Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Native Title Amendment Bill 2009

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2008-2009

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

NATIVE TITLE AMENDMENT BILL 2009

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)

 

 



 

 

 

 

 

 

 

 

 

 

 

 



Abbreviations used in the Explanatory Memorandum

 

Bill                                                      Native Title Amendment Bill 2009

 

Court                                                   Federal Court of Australia

 

Evidence Act                                      Evidence Act 1995

 

Evidence Amendment Act                 Evidence Amendment Act 2008

 

Federal Court Act                               Federal Court of Australia Act 1976

 

Native Title Act                                  Native Title Act 1993

 

Native Title Amendment Act             Native Title Amendment Act 2007

 

Native Title

(Technical Amendments) Act             Native Title (Technical Amendments) Act 2007

 

NNTT                                                  National Native Title Tribunal

 

NTRB                                                 Native Title Representative Body

 

PBC                                                    Prescribed Body Corporate

 

RTN                                                    Right to negotiate

 

 

 



 

 

 

 

Native Title Amendment Bill 2009

 

Outline

On 17 October 2008, the Attorney-General announced institutional reform to improve the operation of the native title system.  This Bill would amend the Native Title Act to implement the institutional reform to give the Court a central role in managing native title claims. 

Under the new provisions, the Court would determine which body, whether the Court, the NNTT, or another individual or body, should mediate.  Giving one body control over the direction of each case, from start to end, means that the Court could more readily identify the opportunities available to resolve each claim.  This new approach would improve the operation of the native title system by encouraging more negotiated settlements of native title claims, and encouraging the Court and parties to find new ways to resolve claims.  It would ultimately result in better outcomes for participants in the system .

Schedule 1 of the Bill makes a number of amendments to the Native Title Act.  Most of the amendments would implement the institutional change .  Consequential amendments accompanying this change would govern the manner in which mediations are conducted and would generally expand the scope of the existing provisions concerning the conduct of mediation undertaken by the NNTT to apply to all native title claim­-related mediation.

While the Act already allows parties to achieve significant native title outcomes, the Bill would also make minor amendments to encourage and facilitate more negotiated settlements of native title claims.  These changes would create a more flexible native title system and one that produces broad benefits to Indigenous people and certainty to stakeholders. 

Schedule 2 of the Bill would make changes to the powers of the Court.  The changes would:

·          enable the Court to rely on a statement of facts agreed between the parties, and

·          enable the Court to make consent orders that cover matters beyond native title so that parties can resolve a range of native title and related issues at the same time, enabling maximum derivation of benefits from native title rights and interests including economic development opportunities.

Schedule 3 of the Bill would allow the amended evidence rules made by the Evidence Amendment Act that concern evidence given by Aboriginal and Torres Strait Islander people to apply to native title claims where evidence has been heard and either the parties agree the rules should apply or the Court has considered the views of the parties and considers it is in the interests of justice for the rules to apply.

Consistent with the changes in Schedule 1, Schedule 4 would expand the current assistance provisions to allow assistance in relation to all mediations.

 

Schedule 5 would make amendments to Part 11 of the Native Title Act which deals with representative Aboriginal and Torres Strait Islander bodies.  These bodies are established to perform a number of functions that assist Aboriginal and Torres Strait Islander people to undertake action in relation to native title.  The amendments in Schedule 5 would improve the operation of the representative body provisions by streamlining and improving these processes.

 

The Bill would also make minor and technical amendments to improve or clarify the operation of existing provisions.  Schedule 6 would:

·          clarify that the Court is required to make a determination as to whether a native title determination is to be held on trust or by a PBC at the same time as, or as soon as practicable after, making a determination that native title exists in an area

·          simplify the provisions governing the cancellation of bank guarantees held as payments held under a RTN process to avoid unnecessary banking costs to future act proponents

·          provide that alternative State and Territory regimes will have the option of providing for a bank guarantee or a trust regime in relation to compensation held for RTN payments under an alternative State or Territory regime to rectify an oversight in the Native Title Amendment (Technical Amendments) Act which had intended to give States and Territories the option of either a bank guarantee or a trust regime but mistakenly removed the trust option

·          correct a typographical error to change paragraph 66C(1)(c) from ‘in relation to the applicant’ to ‘in relation to the application’, and

·          clarify the penalty provisions.

Section 1.01         The Court will also be able to utilise new provisions in other Bills to assist with the resolution of native title claims, such as changes to the Federal Court Act to allow the Court to refer a proceeding, or one or more questions arising in a proceeding, to a referee for report.  This could assist in native title claims to assist to resolve overlaps, specific legal questions and to determine claim group membership.

Financial impact statement

There is no direct financial impact on Government revenue from this Bill.



NOTES ON CLAUSES

 

Clause 1: Short title

 

Clause 1 provides for the Act to be cited as the Native Title Amendment Act 2009 .

 

Clause 2: Commencement

 

This clause contains a table which sets out when each of the provisions of the Bill commences.  Item 1 of the table provides that sections 1-3 (the short title, commencement and schedule provisions) and anything in the Act not covered elsewhere by the table commence on Royal Assent.

 

Item 2 of the table provides that Schedules 1, 2, 3, and 4 will commence on the later day of the day after this Act receives the Royal Assent and 1 July 2009.  Item 3 of the table provides that Part 1 of Schedule 5 will commence on the later day of the day after this Act receives the Royal Assent and 1 July 2009.  Item 5 of the table provides that Schedule 6 will commence on the later day of the day after this Act receives the Royal Assent and 1 July 2009.  This is because the Government intends the amendments to be in force by 1 July 2009 however it is not intended that the Bill have retrospective commencement should the Bill not be passed by 1 July 2009. 

 

Table item 4 provides that Part 2 of Schedule 5 will commence immediately after the commencement of the provision(s) covered by table item 3.

 

Clause 3: Schedule(s)

 

This clause provides that the Schedules to the Bill will amend the Acts set out in those Schedules in accordance with the provisions set out in each Schedule.

 

 



Schedule 1 - Amendments relating to mediation

 

Overview

Schedule 1 of the Bill would make a number of amendments to the native title mediation provisions in the Native Title Act.  The amendments would give the Court the role of managing all native title claims, including whether claims will be mediated by the Court or referred to the NNTT or another Court-appointed individual or body for mediation.  The Schedule contains a number of separate measures that primarily set out the powers and functions of mediators.  A number of the amendments would expand the existing NNTT mediation powers to apply to all mediators.  

The aim of the amendments is to emphasise the importance of mediation and draw on the Court’s significant alternative dispute resolution experience to achieve more negotiated outcomes.  The importance of resolving native title matters through negotiated outcomes has been a central object of the Native Title Act since it was introduced in 1994.  The preamble to the Act states: 

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Having one body actively control the direction of each case with the assistance of case management powers means opportunities for resolution can be more easily identified.  Parties that are behaving with less than good faith can also be more forcefully pulled into line. Where parties are deadlocked or unwilling to see common ground, the Court can bring a discipline and focus on issues through the use of its case management powers to ensure that matters do not languish. 

A number of the amendments relate to Court processes that would assist with the resolution of claims.  For example, amendments would:

·          require the Court to refer all native title applications for mediation, subject to exceptions in line with current provisions

·          allow the Court to refer a whole or any part of a proceeding for mediation to a  Court mediator, the NNTT or another individual or body

·          allow the Court to consider the relevant training, qualifications and experience of potential mediators

·          allow the Court to cease a mediation in a number of situations in line with current provisions and add a new ground where it considers it appropriate, the Court may also refer it to another mediator following a cessation order

·          allow the Court to make any orders about the way in which the mediation is to be provided, what assistance may be provided to the mediator or any other matter it considers relevant when referring a matter for mediation, and

·          allow the Court to refer for review by the NNTT the issue of whether a native title group that is a party in the proceeding holds native title rights or interests.

Other amendments in this Schedule relate to processes for mediations by a mediator.   For example, amendments would:

·          allow mediators to hold such mediation conferences as necessary to help in resolving the native title matter

·          require mediators to hold mediation conferences in private

·          give mediators control over who attends a mediation conference

·          allow mediators to refer a question of fact or law relating to a proceeding to the Court

·          allow mediators to prohibit the disclosure of information or statements provided during a conference, and

·          require mediators to provide written reports to the Court about mediations.

Part 1—Amendments

Native Title Act 1993

Item 1 - Paragraph 4(7)(aa)

1.1               This item would insert new paragraphs 4(7)(aa) and (ab) in section 4 of the Native Title Act.  Section 4 sets out an overview of the Act, and subsection 4(7) concerns the role of the Court and the NNTT.  This item would clarify that the Act allows the Court to refer native title and compensation matters to mediation and provides for the Court to make orders that give effect to terms of agreements including matters other than native title.

1.2               Current subsection 4(7) sets out the role of the Court and NNTT.  It provides that the Native Title Act allows the Court to make determinations of native title and compensation, establishes the NNTT which is empowered to make determinations about certain future acts and agreements as well as provide assistance or undertake mediation on matters related to native title, and deals with other matters including the role of NTRBs. 

1.3               Paragraph 4(7)(aa) would set out that the role of the Court includes referring native title and compensation applications for mediation.  Paragraph 4(7)(ab) would set out that the Court has a role to make orders to give effect to the terms of agreements reached by parties to a proceeding involving matters other than native title.  This would make clear that where parties reach agreement about matters other than native title, the Court can make orders that reflect those agreements.

1.4               The proposed amendments are associated with the proposed amendments in item 6, which would give the Court a central role in the management of all native title claims, including deciding what individual or body should carry it out. 

Items 2 and 3 - Paragraph 79A(a)

1.5                These two items amend paragraph 79A(a) and insert paragraph 79A(e).  These amendments are consequential to item 6.

1.6               Section 79A contains an overview of Part 4 of the Native Title Act which contains a range of Divisions that set out procedures and rules associated with native title determinations by the Court. 

1.7               Item 2 would amend paragraph 79A(a) by removing the reference to the NNTT.  The paragraph provides that Division 1B of Part 4 contains the general rules for referring native title applications for mediation.  The amendment would remove the reference to the NNTT in line with the amendment at item 6.

1.8               Item 3 would insert a new paragraph 79A(e).  This paragraph would provide that Division 4 of Part 4 contains the rules and procedures which govern the manner and methods of mediation by a mediator under the Native Title Act.  This item is consequential upon item 35, which would create a new Division 4 of Part 4.  Division 4 would replicate and expand many of the existing rules and procedures in relation to mediation undertaken by the NNTT to apply to all mediators.  These amendments are necessary to effect the institutional changes as set out at item 6.

Item 4 - Division 1B of Part 4 (heading)

1.9               This item would amend the existing heading of Division 1B of Part 4.  Part 4 contains a number of Divisions which set out procedural matters concerning native title determinations made by the Court.  The amendment would change the heading to Division 1B to make it clear that the Division deals with the matters that are referred to mediation.  The amendment would remove the reference to the NNTT in the heading of this Division to make it consistent with the institutional changes that will allow the Court to decide whether to mediate a matter or to refer it for mediation by an appropriate person or body. 

Item 5 - Subsections 86A(1) and (2)

1.10           Item 5 would amend subsections 86A(1) and (2) which set out the purpose of mediation under the Native Title Act.  This item would remove the references to the NNTT in the existing sections.  These amendments are associated with the institutional changes as set out by item 6.

 

Item 6 - Subsection 86B(1)

1.11           This item would amend the referral to mediation function of the Court and is necessary to effect the institutional changes.  The amendment aims to provide new ways for parties to resolve native title claims and to achieve better outcomes from that process. 

1.12           Subsection 86B(1) provides that the Court must refer each native title application made under section 61 for mediation to the NNTT, unless an order has been made that no mediation take place under the Act.  This amendment would repeal the existing provision and insert a new section 86B to provide that the Court, unless an order has been made that no mediation take place under the Act, must refer each native title application made under section 61 to a mediator for mediation.  Section 61 concerns the manner in which each native title determination application, revised native title determination application and compensation application may be made. 

1.13           The effect of this amendment would be to grant the Court a central role in managing all native title claims.  This would assist to manage and resolve claims more efficiently and result in better outcomes for participants.  Having one body control the direction of each native title case will mean that opportunities for resolution can be more readily identified and the interests of parties best focussed.  The Court will be able to oversee all stages of a native title claim, from the point of application to finalisation. 

1.14           The amendments would not require the Court to automatically refer each native title case to the NNTT for mediation.  Instead the Native Title Act would require the Court to refer each application to ‘an appropriate person or body for mediation ’.  Mediation would continue to be an important way for parties to reach agreement about beneficial ways to resolve native title claims.  An ‘appropriate person or body’ could include a Registrar of the Court.  The Court in particular has significant alternative dispute resolution experience.  An ‘appropriate person or body’ could also include the NNTT, which has experience in native title mediations.  It could also include another body, such as a specialised mediation body, or any other person or body the Court considers appropriate. 

1.15           Item 6 would also include a new subsection 86B(2) which would insert a further provision which allows the Court to consider the relevant ‘training, qualifications and experience’ of the person who will mediate in deciding whether to refer the application to a particular person or body under subsection 86B(1).  The Court could take such skills into account, whether or not the training, qualifications or experience relate specifically to native title or specifically to mediation.  This would allow the Court flexibility in referring a matter to mediation to an appropriate person.  Such a person could be a mediator who would bring particular mediation expertise to the mediation, or a person who is an accredited mediator, for example under the National Mediator Accreditation System.  Similarly, the Court could refer an application for mediation to a person who has particular experience or expertise that would assist to resolve the issue at hand.  This could include experience in native title law, experience in resolving overlapping claims, or knowledge of the areas, Indigenous groups or issues involved in a particular case.  The amendments would also allow the Court to engage people who have special knowledge in relation to Aboriginal or Torres Strait Islander societies or Indigenous dispute resolution methods. 

1.16           The wording of the subsection to the effect that the Court may take into account the training, qualifications and experience of ‘the person who is to be, or is likely to be, the person conducting the mediation’ is necessary due to the effect of proposed subsection 94D(2) at item 35.  Subsection 94D(2) would set out who must conduct a mediation conference when a matter has been referred by the Court for mediation.  As the Court will not always know the identity of the person who will conduct the mediation, for example, where the Court refers the matter to the NNTT or ‘in any other case’ which could include a Court appointed mediating company, partnership, body corporate or similar entity, the Court may take into account the training, qualifications and experience of the person who is likely to be conducting the mediation.  For example, the membership of a particular mediating organisation may require certain qualifications or experience, in which case the Court could consider those membership requirements. 

1.17           Item 12 would insert an equivalent provision applicable to matters referred under 86B(5). 

1.18           Item 6 would also include a new subsection 86B(2A) which would clarify that a referral by the Court for mediation under subsection 86B(1) may include a referral to the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court.  This list is not intended to be limiting in any way.  Item 12 would insert an equivalent provision applicable to matters referred under 86B(5). 

1.19           This item also includes a note to amend the heading to section 86B to omit the reference to referral to the NNTT for mediation.

1.20           This amendment requires a substantial number of consequential amendments to sections of the Native Title Act concerning mediation because mediation under the Native Title Act is currently undertaken by the NNTT.  Consequential amendments to this item are intended to replicate and expand the majority of existing provisions concerning mediation so that they apply to the broader range of mediators that this item creates.  These consequential amendments include further amendments to Division 1B of Part 4, the inclusion of a newly created Division 4 of Part 4 which essentially replicates and expands provisions dealing with mediation conferences to apply to all mediators that may conduct mediation under the NTA, and the inclusion of additional consequential definitions.

 

Item 7 - Subsection 86B(3)

1.21           This item would remove references to mediation ‘by the NNTT’ and replace this phrase with the words ‘under this Act’ so that the provision covers mediations to all mediators, not just the NNTT.  Subsection 86B(3) concerns the Court’s power to order that no mediation take place, and sets out certain situations when the Court can order that no mediation take place in relation to the whole or part of a native title proceeding.  This subsection would cover any mediation.

1.22           This item is a consequence of item 6 which would give the Court the power to decide which individual or body would mediate.  The item would expand the scope of the Court’s power to decide that no mediation take place to apply to all mediations undertaken under the Act.  

Item 8 - Paragraph 86B(3)(a)

1.23           Item 8 would remove ‘(whether or not by the NNTT)’ to ensure the paragraph applies to any mediation.

Item 9 - Paragraph 86B(3)(b)

1.24           Item 9 would remove ‘by the NNTT’ and replace this phrase with the words ‘under this Act’ to ensure the paragraph applies to any mediation.

Item 10 - Subsection 86B(4)

1.25           Subsection 86B(4) sets out factors that the Court is to take into account when deciding to make an order under subsection 86B(3) that no mediation take place under the Act.  This item would remove references to mediation ‘by the NNTT’ so that it applies to all mediations.  

Item 11 - Paragraph 86B(4)(ea)

1.26           This item would repeal paragraph 86B(4)(ea).  Paragraph 86B(4)(ea) provides that the Court is to take into account any submission prepared by the NNTT under subsection 86BA(1) consequential on item 13 which would repeal the current subsection 86BA(1). 

 

Item 12 - Subsection 86B(5)

1.27           This item would repeal existing subsection 86B(5) and insert new subsections 86B(5), 86B(5A), 86B(5B) and 86B(5C). 

1.28           Existing subsection 86B(5) empowers the Court, after referring a matter to the NNTT for mediation, to refer the whole or part of the proceeding to the NNTT for mediation if the Court considers parties would be assisted to reach agreement on the  matters listed in subsections 86A(1) or (2), such as the existence of native title rights and interests.  This power is in addition to the power to refer a matter for mediation in subsection 86B(1), and would allow the Court to refer a matter at any time in a proceeding.   This item is consequential upon item 12, and would amend the Native Title Act to clarify that the Court may make such a referral at any time to a mediator.  

1.29           Subsection 86B(5) would allow the Court to undertake a subsequent referral to a mediator where the Court has ordered that mediation cease under proposed new paragraph 86C(1)(c) in item 21A.  Proposed new 87C(7) would provide that the Court could use the power to refer following the cessation of a mediation in subsection 86C(1).  The intention of the combined effect of the proposed subsection 86B(5) and paragraph 86C(1)(c) is to allow the Court to effectively manage native title matters in the mediation process.  For example, the Court could consider it appropriate to make an order that a mediation cease then subsequently refer the mediation to a different individual or body under subsection 86B(5). 

1.30           Subsection 86B(5A) is an equivalent provision to proposed subsection 86B(2) at item 6, which would allow the Court to consider the training, qualifications or experience of the person who is to, or who is likely to, mediate in deciding whether to refer the application to a particular person or body under subsection 86B(5). 

1.31           Subsection 86B(5B) is an equivalent provision to proposed subsection 86B(2A).  This item would clarify that a referral by the Court for mediation under subsection 86B(5) may include a referral to the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court.  The list is not intended to be limiting in any way. 

1.32             Section 86B(5C) would allow the Court, where the Court has referred a matter for mediation under subsections 86B(1) or 86B(5), to make orders concerning the mediation.  The Court may make the orders at any time after the referral of the mediation.  This proposed subsection includes powers to make orders about the way in which the mediation is to be provided, whether the person conducting the mediation may be assisted, and any other matter the Court considers relevant.  The purpose of this amendment is to provide flexibility to the Court in allowing it to make any orders it deems necessary to effectively manage each native title matter.

 

Item 13 - Section 86BA

1.33           This item would repeal existing section 86BA which gives the NNTT the right to appear before the Court and replace it with a new section that sets out that a mediator may appear before the Court. 

1.34           Subsection 86BA(1) currently gives the NNTT the right to appear before the Court where the Court is considering whether to make an order under subsection 86B(3) that there be no mediation by the NNTT in a native title matter.  The existing subsection applies in the situation where the Court has not yet referred the matter for mediation under subsection 86B(1).  The replacement provisions would not replicate this right.  Consistent with the Court’s overall case management powers of native title matters in mediation, it is appropriate that the Court have the discretion to decide that a matter should not be referred to mediation where the Court is considering whether to make an order under subsection 86B(3).   This is consistent with the intention to give the Court control over all aspects of native title matters.

1.35           The item would set out, in new subsection 86BA(1), that a mediator may appear before the Court at a hearing where a matter is currently before the mediator, where the Court considers the mediator could assist the Court.  This provision would cover all mediators that the Court has referred a matter to under section 86B.

1.36           The intention of this amendment is to allow mediators to assist the Court in any hearing in respect of a mediation that the mediator is involved with.  The assistance that a mediator could bring to the Court may include, for example, a specialised knowledge of contested issues in the native title matter resulting from their involvement in the proceeding through the mediation process.  This amendment aims to facilitate open communication between mediators and the Court, and to assist the Court in its role of overseeing the management of all native title claims.  It may be appropriate for a mediator conducting the mediation to appear before the Court in a number of situations because the mediator will be aware of the progress of the mediation and any specific issues pertaining to the mediated matter that the Court would benefit from hearing.  Including the discretion for the Court to grant leave for a mediator to appear, rather than allowing a mediator to have an automatic right of appearance, would be consistent with granting the Court control over native title mediations.

1.37           Item 13 would also replicate the effect of current subsection 86BA(3).  Proposed subsection 86BA(2) would make it clear that all mediators are bound by the restriction in subsection 86BA(2) when appearing before the Court.  Existing subsection 86BA(3) provides that subsection 136A(4) applies to the NNTT when it exercises the right to appear before the Court.  Existing subsection 136A(4) provides that in a proceeding before a Court, evidence may not be given nor statements made concerning any word spoken or act done during a mediation conference conducted by the NNTT, unless parties agree.  Item 13 would not replicate the reference to existing subsection 136A(4) that would be repealed and instead refers to proposed new equivalent subsection 94D(4).  Proposed subsection 94D(4) would replicate existing subsection 136A(4) (see item 35) which provides that in a proceeding before the Court, evidence may not be given nor statements made concerning any word spoken or act done during a mediation conference conducted by the NNTT, unless parties agree.

1.38           Item 39 would repeal the Division containing subsection 136A(4).  Item 35 would insert a new Division that replicates the effects of all of the provisions contained in existing Division 4A of Part 6 and would expand the scope of those provisions to apply to the range of mediators consequential to the proposed amendments made by item 6.   

1.39           Item 13 would also replicate the effect of current subsection 86BA(4).  Subsection 86BA(4) provides that existing subsection 136A(5) does not prevent the presiding member of the NNTT from representing the NNTT when it exercises its right to appear before the Court, unless parties agree.  Proposed subsection 86BA(3) would not preclude the person conducting the mediation from representing the mediator, for example, where the mediator is a body to which the Court has referred a mediation, to appear before the Court under subsection 86BA(1). 

1.40           Subsection 86BA(3) would refer to new subsection 94D(5) which is the proposed new equivalent to current subsection 136A(5), concerning the requirement that unless the parties to the mediation agree, the person conducting the mediation cannot take any further part in the proceeding.   

1.41           Item 39 would repeal the Division containing subsection 136A(5).  Item 35 would insert a new Division to replicate the effect of all of the provisions contained in existing Division 4A of Part 6 and would expand the scope of those provisions to apply to the range of mediators consequential to the proposed amendments made by item 6.  Item 35 would also give the Court the discretion to allow a party to appear.

1.42           Existing subsection 136A(5) would be replicated in the proposed subsection 94D(5) (see item 35) which provides that unless parties agree, the person conducting the mediation (see proposed new subsection 94D(2) at item 35) may not take any further part in the proceeding in any capacity. 

Items 14, 15, 16, 17, 18, 19, 20 and 21 - Section 86C

1.43           Section 86C provides for the cessation of mediation in certain circumstances.

1.44           Items 14 and 16 would amend subsection 86C(1) by expanding the scope of this subsection to the effect that the Court may order the cessation of any mediation which has been referred to any mediator consistent with the amendments made in item 6. 

1.45           Item 15 would remove the words ‘(whether or not by the NNTT)’ in subsection 86C(1).  This would clarify that the Court may order that mediation by a mediator cease if the Court considers that any further mediation, whether by the mediator or by someone else under, for example, the Federal Court Act, is unnecessary.

1.46           Item 17 would amend subsection 86C(1) by inserting a new ground upon which the Court may order that mediation cease.  Subsection 86C(1) currently provides that the Court may, at its own initiative, order that mediation cease over the whole or part of an application if it is satisfied that further mediation is unnecessary, or where it considers that the parties are unlikely to reach agreement on either factual issues relating to the claim or the substance of the native title claimed.  This item would amend the Native Title Act to allow the Court to also order a mediation to cease if it considers it is appropriate to do so for any reason.  This change is associated with the institution reforms set out in item 6.  Consistent with the Court’s overall management role of native title matters in mediation, it is appropriate that the Court have the power to assess and decide that mediation cease if the Court considers that order to be suitable. 

1.47           Subsection 86C(2) provides that once mediation has been underway for three months, a party may apply to the Court for an order that mediation cease.  Item 18  would amend subsection 86C(2) to expand the scope of this subsection by substituting the reference to the NNTT with a reference to a mediator, which has the effect that a party to a proceeding may apply to the for the cessation of any mediation which has been referred to any mediator consistent with the amendments made in item 6

1.48           Subsections 86C(3) and (4) set out when the Court must order mediation to cease in circumstances where the party requesting this is either the applicant who has made the native title claim or a government party (subsection 86C(3)), or where the requesting party is any other person (subsection 86C(4)).  Item 19 would amend subsections 86C(3) and (4) by substituting the references to the NNTT with references to the mediator, which clarifies that the Court’s power to order that mediation ceases where requested is applicable to any mediation which has been referred to any mediator consistent with the amendments made in item 6.

1.49           Subsection 86C(5) sets out that the Court, in deciding whether or not mediation should cease, must take into account any report or work plan provided to the Court under existing subsections 136G(2), (2A), (3), (3A) or (3B).  Item 20 would substitute those existing provisions (which item 39 will repeal) with the relevant new proposed provisions that set out the reports to be given to the Court (see proposed section 94N at item 35).  Consistent with the proposed amendments expanding the persons and bodies to which the Court may refer matters for mediation, this item ensures that the Court takes into account any relevant report by a mediator in deciding whether to order that mediation cease.    

1.50           Item 21 would insert subsection 86C(6), which is a general power for the Court to make any additional orders when making an order that mediation cease under section 86C.  The purpose of this amendment is to allow the Court to address any matters that may be required following the order to cease mediation, such as setting out what is to take place in the event of cessation where, for example, a mediator has previously been ordered to prepare a report for the Court on the progress of mediation under section 86E.  

1.51           The Court’s power to cease mediation under section 86C is linked to the Court’s power to refer a matter to mediation at any time during the proceeding as set out by subsection 86B(5).  That is, the Court may use these powers conjunctively to cease a mediation and subsequently make a further order directing the matter to mediation, which may be before another meditator.  

Items 22, 23, 24, 25, 26 and 27 - Section 86D

1.52           Section 86D sets out the Court’s powers to determine questions of fact or law that arise during mediation, and to adopt any agreement on facts between the parties reached during mediation. 

1.53           These items would amend section 86D by expanding the scope of this provision to apply to matters being mediated by all mediators consistent with the amendments made in item 6. 

1.54           Items 22 and 23 would amend subsection 86D(1) by substituting the references to the NNTT with references to a mediator.  The effect of this amendment is that the Court may determine a question of fact or law that is referred to it by the mediator conducting a mediation. 

1.55           Item 24 would amend the note to subsection 86D(1) by substituting the reference to 136D(1) with subsection 94H(1).  The note to subsection 86D(1) cross refers the Court’s power to determine a question of fact or law to the provision in existing subsection 136D(1) which provides that the NNTT may refer to the Court a question of fact or law related to a proceeding that arises during the mediation.  Item 39 would repeal the Division that contains 136D(1).  Item 35 would create a new Division 4 of Part 4 that would replicate and expand many of the existing rules and procedures in relation to mediation undertaken by the NNTT to apply to a range of mediators.  Section 94H replicates the effect of a similar provision to the existing subsection 136D(1) which would allow the person conducting the mediation to refer a question of fact or law to the Court in certain circumstances.

1.56           Item 25 would amend subsection 86D(2) by substituting the reference to the NNTT with a reference to the mediator.  This is consistent with the amendment made by item 6.

1.57           Items 26 and 27 are consequential amendments to the repeal of Division 4A of Part 6 (item 39) and the insertion of Division 4 of Part 4 (item 35).   The effect of the items would be to extend the provisions to cover all mediators.

Items 28, 29, 30 and 31 - Section 86E

1.58            Subsection 86E(1) provides that the Court may request a report on the progress of any mediation being undertaken by the NNTT.  Items 28 and 29 would amend subsection 86E(1) by substituting the reference to the NNTT with a reference to the mediator, so that the Court may request a mediator appointed under section 86B to provide a report on the progress of any mediation they are undertaking.

1.59             Subsection 86E(2) provides that the Court may request the NNTT to provide specialised reports to assist the Court in progressing proceedings in a certain area, including a State or region of Australia.  Subsection 86E(2) defines the terms ‘regional mediation progress report’ and ‘regional work plans’.  Items 30 and 31 would amend subsection 86E(2) by substituting the reference to the NNTT with a reference to one or more mediators, so that the Court may request that one or more mediators appointed by the Court under section 86B provide a regional mediation progress report and/or a regional work plan. 

1.60           The reports prepared under section 86E would assist the Court in its overall case management role.  In particular, the ability of the Court to request reports from one or more mediators is likely to result in the provision of useful insights into the management of claims within a particular region.  The Court can specify when and how these reports are to be provided.  This would provide another way for the Court to monitor both the progress of individual cases and cases in a region.  It would also complement the Court’s management and prioritisation of native title matters.   

Items 32, 33 and 34 - Section 94B

1.61           Section 94B provides that the Court must take into account certain reports where an application has been referred to the NNTT for mediation under section 86B. 

1.62           Item 32 would omit the reference to the NNTT to expand the section to all mediators and is a consequential amendment to item 6. 

1.63           Items 33 and 34 are consequential amendments to the repeal of Division 4A of Part 6 (item 39) and the insertion of Division 4 of Part 4 (item 35).  

Item 35 - At the end of Part 4



Division 4 of Part 4
Mediation conferences

1.64           Item 35 would insert proposed Division 4 of Part 4.  This item would insert proposed sections 94D, 94E, 94F, 94G, 94H, 94J, 94K, 94L, 94M, 94N, 94P, 94Q, 94R and 94S.

1.65            The proposed inclusion of Division 4 at the end of Part 4 is consequential upon both the changes to the Court’s referral to mediation functions under section 86B (refer item 6) and the repeal of Division 4A of Part 6 (refer item 39).

1.66           Existing Division 4A of Part 6 sets out the powers of the NNTT in relation to mediation conferences.  As the Court would be given a central role in managing native title matters, it is necessary to set out the powers of mediators in relation to mediation conferences.  The existing Division 4A of Part 6 contains the relevant provisions relating to mediation conferences undertaken by the NNTT.  The existing Division 4A of Part 6 would be repealed (refer item 39) and the proposed new Division 4 would be located at the end of Part 4.  Part 4 concerns determinations of the Court, including rules for processing Court applications and making determinations relating to native title.  Separate Divisions located in Part 4 cover such matters as the referral of matters for mediation, agreements, conferences and orders. 

1.67              The purpose of this item is to essentially replicate the existing provisions of Division 4A of Part 6 and expand their scope to clarify that the operation of the new Division covers mediation by a mediator, as defined by the proposed amendments to section 86B.  This item is consequential upon item 6.  If the Court refers the whole or part of a proceeding for mediation under section 86B, the following provisions will regulate the conduct of mediation conferences undertaken by a mediator.

Mediation conferences

1.68           Section 94D would replicate the effects of the provisions concerning mediation conferences of the existing section 136A would expand the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B.

·          Subsection 94D(1) would provide that a mediator may hold such conferences as the mediator considers would assist in resolving the native title matter.

·          The note to subsection 94D(1) provides that the person conducting the mediation may make a request to the Court that a review be undertaken by the NNTT in relation to whether there are native title rights and interests.  Item 40 would amend section 136GC to set out the circumstances in which the Court can refer a matter for review.

·          Subsection 94D(2) would set out who must conduct mediation conferences.  The existing subsection 136A(2) sets out that a mediation conference must be presided over by a member of the NNTT.  This item would clarify who must conduct a mediation conference in reference to each category of mediators that the Court may refer a matter to for mediation under section 86B (refer item 6).  Subsequent proposed provisions such as 94D(3) would utilise the term ‘person conducting the mediation’ which refer back to the definition provided in this proposed subsection 94D(2).   Paragraph 94D(2)(c) is intended to apply in situations where the Court has referred a matter to a mediator who is not an individual or the NNTT, such as an appropriate company, body corporate or partnership.  The intended effect of this amendment is that the mediator appointed by the Court then nominates an appropriate person within their organisation to be the person who conducts the mediation.  The amendment in paragraph 94D(2)(c) is not intended to interfere with or override the Court’s referral to an appropriate mediator under section 86.

·          Subsection 94D(3) would set out that the person conducting the mediation may be assisted, and who that person may be assisted by.  The operation of the section is subject to any order that the Court may have made involving the issue of whether the person conducting the mediation is to be assisted by another person under the proposed new paragraph 86B(5C)(b).   If the mediator is a member of the NNTT, that mediator may be assisted by another member or staff member of the NNTT.   In any other situation, the person conducting the mediation may be assisted by someone who, in the mediator’s opinion, is an appropriate person to assist in the mediation.  However, the provision does not allow a person assisting the mediation to conduct the mediation in place of the mediator.  The assistance provided by other individuals might include research assistance or organising the venue for a mediation conference.  This replicates the effect of existing 136A(3).

·          Subsection 94D(4) would provide that anything said or done at a conference cannot be used in evidence before the Court, unless the parties agree.  This replicates the effect of existing subsection 136A(4). 

·          Subsection 94D(5) would provide that the person conducting the mediation, or assists at a conference, may not take part in relation to the proceedings, other than in the mediation process, without the agreement of the parties or without the leave of the Court.  This replicates the effect of existing subsection 136A(5) but expands the scope of its application to confirm that the provision applies to all mediators under section 86B.  It also gives the Court a discretion to allow a person who has conducted the mediation, or assisted to conduct the mediation, to take further part in a proceeding.  This is consistent with granting the Court control over mediations.

·          Subsection 94D(6) would provide that participation in a conference may be by telephone, closed-circuit television, or any other communication.  This replicates the effect of existing subsection 136A(6). 

·          Subsection 94D(7) would clarify that if the mediator is the NNTT, and a consultant has been engaged under subsection 131A(1) to conduct mediation under this Division, the consultant would be treated as if he or she were a member of the NNTT.  

Parties at conferences

1.69           Section 94E would replicate the effect of the provisions concerning parties at mediation conferences of the existing section 136B and would expand the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B. 

·          Subsection 94E(1) would empower the mediator to require parties to attend conferences.  This replicates the effect of existing subsection 136B(1A). 

·          Subsection 94E(2) would empower the mediator to direct that only one or some parties attend a particular conference.  This replicates the effect of existing subsection 136B(1). 

·          Subsection 94E(3) would provide that the mediator may direct that some parties and their representatives be excluded from a conference.  This replicates the effect of existing subsection 136B(2). 

·          The effect of the amendments in proposed subsections 94E(1), (2) and (3) is that a mediator could require or disallow a party’s attendance at a conference and this would assist the mediator to adequately control a mediation and provide the mediator with flexibility to conduct the mediation.  For example, the mediator can ensure that disruptive behaviour by a party is not rewarded by allowing such behaviour to stop or delay a conference. 

·          Subsection 94E(4) would provide that parties may be represented by a legal practitioner or another person.  This replicates the effect of existing subsection 136B(3). 

·          Subsection 94E(5) would provide that parties to a mediation and their representatives are under a statutory obligation to act in good faith in native title mediations.  This replicates the effect of existing subsection 136B(4). 

Other persons attending or participating in conferences

1.70           Proposed section 94F would replicate the effect of the provisions concerning other persons attending or participating in mediation conferences of the existing section 136C and expand the scope of its application so that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B.

Producing documents

1.71           Proposed section 94G would replicate the effects of provisions concerning the production of documents at mediation conferences of the existing section 136CA and would expand the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B.

Referral of questions of fact or law

1.72           Proposed section 94H would contain provisions about the referral of questions of fact or law to the Court on any matter that is the subject of mediation.  This would replicate the effect of existing section 136D and expand the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B.  This amendment also removes the existing requirement that if a party wishes to refer a question of law or fact to the Court, the agreement of the presiding member of the NNTT conducting the mediation is required.  This amendment will allow parties in the mediation to raise a question of fact or law with the mediator who may then refer it to the Court if the mediator considers that the act of referral would assist in facilitating an expeditious resolution of any matter that is the subject of mediation.     

·          Subsection 94H(1) would provide that a question of law or fact arising in the context of a mediation may be referred to the Court by the person conducting the mediation, where the mediator considers that it would expedite the reaching of an agreement.  This replicates the effect of existing subsection 136D(1). 

·          The note to subsection 94H(1) cross refers to the Court’s power to determine a question of fact or law referred to it by the mediator under subsection 86D(1). 

·          Subsection 94H(2) would provide that if the mediation is not conducted by a consultant, questions of law or fact may be referred to the Court either at the request of a party to the mediation, or at the initiative of the mediator.  This replicates the effect of existing subsection 136D(2). 

·          Subsection 94H(3) would provide that where a mediation is being conducted by a consultant, questions of law or fact may be referred either at the initiative of that mediator if a presidential member agrees, or at the request of a party to the mediation.  This replicates the effect of existing subsection 136D(3) and would not be expanded as it only applies to NNTT consultants engaged under section 131A.

·          Subsection 94H(4) would provide that mediation may continue while the Court determines the question if the person conducting the mediation considers this is appropriate.  This replicates the effect of existing subsection 136D(4). 

Referral of questions about whether a party should be dismissed

1.73           Proposed section 94J would replicate the effects of existing section 136DA concerning the referral of questions about whether a party should be dismissed and expands the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B .

·          Subsection 94J(1) would allow the person conducting the mediation to refer questions to the Court about whether a party should continue to be a party to proceedings.  This replicates the effect of existing subsection 136DA(1).  

·          Subsection 94J(2) would create a limited exception to the ‘without prejudice’ protection that generally applies to words spoken or acts done at mediation, as set out by proposed section 94D (which replicates the effect of existing subsection 136A(4)).  The effect of this subsection would be that the ‘without prejudice’ protection would not apply when the Court is considering the question of whether a party should be dismissed from a proceeding, when a mediator has referred that question because the mediator considers the person does not have a relevant interest.  This replicates the effect of existing subsection 136DA(2).  

·          Subsections 94J(3) and (4) would set out who may refer a question to the Court under subsection 94J(1) and when the question may be referred.  Subsection 94J(3) would replicate the effect of existing subsection 136DA(3) and expand the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B.  Proposed subsection 94J(4) would replicate the effect of existing subsection 136DA(4).  Subsection 94J(4) would not be expanded as it only applies to the NNTT and would not be expanded as it only applies to NNTT consultants engaged under section 131A.

·          Subsection 94J(5) would provide that mediation may continue following a referral of a question to the Court under this subsection if the mediator considers it would be appropriate to continue.  Subsection 94J(5) would replicate the effect of existing subsection 136DA(5) and expand the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B. 

·          Subsection 94J(6) would clarify that for the purpose of determining whether an existing party should continue to be a party to the proceedings, the party must have an interest that may be affected by a determination in the proceedings.  Subsection 94J(6) would replicate the effect of existing subsection 136DA(6) and expand the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B. 

Conferences to be held in private

1.74           Proposed section 94K would replicate the effect of the existing section 136E, which sets out the requirement that mediation conferences be held in private, unless parties agree.  This amendment would expand the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B.

Person conducting the mediation may prohibit disclosure of information etc

1.75           Proposed section 94L would replicate the effect of existing section 136F, which sets out provisions concerning the discretion that the person conducting the mediation has in prohibiting the disclosure of information given or statements made during a mediation conference, or the contents of any document produced at a mediation conference.  This amendment would expand the scope of its application to confirm that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B.  This amendment would further incorporate the existing offence provisions, currently located in section 176, that apply in a situation where a person discloses in contravention of the person conducting the mediation’s direction that such material not be disclosed.  

·          Subsection 94L(1) would provide that the person conducting the mediation may give directions to preserve the confidentiality of the mediation.  This replicates the effect of existing subsection 136F(1).  This allows parties to present information about matters that they consider sensitive or confidential, but which are nevertheless essential to the establishment of their claim. 

·          Subsection 94L(2) would provide that directions prohibiting the disclosure of information by a member can be made at the request of a party as well as on the person conducting the mediation’s own initiative.  This replicates the effect of existing subsection 136F(2). 

·          Subsection 94L(3) would provide that the person conducting the mediation may, if the parties agree, disclose information which would otherwise be unable to be disclosed due to the existence of an order.  This replicates the effect of existing subsection 136F(3). 

·          Subsection 94L(4) would provide that that the disclosure of any material within the context of a mediation which is contrary to the direction of the person conducting the mediation and not authorised by under subsection (1) is an offence. Contravention of a direction prohibiting disclosure is an offence with a penalty of 40 penalty units.   This replicates the effect of existing subsection 176(1).

·          Subsection 94L(5) would provide that an offence under subsection 94L(4) is an offence of strict liability.  The offence is an offence of strict liability because the punishment for this offence, not involving fault, is likely to improve the overall efficiency, effectiveness and integrity of the mediation process, and ensure that parties have confidence in the process.  There are legitimate grounds for penalising a person lacking fault under these circumstances given the ramifications of breaching the confidentially of a mediation, and such persons will be put on notice to guard against the possibility of any contravention.  This replicates the effect of existing subsection 176(2). 

Person conducting the mediation etc must not be required to give evidence or produce documents to a court

1.76           Proposed section 94M would replicate the effect of existing section 181.  Existing section 181 sets out that NNTT members, officers and consultants shall not be required to give evidence to a court relating to a matter if doing so would be contrary to either a NNTT direction under section 155 (which prohibits the disclosure of evidence) or a presiding member’s direction in a mediation under subsection 136F(1) (which prohibits the disclosure of evidence).  Consequential to item 6, which expands the range of persons or bodies to which the Court can refer a matter to for mediation, subsection 94M(1) would provide that a person conducting the mediation must not be required to give evidence to a court if doing so would be contrary to a direction made under subsection 94L(1).  This amendment would further provide that a person conducting the mediation must not be required to give evidence to a court in the situation where an application has been made under subsection 94L for the person conducting the mediation to make such a direction, and the person conducting the mediation has not finalised that decision.

1.77           In a similar manner, the effect of subsection 94M(2) would be that a person conducting the mediation is prevented from being required to produce or permit access to relevant documents when the documents are subject to a direction, or an application has been made for a direction but not finalised, as outlined above.

Report etc. to be given to the Federal Court

1.78           Proposed section 94N would replicate the existing section 136G and would expand the scope of its application so that the provision applies to all mediators undertaking mediation subject to a referral from the Court under section 86B.  This section sets out provisions about the production of mediation reports.  Reports can be useful for the Court in the mediation process because they can provide an appraisal of the conduct, progress and priorities of matters in mediation.  It has become standard practice for the Court to request regional mediation reports at regular call overs. 

·          Subsection 94N(1) would provide that the person conducting the mediation must report in writing to the Court about the results of the mediation as soon as practicable after a mediation concludes successfully (that is, where the parties are able to reach an agreement on the matters, or part of the matters, set out in subsections 86A(1) or (2)). 

·          Subsection 94N(2) would provide that the person conducting the mediation is also required to report to the Court on progress in the mediation where requested to do so by the Court under subsection 86E(1).

·          Subsection 94N(3) would replicate the effect of existing subsection 136G(2A) and expand its scope so that the Court may request one or more mediators to provide the type of reports set out at subsection 86E(2). 

·          Subsection 94N(4) would enable the mediator to provide a progress report to the Court if the mediator considers the report would assist the Court to progress the proceeding.  This would replicate the effect of existing subsection 136G(3).

·          Subsection 94N(5) would provide that the mediator could provide the Court with a report that provides details about the failure to comply with a direction under subsection 94E(1) or section 94G.  This would replicate the effect of the existing subsection 136G(3B).   

·          Subsection 94N(6) would provide that a report provided under subsections (1), (2) or (3) must contain any agreement on facts as reached between the parties during the course of the mediation being reported on.  This replicates the effect of existing subsection 136G(4).

·          The Bill does not replicate existing subsection 136G(3A).  That subsection provides that the NNTT may also provide a report to the Court on the progress of a mediation where the person conducting the mediation considers that such a report would assist the Court.  It is unnecessary for the NNTT to provide the type of mediation reports under subsection 86E(2) that are not requested by the Court, given the purpose of these amendments is to give the Court overall control of native title claims.

Reports about breaches of the requirement to act in good faith

 

1.79           Proposed section 94P would replicate the effect of existing section 136GA, which enables the NNTT member presiding over a mediation conference to make reports to the Court and various other entities where that member considers a party or their representative did not act in good faith, or is not acting in good faith in relation to the conduct of a mediation.  This amendment would expand the scope of its application to confirm that the provision applies to all mediators.  This amendment is related to proposed subsection 94E(4), which imposes a statutory obligation on parties and their representatives to act in good faith in relation to the conduct of mediation before a mediator. 

 

Subsection 94P(1) would provide that the person conducting the mediation may make a report about persons who did not act or are not acting in good faith and would replicate the effect of the provisions of existing subsection 136GA(1). The Minister or the Secretary who receives the report will continue to have the discretion to decide how he or she will deal with a report about persons who are or did not act in good faith. 

 

·          Where the person conducting the mediation considers a legal practitioner has acted, or is acting, in bad faith, subsection 94P(2) will enable the mediator to make a report to the relevant legal professional body.  Similar to reports to the Minister or the Secretary, addressing allegations of bad faith would be left to the discretion of the legal professional body.  This would replicate the effect of existing subsection 136GA(2).

 

·          Subsection 94D(4) would provide that in proceedings before the Court, unless parties otherwise agree, no evidence can be given or statements made about words spoken or acts done at mediation conferences.  Subsection 94P(3) would create a limited exception to the ‘without prejudice’ protection that generally applies to words spoken or acts done during mediation.  It would provide that the without prejudice protection does not apply to any report provided by the person conducting the mediation to a legal professional body under subsection 94P(2).  This is to ensure the legal professional body is not prevented from pursuing disciplinary action on receipt of a report if this would involve a proceeding before the Court.  This would replicate the effect of existing subsection 136GA(3).

·          Subsection 94P(4) would provide that person conducting the mediation may also make a report to the Court if it considers the party has breached the obligation to act in good faith.  Similar to subsection 94P(3), subsection 94P(4) would provide that subsection 94D(4) would not apply to a report provided to the Court under this section.  The person conducting the mediation may make a report to the Court regardless of whether or not a report has been provided to another entity under subsections 94P(1) or (2).  This would replicate the effect of existing subsection 136GA(4).

·          Subsection 94P(5) would provide that reports provided under section 94P must include details of the failure to act in good faith and information about the context in which the conduct occurred.  This would allow the person receiving the report to determine if the allegation of bad faith should be pursued further.  This would replicate the effect of existing subsection 136GA(5).

·          Subsection 94P(6) would provide that when a report is made to a government Minister, a legal professional body or to the Court, a copy of the report must be provided to the person to whom the report relates.  This would replicate the effect of existing subsection 136GA(6).

·          Subsection 94P(7) would provide that, where the person conducting the mediation is not a consultant engaged under subsection 131A(1), a report may only be provided under section 94P on the initiative of the person.  However, where the person is a consultant, proposed subsection 94P(8) would provide that a report could only be provided on the initiative of the person where a presidential member agrees.  These subsections would replicate the effect of the provisions at subsections 136GA(7) and (8).

·          Subsection 94P(9) would confer a discretion on the person conducting the mediation to, where a report has been provided under the section, to continue mediation if that person considers it would be appropriate to do so.  This replicates the effect of existing subsection 136GA(9).

Public reporting about breaches of the requirement to act in good faith

1.80           Proposed section 94Q would replicate the effect of existing section 136GB and would continue to only apply to NNTT mediations.  The section would provide that if an NNTT member is conducting a mediation and considers that a Government party, or the party’s representative, did not act in good faith or is not acting in good faith, the annual report of the NNTT may include details about the failure to act in good faith.  The intention of this section is to ensure that Government parties are publicly accountable for their actions and the actions of their representatives in the course of native title mediations.

1.81           Subsection 94Q(3) would require the NNTT person conducting the mediation to inform the Government party or the party’s representative before including information in the annual report about a failure to act in good faith. 

Protection of person conducting the mediation

1.82           Proposed section 94R would replicate the effect of existing subsection 180(1).  It would expand the protection and immunity to all persons mediating under the Act. 

1.83           The protection and immunity afforded is the same as is given to a Justice of the High Court.  This is justified because the work of all persons mediating under the Native Title Act is closely integrated with judicial proceedings.

1.84           Existing subsection 180(1) will be retained to afford protection to NNTT members in the performance of other duties under the Native Title Act.

Regulations about mediation

1.85           Section 94S would provide that regulations may be made under the Native Title Act about the way in which mediation is provided.  The section would also require any such regulations to be consistent with the Division. 

Item 36 - Subsection 108(1A)

1.86           Section 108 concerns the functions of the NNTT.  Item 36 would amend subsection 108(1A) as a consequence of items 35 (which inserts proposed Division 4 of Part 4) and 39 ( which repeals Division 4A of Part 6 ).

Item 37 - Paragraph 123(1)(ca)

1.87           This item would replace ‘are to’ with ‘may’ in paragraph 123(1)(ca).  Section 123(1) provides that the President of the NNTT may give directions in certain circumstances.  Paragraph (ca) covers directions about persons who are to appear on behalf of the NNTT under section 86BA.  This item is consequential upon item 13 which would change the right of appearance in section 86BA to an ability to appear before the Court where the Court considers the mediator could assist the Court.

Item 38 - Subsection 133(2A )

1.88           Item 38 would amend subsection 133(2A) as a consequence of items 35 (which would insert proposed Division 4 of Part 4) and 39 (which would repeal Division 4A of Part 6).

Item 39 - Division 4A of Part 6

1.89           This item would repeal Division 4A of Part 6 and is consequential upon both the amendments made by item 6, which would allow the Court to refer matters to a range of mediators for mediation, and amendments made by item 35, which would insert a new Division 4 of Part 4.  The provisions of Division 4 of Part 4 would effectively replicate the effect of the majority of the provisions currently contained in Division 4A of Part 6 concerning mediation conferences.  As item 6 would allow the Court to refer native title applications made under section 61 to a range of mediators for mediation, it is necessary to expand the existing provisions relating to mediation undertaken by the NNTT to apply to all mediators who may mediate pursuant to the Court’s referral under section 86B.

Item 40 - Subsections 136GC(1), (2) and (3)

1.90           Proposed subsection 136GC(1) would enable the Court, at its own initiative, to refer for review by the NNTT the issue of whether a native title claim group that is a party in a proceeding holds native title rights and interests in relation to land or waters within the area that is the subject of the proceeding.  This amendment would transfer the power of referral from the President of the NNTT to the Court, which is consistent with the institutional reform giving the Court full control of native title matters.  In addition, allowing the Court to refer matters at its own motion would assist its ability to identify issues that might assist to resolve the native title claim.  The outcome of the review by the NNTT under this section would further assist the Court in the case management and prioritisation of native title matters.

1.91           Proposed subsection 136GC(2) would set out that the Court may refer an issue for review on request of a mediator if the issue arises in the course of mediation and the person conducting the mediation makes such a request.  The Court would retain the discretion to refer the issue to the NNTT when requested to by a mediator, consistent with the Court’s overall case management role.    

1.92           Section 136GC would provide that the person conducting the mediation may only make a request under subsection 136GC(2) if that person considers, after consultation with the parties, that the review would assist parties reach agreement on any matters mentioned in subsection 86A(1).  This would replicate the effect of existing subsection 136GC(3) and expand the scope of the provisions to apply to all mediators.

Item 41 - Subsection 136GC(9)

1.93           Current subsection 136GC(9) enables the presiding member of the NNTT to continue mediation while a review is being conducted where he or she considers it appropriate to do so.  This item would expand the scope of the subsection to apply to all mediators. 

Item 42 - Paragraph 136GE(1)(a)

1.94           Paragraph 136GE(1)(a) sets out that the NNTT member conducting the review about whether there are native title rights and interests under the Division must provide a report to the ‘presiding member’ of the mediation, and the participating parties.  Item 42 would amend the paragraph to replace the term ‘presiding member’ with ‘person conducting the mediation’.  This item would clarify that a written report of the review findings must be provided to the mediator as appointed under section 86B conducting the conference pursuant to subsection 94D(2).

Item 43 - Subsection 136GE(3)

1.95           Subsection 136GE(3) sets out that the NNTT member conducting the review of whether there are native title rights and interests under the Division may provide a report to the ‘presiding member’ conducting the mediation.  Item 43 would amend the subsection to replace the term ‘presiding member’ with ‘person conducting the mediation’.  This item would clarify that a written report of a review may be provided to the mediator where the mediator considers it appropriate to do so in respect of assisting the progress of the mediation.

Item 44 - Subsection 136H(2)

1.96           Section 136H provides that regulations may be made about assistance, mediation or review and states that such regulations must not be inconsistent with the mediation provisions of Division 4 of Part 4, Division 4AA or any other provision of this Act.  Item 44 would amend the subsection so the term ‘Division 4 of Part 4, Division 4AA of this Part’ would replace ‘Division 4A, Division 4AA’.  This is consequential upon items 35 and 39 which alter the location of the relevant provisions relating to mediation as referred under section 86B of the NTA.   

Items 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57 - Paragraph 138A, 138B, 138C, 138D, 138E

1.97           The provisions in Part 6, Division 5, Subdivision AA concern the NNTT conducting native title application inquiries.  The amendments made by items 45 to 57, detailed below, would result in the following changes:

·          the power to direct that a native title application inquiry be held would be transferred from the NNTT to the Court

·          the Court would be able to direct that a native title application inquiry be held at its own motion, and

·          the person conducting the mediation would be able to request that the Court direct a matter to the NNTT for a native title application inquiry.

Item 45 - Paragraph 138A(a)

1.98           Item 45 would remove the term ‘to the Tribunal’ in paragrpah 138A(a) to the effect that the subdivision applies if a matter has been referred to mediation under section 86B.  This is consistent with the Court’s expanded power to refer proceedings for mediation to the full range of mediators under section 86B.

Item 46 - Subsection 138B(1)

1.99           Item 46 would replace the term ‘President’ with ‘Federal Court’ to provide that the Court would have the authority to direct the NNTT to hold an inquiry in relation to an issue or matter relevant to the determination of native title under section 225.

Item 47 - Paragraph 138B(1)(a)

1.100       Item 47 would repeal paragraph 138B(1)(a) and replace it with a new paragraph that would allow the Court to initiate a native title application inquiry in the NNTT at its own initiative.  This is consistent with the Court’s proposed central role in managing native title matters, and would enable the Court to refer matters to the NNTT for a native title application inquiry at any time and subject to the requirements under subsection 138B(2).

Item 48 - Paragraph 138B(1)(c)

1.101       Item 48 would repeal paragraph 138B(1)(c) and replace it with a new paragraph that would enable the Court to initiate a native title application inquiry in the NNTT where the person conducting the mediation makes a request to the Court.  

Item 49 - Subsection 138B(2)

1.102       Subsection 138B(2) sets out alternative criteria to be met before the NNTT President may direct the NNTT inquiry to be held.  Consistent with the amendment that transfers the power to direct the NNTT to hold such an inquiry from the NNTT President to the Court, this item would replace the term ‘President’ with ‘Court’.  This amendment would clarify that the Court must address the alternative criteria in order to direct that the NNTT undertake a native title application inquiry.

Item 50 - Paragraph 138B(2)(a)

1.103       This item would replace the term ‘he or she’ with ‘the Court’ and is consequential upon item 45.

Item 51 - Subsection 138B(3)

1.104       The item would omit the term ‘to the Tribunal’ and is consequential upon item 45.

Item 52 - Subsection 138C(1)  

1.105       Section 138C sets out when the NNTT must hold a native title application inquiry.  The provision currently requires the NNTT to conduct a native title application inquiry if directed to do so by the President.  This item would replace the term ‘President’ with the ‘Federal Court’, which would require the NNTT to hold an inquiry at the direction of the Court and is consequential upon item 46.

Item 53 - Subsection 138D(1)

1.106       Section 138D would set out notification requirements for conducting a native title application inquiry.  This item would amend the subsection to replace the term ‘directing that an inquiry be held, the President’ with ‘beginning the inquiry, the Tribunal’ which would have the effect that after the Court directs the NNTT to undertake an inquiry, the NNTT must, before commencing the inquiry, comply with the notification requirements of the subsection.  The Native Title Act currently provides that the NNTT President can direct an inquiry be held.  This item is consequential upon item 46.

Item 54 - Paragraph 138D(1)(c)

1.107       This item would repeal the requirement for the NNTT to give written notice to the Chief Justice of the Federal Court before directing that a native title application inquiry be held and is consequential upon item 46.  This requirement would be unnecessary as the Court would have initiated the inquiry.

Item 55 - Subsection 138E(1)

1.108       This item would extend the discretion to continue mediation while a native title application inquiry is underway to apply to all persons conducting the mediation, if he or she considers it appropriate.  The term ‘person conducting the mediation’ would replace ‘presiding member’ and this item is consequential upon item 6.

Item 56 - Subsection 138E(2)

1.109       Subsection 138E(2) currently prohibits the NNTT from conducting a review on referral from the President under subsection 136GC(1) simultaneously to a native title application inquiry.  This item would replace the cross reference to subsection 136GC(1) with a cross reference to section 136GC and is consequential upon item 40. 

Item 57 - Subsection 138E(2) (note)

1.110         This item would replace the reference in the note to ‘Subsection 136GC(1) allows the President’ with  ‘Section 136GC allows the Federal Court’ and is consequential upon item 40.  

Item 58 - Subsection 176(1)

1.111       Section 176 is an offence provision concerning a contravention of a direction which prohibits the disclosure of evidence.  This item would omit the cross reference to section 136F and is consequential upon items 35 and 39.   The proposed addition of section 94L in item 35 would incorporate the existing offence provisions under current section 176 and would avoid duplicating this offence provision.

Items 59, 60, 61, 62, 63 and 64 - Section 181

1.112       Section 181 sets out provisions concerning the non disclosure of confidential information by a member or officer of the NNTT or a consultant employed by the NNTT.  Items 59 to 64 would remove references to the ‘presiding member’ and the cross references to section 136F in subsections 181(2) and (3) and are consequential upon items 35 and 39. 

1.113       Item 62 would remove ‘or to a direction of the presiding member under subsection 136F(1)’.  The effect of existing section 181 would be replicated by proposed section 94M.  Section 94M expands the scope of section 181 to include all mediators in the scope of its application. 

Item 65 - After subparagraph 207B(9)(a)(i)

1.114       Section 207B sets out provisions concerning equivalent State or Territory bodies.  Subsection 207B(9) sets out the equivalent body provisions contained in the Act.  This item would insert subparagraph (ia) to exclude ‘the provisions of Division 4 of Part 4, other than subsection 94H(1)’.  This item is consequential upon items 35 and 39 and would replicate the effect of the existing subsection. 

Item 66 - Subparagraph 207B(9)(a)(iii)

1.115       This item would remove ‘subsection 136D(1) and’ from the excluded equivalent body provisions of the Act and is consequential upon item 39.

Item 67 - Section 253

1.116       Section 253 is a definition section of the Act and this item would insert a definition of ‘mediator’ in relation to the range of mediators which will undertake the role of mediation under Division 4 of Part 4.  This item provides that the definition of a mediator is the person or body to which an application or proceeding has been referred under section 86.  The definition refers to both the mediator to which an application has been referred to under subsection 86B(1) and the mediator to which an proceeding has been referred under subsection 86B(5). 

Item 68 - Section 253

1.117       This item would insert a definition of the ‘person conducting the mediation’ as the person referred to in proposed subsection 94D(2) who conducts a mediation conference under proposed section 94D.  This item would assist the interpretation of which person is to be the person conducting the mediation after the matter has been referred to mediation by the Court under proposed amendments to section 86B at item 12. 

Part 2—Application provisions

Item 69 - Application of subsection 86B(1) of the Native Title Act

1.118       This item provides that the proposed amendments to subsection 86B(1), the effect of which would be that the Native Title Act would not require the Court to automatically refer each native title case to the NNTT for mediation, and instead the Act would require the Court to refer each application to an appropriate person or body for mediation, apply in respect of an application made under section 61 regardless of whether that application was made before or after the commencement of this item.  The intention of this item is to clarify that the amendments apply to all future applications and to existing applications still in progress.

Item 70 - Application—subsection 86B(5C) and Division 4 of Part 4 of the Native Title Act

1.119       This item provides that the provisions contained in the proposed amendments of subsection 86B(5C) and in Part 4 of Division 4 of the Native Title Act apply in relation to a referral by the Court for mediation made under subsection 86B(1) or (5) of the Act regardless of whether that referral was made before or after the commencement of this item. 

1.120       This item further provides that anything done under or for the purposes of Division 4A of Part 6, which is the existing Division that sets out the conduct of mediation conferences under the Act, would be taken as done under or for the purpose of Division 4 of Part 4 of the Act, which would be the proposed new Division setting out the conduct of mediation conferences.  The purpose of this item is to clarify that a thing done for the purposes of the current provisions relating to the mediation conferences are taken to be done as under the proposed amended provisions relating to the mediation conferences.  For example, if a person has been directed to attend a mediation conference under the current subsection 136B(1A) before the commencement of these amendments, the direction remains current as it will be taken to have been given under the new proposed subsection 94E(1).

Item 71 - Application—section 86C and subsection 136GC(2) and 138B(1) of the Native Title Act

1.121       This item provides that the provisions of section 86C, subsection 136GC(2) and subsection 138B(1) apply in relation to a mediation that has commenced before or after the commencement of these proposed amendments.  Section 86C concerns the Court’s power to order the cessation of mediation; subsection 136GC(2) sets the Court’s discretion to refer an issue for review to the NNTT on whether there are native title rights and interests where the Court is requested to do so by the mediator; and subsection 138B(1) concerns the Court’s discretion to direct the NNTT to hold a native title application inquiry in certain circumstances.  This item clarifies that these provisions apply whether or not the relevant mediation commenced before or after the commencement of these amendments. 

Item 72 - Referral for review under subsection 136GC(1) of the Native Title Act

1.122       This item provides that if an issue has been referred to the NNTT for review on whether there are native title rights and interests under the existing subsection 136GC(1), and that review has not been completed before the commencement of these proposed amendments, the referral is taken as having been made under the new proposed subsection 136GC(2).  This item clarifies that the operative provisions concerning the review that will apply after the commencement of these amendments apply to those reviews that were referred prior to the commencement of these amendments, in circumstances where the review has not been completed. 

Item 73 - Direction to hold an inquiry under subsection 138B(1) of the Native Title Act

1.123       This item provides that if a direction has been made to the NNTT to hold a  native title application inquiry under subsection 138B(1) before the commencement of these proposed amendments, and that inquiry has not been completed, the direction has effect and is taken as having been made under the new proposed subsection 136B(1).  This item clarifies that the operative provisions concerning the inquiry that will apply after the commencement of these amendments apply to those inquiries that the NNTT was directed to undertake prior to the commencement of these amendments, in circumstances where the inquiry has not been completed. 

 



Schedule 2 - Powers of the Court

 

Overview

Schedule 2 contains minor amendments to enhance the powers of the Court.  The changes would encourage and facilitate more negotiated settlements of native title claims.  These changes would also create a more flexible native title system and one that produces broad benefits to Indigenous people and certainty to stakeholders.  

Schedule 2 would enable the Court to make orders that cover matters beyond native title.  The amendments would allow the Court to make separate orders, under sections 87 and 87A, covering matters beyond native title.  The parties would have to agree on these further matters.  The change would allow the Court to assist parties to resolve native title and related matters at the same time and would therefore result in certainty, more finalised native title claims and better outcomes for stakeholders.

This Schedule also contains amendments that would enable the Court to rely on a statement of facts agreed between the parties.  While at least the applicant and the principal government respondent must agree before the Court may accept an agreed statement of facts, more parties can agree and any party can object to the statement.  The Court would be given a discretion to accept the statement.

Schedule 2 would also correct a typographical error to remove an unnecessary ‘and’ from paragraph 87(1)(c).

Native Title Act 1993

Item 1 - Subsection 87(1)

1.1               This item would omit the word ‘if’ and add the words ‘This section applies’ to the start of subsection 87(1).  It would also amend the heading of the subsection from ‘Power of the Court’ to ‘Application’.  These amendments would make the provision consistent with subsection 87A(1).

 

Item 2 - Paragraph 87(1)(c) 

1.2               This item would remove an ‘and’ from paragraph 87(1)(c).  The current paragraph incorrectly inserts ‘and’ after the last listed criterion.

 

Items 3 and 4 - Paragraphs 87(1) and 87(1)(c)

1.3               These items would remove the words after paragraph (c) and insert a new heading ‘power of the Court’ with a new subsection 87(1A) that would replicate the words that would be removed and expand the provision to cover new subsection (5).  The new subsection would allow the Court to act in accordance with either subsections (2) or (3) as well as subsection (5) if it considered it appropriate to do so. 

Item 5 - At the end of section 87

Orders about matters other than native title

1.4               Proposed subsections 87(4), (5), (6) and (7) would amend the Act to clarify that the Court may make orders that cover matters beyond native title where parties reach an agreement.  These amendments would recognise the broader nature of agreements currently being made and encourage this approach.  Parties would be able to resolve a range of native title and related issues through native title agreements.  These amendments would clearly provide that it is within the Court’s jurisdiction to make separate orders dealing with the determination of native title and the matters covered by the agreement, including matters other than native title.  The Court would also therefore have scope to use existing powers to control the time parties spend on these wider agreements.

1.5               Section 87 currently provides that the Court may make consent determinations if it is satisfied that the order proposed is ‘within the power of the Court’ and ‘appropriate’.  Under these amendments the Court would retain that discretion in making orders about matters other than native title.

1.6               New subsection 87(4) would allow the Court to give effect to the terms of the agreement between parties about matters other than native title, even where the Court makes no determination about the existence of native title if it is within the Court’s power and appropriate to do so.  This order would be made under subsections (2) or (3).

1.7               New subsection 87(5) would allow the Court to give effect to the terms of the agreement between parties about matters other than native title under that subsection, where the Court makes a determination about the existence of native title under subsections (2) or (3) if it is within the Court’s power and appropriate to do so.

1.8               New subsection 87(6) would set out that the Court’s jurisdiction allows the Court to make separate orders to give effect to the terms of an agreement under paragraphs 87(2), (3) and (5).

1.9               New subsection 87(7) would allow for regulations to specify the kinds of matters other than native title that a Court order under subsections 87(2), (3) or (5) may give effect to.  While the parties may decide to include any matters other than native title that assist to resolve the claim in an agreement, and the Court may make orders on these, this subsection allows regulations to give guidance about what types of matters this could include. 

1.10           Examples of matters other than native title that may be covered by agreements include matters such as economic development opportunities, training, employment, heritage, sustainability, the benefits for parties, and existing industry principles or agreements between parties or parties and others that might be relevant to making orders about matters other than native title.

Agreed statement of facts

1.11           The Court has regard to many considerations when deciding whether or not to make a consent determination, not least of these is the agreement reached by the parties.  In some circumstances, a State or Territory has agreed to accept oral accounts from key members of native title claimant groups, and on this basis, to agree to a determination.  In such a situation, it should be open to the Court to accept the statements of facts as agreed by the parties, without requiring such evidence to be brought before the Court and without the Court needing to make independent inquiries to be satisfied as to the basis of the agreed statement of facts.  The Court could advise parties about what it considers should be contained within an agreed statement of facts, without limiting the ability of the parties to prepare such a statement independently of such advice from the Court.

1.12           Proposed subsections 87(8), (9), (10) and (11) would allow parties to save time in negotiations by allowing the Court, in making a consent determination, to accept a statement of facts that has been agreed to by at least the party the Court considers to be the principal government respondent and the applicant.  The amendments would allow other parties to the proceeding to agree to the statement of facts or to make objections to the statement of facts.

1.13           Section 87 currently provides that the Court may make consent determinations if it is satisfied that the order proposed is ‘within the power of the Court’ and ‘appropriate’.  Under these amendments the Court would retain its discretion to accept an agreed statement of facts and therefore would be consistent with the Court satisfying itself that it is both within its power and appropriate to do so. 

1.14           New subsection 87(8) would allow a party, where some or all parties to a proceeding have reached agreement on a statement of facts, to file that statement with the Court.  This would assist the parties and the Court to resolve native title claims more quickly.

1.15           New subsection 87(9) would require the Registrar of the Court to notify, within 7 days, other parties to the proceeding that the statement has been filed with the Court.  This would allow all relevant parties to know about the statement of facts and allow such parties time to consider whether they choose to become a party to that agreement, not participate or make an objection to the Court about the content of the statement of facts.

1.16           New subsection 87(10) would give the Court a discretion to accept the agreed statement of facts in making orders under subsections 87(2), (3) or (5).  This new subsection would also provide that some or all parties to a proceeding may agree to a statement of facts, but that at least the applicant and the principal government respondent must agree to the statement of facts before the Court may exercise its discretion to accept the statement. 

1.17           The principal government respondent could be the Commonwealth, a State, a Territory, the Commonwealth Minister, a State Minister or a Territory Minister depending on the case, including the type of interests or the area of the claim.  Where a claim relates to an area wholly within the limits of a State or Territory, the principal government respondent might normally be that State or Territory, or the State Minister or Territory Minister.  However, this may not always be the case because non-geographical factors may also be relevant in determining the principal government respondent.  For example, the Commonwealth might be the principal government respondent in particular proceedings, such as where a native title claim is made over Commonwealth-owned land.  Where two or more States or Territories, or a State or Territory and the Commonwealth, have significant interests, whether in subject matter or area, the Court could use its discretion and only accept an agreed statement of facts where all major government respondents agree to those facts.

1.18           New subsection 87(11) would allow any party to the proceeding who did not participate in preparing the agreed statement of facts, or who disagreed with that statement, to lodge an objection with the Court within 21 days of being notified by the Registrar under new subsection 87(9).  This new subsection would require the Court to consider any objections in deciding whether to accept under subsection 87(10) an agreed statement of facts.

Item 6 - Subsection 87A(4)

1.19           This item would amend subsection 87A(4) to insert the words ‘the terms of’ for consistency with section 87 which currently requires the terms of orders to be consistent with those terms.

1.20           This item would also include a note to expand the current heading ‘Order’ to ‘Orders’ to capture the expansion of these subsections to show that the Court would also have the power to make orders about matters other than native title.

Item 7 - Subsection 87A(5)

1.21           Proposed subsections 87A(5), (6) and (7) would amend the Act to clarify that the Court may make orders that cover matters beyond native title where parties reach an agreement about part of an area.  These amendments would recognise the broader nature of agreements currently being made and encourage this approach.  Parties would be able to resolve a range of native title and related issues through native title agreements.  These amendments would clearly provide that it is within the Court’s jurisdiction to, where it is within its power and appropriate to do so, make separate orders dealing with (1) the determination of native title and (2) the matters covered by the agreement, including matters other than native title.  The Court will have scope to use existing powers in relation to these wider agreements.

1.22           New subsection 87A(5) would allow the Court to make an order that gives effect to the terms of the agreement that involves matters other than native title if it is within the Court’s power and appropriate to do so.

1.23           New subsection 87A(6) sets out that the Court’s jurisdiction allows the Court to make separate orders to give effect to the terms of an agreement under paragraphs 87(4) and (5).

1.24           New subsection 87A(7) provides for regulations to specify the kinds of matters other than native title that a Court order under subsection 87A(5) may give effect to.  While the parties may decide to include any matters other than native title that assist to resolve the claim in an agreement, and the Court may make orders on these, this subsection allows regulations to give guidance about what types of matters this could include. 

1.25           Examples of non-native title matters that may be covered by agreement include matters such as economic development opportunities, training, employment and heritage, sustainability, viability, the benefits for parties and existing principles or agreements that might be relevant to in making orders about matters other than native title.

1.26           New subsection 87A(8) allows the Court to take into account any objections made by other parties in deciding whether to make an order under subsection (4) or (5).  This would replicate the effect of existing subsection 87A(5) and would expand it to cover agreements under subsection 87A(5).

Agreed statement of facts

1.27           Consistent with the proposed amendments under s87 to allow the Court to accept a statement of facts agreed by some or all parties to a proceeding in making a consent determination, proposed new subsections 87A(9), (10), (11) and (12) would allow parties to save time in negotiations by allowing the Court, in making a determination for part of an area, to accept a statement of facts agreed by some or all of the parties.  The amendments would allow other parties to the proceeding to agree to the statement of facts or to make objections to the statement of facts.

1.28           The intent behind these amendments is to allow the Court to accept a statement of facts as agreed by the parties, without requiring evidence to be brought before the Court and without the Court needing to make independent inquiries to be satisfied as to the basis of the agreed statement of facts.  The Court could advise parties about what it considers should be contained within an agreed statement of facts, without limiting the ability of the parties to prepare such a statement independently of such advice from the Court.

1.29           New subsection 87A(9) would allow a party, where some or all parties to a proceeding have reached agreement on a statement of facts, to file that statement with the Court.  This would assist the parties and the Court to resolve native title claims more quickly.

1.30           New subsection 87A(10) would require the Registrar of the Court to notify, within 7 days, other parties to the proceeding that the statement has been filed with the Court.  This would allow all relevant parties to know about the statement of facts and allow such parties time to consider whether they will make an objection to the Court about the content of the statement of facts.

1.31           New subsection 87A(11) would set out that the Court has a discretion to accept the agreed statement of facts in making orders under subsections 87A(4) or (5).  This new subsection would also provide that some or all parties to a proceeding may agree to a statement of facts, but that at least the applicant and the principal government respondent must agree to the statement of facts before the Court may exercise its discretion to accept the statement. 

1.32           The principal government respondent could be the Commonwealth, a State, a Territory, the Commonwealth Minister, a State Minister or a Territory Minister depending on the case, including the type of interests or the area of the claim.  Where a claim relates to an area wholly within the limits of a State or Territory, the principal government respondent might normally be that State or Territory, or the State Minister or Territory Minister.  However, this may not always be the case because non-geographical factors may also be relevant in determining the principal government respondent.  For example, the Commonwealth might be the principal government respondent in particular proceedings, such as where a native title claim is made over Commonwealth-owned land.  Where two or more States or Territories, or a State or Territory and the Commonwealth, have significant interests, whether in subject matter or area, the Court could use its discretion and only accept an agreed statement of facts where all major government respondents agree to those facts.

1.33           New subsection 87A(12) would allow any party to the proceeding who did not participate in preparing the agreed statement of facts, or who disagreed with that statement, to lodge an objection with the Court within 21 days of being notified by the Registrar under new subsection 87A(10).  This new subsection would require the Court to consider any objections in deciding whether to accept under subsection 87A(11) an agreed statement of facts.



Schedule 3 - Rules of evidence

 

Overview

Schedule 3 would allow the Commonwealth Evidence Act as amended by the Evidence Amendment Act to apply to native title proceedings which had commenced prior to 1 January 2009.  The amendments to the hearsay, opinion and narrative rules for evidence given by Aboriginal and Torres Strait Islander people are of particular relevance in the native title context.

Only native title proceedings that commence after 1 January 2009 can rely on the recently amended rules of evidence.  The amendments made by Schedule 3 to the Native Title Act would allow the Court to admit evidence in a native title proceeding under the new evidence rules where part of the evidence in the proceeding had been taken prior to 1 January 2009 and either the parties consent to the application of these new provisions, or the Court, after considering the views of the parties, considers it is in the interests of justice for these new provisions to apply.    

Native Title Act 1993

Item 1 - Before section 215

1.1               Item 1 would insert a new section 214 into the Native Title Act.  It would have the effect that the amendments made by the Evidence Amendment Act can apply to native title proceedings which had commenced prior to 1 January 2009 in prescribed circumstances. 

1.2               The Evidence Amendment Act made changes to the Commonwealth Evidence Act which have the potential to greatly assist Aboriginal and Torres Strait Islander people to give evidence in native title matters.  The amendments recognise the manner in which Indigenous communities record traditional laws and customs.

1.3               The Evidence Amendment Act provides that the hearsay rule and the opinion rule will not apply to evidence of a representation about the existence or

non-existence, or the content, of traditional laws and customs of an Aboriginal or Torres Strait Islander group (see sections 72 and 78A of the Evidence Act).  ‘Traditional laws and customs’ of an Aboriginal or Torres Strait Islander group (including a kinship group) are defined to include any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group.  The intention behind these amendments is to make it easier for a court to hear evidence of Aboriginal and Torres Strait Islander traditional laws and customs, where appropriate. 

1.4               The transitional provisions in the Evidence Amendment Act provide that the amendments do not apply to proceedings the hearing of which began before 1 January 2009.  A significant number of native title claims have been lodged with the Court and many of these are in the process of mediation.  For the purposes of the Evidence Amendment Act, a hearing may have commenced as soon as any evidence has been taken. 

1.5               Section 214 would provide an exception to the transitional provisions of the Evidence Amendment Act so that, for the purposes of a native title proceeding that has commenced prior to 1 January 2009, the Court may utilise the new evidence rules in two circumstances.  First, the evidence rules would apply where the parties to the proceeding consent to the amendments applying in relation to the proceeding.  This would require all parties to consider whether their case may be assisted or disadvantaged by the rules and make a decision accordingly.  Where all parties agreed, the Court would be required to apply the new evidence rules.  Second, the Court would have discretion to decide that, having considered the views of all of the parties, it is in the interests of justice for the new evidence rules to apply. 

1.6               This item would cover both substantive hearings and matters where early evidence or preservation evidence has been adduced to or admitted by the Court before a substantive hearing has commenced. 

1.7               This provision is intended to be broad to allow the Court and the parties to make the best use of the new evidence rules.  However, the views of the parties is an important determinant for the Court to consider.  In the first exception, where all parties agree, the Court must automatically apply the evidence rules.  In the second exception, the Court would still be required to have regard to the views of all of the parties.



 

Schedule 4 - Assistance in relation to inquiries etc.

 

Overview

Schedule 4 would extend the assistance provisions to cover all mediations in line with the institutional change in Schedule 1.  Schedule 4 also contains transitional and savings provisions to address current applications in the system.

Native Title Act 1993

Item 1 - Section 183

1.1               Item 1 would repeal section 183 as it is located in Part 6 which governs that NNTT.  The existing section 183 allows for the provision of assistance in relation to inquiries, mediation or proceedings.  This section would be replicated and expanded to apply to all mediations conducted by all mediators.  This section would be relocated to Part 13 under proposed item 2. 

Item 2 - Before section 213

1.2               Item 2 would insert new section 213A.

1.3               Section 213A would replicate the effect of existing section 183 and relocate the provisions to Part 13 of the Native Title Act.  The provision is currently located in Part 6 of the Act which concerns the NNTT.  This amendment would clarify that assistance may be sought in relation to any inquiry, mediation or proceeding, not just those before the NNTT.   The effect of the amendment would be that applications for assistance could be made under the equivalent to 183(1) in relation to a mediation conducted by any mediators under section 86B.  Subsection 183(1) allows for assistance to be sought in relation to inquiries and proceedings, and 183(2) and 183(2A) provides that assistance can be sought in relation to agreements and disputes.  These subsections would be replicated in the new section 213A.

Item 3 - Transitional and savings provisions relating to section 183 of the Native Title Act

1.4                 Item 3 would provide that where an application has been made under current subsection 183(1) for the provision of assistance, but the application has not been determined before this item commences, the application is taken to have been made under the proposed new subsection 213A(1). 

1.5               Item 3 would also provide that where an application has been made under current subsection 183(2) for the provision of assistance, but the application has not been determined before this item commences, the application is taken to have been made under the proposed new subsection 213A(2). 

1.6               Item 3 would further provide where an application has been made under current subsection 183(2A) for the provision of assistance, but the application has not been determined before this item commences, the application is taken to have been made under the proposed new subsection 213A(3). 

1.7               The item would provide that if Attorney-General has authorised the provision of assistance under subsection 183(3) but that assistance has not yet been provided to the applicant before the item commences, the authorisation to provide assistance remains valid under the proposed new subsection 213A(4).  This would prevent the need for re-authorisation of the provision of financial assistance.

1.8               The item would also provide that guidelines determined under subsection 183(4) that were in force before the amendments commence will continue to have effect after commencement as if they were determined under the proposed new subsection 213A(5).  This would prevent the need for a re-determination of the any guidelines provision of financial assistance.

1.9               The item would further provide that a delegation that was in force under subsection 183(7) prior to the commencement of the amendments continues to have effect after commencement as if they were determined under the proposed new subsection 213A(8).  This would prevent the need for a further exercise of this delegation power.



Schedule 5 - Amendments relating to representative bodies

 

Overview

 

Schedule 5 would make amendments to Part 11 of the Native Title Act.  Part 11 deals with representative Aboriginal and Torres Strait Islander bodies.  These bodies are established to perform a number of functions that assist Aboriginal and Torres Strait Islander people to undertake action in relation to native title.

 

In 2007, the Native Title Amendment Act introduced changes to the manner in which representative bodies were recognised and to determine the areas over which they performed their functions.  With the benefit of nearly two years of operation and the experience of administering the process of recogntion of a number of representative bodies in this period, the opportunity is now taken to streamline these processes to allow for more timely and less administratively burdensome arrangements to be put in place.

 

These amendments would:

 

  • repeal all spent provisions relating to the former transition period that ended on 30 June 2007

 

  • provide for the Commonwealth Minister to make written invitations that are individually tailored to a specific eligible body’s circumstances by removing the need for a one size fits all Ministerial determination

 

  • allow for applications for recognition to be made in any form that is convenient for the applicant, as long as all information requested in the invitation is provided

 

  • reduce the time periods in which the Commonwealth Minister must make decisions while allowing for extensions of time to these periods in appropriate cases

 

  • simplify the procedures for recognition of representative bodies and withdrawal of recognition

 

  • reduce the number of processes for varying a representative body’s area from three to a single process that retains the requirement to give notice to bodies and Aboriginal and Torres Strait Islander people who would be directly affected by any variation to an area; the process provides that submissions may be made to the Commonwealth Minister before a decision is made, and

 

  • remove overlapping requirements for assessing matters against fairness criteria.

 



Part 1 - Removal of transitional arrangements

Native Title Act 1993

Items 1- 3 - Section 201A



1.1               The Native Title Amendment Act made amendments that provided for the introduction of fixed terms for recognition of representative bodies.  As a consequence of the changes to recognition periods, extensive transitional arrangements were required to provide for on going recognition of representative bodies that had been recognised prior to the 2006/07 amendments coming into effect.  These transitional arrangements are no longer necessary as the transition period ended on 30 June 2007.

 

1.2               Items 1 to 3 would repeal the definitions contained in section 201A relating to transitional provisions as they are spent.  These include the definition of transitional commencing day , the definition of transitionally affected area , and the definition of transition period .

 

Item 4 - Section 201C

 

1.3               This item would repeal Section 201C, which is related solely to transitionally affected areas, and is no longer necessary as it is spent.

 

Item 5 - Subsection 203A(1)

 

1.4               This item would amend subsection 203A(1) by repealing the reference to subsection 203AA.  This item is consequential upon the repeal of section 203AA at item 6.

 

Item 6 - Section 203AA

 

1.5               This item would repeal section 203AA as it is spent.

 

Item 7 - Subsection 203AB(1)

 

1.6               This item would amend subsection 203AB(1) by omitting a reference to a subsection 203AB(3).  This item is consequential upon the repeal of section 203AB(3) at item 8.

 

Item 8 - Subsection 203AB(3)

 

1.7                This item would repeal section 203AB(3) as it is spent.

 

Item 9 - Subsection 203AC(1A)

 

1.8               This item would repeal subsection 203AC(1A) which makes provision for applications made during the transition period  to be dealt with by the Commonwealth Minister and would insert a new provision. 

1.9               The new provision would require the Commonwealth Minister to determine applications as soon as practicable after one of three events occurs, either:

1.       the initial time for making an application has passed, or

2.       any extended time given under subsection 203AB(2) for making an application has passed, or

3.       the Commonwealth Minister has asked for more information under subsection (1), which extends the time for finalising an application by not less than 21 days.

 

Item 10 - Subsection 203AD(1)

 

1.10           This item would amend subsection 203AD(1) by omitting a reference to a subsection 203AD(1A).  This item is consequential upon the repeal of section 203AB(3) at item 11.

 

Item 11 - Subsections 203AD(1A), (1B), (2), (2A), (2B) and (2C)

 

1.11           This item would repeals subsections 203AD(1A), (1B), (2), (2A) and (2C) as they are spent and would replace them with subsection 203AD(2).

 

1.12           Proposed subsection 203AD(2) would provide that recognition of a representative body is in effect for the period specified in the instrument of recognition.  Recognition would take effect on the date specified in the instrument and cease to have effect on the date specified in the instrument unless the representative body has its recognition withdrawn earlier than the date specified under section 203AH.

 

Item 12 - Saving provision—recognition under subsection 203AD(1A) of the Native Title Act 1993

 

1.13           Item 12 is a savings provision and would operate to the effect that a representative body that was recognised at the time of these amendments coming into effect would continue to be recognised as if the amendments had not been made.  This would mean that the period of recognition of a representative body that was recognised on the day these amendments come into effect will continue for the period specified in the instrument of recognition of the representative body unless its recognition is withdrawn under section 203AH before the specified expiry date in that instrument.

 

Part 2- Recognition of representative bodies

 

Native Title Act 1993

 

1.14           This part would commence immediately after the commencement of the provisions set out in Part 1 of this Schedule.

 

Item 13 - Paragraph 201B(1)(b)

 

1.15           Only an “eligible body” may be invited to apply for recognition as a representative body under section 203A.  Section 201B defines an eligible body.  This item would extend the definition of an eligible body to include at paragraph 201B(1)(b) all representative bodies.  Previously, only those representative bodies that were recognised at the commencement of that paragraph came within the definition.

 

Inviting applications for recognition

 

Items 14 and 15 - Subsection 203A(1)

 

1.16           Section 203A prescribes to whom and the manner in which the Commonwealth Minister may invite applications to be made to an eligible body to apply to be recognised as a representative body. 

 

1.17           Items 14 and 15 would amend subsection 203A(1) and paragraph 203A(1)(a) to remove the requirement that the Commonwealth Minister must “determine” a way in which applicants may be invited to apply for recognition as a representative body.  This change would allow the Commonwealth Minister to make a written invitation tailored to the specific circumstances of the eligible body to which the invitation is addressed.  The effect of these items would be that if an eligible body is already a recognised representative body the invitation may simply ask whether the representative body would like to be considered for recognition for a further period.  In other cases some additional information, such as about continuing workloads may be sought.  Where an eligible body is not recognised, more substantial information may be requested.

 

Item 16 - Paragraph 203A(1)(b)

 

1.18           This item would amend paragraph 203A(1)(b) to reflect the changes to the introductory phrase in subsection 203A(1) included by item 14, which includes the words “in writing”.

 

Item 17 - After subsection 203A(1)

 

1.19           The current process for inviting applications for recognition is considered to be unnecessarily cumbersome and inflexible as the Minister is required to make a “determination” in writing before making an invitation to any eligible body and any determination would then apply to all invitees irrespective of their circumstances. 

 

1.20           Items 17 and 18 would amend subsections 203A(1), (3A), (3B) and (4) and are designed to streamline the invitation process and provide greater flexibility in the making of invitations to existing recognised representative bodies to allow for more timely decision making and reducing the paperwork burden on representative bodies.

 

1.21           This item would insert a provision that would allow the Commonwealth Minister to issue an invitation to an eligible body whether or not there is already a recognised representative body for the area covered in the invitation.

 

1.22           This change would allow the Commonwealth Minister to invite applications in advance of changes to the representative body for an area.  However, a second representative body may not be recognised for the same period as an existing representative body.  The instrument of recognition may be made in advance, but it would specify the date from which the eligible body would be recognised for the area.

 

Item 18 - Subsections 203A(3A), (3B), and (4)

 

1.23           This item would repeal subsections 203A(3A), (3B) and (4) and substitute new provisions. 

 

1.24           Subsections 203A(3A) and (3B) currently provide that the Minister may specify the period for which an eligible body would be recognised in the invitation.  If a period was specified in the invitation, paragraph 203AD(2D)(a) provided that the recognition can only be for the same period specified in the invitation.  The period could be between 1 and 6 years. 

 

1.25           In considering the period to specify for recognition in the invitation the Commonwealth Minister could take into account matters going to the performance of an eligible body.  These matters are the same as those the Commonwealth Minister would subsequently be required to consider in deciding the period of recognition after an application was made and all relevant information was available to the Commonwealth Minister.

 

1.26           It is considered unnecessary for the Commonwealth Minister to make a decision on the period of recognition at the earlier invitation stage.  The changes proposed by this item remove a risk that the Commonwealth Minister could pre-empt a decision on the period for which the applicant body would be recognised by deciding at the invitation stage and on the same grounds the period for which for which an eligible body would be invited to be recognised.  Under the changes proposed by this item, only once all the information in its application is available for consideration will the Commonwealth Minister determine the period for which an eligible body will be recognised.

 

1.27           Proposed subsection 203A(4) would provide that all invitations must specify the information that must be included in the application.  Once a representative body starts to perform its functions, the Commonwealth Minister’s department collects a significant amount of information about the performance of a representative body of its functions.  It is unnecessary for this information to be reproduced at the time the representative body applies for recognition for a further period. 

 

1.28           On the other hand, the Commonwealth Minister may know very little about an eligible body that has not previously been recognised as a representative body, so much more material would be needed to determine whether it could successfully perform the functions of a representative body.  The changes to the process proposed by this item would allow each invitation to be tailored to the specific circumstances of the invitee.

 

1.29           Proposed subsection (5) would specify the information that must be contained in the invitation, which is set out in detail in section 203AA (see under item 19, below).  This would include information advising that an invitation may be revoked before it is determined.

 

1.30           Proposed subsection (6) would provide that an invitation must advise that if the eligible body does not respond to the invitation it will be taken to have given notice that it does not want to apply for re recognition.  See the proposed effect of section 203AAA at Item 19.

 

1.31           Proposed subsection (7) would provide that the Commonwealth Minister may arrange for the publication of general invitations.  This would allow the Commonwealth Minister to publicise invitations to eligible bodies without the need to make a specific invitation to each possible body that may be eligible to apply to be recognised as a representative body.  There would be no special form that the publication must take.  It is envisaged that the invitation will be published in the most appropriate manner to enable eligible bodies in a particular area to receive notice of the invitation.  The method may vary between different communities throughout Australia.

 

Item 19 - after Section 203A

 

1.32           This item would insert two new provisions: section 203AA and section 203AAA.

 

1.33           Proposed section 203AA would allow the Commonwealth Minister to revoke an invitation for any appropriate reason, but only if the period for making an application has not expired.  This would allow for some flexibility if circumstances change after an invitation has been made, for example if a recognised representative body in an adjoining area asks to have its recognition terminated during the invitation period and it is desirable that the invitee be asked to apply in relation to the vacated area. 

 

1.34           Alternatively, a representative body may run into unexpected financial difficulties during the invitation period and it may be considered that it may no longer be able to perform the functions of a representative body or the Commonwealth Minister may require further information or like to consider whether other eligible bodies should also be invited to apply for recognition without delay.

 

1.35           The amendment would mean that if an invitation was revoked, it would be taken never to have been made.  The amendment would provide that an invitation may be revoked by writing to the eligible body individually or by publishing a general notice that the invitation has been revoked.

 

1.36           Proposed section 203AAA would provide that an eligible body to which an invitation has been made under paragraph 203A(1)(b) must notify the Commonwealth Minister in writing if it intends not to apply for recognition.  If the body does not notify the Commonwealth Minister and it does not make an application before the date specified in the invitation it will be taken to have notified the Commonwealth Minister that it intends not to apply for recognition.

 

1.37           This provision allows the Commonwealth Minister to issue an invitation to other eligible bodies without delay to avoid having periods of time where there is no recognised representative body for a particular area.  

 

Application for recognition

 

Item 20 - Subsection 203AB(1)

 

1.38           This item would remove the requirement that an application must be made in the form approved by the Minister, which would introduce the opportunity for information to be provided in a way that best suits the applicant and the Commonwealth Minister.  For example, there are a number of slightly different accounting computer packages on the market and an eligible body may keep its accounts in a particular manner.  This flexibility would allow for the body to readily provide information in a particular format without any additional work on its part.

 

Items 21 and 22 - Subsection 203AD(1)  

 

1.39           These items would insert the words “or areas” into subsection 203AD(1) to make it clear that a an eligible body may be recognised in respect of one or more areas for which it has either been specifically invited to apply or for which it has applied following a general invitation published under subsection 203A(7).

 

Item 23 - Subsection 203AD(2)(b)

 

1.40           This item would insert the words “subject to subsection (3)” into the provision amended by item 11 of Part 1 of this Schedule.

 

Item 24 - Subsections 203AD(2D) and (2E)

 

1.41           This item would repeal subsections 203AD(2D) and (2E).  Proposed section 203AE (see item 26) would provide for the variation of areas for which a recognised representative body is recognised.  A variation made under this section could have the effect that an area for which a representative body was recognised was varied to zero.

 

1.42           As representative bodies are recognised only in respect of specific areas proposed subsection 203AD(3) provides that if a representative body’s area is reduced to zero the recognition of that representative body ceases immediately after the variation takes effect.  Without an area in respect of which to perform its functions the representative body can serve no purpose.

 

Variations to areas take effect on the date specified in the instrument. 

 

1.43           Proposed subsection (3A) would provide that the period of recognition is to be between 1 and 6 years.  This would be no different from the period of recognition that has been available to the Commonwealth Minister in the past, but the amendments would provide more flexibility to the Commonwealth Minister in making a decision as to the appropriate recognition period.

 

1.44           Proposed subsection (3B) would set out the matters that the Commonwealth Minister must take into account in deciding on the period of recognition.  These would include financial matters relevant to the performance of the representative body’s functions and also the appropriate period that would promote the efficient performance of the representative body functions.

 

1.45           Proposed subsection (3C) would provide that the Commonwealth Minister may also take into account information already in his or her possession or in the possession of his or her department.  For example, this could include information that was acquired during the period of recognition of an existing representative body as part of the approval of funding agreement processes for the current or a previous financial year.

 

1.46           Proposed subsection (3D) would provide that subsections (3B) and (3C) do not preclude the Commonwealth Minister from taking into account any other matters that he or she may consider necessary or relevant in deciding the length of the period of recognition.  These may include such considerations such as the volume of work anticipated to be available to the representative body. 

 

Item 25 - Subsection 203AD(5)

 

1.47           This item would inserts the words “or areas” into subsection 203AD(5) to ensure the Commonwealth Minister advises the applicant in relation to all areas for which it applied for recognition.

 

Variation of representative body areas

 

Item 26 - Sections 203AE, 203AF and 203AG

 

1.48           This item would repeal sections 203AE, 203AF and 203AG. 



1.49           Sections 203AE, 203AF and 203AG provide for mechanisms to vary the areas of representative bodies.

 

1.50           Section 203AE provides that the Commonwealth Minister may extend the boundary of an area where there was no representative body adjoining the boundary to be extended.

 

1.51           Section 203AF provides that the Commonwealth Minister may vary the areas for which two bodies were a representative body where the boundaries of the bodies adjoined.  If one area was extended, the adjoining area would be affected.  For example if area A was extended then adjoining area B would be reduced by the same area as the extension to area A.  If area A was reduced then, if there was an adjoining area, area B would be extended.  The Commonwealth Minister could make the changes at the request of the bodies affected or on her own initiative.  In the case of Section 203AF, both adjoining bodies have to make the request jointly. 

 

1.52           Section 203AG allows the Minister on his or her own initiative to reduce an area if in his or her opinion the existing representative body was not performing its functions satisfactorily.

 

1.53           If an area was extended or varied on the request of the relevant representative body or bodies, no notification to third parties was required.  In all cases where the proposed change was to be made on the Commonwealth Minister’s own initiative, he or she was required to notify the public of any changes proposed and invite submissions.  This would include circumstances where the Commonwealth Minister wanted to change a boundary between adjoining representative bodies’ areas and they did not jointly request a change.

 

1.54           In making an application to have its area varied, a representative body was required to determine which section was to apply.  After receiving submissions the Minister may have wanted to vary adjoining areas to make the best decision, but the legislation was not sufficiently flexible to allow this to occur in a timely way.  The consultation period, in aggregate, was 120 days, which also prevented timely responses to requests.

 

1.55           These existing provisions would be replaced with a single process for making a variation to the area over which a representative body performs its functions.  This will apply irrespective of how the area is to be varied. 

 

1.56           Under the proposed changes an area may be varied for any reason, either at the request of relevant representative body or bodies or on the Commonwealth Minister’s own initiative.  The submission period must be specified but it must be at least 60 days.  After this time the Commonwealth Minister will be required to consider the submissions of persons or bodies who would be directly affected by any change.

 

Commonwealth Minister may vary an area for which a body is the representative body

 

1.57           Proposed subsection 203AE(1) would provide that the Commonwealth Minister may vary an area for which a body is the representative body.  Variation would be made by legislative instrument.  The variation may only be made if the Commonwealth Minister is satisfied that the body will satisfactorily perform its functions in relation to the varied area, unless subsection (4) applies, where the area is varied to zero and then this criterion need not be met.

 

Variation to add the whole or a part of another area

 

1.58           Subsection 203AE(2) would provide that any variation can only be made in respect of adjoining areas.  This means that if an area is extended the final result can only be one larger single area and one smaller adjoining area; in doing this subsection 203AE(3) provides that the variation can result in an adjoining area being eliminated entirely.

 

1.59           For example, area A (the original area ) may be extended in only those directions where it shares a boundary with area B (the additional area ).  There cannot be a variation that results in a representative body’s area being extended to include an area with which it would not share a boundary after the variation.  It is possible that after the variation there remains only one area, ie area A is extended into area B as far as all the outer boundaries of area B.  This would result in only one area, area A, remaining.  The representative body for area B would cease to be recognised by operation of proposed section 203AE(3).  Subsection 203AE(4) would specify that in these circumstances the provisions of subsection 203AE(1) do not apply, which is the logical outcome given that only one area and one representative body will remain.

 

1.60           Area A may also be extended where it shares a boundary with another area, area C, but that would require separate a variation process as there would be two variations to area A.  It is possible that after both variations are completed only one area, area A, may remain.  The variations would be given effect by a legislative instrument that reflected that two separate variations were being made to area A and one variation each to areas B and C.

 

1.61           Proposed subsection (5) would allow the Commonwealth Minister to vary an area for which a body is the representative body either on an application of that body to the Minister or on the Commonwealth Minister’s own initiative.  If a representative body’s request would affect an adjoining area for which there is a representative body then both bodies would have to request the change.  If a request is not made by both bodies that would result in an agreed outcome the notification process in section 203AF would apply.

 

1.62           Proposed subsection (6) would provide that if an application is made by the relevant representative body the Commonwealth Minister may vary the area as appropriate.  The Commonwealth Minister is not required to vary the area in the manner requested or if it would not be appropriate to do so. 

 

1.63           Proposed subsections (7) and (8) would provide that in considering whether to vary an area the Commonwealth Minister may take into account a variety of information including matters relating to the financial affairs of the body and any information in the possession of the Minister or the department that is relevant to the variation.  Over the period that a representative body is recognised it is required to provide a number of reports and plans to the Commonwealth Minister or the department regarding its operations and conduct of cases.  The information in reports such as these could be relevant to the Commonwealth Minister’s decision.  Information provided to the Commonwealth Minister from persons affected by the performance of its functions by the representative body may also be relevant.

 

1.64           Proposed subsection (9) would require the Commonwealth Minister, before making a decision on whether or not to vary an area, to take into account any submissions made by affected parties if they were made within the time allowed under subsection 203AF(6).  This section would not apply to variations made at the request of all the representative bodies whose area will be varied.

 

1.65           Following consideration of submissions the Commonwealth Minister may vary an area as proposed initially or in a different way.  If the Commonwealth Minister decides to vary an area the variation takes effect either on the day on which the legislative instrument is made or on a date specified in the instrument: see proposed subsection (10).

 

Notification requirements for the variation of area on the Commonwealth Minister’s own initiative

 

1.66           Proposed section 203AF would detail the requirements for notifying relevant bodies and persons if the Commonwealth Minister is considering whether to vary an area where there is no request from the representative body for that variation.

 

1.67           Under existing provisions the representative body that would be affected is notified and a notice to the public is required.  In the main members of the general public are not affected by any changes to representative body areas.  However, members of the Aboriginal and Torres Strait Islander community for whom the representative body performs its functions will be directly affected.  In some cases individual members of these communities may be affected differently from the majority of the community and may wish to provide their own comments to the Commonwealth Minister.

 

1.68           Proposed subsection 203AF(1) would provide that (subject to the exception in subsection (7), see paragraph 1.76) each of the persons or bodies listed must be notified that the Commonwealth Minister is considering varying an area on the Minister’s own initiative.  They may then make a submission which the Commonwealth Minister must take into account before making a decision.

 

1.69           Proposed subsection 203AF(2) would have the effect that the representative body for the area that is being considered for variation and any representative body for an area that has a boundary that would be changed as a consequence of the change to the first area that adjoins the area that is to be varied must be notified individually in writing and advised that they make a submission on whether the area should be varied.  Relevant Aboriginal people and Torres Strait Islanders must also be notified.  There would also be a requirement to publish a notice in a newspaper(if any) that circulates in the area to be varied advising that consideration is being given to varying an area or area so that members of the public are aware that changes may be made

 

1.70           Proposed subsection 203AF(3) would provide that there is no requirement that the notification to Aboriginal and Torres Strait Islander people must be made to each individual.  This notification need not be in a newspaper but may be for example on a community notice board or on an appropriate website.  However the publication of any general notification would need to bring the proposed variation to the attention the persons who may be affected by any variation.

 

1.71           Proposed subsection 203AF(5) would require that this notice must state that an Aboriginal or Torres Strait Islander living in the area to be varied may make submissions within the period specified in the notice to the Commonwealth Minister about whether the area should be varied. 

 

1.72           The combined effect of these provisions would be that the Aboriginal people or Torres Strait Islanders who live in the area that is to be varied and areas that may be varied as a consequence of a variation to another adjoining area must also be notified.  It could be contained in a separate part of the notice that would be made under subparagraph 203AF(1)(a)(iii).

 

1.73           Subsection 203AF(4) would specify the information that must be contained in any notice to the representative bodies.  It must identify the variation that is being considered.  The notice must state the reasons why the variation is being considered and it must state that the body may make submissions about whether the area should be varied to the Commonwealth Minister within the period specified in the notice.

 

1.74           Proposed subsection 203AF(6) would provide that the period for making submissions must be at least 60 days from the date of the notice.

 

1.75           Proposed subsection 203AF(7) would provide an exception to the notification requirements if prior notification has already been given to the representative body whose area is to be varied as a result to the relevant variation process.

 

Notice of decision on variation

 

1.76           Proposed subsection 203AG(1) would provide that following the making of the decision, the Commonwealth Minister must notify all the relevant representative bodies of the decision.  The representative body whose area was varied and any body whose area adjoins the varied area must be notified individually in writing.  It will be sufficient in relation to persons or bodies other than these that a notice of the decision is published in an appropriate manner that would bring it to the attention of persons who may be affected by the change: see subsection 203AG(2).

 

Items 27, 28, 29, 30, 31, 32, 33 and 34 - Section 203AH

 

Withdrawal of recognition

 

1.77           Section 203AH prescribes the circumstances in which recognition may be withdrawn from a recognised representative body.  Subsection (1) provides for mandatory withdrawal of recognition and subsection (2) provides discretionary grounds.  The proposed amendment under these items would remove the previous more cumbersome process and replace it with a more streamlined one to be inserted in new subsection 203AH(1A).

 

1.78           Subsection 203AH(1) provides that the Commonwealth Minister must withdraw recognition in circumstances where the body has ceased to exist or the body makes a written request for its recognition to be withdrawn.  A request by a representative body for its recognition to be withdrawn only applies if the request was authorised by a meeting of the body open to all its members and evidence of this is included in the representative body’s request to the Commonwealth Minister.

 

1.79           It is considered to be undesirable that the legislation prescribes a particular manner in which the representative body obtains authorisation for its request.  Instead it is considered to be sufficient that any authorisation is given in accordance with the usual procedures and process of the representative body for making decisions of this kind.  It would be expected that where it is necessary for members to be consulted the representative body should be satisfied that they understand and consent to any course of action that the representative body takes on their behalf in relation to its continued recognition.

 

1.80           Item 28 would insert a new subsection 203AD(1A), which proposes that any request for withdrawal or recognition must be accompanied by a signed statement that the request for withdrawal of recognition is accompanied by a statement that the request is authorised in accordance with the body’s own procedures. 

 

Items 29, 30, 31 and 32 - Subsection 203AH(3)

 

1.81           Subsection 203AH(2) provides that the Commonwealth Minister may withdraw recognition if the representative body is not satisfactorily performing its functions or there are serious or repeated irregularities in the financial affairs of the body.  Subsection 203AH(3) provides that the Commonwealth Minister is required to notify the representative body that withdrawal is being considered.  This item amends paragraph 203AH(3)(b) to provide that the notice must be accompanied by a statement that the body may make submissions to the Commonwealth Minister about whether its recognition should be withdrawn.  The period for making submissions is 30 days.  Proposed new subsection 203AH(3A) will allow the Commonwealth Minister to extend the period for making a decision if the representative body applies for an extension in writing before the expiration of the 30 day period.

 

Item 33 - At the end of subsection 203AH(4)

 

1.82           Subsection 203AH(4) provides that the Commonwealth Minister may consider certain material in deciding whether to withdraw recognition.  In addition to matters that were previously considered this item would add new paragraph (d) to enable information in possession of the Minister or the department that is relevant to the decision to also be taken into account. 



1.83           This provision would give notice to the representative body that any information previously provided to the department may be taken into account and it would also allow the representative body to refer to that information without the need to go to the time and expense of providing information already available to the Commonwealth Minister or the department.  Information provided by affected persons for whom the representative body performs its functions would be considered.  The rules of natural justice would apply to any decision.



Item 34 - Subsection 203AH(6)

 

1.84           This item would insert paragraphs (a) and (b) which would have the effect that the Commonwealth Minister must take into account any submissions made by the body within the original period specified in the notice or within any extended period granted by the Commonwealth Minister.



Matters to which the Commonwealth Minister must have regard

 

Item 35 - Subsection 203AI(1)

 

1.85           Subsection 203AI(1) provides that in making any decision under this Division the Commonwealth Minister must have regard to certain matters relating to the satisfactory performance by a representative body of its functions specified in the Act.  Subsection (2) describes the matters that should be taken into account in assessing fairness. 



1.86           Section 203BA(2)(c) deals with how functions of representative bodies are to be performed which includes criteria relating to fairness of processes and governance.  It is considered that there is an undesirable overlap between these two provisions and it is unnecessary to repeat these in the context of applying fairness criteria in relation to recognition of representative bodies and the area over which they perform their functions.



1.87           This item would amend subsection 203AI(1) to require that the Commonwealth Minister must be satisfied that a representative body meets the criteria set out in section 203BA.  Section 203BA specifies how a representative body is to perform its functions.



Item 36 - Subsection 203AI(2)



1.88           This item would repeal subsection 203AI(2) as it is no longer necessary.



Item 37 - Paragraph 203BA(2)(c)



1.89           This item would amend subsection 203BA(2)(c) to include matters previously contained in subsection 203AI(2) that were not included in paragraph 203BA(2)(c).



Item 38 - Subsection 203FC(5) (definition of former area)



1.90           Item 38 would amend the definition of former area in subsection 203FC(5) to make it clear that this section it refers to a whole or part of an area.



Application - sections 203AE, 203AFand 203AG of the Native Title Act

 

Item 39 - sections 203AE, 203AF and 203AG of the Native Title Act



1.91     Item 39 contains savings provisions in relation to new sections 203AE, 203AF and 203AG.  In the event that at the time of commencement of these amendments any matters relating to extension, variation or reduction of a representative body area are outstanding, the provisions of sections 203AE, 203AF and 203AG that were in force prior to the commencement of these amendments would apply to those decisions.

 

 



Schedule 6 - Other amendments

 

Overview

Schedule 6 would make minor and technical amendments to improve or clarify the operation of existing provisions in the Native Title Act.

Schedule 6 would:

·          clarify that the Court is required to make a determination about whether a native title determination is to be held on trust or by a PBC at the same time as, or as soon as practicable after, making a determination that native title exists in an area

·          simplify the provisions about cancelling bank guarantees held as payments under a RTN process.  This would avoid unnecessary banking costs to future act proponents

·          amend the provisions that govern trust arrangements under alternative State and Territory regimes.  Section 43 of the Native Title Act enables a State or Territory to establish right to negotiate procedures that may operate to the exclusion of the provisions in the Act.  The Native Title (Technical Amendments) Act had intended to include new provisions to allow these alternative regimes to use bank guarantees in addition to trusts.  However, the trust option was mistakenly removed and this Schedule would reinsert provisions about trusts to restore the option of using either for the purposes of compensation payments to be held under the right to negotiate provisions.  These amendments would ensure existing alternative trust regimes are valid, and

·          clarify the penalty provisions.

Schedule 6 would also correct typographical errors.

Part 1—Amendments

Native Title Act 1993

 

Item 1 - Paragraphs 28(2)(a) and (b)

1.1               Item 1 would repeal existing paragraphs 28(2)(a) and (b) and replace them with new paragraphs.  Section 28 provides that where there has been a failure to comply with the RTN processes outlined in paragraphs 28(1)(a) to (h) the act will only be invalid to the extent that it affects native title. 

1.2               Subsection 28(2) provides further qualifications to subsection 28(1).  Subsection 28(2) provides that even where the processes under paragraphs 28(1)(c) to (h) are met, the act may nonetheless be invalid where the Government party, in the situation where an amount is to be secured by a bank guarantee in favour of the Registrar, informs the Registrar that it no longer proposes to do the act, but the Government party does the act anyway without complying with the requirements in the Subdivision. 

1.3               Item 1 would replicate the effect of existing subsection 28(2) and expand the scope to include cases where an amount is secured by either a bank guarantee or is held in trust by the Registrar.  The Native Title (Technical Amendments) Act had intended to give the States and Territories an option of utilising either a bank guarantee regime or a trust regime, however, the trust option was mistakenly removed in that Act.

 

Item 2 - After subsection 36C(5A)

1.4               Item 2 would include a rule for conditions about payments that are to be held on trust.  The rule would apply where there is a condition in a ministerial determination that an amount is to be paid and held in trust.  This item would restore the option for States to secure an amount by either a trust or bank guarantee and therefore would amend the subsection to cover both options.  The trust regime option was mistakenly removed in the Native Title (Technical Amendments) Act.  States and Territories would then be able to use either a trust regime or a bank guarantee regime and comply with either the trust condition or the bank guarantee condition.

 

Item 3 - At the end of section 41

1.5               Section 41 sets out the effect of an arbitral body determination or an agreement made in accordance with the RTN provisions.  Broadly the negotiation parties and all members of an affected native title claim group are bound by any conditions in such a determination or agreement as if it were a contract between them.  Item 2 relates to the situation where a condition of a determination by an arbitral body is that an amount be held on trust.  Such an amount must be determined by the arbitral body and held in trust until dealt with in accordance with section 52A of the Native Title Act.

1.6               Item 3 would add subsection 41(5) to reinsert the trust condition mistakenly removed in the Native Title (Technical Amendments) Act.  States and Territories would then be able to use either a trust regime or a bank guarantee regime and comply with either the trust condition or the bank guarantee condition.

Item 4 - After subsection 42(5A)  

1.7               Item 4 would insert a new subsection 42(5B) to reinsert the trust condition mistakenly removed in the Native Title (Technical Amendments) Act.  States and Territories would then be able to use either a trust regime or a bank guarantee regime and comply with either the trust condition or the bank guarantee condition.

 

Item 5 - Paragraph 43(2)(j)

1.8               Proposed paragraph 43(2)(j) would provide that alternative State and Territory regimes will have the option of providing for a bank guarantee or a trust regime for the purposes of compensation payments to be held under the RTN provisions.  Currently, only the option of a bank guarantee is specified in the provision.  The exclusion of the trusts option was mistakenly removed in the Native Title (Technical Amendments) Act. 

1.9               Proposed paragraph 43(2)(j) would prevent alternative State regimes that only provide a trust regime from being found invalid for the sole reason that they do not provide a bank guarantee option.  Under this amendment any doubt about the validity of any pre-existing State trust regimes would be removed. 

 

Items 6-8 - Subsection 52(2) (paragraph (a), (b) and (c) in column 3 of table item 5)

1.10           Subsection 52(2) of the Act provides for a bank guarantee regime for payments held under a RTN process.  The amount secured by bank guarantee in effect provides security for any compensation that may be determined to be payable to native title holders in the area affected by a future act.  Subsection 52(2) outlines what is to happen to the bank guarantees in various scenarios.

1.11           Where a sum less than the amount of money that has been secured by the bank guarantee is to be paid as compensation, the Registrar is required to call on the bank to pay the full amount of the guarantee to the Registrar.  The Registrar is then required to distribute the money as follows:

·          First, to pay an amount equal to the compensation amount that was determined to the native title holders, and

·          Second, to pay the remainder to the person who secured the original amount by bank guarantee (that is, the future act proponent).

1.12           This means that the full amount of the guarantee needs to be drawn despite the fact that a portion of the drawn funds will be directed back to the future act proponent.  This results in unnecessary cost to the future act proponent.

1.13           The amendments in items 6-8 would provide that the Registrar should call for the amount required to satisfy the compensation amount to be drawn.  The Registrar would then request the bank to cancel the guarantee, which would return the remainder to the future act proponent.  This would avoid unnecessary banking costs to future act proponents.

 

Item 9 - After section 52

1.14            Proposed section 52A replicates the effect of section 52 of the NTA as it was enacted prior to it mistakenly being removed in the Native Title (Technical Amendments) Act.  Section 52A would set out how a trust regime for payments held under the RTN process operates in a range of circumstances where an alternative State or Territory regime has a trust regime.

 

Items 10-12 - Section 55

1.15           Section 55 provides that if the Court proposes to make a determination of native title and the determination is that native title exists at the time of making the determination, the Court must as soon as practicable afterwards make the determinations in section 56 and 57.  Section 56 involves a determination by the Court about whether native title is to be held on trust and if so, by whom and section 57 involves the determination of a PBC if the section 56 determination was that native title was to be held on trust by a PBC. 

1.16           In practice, the Court often makes a determination that native title exists, but that it does not come into effect until a PBC is registered.  This raises a question about whether a determination of native title can be made prior to a determination being made under section 56 or 57.  This amendment would add the words ‘as soon as practicable after’ to the timing requirement on the Court and therefore avoid concerns about determinations when a section 56 or 57 determination is not made at the same time as the native title determination. 

 

Item 13 - Paragraph 66C(1)(c)

1.17           Paragraph 66C(1)(c) currently provides that paragraph 94C(1)(c) must be satisfied before the Registrar may advise the Registrar of the Federal Court of facts in relation to certain applications relating to future acts.  The amendment would omit the term ‘in relation to the applicant’ and insert ‘for each future act identified in the future act notice referred to in that paragraph’.  The current term is not accurate as it should refer to the future act identified in the future act notice, not the applicant.  The amendment would replicate the wording in paragraph 94C(1)(c).

 

Item 14 - Subsections 171(1) and 172(1) (penalty)

1.18           The item 14 amendments would replace existing references to ‘Maximum Penalty’ with ‘Penalty’, in accordance with Drafting Direction 3.5 issued by the Office of Parliamentary Counsel, which states that this change should be made if offence provisions are amended.

 

Item 15 - Section 173 (penalty)

1.19           The amendments to the offence provisions would replace existing references to ‘Maximum Penalty’ with ‘Penalty’, in accordance with Drafting Direction 3.5 issued by the Office of Parliamentary Counsel, which states that this change should be made if offence provisions are amended.

 

Item 16 - Subsections 174(1) and 176(1) (penalty)

1.20           The amendments to the offence provisions would replace existing references to ‘Maximum Penalty’ with ‘Penalty’, in accordance with Drafting Direction 3.5 issued by the Office of Parliamentary Counsel, which states that this change should be made if offence provisions are amended.

Item 17 - Section 177 (penalty)

1.21           The amendments to the offence provisions would replace existing references to ‘Maximum Penalty’ with ‘Penalty’, and reflect OPC Drafting Direction 3.5, which states that this change should be made if offence provisions are amended.

Part 2 - Application etc. provisions

Item 18 - Application of amendment

1.22           Item 18 provides that item 5 of Schedule 6 applies in relation to both a situation where the Minister has made a determination under paragraph 43(1)(b) that alternative State or Territory provisions comply with the Native Title Act after the commencement of the item, and also a situation where the Minister revokes such  determination, regardless of whether the determination was made before or after item 5 commenced.

Item 19 - Validation etc. of pre-commencement determinations              

1.23           Item 19 provides that a determination made under paragraph 43(1)(b) before the commencement of this item is valid, and is taken to have always been valid, as if the determination had been made with the proposed amendments to paragraph 43(2)(j) being in force at that time.  The effect of this item would be that the mistaken repealing of the trust regime option in paragraph 43(2)(j) by the Native Title (Technical Amendments) Act would not affect the validity of such a determination.