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Native Title Amendment (Technical Amendments) Bill 2007

CHAIR —Welcome. Do you wish to make any amendments or alterations to your submissions?

Mr Anderson —No.

CHAIR —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 the officer 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 Anderson —I will make a very brief opening statement. The submission already sets out a lot of detail, and obviously most of the matters that we are going to discuss are covered in that. I would like to again note that this bill is part of a broader package of reform. Some of that has already been implemented and some is still to be implemented by this bill and others. Other parts of the reforms are being implemented administratively. This particular part of the reform package in terms of the technical amendments has involved a significant amount of consultation. There have been discussions papers issued and along the way proposals have been added, modified and discarded as a result of that significant process of consultation.

As our submission notes, the bill has four different schedules. The majority of the bill is the technical amendments, which is schedule 1, and that is the responsibility of the Attorney-General’s Department. The native title representative body and prescribed body corporate amendments are in schedules 2 and 3, and they are primarily the responsibility of our FaCSIA colleagues. Schedule 4 is amendments related to the Legislative Instruments Act, and they are really just procedural matters. If there are any questions on that they would come back to the Attorney-General’s Department.

Mr Roche —I would like to take the opportunity to respond to some of the issues that have particularly been raised today in relation to PBC matters, just to put a bit more of the department’s thinking behind some of these amendments than you have perhaps had the benefit of to date. It seems to me three issues have been raised. The first is the general issue of why there is an amendment to allow the PBCs to charge a fee, the second is the proposal put forward by Ergon Energy for an exemption where it is for the sole or primary benefit of the native title holders, and the third is the issue of default PBCs, which Senator Siewert referred to. I will address those in that order.

It has been put to you that PBCs are no different from any other incorporated body, they should be able to charge essentially whatever the market can bear and there is no need for any form of legislation in this area. I respectfully disagree, because it would appear to us the PBCs, where they are performing a statutory function, may lack the legal power to do so. It is accepted as a matter of law that a fee can only be charged for the performance of a statutory duty or function if the statute provides for such a charge, either expressly or by necessary implication. I rely upon the decisions in the Attorney-General v Wilts United Dairies 1922 decision and the decision in McCarthy and Stone (Developments) Ltd v London Borough of Richmond upon Thames, 1991. What has essentially been happening has been, as is well known in the sector, that arrangements are entered into between PBCs and those who wish to achieve assistance with future act matters and in particular wish to bring forward the negotiations, and for that they have generally been prepared to pay a fee.

All we are seeking to do with this amendment is to make what has been so far a cosy gentlepersons’ agreement a legal one. The difficulty that immediately arose for us having come to that position is that it is an accepted matter of government policy that, once you give a body a power to statutorily set a fee, there has to be some form of regulatory mechanism in place to ensure that that power is not abused. Of course, there is the normal reliance upon the market. If the proponent is a large mining company, it has a number of normal legal methods of redress, but we were also concerned about situations where smaller proponents may feel themselves aggrieved and lack the resources to litigate. Therefore, two regulatory mechanisms were placed into the bill.

The first of these regulatory mechanisms is that the fee cannot amount to taxation. What that essentially means is that the level of the fee must bear some relationship to the services being provided. Secondly, there is the mechanism of the opinion of the Registrar of Aboriginal Corporations and her opinion as to whether or not it amounts to taxation. That mechanism in particular we thought was a relatively straightforward, low-cost mechanism which would provide guidance for both PBCs and for proponents of future acts and thus avoid creating a large, complex, messy regulatory structure for what are at the end of the day usually private negotiations between PBCs and proponents.

In relation to the Ergon Energy proposal about the sole or primary beneficiary being the native title holders, could I say first off that it would have been useful to have had that proposal before. It is certainly an interesting one and it is one that I think I can indicate that we will have a close look at out of those that came to our attention in the course of reading the submissions. There are, however, two points I wish to make about that proposal. One is that I respectfully adopt the point made by Mr Dore—that is, that if it is a proposal that is to the benefit of the native title holders clearly it is something that native title holders can themselves take into account as to whether they charge any fee at all, and it may not be appropriate to put in place a legislative ouster.

Secondly, there is the difficulty of the definition of sole or primary benefit. Ergon relied upon the example of Mer Island. That is an extremely good example from their point of view, but it was an extremely rare one, where a community consists of the native title holders. As you would be aware, most Indigenous communities these days consist of a mix of people who are native title holders and those who are not. Does that mean in terms of the application of that proposed amendment that you have to work out what population the community is? It raises issues. If, for example, an electricity line goes to five communities and two of them are native title holders and three of them are not, does that mean it is not substantially for the benefit? I am not ruling it out; I am just pointing out that there might be some difficulties in interpretation.

Finally—and thank you for taking your time in dealing with these matters—I quickly turn to the matter of default PBCs. The act already provides that the regulations can prescribe the kinds of PBCs. What we are attempting to do in relation to these amendments is draw on experience that we have now had for some years in the application of the Native Title Act. There are now some 50-odd PBCs in existence. Some issues about the forms of PBCs have become clear and we foresee that some may occur in years to come.

There are three categories of situations in which we think a default PBC may be appropriate. The first of those is where the PBC is unable to be created, and that situation has in fact already occurred. I would refer the committee to the native title determination in the Blue Mud Bay case. That determination was in 2005, but the PBC has still not been created, which means that legally there is no organisation there that is working to protect the interests of the native title holders. Secondly, we can foresee that as PBCs become involved in commercial activities—with the laudable objective of leveraging off the benefits that the native title rights bring—these are after all corporations and corporations have been known to fail. The act is currently silent about what happens when the corporation fails. Of course, as is obvious, the native title rights go on forever, but the corporation may not. We think it worth while putting a bit of detail in the act through the regulations about how that might be handled.

Thirdly, we are aware of the possibility that in future certain PBCs may wish for a limited period to relinquish their native title rights to an appropriate body. This may be because of the burden of decision making. I should mention here that one of the other major recommendations of the PBC report, on which a number of these amendments are based, had a reasonably lengthy discussion on the issue of resources. The government has decided to change its policy parameters, and in future my department will be able to fund PBCs for day-to-day operational costs. That said, it will only ever be, of course, limited funding. Once this amendment is carried by the parliament—hopefully—PBCs will be able to legally charge. But there are a number of PBCs in areas which do not have high levels of future act activity, so we can foresee circumstances in which the native title holders may wish to transfer their native title rights for a limited period to another body. The only organisation that we foresee perhaps being in that situation is the Indigenous Land Corporation, because, by its very name, it is concerned with the protection and preservation of Indigenous rights and interests; and, in particular, it now has a considerable amount of expertise as a land management authority. So it may be an appropriate vehicle to hold native title for a limited period.

These amendments recognise the fact that the opportunity to propose amendments to the Native Title Act does not come along very often. So to some extent I would agree that it is quite possible that a number of these circumstances may not occur, but we would like to have the opportunity to allow for the development of PBCs. The native title claim process has now been in existence for some years. There is now quite a lot of settled law and practice about claims. It is still very early days for PBCs, particularly on mainland Australia. So we think this would be an opportunity to perhaps put some mechanisms into the act at this stage.

CHAIR —Thank you. I will take up the batting first in terms of questions. Have you taken on board and reviewed the submissions or are you taking on board and reviewing the submissions with respect to the technical amendments that are recommended by the National Native Title Council—for example, section 94C and the apparent defect that they see? Mr Dore referred to some concerns that he had. I do not know if you have taken them on board. Are there any other matters that you would like to alert the committee to in terms of amendments that need to be taken on board by the department?

Mr Anderson —We certainly have had regard to all the matters contained in the submissions. There are a number of matters that are still being considered and that might form the basis for government amendments to the bill, subject of course to the availability of drafting resources. It is always a challenging process. Some of the matters that are noted in the submissions have been raised with us previously, although I should note that, for the most part, they were matters that were raised with us fairly late in the piece—for example, with respect to the tribunal submission.

As was noted by Mr Doepel, the tribunal’s initial view on the question of review was that it was a policy matter for the department. It was only more recently that they raised with us the matter as to whether it should be members or not. Matters like that we are still considering. I should also note for the sake of completeness that Mr Dore noted that he had not been aware of any previous discussion of the question of charging by PBCs, but that was something that was actually a publicly released document and a recommendation of the PBC reform report that was carried out by a steering committee of the department, FaCSIA and the Office of the Registrar of Aboriginal Corporations. So that has been in the public domain for some time.

The drafting errors that were picked up by the Social Justice Commissioner are also matters that we are addressing. I should say as well in relation to the 94C issue in particular that when that was first raised with us it was indicated that it was something that would apply to only a very small number of claims—some 10 or so. The indication that it would be 37 was something that was brought to our attention much more recently. So we are still considering that. Thirty-seven is a much more significant number of claims.

CHAIR —Will you take that matter on notice?

Mr Anderson —Yes.

CHAIR —As far as you are concerned was the consultation process adequate and comprehensive, and do you feel as though you have got the feedback and that that is now being inserted into this bill?

Mr Anderson —Yes. There has been a very extensive consultation process about the technical amendments in particular. The first discussion paper was issued in November 2005 and the second discussion paper was issued in November 2006. There has been a process of going out and talking with a range of bodies in the meantime as well as the formal processes of calling for submissions. The fact that the second discussion paper, for example, contained some 40-odd additional suggestions or proposals that had come out of that consultation process reflects the fact that we have been listening to what people have been saying. The fact that the bill itself now does not contain some of those measures is because things that are welcomed by some stakeholders are not welcomed by others, and the government has sought to strike an appropriate balance in what are intended to be technical amendments.

CHAIR —Sure. I want to ask about one of those matters under section 24LA of the Native Title Act relating to low impact future acts. You will be aware that the New South Wales government and the Local Government Association of Queensland put forward some views about allowing excavation and clearing to be carried out as low impact future acts for public health and safety or environmental protection initiatives. That was in the original discussion paper, but it is not in this bill. What is your reasoning for that?

Mr Anderson —We thought that it seemed like a sensible proposal, and that is why we initially floated it for consultation. We had some very strong responses to that from a range of parties—both stakeholders on the native title representative side as well as the Law Council had had concerns about it. When we inquired further about that proposal with the Local Government Association of Queensland, they indicated that there had in fact been no practical problems with the way in which these provisions currently operate. It was simply a theoretical problem that they were concerned about. Given the very strong concerns that had been raised, it did not seem appropriate to seek to move this amendment forward to address what was only a theoretical problem where no practical issues had arisen to date.

CHAIR —I want to go back to the prescribed bodies corporate matter that has been referred to and to the National Native Title Council. You may have heard Mr Dore saying—and in his submission on page 5 he says—that it was discriminatory and uncertain. What is your response to that allegation?

Mr Roche —My opening remarks explained why it was not discriminatory. PBCs are exercising a statutory function; therefore, in exercising a statutory function, they need the legal power to be able to levy the fees. As I hope I illustrated, there was quite some thought given to getting the balance right in giving the legal power—or putting beyond doubt the fact that they have the legal power to levy these charges—but doing so inside a system which is relatively straightforward, low-cost and certain.

CHAIR —According to their submission, the Minerals Council support the thrust of the amendment. They talked about the government covering the costs of the statutory functions of the PBCs. What are your thoughts on that? They recommend that the PBC should only be charging for additional costs relating to specific commercial activities. What is your response to the Minerals Council?

Mr Roche —It seemed to us that the Minerals Council’s point was a little unclear because all that the amendments do is provide a power in relation to statutory functions, which in this particular case are related to future acts. That is all that the coverage of the bill provides for, so it seems to us that we are doing precisely what the Minerals Council is recommending.

There may be some confusion about the non-statutory costs of the PBCs, which have been an issue that I know the Minerals Council has made a submission to this committee about before. The government is addressing that by agreeing that it will be considering funding for the operational costs of PBCs on a case-by-case basis in the future. As a result of the combination of clarifying that the PBCs have the power to charge for their statutory functions and of a change in policy in relation to the operational costs of the PBCs and other changes which arose out of the PBC report that my colleague Mr Anderson referred to, it will now be on a much clearer, firmer footing than has been the case.

CHAIR —I think that in some ways responds to Mr Dore’s concerns as well.

Mr Roche —That is correct.

CHAIR —Finally, you touched on Ergon Energy’s concerns. They outlined reasonably comprehensively to us that they have infrastructure in Queensland that they are concerned will not be covered by a legal interest and they put forward a proposal for a legal and equitable interest so that their interests are taken into account. How would you respond to the Ergon concerns?

Mr Anderson —The act as amended by the previous bill introduced in the last sitting of parliament narrowed down considerably the question of who is required to consent. It has now been narrowed down to a proprietary interest. This committee raised concerns with us in its inquiry into that piece of legislation about whether that narrowed it too far. The government accepted the recommendation that it should expand again the class of people who are parties who can be required to give consent. The question is how far you actually go, and there are parties, as Mr Dore indicated, who might in fact have no legal interest. There have been parties who have in effect been trespassers or illegally squatting. Certainly, the intention of the reforms generally is to seek to expedite the way in which the native title processes can operate. It was certainly desirable to ensure that only parties who have real and significant interests should be required to consent, with the safeguards that all other parties still have the entitlement to object to the process and the court still has to decide whether it is willing to make the determination notwithstanding the objections that might be made. Then, in making any determinations, if the court so chooses, it has to set out the relationship between native title rights and interests and any other rights and interests. So the government view was that there were sufficient safeguards.

At this stage we do not see a need to make a specific exemption for infrastructure. We think that the sort of interests that Ergon is talking about would be covered. I also note that they have some questions about tenure in any event. Providing there was sufficient government executive power at the time to carry out the relevant act, we think there that would be sufficient to bring it within legal interest. But, of course, at the same time, if they have other problems in relation to tenure where there was no power at the time that the infrastructure was created, native title is not about correcting those issues.

CHAIR —Without wanting to tie you down to a hypothetical question, based on your reading of the submission and the evidence that you are aware of, do you think that the Ergon Energy concerns have been taken into account in the drafting of the bill and that their interests are protected under the bill?

Mr Anderson —That is our assessment. I understand their caution, but our assessment is that they are protected.

CHAIR —Thanks very much for that.

Senator CROSSIN —I think you have probably covered a lot of the areas that I was going to have a look at. I do not know if you have had a chance to have a look at the submission from the Justice Commissioner for HREOC that was emailed to us today. On page 7 of their submission they talk about a number of drafting errors. I am wondering if you have had a chance to look at those. They talk about errors in items 88 and 123.

Mr Anderson —In terms of item 88 and item 123, as I indicated earlier in my evidence, we are already seeking to address those matters. They are drafting errors.

Senator CROSSIN —Okay.

Mr Anderson —I have to say that we are not wholly responsible for the drafting. That is actually done by the Office of Parliamentary Counsel.

Senator CROSSIN —Yes, I understand that.

Mr Anderson —But they do a wonderful job.

Senator CROSSIN —I wanted to get on the record that perhaps we should look for that when we deal with the bill as it comes to the Senate; that is all. In terms of the need to set fees, how flexible will that be for prescribed bodies corporate?

Mr Roche —We think the mechanism will be quite flexible. It is not intended to work through a prescribed set of fees, for example. The range of PBC circumstances, from riverbanks in Victoria through to the Torres Strait, and the sort of range of future act activities or negotiations—it has been pointed out to me that we are actually talking about being able to charge fees for the negotiations in relation to future acts—is such that it seemed to us to be impractical to try and set a level, and unnecessarily intrusive. By the reference in the bill to it not amounting to taxation, we understand from the drafters that that is essentially code for ‘the level of fee charged must be proportionate to the service which the PBC is providing’. We think that is a reasonably flexible wording to cover the range of circumstances that PBCs are in and the sorts of negotiations which they are involved in.

Senator CROSSIN —Must they charge those fees?

Mr Roche —No.

Senator CROSSIN —I do not mean: must they charge the fee that is outlined? Are you suggesting that if a prescribed body corporate does X then the fees should be from $100 to $1,000, but if they decide to not charge any fee that would be okay?

Mr Roche —That is completely a matter for the PBC.

Senator CROSSIN —So is the scheduling of fees simply a guide?

Mr Roche —We do not envisage there would be a schedule of fees as such. They would be set in the particular circumstances of each negotiation. Frankly, we expect that this particular clause, once enacted, will not actually change very much the discussions which occur between future act proponents and PBCs—that, in almost all circumstances, it will be a private negotiation between the parties and an acceptable level of fees will be agreed to for both. It is really only in the rather extraordinary circumstances where the PBC is proposing to impose a fee and the proponent of the future act is unable to agree with the level of the fee that the other mechanism there in relation to the opinion of the registrar may come into play. It is also worth adding, of course, that already under the act the native title representative body has a statutory function of assisting PBCs in relation to future acts as well. So we are really talking about a very limited set of circumstances in which these provisions would apply.

Senator CROSSIN —Why have them there then? I am still trying to get a handle on why it is necessary to have these if they are not guidelines and if there is no requirement that they must charge these fees. What is the benefit of having them in the act?

Mr Roche —The benefit is that we would not want to see an agreement which is ultimately reached between a proponent and a PBC successfully legally challenged on the basis that the PBC had no power to set those fees. It is as simple as that.

Senator CROSSIN —I see. So it actually just—

Mr Roche —It is technically illegal for them to do it at the moment, in our view.

Senator CROSSIN —That is the best clarification I have heard to date, I have to say, as to why you would do it. But there will no enforcement of them actually charging the fees; this just gives them the power to do that if they want to.

Mr Roche —The mechanism that is set out in the bill is a rather unique one. We did not want to go down the route of having an ACCC type body deciding what the appropriate fees would be or setting a schedule, which could be outdated and not sufficiently flexible, but of the Registrar of Aboriginal Corporations being able to give her view that a particular fee did amount to taxation, meaning it could not be charged. We think that acts as sufficient redress for particularly a small business—a small miner, an apiarist or somebody like that—which would not necessarily have the financial resources to challenge the level of those fees in court. We were thinking that this was a relatively straightforward administrative system which could also assist PBCs, because it is presumed that over the years it will become clear about the sorts of things that the registrar regards as being excessive and finds are taxation. I hope that clarifies it for you, Senator.

Senator CROSSIN —Under item 107, the internal review of the registration decision and the dismissal of unregistered claims, in respect of the dismissal of claims that do not happen to pass the registration test, my understanding was that when this bill was first introduced the government gave an undertaking that it would not use this guarantee for the purpose of dismissal in the substantive determination procedures. What has happened? Is there a change of direction?

Mr Anderson —I note that the provisions dealing with the discretion for the court to dismiss matters that have failed the registration test is already law in that it was contained in the earlier bill and the reforms passed in the last sitting period.

Senator CROSSIN —Yes.

Mr Anderson —I have to say that I am not aware of the undertaking that is adverted to in one of the submissions. I can simply say that the government’s view was that with a matter that substantially impedes the effective and efficient progression of claims—such as the poor quality of some claims and the lack of incentive at times for parties to improve the quality of claims—giving the court that discretion to dismiss claims that fail to pass the registration test was seen as being one step by which to encourage claimants to improve the quality of their claims. It of course in no way prevents claimants from bringing a further claim. It simply says that if a claim is not one that reaches the prima facie threshold then it should be withdrawn or dismissed and the parties should seek to set out a better claim. Once a higher quality claim or a clearer claim is put forward, it is much easier for all parties to identify the impact upon their rights and interests and to engage in a meaningful mediation process. But some of these claims have been around for a very long time, and there is no attention being given to them to improve the quality of those claims. So it is simply an attempt to encourage the claimants to improve the quality of claims, but it in no way bars those claimants from bringing further claims if their claims are withdrawn or dismissed.

Senator CROSSIN —Isn’t that the very point that the Native Title Council makes in their submission on page 4—that this point needs to be clarified. They say:

The scheme, understandably, clearly states that an applicant cannot seek internal reconsideration after making application to the Court, however the ability to seek court review after either stage has not been made clear.

Is that not something that you would need to clarify?

Mr Anderson —Senator, with respect, I think that is a slightly different point. What they are talking about there is simply the internal reconsideration after the registrar has made a decision that a claim does not actually pass the registration test. We think that the provisions are sufficiently clear: a party has the choice of seeking internal review by the registrar or of going directly to the court. If a party does seek internal review by the registrar, it can then go to the court if it chooses. So there are two paths, and we believe that that is sufficiently clear. But, of course, if the committee is of the view that it is not sufficiently clear then we can consider whether a note should be inserted in the legislation.

Senator CROSSIN —I think, if I read it in context, there is still some confusion from the council about that, I have to say. I might leave it there, Senator Barnett.

Senator PARRY —Mr Anderson, your submission refers to discussion papers forwarded to various entities—and it is quite an impressive list—and discussion papers sent in relation to PBCs—another comprehensive list. Can you indicate, apart from the discussion papers, how lengthy the discussions were that are referred to in your submission? It is good for us to get on the record the detailed discussions that you have had, especially concerning the PBCs. Appendix A of the submission, after attachment G, states that ‘Government officers held discussions with representatives of the parties listed below’. Were they phone calls, were they two-hour sessions or did they vary? I just want to get a handle on their depth, and the weight that can be placed on the discussions that have been held.

Mr Anderson —The steering committee that compiled the report on the PBCs actually travelled to a number of these places around Australia. They travelled to Alice Springs, the Torres Strait, Broome, Perth and a number of other places and Mr Roche was part of those consultations.

Senator PARRY —How were you received?

Mr Roche —I was present for the discussions with the PBCs on Torres Strait, which at the time had a majority of PBCs. We were received very well. They particularly wanted to talk to us about the issue of resourcing, and that is reflected in the report. I was also present for the discussions with the North Queensland Land Council, which talked mainly about the technical amendments. They were less concerned about PBC issues. It was a very fruitful discussion. I understand from other officers that discussions with Lhere Artepe in Alice Springs—which has now been going for some years and is a very effective, well run PBC—were also particularly useful.

Senator PARRY —Do you feel that their views have been reflected in the submission and in the framing of the legislation?

Mr Roche —In my view, the concerns that they had have been addressed in the report. Some of the issues that they struggled with, particularly in relation to their ongoing viability as organisations, have been clearly addressed by the government—not so much in legislation, but in policy changes. But it also became clear to us in the course of those consultations and also through receiving a number of submissions—from memory approximately half of the native title rep bodies provided written submissions to us—that the issues that they raised have been addressed through this.

Senator PARRY —So would it be the evidence of both you, Mr Anderson, and you, Mr Roche, that you are satisfied that extensive consultation to all affected parties has taken place?

Mr Anderson —I am certainly satisfied of that.

Mr Roche —As am I.

Senator PARRY —Okay, thank you.

Mr Anderson —If I could add one thing to what Mr Roche was saying, in terms of the measures that have addressed the concerns raised by the PBCs and by the representative bodies, it is important to note not just the measures in this bill and in the last bill in relation to PBCs but the measures in relation to the capacity building to be provided by the Office of the Registrar of Aboriginal Corporations, the measures to clarify the extent to which the representative bodies can provide assistance to PBCs and also the measure that Mr Roche has mentioned for direct funding of PBC operational needs. It is quite a package.

Senator PARRY —That is where I am heading next: to the funding issue. Mr Roche, you mentioned that hopefully there will now be an ability for government to fund PBCs when they require funding. Is that short term? I know that we are getting a little bit beyond the scope, but would that be short-term funding?

Mr Roche —It is operational funding. We are attempting to build it into the funding we will be offering the native title representative bodies in 2007-08. Because of the fact that—as you would be aware—through the previous bill a number of changes are occurring to the representative body system, it is fair to say that it is an interesting time to be bringing in this change as well. But government was persuaded that there are limited circumstances in which PBCs can make out a case for them to be provided with operational funding. There are constraints. I suppose the fundamental one is that PBCs last forever. Governments are loath to make funding agreements of similar lengths.

Senator PARRY —That is not quite correct; a PBC might not last forever because, and you addressed this fact, they could collapse like a normal corporation.

Mr Roche —Quite correct, yes. The native title rights and interests will last forever. We have of necessity had to be a bit cautious. It is also unclear to us what the level of need is going to be because in those consultations that we had—in particular the ones in the Torres Strait—it was mentioned that the compliance obligations imposed by the then Aboriginal Councils and Associations Act, particularly the requirements to have an annual general meeting and provide annual financial reports, are likely to be significantly reduced because of the introduction of the CATSI Act as of 1 July. Those compliance requirements will not be so demanding. What we are attempting to do—preferably through their local NTRB—is provide a measure of support for the PBC so that it can perform its day-to-day operations where they are not already covered by other means. It is worthy of note that there are a number of PBCs in the country these days which have significant resources, particularly from state governments. They will not be eligible for this sort of support.

Senator PARRY —So there will be some effective means testing or merit based—

Mr Roche —It will be on the basis of need, correct.

Senator PARRY —Finally, on this issue you indicated that you thought that one of the reasons for providing assistance is because the PBCs could, like any corporate body, go into liquidation or receivership or whatever. Wouldn’t the normal process of what would happen to a body of that nature then kick in? Wouldn’t there be normal coverage under current legislation, such as winding-up clauses if it is limited company or a company limited by guarantee or whatever the structure is?

Mr Roche —Yes. Currently under the act—and this is not expected to change—the PBC must be a creation under the old ACA Act or the new CATSI Act. That act has provisions for winding up. What is not answered is the issue of what happens in that situation to the native title rights and interests. As you corrected me before, they are ongoing. One of the—

Senator PARRY —Couldn’t that transfer across to a new entity? You mentioned the Indigenous Land Corporation as being an ideal entity. Couldn’t that be part of a winding-up clause?

Mr Roche —We are not envisaging that the ILC would be a body that would be doing that unless the native title holders consent to such a transfer. That may happen in the case of winding up—that is correct. But it may not. We needed to cover the circumstances in which the PBC is being wound up, and the act and the regulations are, in our view, currently silent about how the transfer to a new PBC would occur.

Senator PARRY —Basically, you are indicating that a wind-up clause is not necessarily appropriate in this case because of where the control of that land would be vested and because there may be some Indigenous issues that are fairly particular in this instance.

Mr Roche —Yes. The distinction is between the normal corporate issues about liquidity, solvency and so on as opposed to the native title rights interests, which are a separate category of rights and interests which we have to allow for.

Mr Anderson —I might just add that the native title rights and interests are not an asset of the PBC in the sense that it could be exploited by a liquidator for the benefit of creditors. It still has to be dealt with by the traditional owners for the traditional owners, so in that sense there is a division between the actual assets of the PBC that would be available for creditors and the native title rights and interests.

Senator PARRY —And the trusteeship of the land in question.

Mr Anderson —Yes. That is why they would not be dealt with under the normal insolvency legislation.

Mr Roche —I would like to clarify something that I have just been reminded of and to ensure that I did not lead the committee astray. Currently under CATSI it is not possible for the registrar to wind up the PBC because of this problem with the native title rights and interests. The organisation can be, to all intents and purposes, defunct but it cannot be left like this.

Senator PARRY —They still have to exist.

CHAIR —That is a helpful note.

Senator SIEWERT —I will come back to the new default mechanisms in a minute. I want to touch on the funding issue. Has there been an announcement on the new funding for day-to-day operations yet?

Mr Roche —Yes, when the government accepted the report of the steering committee, which recommended that funding be made available from the Department of Families, Community Services and Indigenous Affairs.

Senator SIEWERT —But there was no detail given around that, was there?

Mr Roche —No, and we are still working on the detail.

Senator SIEWERT —That is what I was trying to get to.

Mr Roche —Yes. We had a workshop with a number of PBCs approximately a fortnight ago. We have some draft guidelines about funding for PBCs which we hope to release shortly. We would much prefer PBCs to be supported through the local native title representative body. We have been in discussions with NTRBs about how that might work.

Senator SIEWERT —It was my understanding that NTRBs could not fund.

Mr Roche —That is right. Just to be clear about this, in relation to its statutory functions, NTRBs have always been able to assist PBCs. However, until this change in policy, the department and its predecessors, extending back to ATSIC days, could only fund the operational costs of a PBC up to its first annual general meeting. After that there was no funding. That is the change.

Senator SIEWERT —So that was not a regulatory stop, it was a policy.

Mr Roche —That is correct.

Senator SIEWERT —I was under the impression that there was a regulatory thing there as well.

Mr Roche —No. That was a policy position for many years.

Senator SIEWERT —What is the timeline on the announcement? In terms of the detail.

Mr Roche —In terms of the detail, we are hoping to release the draft guidelines within 10 days to a fortnight.

Senator SIEWERT —So they will be publicly released and go to stakeholders.

Mr Roche —Yes.

Senator SIEWERT —Going back to the issue of default and the changes that are proposed, I am looking at the submission that Tom Calma has put in here from HREOC. Amongst issues that he raised, some of which we have already dealt with, he specifically raised the issue of the decision and where it should go; whether it should be a court decision rather than a departmental decision. That is largely what he said.

Mr Roche —Thank you for raising that issue. It is correct to say that under these amendments it may be possible, in the regulations, for a body other than a court. However, practically speaking, we cannot see that there is any other appropriate alternative to a court.

Senator SIEWERT —Are you saying that you anticipate that these changes would be dealt with by a court?

Mr Roche —Yes.

Senator SIEWERT —He makes the point, and I am assuming you have got the submission, in point 23, page 9 of the submission. They talk about the policy. It says:

The Office of Indigenous Policy Co-ordination should develop a comprehensive proposal for the establishment of ‘default’ bodies corporate to perform PBC functions in circumstances where there is no functioning PBC nominated by the native title holders.

Has there been a policy developed?

Mr Roche —It is the outcome of the policy process which is now captured in this bill.

Senator SIEWERT —So there is nothing separate that the department has in mind beyond this? These changes are being made with the understanding that it would be administered by the court?

Mr Roche —Our expectation is that the court will be determining the body.

Senator SIEWERT —Is there a possibility that a body other than the court could make that determination?

Mr Roche —There is a possibility.

Senator SIEWERT —And that is obviously his concern. I am presuming he sees that there is a hole there that a body other than the court could make those decisions.

Mr Roche —As I mentioned in my opening remarks, it is not very often that government has an opportunity to look seriously at the Native Title Act, and there has now been a process of review for some two years. So our intent in this area is to address some issues which have arisen, for example the fact that in at least one instance a PBC has been unable to be created, but also to cover the range of circumstances that we think PBCs may find themselves in in years to come. Practically speaking—I think I repeat myself—we cannot currently foresee circumstances in which a body other than a court might determine the body. But we thought it useful to put a little bit of scope in this regulation-making power, in case that should prove necessary.

Senator SIEWERT —You raised three issues around the issues of possibilities of default. The first one you raised is the case you just talked about, which was the Blue Mud Bay case. That has been ongoing for some time. Did I understand what you said?

Mr Roche —Yes. So there is no confusion, there has actually been quite a lot of litigation about Blue Mud Bay involving both the Native Title Act and more recently the Aboriginal Land Rights (Northern Territory) Act. It is the second act which has been the focus of the recent Federal Court decision. What I was referring to was the original determination in 2005 that there was native title, and just noting that we are now in 2007 and a PBC still has not been able to be created.

Senator SIEWERT —Is that because of the ongoing litigation—if I understand properly what you have just said—or are there other circumstances there?

Mr Roche —I would not like to say about the particular circumstances there. It is perhaps unfortunate that Mr Levy was unable to give evidence today because that is an issue he could have addressed, having been very involved in Blue Mud Bay. So I would not like to comment on the precise circumstances. I think it is sufficient for us to say that it has been two years; the PBC has not been able to be created, so therefore there seems to us to be a gap in the current act that requires filling, regardless of how that particular situation came about.

Senator SIEWERT —I understand what you are trying to say. What I was trying to get to was: is it because native title holders could not appoint a PBC, or is it because there are other circumstances which, in fact, these changes might not address?

Mr Roche —I think I can say that I am not aware that there are any legal issues with the creation of the PBC. I could be wrong; I am not an expert on Blue Mud Bay.

Mr Anderson —Senator, if I might just interpose myself on that. Blue Mud Bay is certainly not the only example. There were some complications there because of the death of the judge who referred the matter. I am not sure whether the determination was fully made in 2005, when Justice Selway handed down his decision. After his death another judge became involved and dealt with some other matters, I believe, before it came to a determination. It is certainly the case that there have been a number of determinations of native title made around Australia where there has been no PBC established in a lengthy period of a number of years since the determination, without any legal impediment to the establishment of the PBC.

Senator SIEWERT —Some of the feedback that I have had from Western Australia about PBCs is also about lack of funding. That has been a major issue in terms of people wanting to set them up and keep them functioning. It sounds like that has been dealt with.

Mr Roche —There should not be an issue about funding for the creation of the PBC because we have always supported the NTRB in relation to the creation of the PBC. The issue has been subsequent to the creation of the PBC.

Senator SIEWERT —I understand that, but groups know that there is no further funding after the first meeting. The feedback I have had verbally is that that has been an issue. But it sounds as though that is being resolved.

Mr Roche —Hopefully.

Senator SIEWERT —We touched on this and I know you said you are still seeking advice but I just want to clarify that. This is the issue the tribunal has raised, and a couple of other submissions have raised, in relation to reconsideration by members. If I understood you correctly, you are still considering a response.

Mr Anderson —We are still considering all those matters that have been raised. I should say in respect of that one, though, that our disposition is to maintain the view that it should be done by the delegates rather than by the members. We are considering everything that has been raised but we think that there are some sound reasons why it should continue to be done by the delegates rather than by the members.

CHAIR —What are they?

Mr Anderson —While Mr Doepel has different views on this, he also indicated in his evidence that it is not a question of whether you have got a law degree or not; it is a question of your understanding of the requirements of the legislation and of the practical application of the act to the factual circumstances. That is a matter that existing delegates have considerable experience in, given the vast numbers of registration decisions that have been made and the relatively rare occasions that matters actually come for review. So it would be a completely new task for members if that was to be given to them now.

Other measures in the bill also seek to maintain a separation between members and the information that is held by the tribunal in relation to its various functions and the information that can be passed to members in the claims resolution or mediation function. So we think, consistent with that, there are some sound reasons to keep the members primarily involved in the mediation function rather than in the administrative functions, as it were, that the registrar carries out. While I understand what Mr Doepel said about the majority of the delegates being based in a single location in Sydney, nonetheless that seems to be an administrative matter that we will talk further with the tribunal about as to whether, given the relative infrequency of these matters, he himself is the person who can conduct the reviews. Given that he is in Perth, he is geographically separated, we do not see that as being an insurmountable problem.

Senator SIEWERT —Okay. What about the issue of justice also being seen to be done, getting what is virtually a second opinion, I suppose, which is separate from the registrar’s? I understood that to be one of the arguments.

Mr Anderson —We do not have any reason to see that one officer of the tribunal is going to be swayed by the fact that another officer of the tribunal has come to a view. It is not uncommon for different members of a Commonwealth administrative body to be required to carry out a review function reviewing the decision of another officer of that agency or department. We see no difference here.

Senator SIEWERT —Okay. I have a question arising from the social justice commissioner’s submission. In his first point on the subdivision P future acts notification in one notice, he makes some recommendations about ensuring that information that is sent out relates only to one native title claim group and one representative body area. He uses as an example that sometimes when a notice goes out, such as an application around leases and things like that, there are multiple lists and that it is often very hard for bodies to work out whether or not it relates to them and so they can be missed. Do you have a comment on that?

Mr Anderson —The bill envisages that there will be a notices determination made by the Attorney and that determination will cover the conditions that should be imposed on future act notices, in particular, ensuring that there is a reasonable provision in the way in which such notifications are given to enable a PBC or NTRB to reasonably readily determine what the pieces of land are that are going to be affected. We do understand the concern.

Senator SIEWERT —Will there be consultation about that determination so that groups can provide feedback on what they think is reasonable?

Mr Anderson —At the moment none is proposed, because we think that we have a reasonable understanding of what is required. It might be a question of some of the things we are thinking about at the moment. No decision has yet been made, obviously, by the government as to what the determination will look like but things we are envisaging are that there be a requirement for maps to be provided. We think that things like that will be readily accepted by rep bodies and others as being suitable.

Senator SIEWERT —I think rep bodies might appreciate the opportunity to give you some feedback on what they see as acceptable under that determination.

Mr Anderson —Certainly.

CHAIR —We are about to wrap up. Senator Crossin, do you have any final questions or comments?

Senator CROSSIN —I do not but I want to be reminded of when we are reporting on this bill.

CHAIR —It is 8 May.

Senator CROSSIN —We would not have time to put some questions on notice, then, I take it.

CHAIR —I think that would be very difficult. I would like to thank the witnesses for their evidence today given to the committee and I would like to declare that this hearing of the legal and constitutional affairs committee is now adjourned.

Committee adjourned at 3.57 pm