Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
02/05/2007
Native Title Amendment (Technical Amendments) Bill 2007

CHAIR —I now welcome Mr Graeme Neate and Mr Christopher Doepel of the National Native Title Tribunal. Good afternoon, gentlemen, and thank you very much for being here. The National Native Title Tribunal has lodged submission No. 4 with the committee. Do you wish to make any amendments or alterations to the submission?

Mr Neate —No.

CHAIR —For the record, I remind senators that the Senate has resolved that an officer of a department of the Commonwealth or of a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of them to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. Officers of the department are also reminded that any claim that it would be contrary to the public interest to answer a question must be made by a minister and should be accompanied by a statement setting out the basis for the claim. I now invite you to make a short opening statement, at the conclusion of which I will invite members of the committee to ask questions.

Mr Neate —The National Native Title Tribunal thanks this committee for the opportunity to appear in relation to its inquiry into the Native Title Amendment (Technical Amendments) Bill 2007. I appear today with the Native Title Registrar, Mr Christopher Doepel, some of whose functions under the Native Title Act 1993 will be affected by certain amendments to be made by this bill. The tribunal made a written submission to this inquiry. It has been numbered 4 by the committee. That submission refers only to one of the proposed amendments to the Native Title Act.

In summary, the tribunal submits that the proposed internal review of registration test decisions by the registrar or his delegates should be conducted by members of the tribunal rather than by the registrar or his delegates. Such a tiered process for internal review would be akin to the scheme in the original Native Title Act. The registrar can inform the committee of the practical implications of the proposed internal review process as set out in the Native Title Amendment (Technical Amendments) Bill 2007.

The tribunal’s submission also refers to a matter that is not contained in the technical amendments bill. It relates to an apparent drafting defect in section 94C which was inserted into the Native Title Act by the Native Title Amendment Act 2007. Because of the way in which section 94C is drafted, it apparently would not apply to native title claimant applications that were lodged in response to a section 29 notice given before 30 September 1998 and registered in the two months when the notice was given, or to applications lodged in response to a South Australian future act notice and registered in the two months when that notice was given. The tribunal understands that these omissions are inconsistent with the original policy intent of section 94C.

As this committee knows, the Native Title Amendment Act 2007 commenced on 15 April 2007. Since appearing before this committee in relation to that bill on 30 January this year the Native Title Registrar and I, together with members and employees of the tribunal, have been busy preparing for the implementation of that legislation. We have prepared and are preparing various guidelines and other procedures for members and employees of the tribunal.

Tribunal members have considered the criticisms of the tribunal made in submissions to the committee about your inquiry in relation to the Native Title Amendment Bill 2006. We have revised and improved our induction and professional development program for members. Independently of, but concurrently with, the legislative reforms, the tribunal has developed and is implementing a new case flow management scheme to ensure that the hundreds of claimant applications in the system at any one time are assessed, managed and progressed in a process that is more transparent to the parties and the Federal Court. The tribunal recently responded to the draft best practice guidelines for parties and their representatives undertaking mediation in the National Native Title Tribunal, prepared by the Attorney-General’s Department and referred to in paragraph 2.7 of the submission of the Attorney-General’s Department—submission No. 6 to this inquiry.

Discussions continue with senior representatives of the Federal Court about improving the working relationship between the two institutions. Those discussions have addressed such issues as possible practice directions of either or both institutions and forms of reports from the Native Title Registrar and the tribunal to the court about specific matters. Both institutions are preparing joint presentations to stakeholders about the amended claims resolution scheme.

In quite tangible ways, the first wave of reforms has commenced. Importantly, the Native Title Registrar has taken the first formal steps to implement his obligation in relation to registration testing approximately 118 current native title claimant applications by writing to each claim group and their representatives. He hopes to make the first reports to the Federal Court by 30 June 2007 in performance of his new functions in relation to some 147 claimant applications made in response to future act notices.

To put those figures in perspective, there are currently 537 claimant applications somewhere in the system. They comprise 37 per cent of the 1,453 claimant applications made since the Native Title Act commenced on 1 January 1994. The 118 applications that have to be registration-tested as a result of the recent amendments are 22 per cent of the current total. The 147 applications made soon after the publication of future act notices, and about which the registrar may report to the court, comprise 27 per cent of current claims. In other words, since the amendments commenced on 15 April this year, work is underway by the registrar in relation to about half the claims. It is with that work already in train that we appear before this committee to answer any questions about aspects of the next raft of reforms.

CHAIR —Thank you for that. Mr Doepel, do you have any comments in addition?

Mr Doepel —I will just respond to questions.

Senator CROSSIN —Mr Neate, going to your submission and your work in this area, have you raised the deficiencies in the drafting of section 94C with the department?

Mr Neate —Yes. This was a matter of discussion or communication with the department in relation to the draft bill. I do not have that correspondence in front of me, but it was raised with officers of the department prior to this submission and indeed in relation to the drafting of the bill.

Senator CROSSIN —And do you have a response from them?

Mr Neate —Not before me, although we did receive a response by email from an officer of the department.

Senator CROSSIN —Are they happy to pick up this deficiency or are there still problems?

Mr Neate —I think you would have to ask the department that. I cannot speak for them in that respect.

Senator CROSSIN —We will do that. There is another issue I want to raise. You have suggested to us that the reconsideration of a decision not to register a claim should in fact be conducted by another member of the tribunal rather than by the registrar.

Mr Doepel —That is the substance of our submission; that is correct.

Senator CROSSIN —Is that a bit like what happens with a Centrelink appeal, where your first court of appeal is somebody else inside the office who looks at where there might be a problem before it goes to a higher or more senior person?

Mr Doepel —I think the proposal as contained in the amendment bill is probably closer to the internal review mechanisms that you might find in Centrelink or other Commonwealth departments and agencies—that is, an appropriate delegate or authorised officer within the agency has a second look. That is how the proposal has been crafted in the current bill. What we are suggesting is that we have a qualitative difference to that so that it would not be my office—in practical terms, a delegate of mine, a delegate of the registrar—but a different kind of statutory officer or delegate who would be vested with the responsibility of carrying out the review. In making that suggestion, I think our brief submission speaks for itself. I think it would assist with perceptions about independence of the review and it would go to allay some concerns in some quarters about whether the review decision was at arm’s length and was qualitatively differently carried out.

Senator CROSSIN —Should that person have a law degree?

Mr Doepel —That is a leading question! In my experience of delegates who have been working for me over the years, there have been some without a law degree who have done a very good job indeed. Simply having a law degree I do not think necessarily makes you qualitatively better; it is your basic understanding of how to apply administrative decision making. In that respect, I do not think we are that different from a lot of agencies, in that we deal with reasonably complex criteria under a legislative scheme and you have a variety of backgrounds and experience being brought to bear in the decision makers. One thing about having a person with a law degree or legal qualifications may be that they can work through some of the fundamental concepts and the statutory constructions a bit more quickly and efficiently. But a lot of it comes down to some very practical application of the fundamental rules in, say, the merit provisions of the registration test with the factual circumstances that are presented by the applicants and their representatives to meet those criteria.

Mr Neate —Senator Crossin, if it would assist you and other members of this committee, I can advise that, of the 11 members of the tribunal who currently hold commissions, six are qualified lawyers. The three presidential members—me and my two deputy presidents—are required under the statute to be legal practitioners in order to be presidential members. But three of our other members are also legally qualified. If there were to be that qualification, we have the strength and depth of membership to perform that function.

Mr Doepel —I have a delegates pool that varies in numbers because I have some full-time delegates allocated to the registration job and others who come from other parts of the organisation to supplement that capacity as needed. Just off the top of my head, I would say three-quarters of those delegates at any one time are people who have law degrees or some legal studies background. That is the core of the delegates pool. Most of them have legal qualifications.

Senator CROSSIN —Can I also ask you about the requirement now to prove, I think, that there has been some sort of agreement—the authorisation decision-making process. Will that require tribunal members to also check that that verification is accurate?

Mr Doepel —Are we talking in relation to the registration, or general mediation?

Senator CROSSIN —I am talking about the new proposed item 72, to amend section 62.

Mr Doepel —Excuse me for a moment; I am just conferring with the president. We will just make sure we know exactly which provision you are referring to.

Senator CROSSIN —It is the application.

Mr Doepel —Sorry—which item?

Senator CROSSIN —It is the new amendment section 62(1)(a).

Mr Neate —Would you bear with us—we need to read this in the context of the amended part.

Mr Doepel —Okay, we have located the provision. Senator, would you like to repeat your concern?

Senator CROSSIN —Submissions are put to us that this is another onerous burden on them to get proof of the authorisation for the decision-making process, when schedule R of the current application form already requires proof. Is this going to create more work for your tribunal? That is really what I am asking.

Mr Doepel —The short answer is that it will create less work if that provision is complied with. One of the issues that my delegates have to deal with, particularly around authorised applications, is having to sort of peer below the meniscus layer of the application to see what is going on around the claimant group and around the processes of authorisation.

Senator CROSSIN —Do you have to check that currently?

Mr Doepel —Sometimes we have insufficient information, and we proceed on the basis that we do have some duty to inquire, and we go back to applicants and their representatives and say, ‘It is not quite clear what was going on at that authorisation meeting; can you provide some further details?’ I have to say that some of the affidavits that come in are very sparing in describing what has been going on in authorisation and the arrangements that were being made, and I think it is fair to say that, historically, information has, in some instances, been light on.

Senator CROSSIN —How is this going to change that, though?

Mr Doepel —If there is an express requirement to set out the details of the processes of decision making, we will, I think, have more evidence before us of what the authorisation processes were.

Senator CROSSIN —Do you think the changes in this bill will be able to be done within the current resources of the NNTT, given the criticism that has been made in recent months?

Mr Doepel —Are you talking about the registration changes or all the reforms?

Senator CROSSIN —All of them.

Mr Neate —In respect of the reforms generally, we are proceeding on the basis that we will attempt to implement those and should be able to implement them using our current resources. I may have mentioned on a previous occasion before this committee that, depending on how some of the reforms are taken up—particularly, for example, requests for inquiries or reviews of material in relation to people’s claims—we will assess, as the demand for those sorts of functions increases, whether we need additional resources. Those might be by way of additional members being appointed to the tribunal or redeploying staff or, indeed, engaging additional staff of the tribunal. But at this stage we have no reason to think we cannot administer the reforms with the existing resources.

It will take, as you might appreciate, Senator Crossin, some time for the impact of a number of these reforms to take effect. I indicated in my opening statement that the registrar is off and running, as he is obliged to be under the statute, in performing a range of his functions. He has put a lot of resources into those and will do so over the next 12 to 18 months. Not only will that create some additional demand within our organisation; it will also create some demand with representatives of claim groups in reassessing and perhaps revising or amending and providing additional information for the re-registration tests. So there may well be a resources hump, if I can put it that way, over the next 12 to 18 months, for implementing some of these reforms. But overall we have neither sought nor anticipated the need for additional resources in the immediate future.

Mr Doepel —I can give you a practical example of difference in resource requirements. For the current financial year, 2006-07, we estimate that through my office we will have concluded some 55 to 60 registration test decisions with these waves of amendments. In the tail end of this financial year, coming into the new financial year—the next nine to 12 months—we estimate that we will have to acquit some 125 to 130 decisions. In other words, we will have to double the quantity of decision making, and we have already recruited and are putting in place delegates and support staff to deal with that volume of work.

Senator SIEWERT —I would like to ask a similar question to Senator Crossin’s question about section 64 issues, but relating it back to the reconsideration by the registrar. Have you raised this particular issue with the department?

Mr Doepel —Yes we have.

Senator SIEWERT —And?

Mr Doepel —I think it would be fair to say that initially we were not overly keen on the reconsideration option, but we could see, particularly as there was discussion of perceptions of my office coming through in early hearings and evidence, that it might have some benefit. So we thought that it was probably a good idea, although we did say in a formal response that how this was actually done was a matter of policy. On reflection, I think it probably is a good idea. I think it all has to be seen in perspective, and I have got some interesting facts and figures here about registration testing and the volume and the rate of review by the courts, which I will give you in a moment to give you the flavour of it. So it probably is a good idea; it will certainly deal with perceptions about having the reconsideration done around my common group of delegates.

As a matter of practice, most of my delegates are located in one office. They are in Sydney. We are not a large organisation. We only have 230 full-time equivalent employees, unlike Centrelink or Immigration, where you can have internal review officers in other parts of the organisation because the volume of matters being reviewed is far greater. We do not have the huge office and employee infrastructure to do that, so I manage most of this out of Sydney with supplementation around the other regional registries as required. The advantages of that are that you get a collegiate atmosphere, and given this is a particular area—a peculiar area of the law, in a sense—you get a common understanding developing over time amongst those people who have the job of carrying out the registration test.

It might interest you to know, though, that we have to see overall numbers as a context. Since 1998 we have applied the registration test in 1,058 matters. Some 713 matters in that number have been accepted and placed on the Register of Native Title Claims, and some 345 matters in that time have failed. At any one time, I would probably have only two or three matters on judicial review to the Federal Court. In some years and some months I have none for a period. If you add the Wakaman matter, we have had three matters before the Federal Court in recent times, and we expect to do 55 to 60 registration tests in the current financial year. Three out of 60 is one-twentieth, so five per cent or fewer matters are being tested on judicial review.

I can probably provide the committee with some clearer statistics on this and I will undertake to do that. But you will probably find that, historically, throughout the nine years or so that we have been applying the registration test, the percentage of judicial review has been relatively low. In over half the matters, the court elects not to set our decisions aside. I do not contest these matters. I follow the Hardiman principle; I submit to the jurisdiction of the court and take what the judges tell us is to be the laws application. Mr Dore talked about consistency. I have been in an ongoing discussion with representatives of some of the Queensland native title representative bodies about issues of consistency. But I think it all needs to be seen in perspective in the context of the overall numbers that we have had to deal with over the last few years.

Senator SIEWERT —If there is a submission for reconsideration, would your proposal be automatically referred to the tribunal—the president—and then a decision made as to who would hear it?

Mr Doepel —Yes. Effectively, we would formally maintain different offices for dealing with this function and the president would allocate that for review. Naturally, there would have to be some administrative liaison between our two offices, but that would be a member function.

Senator SIEWERT —I must admit your suggestion does have some appeal.

Mr Doepel —Thank you.

Senator SIEWERT —I would now like to go to your comments on section 94. When you were giving the figures I may have missed this, but how many applications are caught up under what is called the apparent defect in that section of time that you are talking about?

Mr Neate —As I understand it, the 147 applications that I referred to earlier—which the registrar is currently looking at—are the 147 applications that are clearly covered by the amendments. In addition to that, I understand that there are some other claims—about 37—which fall within one or other of the two categories that we highlight in our submission. That is in addition to the 147 that I mentioned earlier.

Senator SIEWERT —So that is 147, plus—

Mr Doepel —Thirty-seven.

Senator SIEWERT —I knew I had missed a figure. Can I ask another question—

CHAIR —Sure.

Senator SIEWERT —and the chair or you may rule my question out of order. We have obviously received a number of submissions from a range of organisations and a number of them have raised the issue around resources for—

Mr Doepel —Prescribed bodies corporate.

Senator SIEWERT —Yes. Do you have any comments on that? Some of the native title bodies and industry have raised concerns about it. Do you have any comments?

Mr Neate —This is really a policy matter for government. It is outside the realm of our responsibility or our direct interaction with native title holders, so I will leave it to others to respond to.

CHAIR —I do not have any further questions; they have been asked. Thank you for your time today.

Mr Doepel —Thank you.

[2.53 pm]