition of "Compulsory Acquisition Act",

insert the following definition:

""explore' includes:

(a) conduct a geological, geophysical or geochemical survey; or

(b) take samples for the purpose of analysis;".

Clause 211, page 97, subclause (4), lines 4 to 6, omit the subclause.

Clause 212, page 97, lines 8 to 10, omit the clause, substitute the

following clause:

"212. An act "affects' native title if it extinguishes the native

title rights and interests or if it is otherwise wholly or partly

inconsistent with their continued existence, enjoyment or exercise.".

Clause 214, page 100, subclause (2), line 11, omit "The", substitute "A

past act consisting of the".

Clause 214, page 100, subclause (3), line 28, omit "The", substitute "A

past act consisting of the".

Clause 214, page 101, subclause (4), line 12, omit "The", substitute "A

past act consisting of the".

Clause 238, page 112, definition of "Compulsory Acquisition Act",

paragraph (a), lines 13 and 14, omit the paragraph, substitute the

following paragraph:

"(a) permits both:

(i) the compulsory acquisition by the Commonwealth, the State or

the Territory of native title rights and interests; and

(ii) the compulsory acquisition by the Commonwealth, the State

or the Territory of other interests in relation to land or

waters; and".

Clause 238, page 114, definition of "registered native title claimant",

line 33, after "Native Title Claims", insert "as the person who is taken

to be the claimant".

The following amendment moved by Senator Spindler was agreed to:

Clause 220, page 104, after subclause (6), insert the following

subclause:

Renewals, re-grants or extensions of certain leases

"(6A) A future act is also a "permissible future act' if:

(a) it is:

(i) the renewal; or

(ii) the re-grant; or

(iii) the extension of the term;

of a commercial, agricultural, pastoral or residential lease; and

(b) the renewal, re-grant or extension takes effect at the end of

the term of the lease, or at the time of any earlier termination

of the lease; and

(c) the act does not:

(i) create a proprietary interest where the lease previously

created only a non-proprietary interest; or

(ii) create a larger proprietary interest than was previously

created by the lease; and

(d) if the lease contains a reservation or condition for the benefit

of Aboriginal peoples or Torres Strait Islanders--the renewed,

re-granted or extended lease contains the same reservation or

condition.".

The following amendments moved by Senator Chamarette were agreed to:

Clause 208, page 95, subsection (3), line 28, after "subsection (1)

are", insert ", or have been at any time in the past,".

Clause 210, page 96, subparagraph (b)(iii), lines 17 and 18, omit the

subparagraph, substitute the following subparagraph:

"(iii) those native title rights and interests that the maker of the

determination considers to be of importance; and".

Clause 214, page 100, subparagraph (2)(b)(i), line 21, omit "in the same

capacity", substitute "in any capacity".

Clause 214, page 101, subparagraph (3)(d)(i), line 5, omit "in the same

capacity", substitute "in any capacity".

Clause 215, page 101, subparagraph (d)(i), line 36, omit "in the same

capacity", substitute "in any capacity".

Clause 222, page 104, paragraph (c), lines 37 to 39, after "land"

(wherever occurring), insert "or waters".

Clause 236, page 110, subclause (2), lines 5 and 6, omit ", when the

body becomes a recognised State/Territory body under this Act".

Clause 14, page 10, at end of clause, add the following subclause:

"(2) The extinguishment effected by this section does not by itself

confer any right to eject or remove any Aboriginal persons who reside

on or who exercise access over land or waters covered by a pastoral

lease the grant, re-grant or extension of which is validated by

section 13.".

Question--That clauses 207 to 238 and clause 14, as amended, and the

title be agreed to--put.

The committee divided--

AYES, 34

Beahan Bell Bolkus Bourne Burns Carr Chamarette Childs Coates Collins Cooney Denman Devereux Evans, Christopher Evans, Gareth Faulkner Foreman Harradine Jones (Teller) Kernot Lees Loosley McKiernan Margetts Murphy Ray Reynolds Schacht Sherry Sibraa Spindler West Woodley Zakharov

NOES, 30

Alston Bishop Boswell Brownhill Calvert Campbell Chapman Crane Crichton-Browne Ellison Ferguson Gibson Herron Hill Kemp Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Minchin Panizza (Teller) Parer Patterson Reid Short Tambling Teague Tierney Troeth Vanstone

Question agreed to.

Bill to be reported with amendments.

The President resumed the Chair and the Chairman of Committees (Senator

Crichton-Browne) reported accordingly.

On the motion of Senator Gareth Evans the report from the committee was

adopted.

Senator Gareth Evans moved--That this bill be now read a third time.

Debate ensued.

Document: Senator Chamarette, by leave, tabled the following document:

Native Title--Martung Upah Indigenous Conference, 5-11 December

1993--Conference paper--Aboriginal Australians: A Mirror of Attitude

and National Conscience, Mr P Behrendt, Director, Aboriginal Research

and Resource Centre, University of New South Wales.

Debate continued.

Question put.

The Senate divided--

AYES, 34

Beahan Bell Bolkus Bourne Burns Carr Chamarette Childs Coates Colston Cooney Crowley Denman Devereux Evans, Christopher Evans, Gareth Foreman Harradine Jones (Teller) Kernot Lees Loosley McKiernan Margetts Murphy Reynolds Richardson Schacht Sherry Sibraa Spindler West Woodley Zakharov

NOES, 30

Alston Bishop Boswell Brownhill Calvert Campbell Chapman Crane Crichton-Browne Ellison Ferguson Gibson Herron Hill Kemp Macdonald, Ian Macdonald, Sandy MacGibbon McGauran Minchin Panizza Parer Patterson Reid (Teller) Short Tambling Teague Tierney Troeth Vanstone

Question agreed to.

The Senate continued to sit till 12 midnight.

WEDNESDAY, 22 DECEMBER 1993 A.M.

Bill read a third time.