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Native Title Amendment Bill 1997 [No. 2]
Schedule 2 Amendments relating to applications, registration of claims etc.

Part 1 Native Title Act 1993

1  Section 12

Repeal the section.

2  Subsection 13(1)

Omit “Registrar”, substitute “Federal Court”.

Note:       The heading to subsection 13(1) is altered by omitting “ Native Title Registrar ” and substituting “ Federal Court ”.

3  Paragraph 13(2)(a)

Omit “the NNTT or”.

Note:       The heading to subsection 13(2) is altered by omitting “ NNTT or ”.

4  Subsection 13(2)

Omit “NNTT or”.

5  After subsection 13(2)

Insert:

Note:          Under subsection 62(3), if no native title determination application has previously been made in relation to the area to which a compensation application relates, the compensation application must be accompanied by the affidavit, and contain the information, that would be required for a native title determination application for the area.

6  Paragraphs 13(4)(a) and (6)(a)

Omit “the NNTT or”.

7  Subsection 50(2)

Omit “Registrar”, substitute “Federal Court”.

Note:       The heading to subsection 50(2) is altered by omitting “ Registrar ” and substituting “ Federal Court ”.

8  Section 55

Omit “the NNTT or” (wherever occurring).

Note:       The heading to section 55 is altered by omitting “ NNTT and ”.

9  Section 55

Omit “sections”, substitute “section”.

10  Section 55

Omit “and 57”, substitute “or 57”.

11  Subsection 56(1)

Omit “the NNTT or”.

12  Subsection 56(2)

Omit “NNTT or the” (wherever occurring).

13  Subsection 56(4)

Omit “the NNTT or”.

14  Subsection 57(2)

Omit “the NNTT or” (wherever occurring).

15  Paragraph 58(d)

Omit “their”, substitute “its”.

16  Section 59

Omit all the words and paragraphs after “or 57”.

17  At the end of Division 6 of Part 2

Add:

60AA   Body corporate for Meriam people

             (1)  If:

                     (a)  a body corporate is or becomes incorporated under the Aboriginal Councils and Associations Act 1976 ; and

                     (b)  all of the members of the body corporate are members of the Meriam people (see subsection (2)); and

                     (c)  one of the objects of the body corporate is to become a registered native title body corporate in relation to native title held by the Meriam people; and

                     (d)  a member of the Meriam people applies to the Federal Court for a determination under this section; and

                     (e)  the Court is satisfied that the applicant represents the Meriam people;

then:

                      (f)  this Act applies as if the body corporate were a prescribed body corporate nominated under subsection 56(2) or 57(2) in relation to those native title holders; and

                     (g)  the Court may make a determination under section 56 or 57, in relation to that native title, as if the Court were doing so at the same time as making an approved determination of native title as mentioned in section 55; and

                     (h)  if the Court makes such a determination under section 56 or 57—the Native Title Registrar must enter the name and address of the body corporate on the National Native Title Register; and

                      (i)  while those details are on the Register, the body corporate is taken to be a registered native title body corporate for the purposes of this Act.

             (2)  In this section:

Meriam people means the people who were described by the High Court in its declaration in Mabo v Queensland [No. 2] (1992) 175 CLR 1 as the Meriam people.

18  Part 3

Repeal the Part, substitute:

Part 3 Applications

Division 1AA Overview of Part

60A   Overview of Part

             (1)  This Part has the rules for making:

                     (a)  applications to the Federal Court for native title determinations, revised native title determinations and compensation: see Division 1; and

                     (b)  various other applications to the Federal Court: see Division 1A; and

                     (c)  applications to the National Native Title Tribunal under the “right to negotiate” provisions in Subdivision P of Division 3 of Part 2: see Division 2;

                     (d)  applications to the Native Title Registrar objecting against registration of certain indigenous land use agreements: see Division 2A.

There are also some general rules that apply to the various kinds of application: see Division 3.

             (2)  Basically, the provisions set out who may make the different kinds of application, what they must contain and what is to be done when they are made.

Division 1 Applications to the Federal Court: native title and compensation

61   Native title and compensation applications

Applications that may be made

             (1)  The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

Applications

Kind of

application

 

Application

 

Persons who may make application

Native title determination application

Application, as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title.

(1) A person or persons authorised by all the persons (the native title claim group ) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or

Note 1:    The person or persons will be the applicant: see subsection (2) of this section.

Note 2:    Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group.

(2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or

(3) The Commonwealth Minister; or

(4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned.

Revised native title determination application

Application, as mentioned in subsection 13(1), for revocation or variation of an approved determination of native title, on the grounds set out in subsection 13(5).

(1) The registered native title body corporate; or

(2) The Commonwealth Minister; or

(3) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned; or

(4) The Native Title Registrar.

Compensation application

Application under subsection 50(2) for a determination of compensation.

(1) The registered native title body corporate (if any); or

(2) A person or persons authorised by all the persons (the compensation claim group ) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group.

Note 1:    The person or persons will be the applicant: see subsection (2) of this section.

Note 2:    Section 251B states what it means for a person or persons to be authorised by all the persons in the compensation claim group.

Applicant in case of applications authorised by claim groups

             (2)  In the case of:

                     (a)  a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

                     (b)  a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

                     (c)  the person is, or the persons are jointly, the applicant ; and

                     (d)  none of the other members of the native title claim group or compensation claim group is the applicant .

Applicant’s name and address

             (3)  An application must state the name and address for service of the person who is, or persons who are, the applicant.

Applications authorised by persons

             (4)  A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

                     (a)  name the persons; or

                     (b)  otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Form etc.

             (5)  An application must:

                     (a)  be in the prescribed form; and

                     (b)  be filed in the Federal Court; and

                     (c)  contain such information in relation to the matters sought to be determined as is prescribed; and

                     (d)  be accompanied by any prescribed documents and any prescribed fee.

61A   Restrictions on making of certain applications

No native title determination application if approved determination of native title

             (1)  A native title determination application must not be made in relation to an area for which there is an approved determination of native title.

Claimant applications not to be made covering previous exclusive possession act areas

             (2)  If:

                     (a)  a previous exclusive possession act (see section 23B) was done in relation to an area; and

                     (b)  either:

                              (i)  the act was an act attributable to the Commonwealth; or

                             (ii)  the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23E in relation to the act;

a claimant application must not be made that covers any of the area.

Claimant applications not to claim certain rights and interests in previous non-exclusive possession act areas

             (3)  If:

                     (a)  a previous non-exclusive possession act (see section 23F) was done in relation to an area; and

                     (b)  either:

                              (i)  the act was an act attributable to the Commonwealth; or

                             (ii)  the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23I in relation to the act;

a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.

Section not to apply in section 47, 47A or 47B cases

             (4)  However, subsection (2) or (3) does not apply to an application if:

                     (a)  the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and

                     (b)  the application states that section 47, 47A or 47B, as the case may be, applies to it.

62   Information etc. in relation to certain applications

Claimant applications

             (1)  A claimant application (see section 253):

                     (a)  must be accompanied by an affidavit sworn by the applicant:

                              (i)  that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and

                             (ii)  that the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register; and

                            (iii)  that the applicant believes that all of the statements made in the application are true; and

                            (iv)  that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

Note:          Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.

                             (v)  stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); and

                     (b)  must contain the details specified in subsection (2); and

                     (c)  may contain details of:

                              (i)  if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application—that traditional physical connection; or

                             (ii)  if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application—the circumstances in which the access was prevented.

Note:          The applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims.

Details required by paragraph (1)(b)

             (2)  For the purposes of paragraph (1)(b), the details required are as follows:

                     (a)  information, whether by physical description or otherwise, that enables the boundaries of:

                              (i)  the area covered by the application; and

                             (ii)  any areas within those boundaries that are not covered by the application;

                            to be identified;

                     (b)  a map showing the boundaries of the area mentioned in subparagraph (a)(i);

                     (c)  details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;

                     (d)  a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

                     (e)  a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

                              (i)  the native title claim group have, and the predecessors of those persons had, an association with the area; and

                             (ii)  there exist traditional laws and customs that give rise to the claimed native title; and

                            (iii)  the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

                      (f)  if the native title claim group currently carry on any activities in relation to the land or waters—details of those activities;

                     (g)  details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;

                     (h)  details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.

Note:       Notices under section 29 are relevant to subsection 190A(2).

Compensation applications

             (3)  In the case of a compensation application whose making was authorised by a compensation claim group, the application:

                     (a)  must be accompanied by an affidavit sworn by the applicant:

                              (i)  that the applicant believes that native title rights and interests exist or have existed in relation to the area; and

                             (ii)  that the applicant believes that all of the statements made in the application are true; and

                            (iii)  that the applicant is authorised by all the persons in the compensation claim group to make the application and to deal with matters arising in relation to it; and

Note:          Section 251B states what it means for the applicant to be authorised by all the persons in the compensation claim group.

                            (iv)  stating the basis on which the applicant is authorised as mentioned in subparagraph (iii); and

                     (b)  must contain the details that would be required to be specified by paragraph (1)(b), and may contain the details that would be permitted under paragraph (1)(c), if the compensation application were instead a native title determination application in respect of the native title involved in the compensation application.

62A  Power of applicants where application authorised by group

                   In the case of:

                     (a)  a claimant application; or

                     (b)  a compensation application whose making was authorised by a compensation claim group;

the applicant may deal with all matters arising under this Act in relation to the application.

63   Reference of applications to Native Title Registrar

                   If an application under section 61 is filed in the Federal Court, the Registrar of the Federal Court must, as soon as practicable, give the Native Title Registrar a copy of:

                     (a)  the application; and

                     (b)  any affidavit that accompanies the application under paragraph 62(1)(a) or (3)(a); and

                     (c)  any prescribed documents that accompany the application under paragraph 61(5)(d).

64   Amendment of applications

Application may be amended to reduce land or waters covered

          (1A)  An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.)

Note:          If such an amendment is made, the Court may make an appropriate costs order under section 85A.

Amendment not to result in inclusion of additional areas

             (1)  An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application.

Note:          The Federal Court Rules provide for the amendment of applications.

Exception to subsection (1)

             (2)  However, if:

                     (a)  the application is a claimant application (see section 253); and

                     (b)  the amendment combines the application with another claimant application or claimant applications;

subsection (1) does not prevent the inclusion of any area of land or waters covered by the other application or applications.

Application may be amended despite section 190A consideration

             (3)  In the case of a claimant application, the fact that the Registrar is, under section 190A, considering the claim made in the application does not prevent amendment of the application.

Registrar of the Federal Court to give copy of amended application to Native Title Registrar

             (4)  If an application is amended, the Registrar of the Federal Court must, as soon as practicable, give a copy of the amended application to the Native Title Registrar.

Group applications—amendment to change applicant

             (5)  If a claimant application, or a compensation application whose making was authorised by a compensation claim group, is amended so as to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant:

                     (a)  that the new applicant is authorised by the other persons included in the native title claim group, or the compensation claim group, to deal with matters arising in relation to the application; and

                     (b)  stating the basis on which the new applicant is authorised as mentioned in paragraph (a).

66   Notice of application

Registrar to comply with section

             (1)  If the Native Title Registrar is given a copy of an application under section 63, the Registrar must comply with the requirements of this section.

Copies to State/Territory Minister

             (2)  If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the Registrar must, as soon as is reasonably practicable, give the State Minister or Territory Minister for the State or Territory a copy of:

                     (a)  the application; and

                     (b)  any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application.

Copies to representative bodies

          (2A)  The Registrar must, as soon as is reasonably practicable, give the representative bodies for the area covered by the application a copy of:

                     (a)  the application; and

                     (b)  any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application.

Notice to be given

             (3)  Subject to this section, the Registrar must:

                     (a)  give notice containing details of the application to the following persons or bodies (other than the applicant in relation to the application):

                              (i)  any registered native title claimant in relation to any of the area covered by the application; and

                             (ii)  any registered native title body corporate in relation to any of the area covered by the application; and

                            (iii)  any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and

                            (iv)  subject to subsection (5), any person who, when the application was filed in the Federal Court, held a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and

                             (v)  the Commonwealth Minister; and

                            (vi)  any local government body for any of the area covered by the application; and

                           (vii)  if the Registrar considers it appropriate in relation to the person—any person whose interests may be affected by a determination in relation to the application; and

                     (b)  give a copy of the notice to the Federal Court; and

                     (c)  if any of the area covered by the application is within the jurisdictional limits of a State or Territory—give a copy of the notice to the State Minister or Territory Minister for the State or Territory; and

                     (d)  notify the public in the determined way of the application.

Exception where application is struck out

             (4)  Subsection (3) does not apply if:

                     (a)  the State or Territory Minister applies to the Federal Court under subsection 84C(1) or otherwise, within 28 days after the day on which the State or Territory Minister is given a copy of the application under subsection (2), to strike out the application; and

                     (b)  the Court strikes out the application.

Exception to subparagraph (3)(a)(iv)

             (5)  If the Registrar considers that, in the circumstances, it would be unreasonable to give notice to a person in accordance with subparagraph (3)(a)(iv), the Registrar is not required to give notice to that person.

Notice etc. not to be given until claim registration decision made

             (6)  If the application is a claimant application:

                     (a)  the Registrar must not comply with subsection (3) until the Registrar has decided, in accordance with section 190A, whether or not to accept for registration the claim made in the application; and

                     (b)  the notice required to be given under subsection (3) must state whether or not the Registrar has accepted the claim for registration.

Federal Court order as to notice

             (7)  The Registrar may apply to the Federal Court for an order as to:

                     (a)  whether a particular person or class of persons must be given notice under paragraph (3)(a); or

                     (b)  how such notice must be given.

Notice to specify day

             (8)  A notice under paragraph (3)(a) or (d) must specify a day as the notification day for the application. Each such notice in relation to the application must specify the same day.

Which days may be specified

             (9)  That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraphs (3)(a) and (d) in relation to the application will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.

Contents of notice

           (10)  A notice under paragraph (3)(a) or (d) must also include a statement to the effect that:

                     (a)  in the case of a non-claimant application (see section 253)—the area covered by the application may be subject to section 24FA protection unless, at the end of the period of 3 months starting on the notification day (as defined in subsection (8) of this section), the area is covered by a relevant native title claim (as defined in section 24FE); and

                     (b)  in the case of any native title determination application—as there can be only one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Federal Court, in making its determination, to take into account the person’s native title rights and interests in relation to the area concerned; and

                     (c)  in any case—a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day (as defined in subsection (8)), or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.

66A   Notice of amended application

Native Title Registrar to notify parties etc.

             (1)  If:

                     (a)  the Native Title Registrar is given a copy of an amended application under section 64; and

                     (b)  the amendment concerned results in a change to the area of land or waters covered by the original application; and

                     (c)  subsection (2) does not apply;

the Registrar must:

                     (d)  give notice of the amended application to each person who, when the Registrar receives the copy, is a party to a proceeding under Part 4 in relation to the application; and

                     (e)  if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:

                              (i)  give notice of the amended application to all persons to whom the Registrar gave notice of the application in accordance with paragraph 66(3)(a); and

                             (ii)  notify the public in the determined way of the amended application.

Combined applications

             (2)  If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, the Native Title Registrar must:

                     (a)  give notice of the combining of the applications to each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications; and

                     (b)  if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:

                              (i)  give notice of the combining of the applications to all persons to whom the Registrar gave notice of the applications in accordance with paragraph 66(3)(a); and

                             (ii)  notify the public in the determined way of the combining of the applications.

Federal Court order as to notice

             (3)  The Registrar may apply to the Federal Court for an order as to:

                     (a)  whether a particular person or class of persons must be given notice under subsection (1) or (2); or

                     (b)  how such notice must be given.

Federal Court may direct Native Title Registrar to give notice

             (4)  The Federal Court may, if it considers it necessary, direct the Native Title Registrar to give such additional notice of the amended application as the Court considers appropriate.

Parties to original applications become parties to combined application

             (5)  If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications becomes a party to a proceeding under Part 4 in relation to the combined application.

66B   Replacing the applicant

Application to replace applicant in claimant application

             (1)  One or more members of the native title claim group (the claim group ) in relation to a claimant application, or of the compensation claim group (also the claim group ) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

                     (a)  either:

                              (i)  the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or

                             (ii)  the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

                     (b)  the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Court order

             (2)  The Court may make the order if it is satisfied that the grounds are established.

Registrar of Federal Court to notify Native Title Registrar

             (3)  If the Court makes the order, the Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

Register to be updated

             (4)  If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.

67   Overlapping native title determination applications

             (1)  If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

Splitting of application area

             (2)  Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.

68   Only one determination of native title per area

                   If there is an approved determination of native title (the first determination ) in relation to a particular area, the Federal Court must not:

                     (a)  conduct any proceeding relating to an application for another determination of native title; or

                     (b)  make any other determination of native title;

in relation to that area or to an area wholly within that area, except in the case of:

                     (c)  an application as mentioned in subsection 13(1) to revoke or vary the first determination; or

                     (d)  a review or appeal of the first determination.

Note:          Paragraph 13(1)(a) provides that no native title determination application can be made in relation to an area for which there is already an approved determination of native title.

Division 1A Other applications to the Federal Court

69   Applications that may be made

             (1)  The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

 

Applications

Kind of application

Application

Persons who may make application

Claim registration application

Application as mentioned in subsection 190D(2) for review of a decision of the Registrar not to accept a claim for registration.

The applicant in relation to the application under section 61.

Application to remove agreement from Register

Application as mentioned in subsection 199C(2) for an order to remove the details of an agreement from the Register of Indigenous Land Use Agreements.

(1) A party to the agreement; or

(2) A representative Aboriginal/Torres Strait Islander body for the area covered by the agreement.

Application about transfer of records

Application as mentioned in subsection 203FC(4) for orders to ensure that a representative Aboriginal/Torres Strait Islander body complies with directions under subsection 203FC(1).

A person affected by the body’s non-compliance with the directions.

Other applications

             (2)  This Division also applies to any other application to the Federal Court in relation to a matter arising under this Act.

70   Federal Court Rules about applications etc.

Federal Court Rules

             (1)  The application must be filed in the Federal Court and must comply with any Rules of the Federal Court about:

                     (a)  the form of the application; or

                     (b)  information to be contained in the application; or

                     (c)  documents that must accompany the application; or

                     (d)  any other matter relating to the application.

Prescribed fees

             (2)  The application must be accompanied by any prescribed fee.

Division 2 Applications to the National Native Title Tribunal: right to negotiate

75   Right to negotiate applications

                   The following table sets out applications that may be made to the National Native Title Tribunal under this Division and the persons who may make each of those applications:

 

Applications

Kind of application

Application

Persons who may make application

Expedited procedure objection application

Application objecting as mentioned in subsection 32(3) against the inclusion of a statement that an act is an act attracting the expedited procedure.

A native title party.

Future act determination application

Application as mentioned in section 35 for a determination in relation to a future act.

A negotiation party.

76   Material and fees to accompany applications

                   An application must:

                     (a)  be in the prescribed form; and

                     (b)  be given to the Registrar; and

                     (c)  contain such information in relation to the matters sought to be determined as is prescribed; and

                     (d)  be accompanied by any prescribed documents and any prescribed fee.

77   Action to be taken in relation to applications

                   If an application complies with section 76, the National Native Title Tribunal must accept the application.

Note:          The procedure to be followed in relation to these applications is set out in Subdivision P of Division 3 of Part 2.

Division 2A Applications to the Native Title Registrar: objections against registration of indigenous land use agreements

77A   Material and fees to accompany applications

                   An application under subsection 24DJ(1) objecting against registration of an agreement on the ground that it would not be fair and reasonable to register it must:

                     (a)  be in the prescribed form; and

                     (b)  be given to the Registrar; and

                     (c)  state reasons why it would not be fair and reasonable to register the agreement; and

                     (d)  be accompanied by any prescribed documents and any prescribed fee.

77B   Action to be taken in relation to applications

                   If an application complies with section 77A, the Registrar must accept the application.

Division 3 Miscellaneous

78   Assistance in relation to proceedings

Native Title Registrar may assist applicants, respondents etc.

             (1)  The Native Title Registrar may give such assistance as he or she considers reasonable to:

                     (a)  help people prepare applications and accompanying material and to help them, at any stage of a proceeding, in matters related to the proceeding; and

                     (b)  help other people, at any stage of a proceeding, in matters related to the proceeding.

Types of assistance

             (2)  Without limiting subsection (1), the assistance may include:

                     (a)  providing research services; or

                     (b)  conducting searches of registers or other records of current or former interests in land or waters.

No assistance to search own registers etc.

             (3)  Unless the Native Title Registrar considers there are special reasons for doing so, the Registrar must not give assistance to the Commonwealth, a State or a Territory by way of conducting searches of registers or other records maintained by the Commonwealth, the State or the Territory.

79   Requests for non-monetary compensation

Requests must be considered

             (1)  If, during negotiations in relation to a compensation application under this Part, a person or persons involved in the negotiations propose that the whole or part of the compensation should be in a form other than money, the other person or persons involved in the negotiations:

                     (a)  must consider the proposal; and

                     (b)  must negotiate in good faith in relation to the proposal.

Examples of non-monetary compensation

             (2)  The transfer of land or other property or the provision of goods or services is an example of compensation in a form other than money.

19  Division 1 of Part 4

Repeal the Division, substitute:

Division 1 Overview of Part

79A   Overview of Part

                   This Part has the rules for processing Federal Court applications, and making determinations, relating to native title. Division 1A has the general rules, and the other Divisions of the Part deal with the following topics:

                     (a)  referring applications to the NNTT for mediation (see Division 1B);

                     (b)  agreements and unopposed applications (see Division 1C);

                     (c)  conferences (see Division 2);

                     (d)  orders (see Division 3).

Division 1A General

80   Operation of Part

                   The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title.

81   Jurisdiction of the Federal Court

                   The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

82   Federal Court’s way of operating

Rules of evidence

             (1)  The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

Concerns of Aboriginal peoples and Torres Strait Islanders

             (2)  In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.

83   Assessor assisting the Federal Court

Assessor to assist Court

             (1)  The Chief Justice may direct an assessor to assist the Federal Court in relation to a proceeding.

Assessor subject to Court’s control

             (2)  The assessor is, in relation to that proceeding, subject to the control and direction of the Court.

Assessor not to exercise judicial power

             (3)  In assisting the Court, the assessor is not to exercise any judicial power of the Court.

83A   Federal Court may request searches to be conducted

Request to State Minister or Territory Minister

             (1)  If a State Minister or Territory Minister is a party to a proceeding, the Federal Court may, for the purposes of the proceeding, request that Minister to conduct searches of the State or Territory’s registers or other records of current or former interests in land or waters and to report the results to the Court.

Request to Native Title Registrar

             (2)  However, if:

                     (a)  no State Minister or Territory Minister is a party to the proceeding; or

                     (b)  the Federal Court considers it appropriate;

the Federal Court may, for the purposes of the proceeding, instead request the Native Title Registrar to conduct such searches and to report the results to the Court.

84   Parties

Coverage of section

             (1)  This section applies to proceedings in relation to applications to which section 61 applies.

Applicant

             (2)  The applicant is a party to the proceedings.

Affected persons

             (3)  Another person is a party to the proceedings if:

                     (a)  any of the following applies:

                              (i)  the person is covered by paragraph 66(3)(a);

                             (ii)  the person claims to hold native title in relation to land or waters in the area covered by the application;

                            (iii)  the person’s interests may be affected by a determination in the proceedings; and

                     (b)  the person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceeding.

State or Territory Ministers

             (4)  If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Federal Court written notice, within the period specified in the notice under section 66, that the Minister does not want to be a party.

Joining parties

             (5)  The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings.

Persons wanting to exercise public right of access or use

          (5A)  If:

                     (a)  a person wants to become a party to the proceedings; and

                     (b)  the Federal Court is satisfied that the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application;

the Court:

                     (c)  may make appropriate orders to ensure that the person’s interests are properly represented in the proceedings; but

                     (d)  need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use.

Parties may withdraw before first hearing of proceeding

             (6)  In addition to any other rights to withdraw from the proceedings, any party to the proceedings, other than the applicant, may, at any time before the first hearing of the proceedings starts, cease to be a party by giving written notice to the Court.

Parties may withdraw with leave of Federal Court

             (7)  In addition to any other rights to withdraw from the proceedings, any party to the proceedings, other than the applicant, may, with the leave of the Federal Court, cease to be a party.

Dismissing parties

             (8)  The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

             (9)  The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

                     (a)  the following apply:

                              (i)  the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

                             (ii)  the person’s interests are properly represented in the proceedings by another party; or

                     (b)  the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

84A   Intervention by Commonwealth Minister

Commonwealth Minister may intervene

             (1)  The Commonwealth Minister may, at any time, on behalf of the Commonwealth, by giving written notice to the Federal Court, intervene in a proceeding before the Court in a matter arising under this Act.

Court may order costs against Commonwealth

             (2)  If the Commonwealth Minister intervenes in a proceeding before the Court, the Court may make an order as to costs against the Commonwealth.

Commonwealth Minister taken to be a party for purposes of appeal

             (3)  If the Commonwealth Minister intervenes in a proceeding before the Court, then, for the purposes of the institution and prosecution of an appeal from a judgment given in the proceeding, the Commonwealth Minister is taken to be a party to the proceeding.

Court may order costs against Commonwealth if Commonwealth Minister appeals

             (4)  If, under subsection (3), the Commonwealth Minister institutes an appeal from a judgment, a court hearing the appeal may make an order as to costs against the Commonwealth.

84B   Parties may appoint an agent

             (1)  A party to a proceeding may appoint a society, organisation, association or other body to act as agent on behalf of the party in relation to the proceeding.

Body may act for 2 or more parties

             (2)  The same body may act as agent for 2 or more parties in the same proceeding.

Example:    An industry body may act as agent for a number of its members who are parties to a particular proceeding.

84C   Striking out applications for failure to comply with requirements of this Act

Strike-out application

             (1)  If an application (the main application ) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Note:          The main application may still be amended even after a strike-out application is filed.

Court must consider strike-out application before other proceedings

             (2)  The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

Registrar of Court to advise Native Title Registrar of application etc.

             (3)  The Registrar of the Court must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application.

Other strike-out applications unaffected

             (4)  This section does not prevent the making of any other application to strike out the main application.

85   Representation before Federal Court

                   A party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person.

85A   Costs

             (1)  Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

             (2)  Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

86   Evidence and findings in other proceedings

                   Subject to subsection 82(1), the Federal Court may:

                     (a)  receive into evidence the transcript of evidence in any other proceedings before:

                              (i)  the Court; or

                             (ii)  another court; or

                            (iii)  the NNTT; or

                            (iv)  a recognised State/Territory body; or

                             (v)  any other person or body;

                            and draw any conclusions of fact from that transcript that it thinks proper; and

                     (b)  receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and

                     (c)  adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).

Division 1B Reference to NNTT for mediation

86A   Purpose of mediation

Proceeding not involving compensation

             (1)  The purpose of mediation in a proceeding that does not involve a compensation application is to assist the parties to reach agreement on some or all of the following matters:

                     (a)  whether native title exists or existed in relation to the area of land or waters covered by the application;

                     (b)  if native title exists or existed in relation to the area of land or waters covered by the application:

                              (i)  who holds or held the native title;

                             (ii)  the nature, extent and manner of exercise of the native title rights and interests in relation to the area;

                            (iii)  the nature and extent of any other interests in relation to the area;

                            (iv)  the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act);

                             (v)  to the extent that the area is not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others.

Note:          The matters set out in paragraphs (a) and (b) are based on those that are required, under section 225, for a determination of native title.

Proceeding involving compensation

             (2)  The purpose of mediation in a proceeding that involves a compensation application is to assist the parties to reach agreement on some or all of the following matters:

                     (a)  the matters set out in paragraphs (1)(a) and (b) in relation to the area of land or waters covered by the application;

                     (b)  the amount or kind of any compensation payable;

                     (c)  the name of the person or persons entitled to any compensation or the method for determining the person or persons;

                     (d)  the method (if any) for determining the amount or kind of compensation to be given to each person;

                     (e)  the method for determining any dispute regarding the entitlement of a person to an amount of compensation.

Note:          The matters set out in paragraphs (b) to (e) reflect the matters that, under section 94, must be set out in an order for compensation.

86B   Referral of matters to NNTT for mediation

Federal Court must refer applications to mediation

             (1)  Unless an order is made under subsection (2) that there be no mediation, the Federal Court must refer every application under section 61 to the NNTT for mediation, including the ascertaining of agreed facts, as soon as practicable after the end of the period specified in the notice under section 66.

Court may order no mediation

             (2)  The Court may, on application by a party to the proceeding, or of its own motion, make an order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding.

No mediation if it will be unnecessary etc.

             (3)  The Court, upon application under subsection (2) or if it is considering making an order of its own motion, must order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding if the Court considers that:

                     (a)  any mediation will be unnecessary in relation to the whole or that part, whether because of an agreement between the parties about the whole or the part of the proceeding or for any other reason; or

                     (b)  there is no likelihood of the parties being able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2) in relation to the whole or that part; or

                     (c)  the applicant in relation to the application under section 61 has not provided sufficient detail (whether in the application or otherwise) about the matters mentioned in subsection 86A(1) or (2) in relation to the whole or that part.

Factors to take into account

             (4)  In deciding whether to make an order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding, the Court is to take the following factors into account:

                     (a)  the number of parties;

                     (b)  the number of those parties who have appointed the same agent under section 84B or same representative;

                     (c)  how long it is likely to take to reach agreement on the matters set out in subsection 86A(1) or (2) in relation to the whole or the part of the proceeding;

                     (d)  the size of the area involved;

                     (e)  the nature and extent of any non-native title rights and interests in relation to the land and waters in the area;

                      (f)  any other factor that the Court considers relevant.

Whole or part of a proceeding may be referred at any time

             (5)  In addition to referring a proceeding to mediation under subsection (1), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to the NNTT for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2).

86C   Cessation of mediation

Court may order mediation to cease

             (1)  The Court may, of its own motion, at any time in a proceeding, order that mediation is to cease in relation to the whole or a part of the proceeding if the Court considers that:

                     (a)  any further mediation will be unnecessary in relation to the whole or that part; or

                     (b)  there is no likelihood of the parties being able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2) in relation to the whole or that part.

Party may seek cessation of mediation

             (2)  A party to a proceeding may, at any time after 3 months after the start of mediation, apply to the Court for an order that mediation cease in relation to the whole of the proceeding or a part of the proceeding.

Where Court must order mediation to cease

             (3)  If the party making the application is:

                     (a)  the applicant in relation to the application under section 61; or

                     (b)  the Commonwealth, a State or a Territory;

the Court must make an order that mediation is to cease unless the Court is satisfied that the mediation is likely to be successful in enabling the parties to reach agreement on any of the matters set out in subsection 86A(1) or (2) in relation to the whole or the part of the proceeding.

Where Court may order mediation to cease

             (4)  If the party making the application is any other person, the Court may make such an order unless the Court is satisfied that the mediation is likely to be successful as mentioned in subsection (3).

Court to consider NNTT report

             (5)  The Court, in deciding whether to make an order under subsection (1), (3) or (4), must take into account any report provided by the NNTT under section 86E or by the presiding member of the NNTT under subsection 136G(3).

86D   Federal Court’s powers

Court may determine fact or law

             (1)  The Court may, at any time during mediation, determine a question of fact or law that is referred to it by the NNTT.

Note:          Under subsection 136D(1), the presiding member of the NNTT may refer to the Federal Court a question of fact or law that arises during mediation.

Court may adopt agreement on facts

             (2)  The Court may adopt any agreement on facts between the parties, reached during mediation.

86E   Federal Court may request reports from NNTT

                   The Federal Court may request the NNTT to provide reports on the progress of any mediation under this Division being undertaken by the NNTT and may specify when the report is to be provided.

Division 1C Agreements and unopposed applications

86F   Agreement to settle application etc.

Parties may negotiate for agreement

             (1)  Some or all of the parties to a proceeding in relation to an application may negotiate with a view to agreeing to action that will result in any one or more of the following:

                     (a)  the application being withdrawn or amended;

                     (b)  the parties to the proceeding being varied;

                     (c)  any other thing being done in relation to the application.

The agreement may involve matters other than native title.

Assistance by NNTT

             (2)  The parties may request assistance from the NNTT in negotiating the agreement.

Court may order adjournment to help negotiations

             (3)  The Federal Court may order an adjournment of the proceeding to allow time for the negotiations. It may do so on its own motion or on application by a party.

Court may end adjournment

             (4)  The Federal Court may order that the adjournment end. It may do so:

                     (a)  on its own motion; or

                     (b)  on application by a party; or

                     (c)  if the NNTT reports that the negotiations are unlikely to succeed.

Court’s powers not limited

             (5)  Subsection (3) does not limit the Federal Court’s powers to order an adjournment.

86G   Unopposed applications

Federal Court may make order

             (1)  If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66:

                     (a)  the application is unopposed; and

                     (b)  the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court;

the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing.

Note:          If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

Meaning of unopposed

             (2)  For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.

87   Power of Federal Court if parties reach agreement

Power of Court

             (1)  If, at any stage of proceedings after the end of the period specified in the notice given under section 66:

                     (a)  agreement is reached between the parties on the terms of an order of the Federal Court in relation to:

                              (i)  the proceedings; or

                             (ii)  a part of the proceedings; or

                            (iii)  a matter arising out of the proceedings; and

                     (b)  the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and

                     (c)  the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court;

the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.

Agreement as to order

             (2)  If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

Note:          If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

Agreement as to part of proceedings

             (3)  If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings, as the case may be, to which the agreement relates.

20  After section 94

Insert:

94A   Order containing determination of native title

                   An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title ).

21  After section 97

Insert:

97A   Searches for Federal Court etc.

                   The Registrar has the power to conduct, or arrange for the conducting of, searches:

                     (a)  as requested by the Federal Court under section 83A; or

                     (b)  for the purposes of section 190A or any other provision of this Act.

22  Section 98

Repeal the section, substitute:

98   Powers of Registrar—registers

                   The Registrar has the powers set out in Parts 7, 8 and 8A in relation to the Register of Native Title Claims, the National Native Title Register and the Register of Indigenous Land Use Agreements.

98A   Power of Registrar—other public records and information

Registrar may keep other records and information

             (1)  The Registrar has the power to keep such other records and information as he or she considers appropriate and to make those records or that information available to the public.

Certain information to be confidential

             (2)  The Registrar must not make particular information available to the public if the Registrar considers that it would not be in the public interest for the information to be available to the public.

Concerns of Aboriginal peoples and Torres Strait Islanders

             (3)  In determining whether it would or would not be in the public interest for information to be available to the public, the Registrar must have due regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

23  After subsection 108(1)

Insert:

Mediation for Federal Court proceedings

          (1A)  The Tribunal has the functions in relation to Federal Court proceedings given to the Tribunal by Division 4A.

Requests for assistance or mediation

          (1B)  The Tribunal has the function of providing assistance or mediating in accordance with any provision of this Act.

24  Subsection 109(2)

Repeal the subsection, substitute:

Concerns of Aboriginal peoples and Torres Strait Islanders

             (2)  The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved.

25  Subsection 109(3)

Omit “conducting an inquiry”, substitute “carrying out its functions”.

26  Section 110 (table, column dealing with persons who may be appointed, row dealing with presidential members)

Add:

 

       ; or (3)  A person who is, and has been for at least 5 years, enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory.

 

27  Subsections 122(1) and (3)

Omit “Part 4”, substitute “Part 3”.

28  Subsection 123(1)

Omit “sections 69 and”, substitute “section”.

29  Paragraph 123(1)(b)

Repeal the paragraph, substitute:

                     (b)  the persons who are to conduct mediation in a particular proceeding, or to provide assistance in making or negotiating agreements under this Act;

30  Paragraph 123(1)(c)

Omit “, or for the purposes of making a decision under section 69”.

31  Subsection 124(1)

Omit “Subject to section 69, the”, substitute “The”.

32  Subdivision B of Division 4 of Part 6 (heading)

Repeal the heading, substitute:

Subdivision B Other officers, Tribunal staff and consultants

33  After section 131

Insert:

131A   President may engage consultants

             (1)  The President may engage a person as a consultant in relation to any assistance or mediation that the Tribunal provides under any provision of this Act.

Consultants to have relevant skills or knowledge

             (2)  The President may only engage a person under subsection (1) if:

                     (a)  the person has, in the opinion of the President, particular skills or knowledge in relation to matters of substantial relevance to the assistance or mediation; and

                     (b)  so far as is reasonably practicable, the person has, in the opinion of the President, special knowledge in relation to Aboriginal or Torres Strait Islander societies.

Engagements to be in writing

             (3)  An engagement under subsection (1) must be made:

                     (a)  on behalf of the Commonwealth; and

                     (b)  by written agreement.

Consultant subject to President’s direction

             (4)  A consultant engaged under subsection (1) is subject to directions given by the President under subsection 123(1).

Note 1:    The heading to section 132 is replaced by the heading “ Registrar may engage consultants ”.

Note 2:    The heading to subsection 132(1) is omitted.

131B   Disclosure of interests

Consultant to disclose conflict of interest

             (1)  A person engaged under subsection 131A(1) as a consultant in relation to any assistance or mediation being provided by the Tribunal who has a conflict of interest in relation to the assistance or mediation must disclose the matters giving rise to that conflict to:

                     (a)  the President of the Tribunal; and

                     (b)  the persons to whom the Tribunal is providing the assistance or mediation.

Requirement for consent

             (2)  The person must not perform his or her duties as a consultant in relation to the assistance or mediation unless the President and the persons to whom the Tribunal is providing the assistance or mediation consent.

Meaning of conflict of interest

             (3)  For the purposes of this section, a person engaged under subsection 131A(1) as a consultant in relation to any assistance or mediation being provided by the Tribunal has a conflict of interest in relation to the assistance or mediation if the person has any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her duties as a consultant in relation to the assistance or mediation.

Conflict of interest at a particular time

             (4)  Without limiting subsection (3), a person engaged under subsection 131A(1) as a consultant in relation to any assistance or mediation being provided by the Tribunal has a conflict of interest at a particular time in relation to the assistance or mediation if:

                     (a)  at that time, the person is employed by, or engaged as a consultant to, an organisation that has an interest in the matter in relation to which the assistance or mediation is being provided; or

                     (b)  at any time in the 12 months immediately before that time, the person was so employed or engaged.

34  After section 136

Insert:

Division 4A Mediation conferences

136A   Mediation conferences

President to direct conference to be held

             (1)  If the Federal Court refers the whole or a part of a proceeding to the Tribunal under section 86B for mediation, the Tribunal may hold such conferences of the parties or their representatives as the Tribunal considers will help in resolving the matter.

Member must preside

             (2)  A conference must be presided over by a member of the Tribunal.

Assistance for presiding member

             (3)  The member presiding at a conference may be assisted by another member of the Tribunal or by a member of the staff of the Tribunal.

Statements at conference are without prejudice

             (4)  In a proceeding before the Court, unless the parties otherwise agree, evidence may not be given, and statements may not be made, concerning any word spoken or act done at a conference.

Member not to take further part in relation to a proceeding

             (5)  Unless the parties otherwise agree, a member who presides over, or assists at, a conference in relation to a proceeding may not, in any other capacity, take any further part in the proceeding.

Participation by telephone etc.

             (6)  The presiding member may allow a person to participate by:

                     (a)  telephone; or

                     (b)  closed-circuit television; or

                     (c)  any other means of communication.

Division applies as if consultant were a member

             (7)  If a consultant is engaged under subsection 131A(1) to conduct mediation in relation to a particular matter under this Division, this Division applies in relation to that matter as if the consultant were a member of the Tribunal.

136B   Parties at conferences

Limiting parties at conferences

             (1)  The presiding member may direct that only one or some of the parties may attend, and be represented, at a conference.

Excluding parties from conferences

             (2)  If the presiding member considers that:

                     (a)  a party, or a party’s representative, at a conference is disrupting or hindering the conference; or

                     (b)  excluding a party, or a party’s representative, from a conference would help to resolve matters;

the member may direct that the party or representative not attend at that conference or at other conferences.

Parties may be represented

             (3)  A party may be represented by a barrister, a solicitor or another person.

136C   Other persons attending or participating in conferences

                   The presiding member may, with the consent of all of the parties present at a conference:

                     (a)  direct that other persons be permitted to attend as observers of the conference; or

                     (b)  if he or she considers it would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1) or (2)—direct that other persons be permitted to participate in the conference.

136D   Referral of questions of fact or law

Reference of questions to Federal Court

             (1)  Subject to subsections (2) and (3), if the presiding member considers that it would expedite the reaching of an agreement on any matter that is the subject of mediation, he or she may refer to the Federal Court a question of fact or law relating to a proceeding that arises during the mediation.

Note:          Under subsection 86D(1), the Federal Court may determine a question of fact or law that the NNTT refers to it.

Presiding member not a consultant

             (2)  If the presiding member is not a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

                     (a)  on the initiative of the presiding member; or

                     (b)  at the request of a party, if the presiding member agrees.

Presiding member a consultant

             (3)  If the presiding member is a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

                     (a)  on the initiative of the presiding member, if a presidential member agrees; or

                     (b)  at the request of a party, if both the presiding member and a presidential member agree.

Mediation may continue

             (4)  If a question of fact or law arising during mediation has been referred to the Court under this section, the presiding member may continue mediation if he or she considers that it is appropriate.

136E   Conferences to be held in private

                   A conference must be held in private, unless the member presiding directs otherwise and no party objects.

136F   Presiding member may prohibit disclosure of information

Power of presiding member

             (1)  The presiding member may direct that:

                     (a)  any information given, or statements made, at a conference; or

                     (b)  the contents of any document produced at a conference;

must not be disclosed, or must not be disclosed except in such manner, and to such persons, as the presiding member specifies.

Applications etc.

             (2)  The presiding member may make the direction on his or her own initiative or on an application by a party.

Presiding member may disclose if parties agree

             (3)  If the parties agree, the presiding member may, despite the direction, disclose things of the kind mentioned in paragraph (1)(a) or (b).

136G   Report to be given to Federal Court

Report after mediation concludes

             (1)  The presiding member must, as soon as practicable after mediation is successfully concluded, provide a written report to the Federal Court setting out the results of the mediation.

Report requested under section 86E

             (2)  The presiding member must provide a written report to the Federal Court setting out the progress of the mediation if requested to do so under section 86E.

Report to assist the Court

             (3)  The presiding member may provide a written report to the Federal Court setting out the progress of the mediation if the presiding member considers that it would assist the Federal Court in progressing the proceeding in relation to which the mediation is being undertaken.

Agreement on facts

             (4)  If the parties agree, any report under this section must include any agreement on facts between the parties that was reached during the mediation concerned.

Division 4B How assistance or mediation is to be provided

136H   Regulations about assistance or mediation

             (1)  The regulations may make provision in relation to the way in which:

                     (a)  any assistance is to be provided by the NNTT under any provision of this Act; or

                     (b)  any mediation, that the NNTT is requested to provide, is to be provided under any provision of this Act.

Regulations must be consistent with this Act

             (2)  Such regulations must not be inconsistent with Division 4A or any other provision of this Act.

35  Paragraph 139(a)

Repeal the paragraph.

36  At the end of section 139

Add:

               ; or (d)  if a person has made an application under subsection 24DJ(1) objecting against registration of an indigenous land use agreement and not withdrawn the objection—whether the person satisfies the Tribunal that it would not be fair and reasonable to register the agreement having regard to the matters mentioned in paragraph 24DL(2)(c).

37  Subsection 141(1)

Repeal the subsection.

38  At the end of section 141

Add:

Registration of indigenous land use agreements

             (4)  The parties to an inquiry into whether a person satisfies the Tribunal that it would not be fair and reasonable to register an indigenous land use agreement are:

                     (a)  the person; and

                     (b)  the parties to the agreement; and

                     (c)  any other person who satisfies the Tribunal that his or her interests are affected by the agreement.

39  Section 148

Repeal the section, substitute:

148   Power of Tribunal where no jurisdiction, failure to proceed etc.

                   The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

                     (a)  the Tribunal is satisfied that it is not entitled to deal with the application; or

                     (b)  the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

40  After section 149

Insert:

149A   Power of Tribunal to reinstate application

                   If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the application or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

41  At the end of section 151

Add:

Determinations “on the papers”

             (2)  The Tribunal may:

                     (a)  decide for the purposes of paragraph 24DL(2)(c) whether it would be fair and reasonable to register an agreement; or

                     (b)  make a determination in relation to a right to negotiate application;

by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.

42  Subsection 154(1)

Omit “an inquiry”, substitute “a hearing”.

Note 1:    The heading to section 154 is altered by omitting “ Inquiries ” and substituting “ Hearings ”.

Note 2:    The heading to subsection 154(1) is altered by omitting “ inquiries ” and substituting “ hearings ”.

43  Subsection 154(3)

Omit “an inquiry, or part of an inquiry,”, substitute “a hearing, or part of a hearing,”.

Note:       The heading to subsection 154(3) is altered by omitting “ inquiries ” and substituting “ hearings ”.

44  Subsection 154(4)

Omit “an inquiry or part of an inquiry”, substitute “a hearing or part of a hearing”.

45  Sections 160, 161 and 165

Repeal the sections.

46  Subdivision E of Division 5 of Part 6

Repeal the Subdivision.

47  Subsections 169(2) and (3)

Repeal the subsections, substitute:

Appeal from Tribunal decision—indigenous land use agreement registration

             (2)  A party to an inquiry relating to registration of an indigenous land use agreement before the Tribunal may appeal to the Federal Court, on a question of law, from any decision of the Tribunal in that proceeding.

Note:       The heading to subsection 169(1) is altered by omitting “ the ”.

48  Section 176

After “section 92”, insert “, 136F”.

49  Paragraph 177(a)

Omit “or a member”, substitute “, a member or a consultant engaged under subsection 131A(1)”.

50  Section 178

Omit “a determination of the Tribunal is lodged with the Federal Court under section 166,”.

51  After subsection 180(1)

Insert:

Protection of consultants

          (1A)  A person engaged under subsection 131A(1) as a consultant has, in performing duties under the engagement, the same protection and immunity as a Justice of the High Court.

52  Section 181

Repeal the section, substitute:

181   Confidential information not to be disclosed

Persons to whom section applies

             (1)  This section applies to a person who is a member or officer of the Tribunal or a consultant engaged under subsection 131A(1).

Persons not competent etc. to give evidence

             (2)  A person to whom this section applies is not competent, and must not be required, to give evidence to a court relating to a matter if:

                     (a)  the giving of the evidence would be contrary to a direction of the Tribunal in force under section 155 or to a direction of the presiding member under subsection 136F(1); or

                     (b)  an application has been made to the Tribunal for a direction under section 155, or to the presiding member for a direction under section 136F, concerning the matter to which the evidence would relate and the Tribunal or the presiding member has not determined that application.

Persons not required to produce documents

             (3)  A person to whom this section applies must not be required to produce in a court a document given to the Tribunal in connection with a proceeding if:

                     (a)  the production of the document would be contrary to a direction of the Tribunal in force under section 155 or to a direction of the presiding member under subsection 136F(1); or

                     (b)  an application has been made to the Tribunal for a direction under section 155, or to the presiding member for a direction under section 136F, in relation to the document and the Tribunal or the presiding member has not determined that application.

Persons not required to give evidence

             (4)  A person to whom this section applies must not be required to give evidence to a court in relation to any proceedings before the Tribunal or any mediation required under subsection 31(3).

Definitions

             (5)  In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

53  Section 183

Repeal the section, substitute:

183   Assistance from Attorney-General

Assistance in relation to inquiries etc.

             (1)  A person who is a party, or who intends to apply to be a party, to an inquiry, mediation or proceeding related to native title may apply to the Attorney-General for the provision of assistance under this section in relation to the inquiry, mediation or proceeding.

Assistance in relation to agreements and disputes

             (2)  A person who:

                     (a)  is or intends to become a party to an indigenous land use agreement or an agreement about rights conferred under subsection 44B(1); or

                     (b)  is in dispute with any other person about rights conferred under subsection 44B(1);

may apply to the Attorney-General for the provision of assistance under this section in relation to:

                     (c)  negotiating the agreement; or

                     (d)  any inquiry, mediation or proceeding in relation to the agreement; or

                     (e)  resolving the dispute.

Attorney-General may grant assistance

             (3)  If the Attorney-General is satisfied that:

                     (a)  the applicant is not eligible to receive assistance in relation to the matter concerned from any other source (including from a representative Aboriginal/Torres Strait Islander body); and

                     (b)  the provision of assistance to the applicant in relation to the matter concerned is in accordance with the guidelines (if any) determined under subsection (4); and

                     (c)  in all the circumstances, it is reasonable that the application be granted;

the Attorney-General may authorise the provision by the Commonwealth to the applicant, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance as the Attorney-General determines.

Attorney-General may determine guidelines

             (4)  The Attorney-General may, in writing, determine guidelines that are to be applied in authorising the provision of assistance under this section.

Assistance not to be provided to Ministers

             (5)  The Attorney-General cannot authorise the provision of assistance under this section to the Commonwealth Minister, a State Minister or a Territory Minister.

Assistance not to be provided to native title claimants etc.

             (6)  The Attorney-General must not authorise the provision of assistance under this section to a person in relation to:

                     (a)  any claim by the person, in an inquiry, mediation or proceeding, to hold native title or to be entitled to compensation in relation to native title; or

                     (b)  an indigenous land use agreement, if the person holds or claims to hold native title in relation to the area covered by the agreement; or

                     (c)  an agreement or dispute about rights conferred under subsection 44B(1), if the person is included in the native title claim group concerned.

Delegation by Attorney-General

             (7)  The Attorney-General may, in writing, delegate any or all of his or her powers under subsection (3) to:

                     (a)  the Secretary of the Department; or

                     (b)  a person engaged under the Public Service Act 1997 who occupies a specified position in the Department.

54  Section 184

Omit “given to the Registrar, or”, substitute “filed in the Federal Court, or given”.

55  Subsection 185(2)

Before “Registrar”, insert “Native Title”.

56  Subsection 186(1)

After “each claim”, insert “covered by subsection 190(1)”.

57  Paragraph 186(1)(a)

Omit “lodged with the Registrar or”, substitute “filed in the Federal Court or lodged with”.

58  Paragraph 186(1)(c)

After “was”, insert “filed or”.

59  After paragraph 186(1)(c)

Insert:

                    (ca)  the date on which the claim is entered on the Register;

60  Paragraph 186(1)(d)

Omit “person who is taken to be the claimant”, substitute “applicant”.

61  After paragraph 186(1)(f)

Insert:

                   ; (g)  a description of the native title rights and interests in the claim that:

                              (i)  the Registrar in applying subsection 190B(6); or

                             (ii)  a recognised State/Territory body in applying provisions equivalent to that subsection;

                            considered, prima facie, could be established.

62  At the end of subsection 188(1)

Add:

Note:          Such information must not be made available to the public: see subsection 98A(2).

63  Subsection 188(2)

Repeal the subsection.

64  Sections 189 and 190

Repeal the sections, substitute:

189   Senior Registrar of the High Court to notify Registrar

                   The Senior Registrar of the High Court must, as soon as is practicable, notify the Registrar of the details of any decision or determination made by the High Court that covers a claim.

189A   Registrar of Federal Court to notify Native Title Registrar

                   The Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of:

                     (a)  the withdrawal of an application that contains a claim (whether or not covered by an entry on the Register); and

                     (b)  the details of any decision or determination of the Federal Court that covers a claim (whether or not covered by an entry on the Register).

190   Keeping the Register

Registrar to include claims

             (1)  The Native Title Registrar must, as soon as practicable, include in the Register:

                     (a)  details of any claims accepted for registration by the Registrar under section 190A; and

                     (b)  details of any claims that have been found to satisfy conditions equivalent to those set out in sections 190B and 190C, being claims of which the Registrar is notified by a recognised State/Territory body.

Amending Register after amendment of claims: recognised bodies

             (2)  If a recognised State/Territory body notifies the Registrar of an amendment of an application containing a claim that is on the Register, the Registrar must, as soon as practicable:

                     (a)  if the claim as set out in the amended application has been found to satisfy conditions equivalent to those set out in sections 190B and 190C—amend the Register to reflect the amendment; or

                     (b)  if the claim as set out in the amended application has been found not to satisfy conditions equivalent to those set out in sections 190B and 190C—amend the Register to remove any entry relating to the claim.

Amending Register after amendment of claims: other cases

             (3)  If the Registrar is given a copy of an amended application under subsection 64(4) that contains a claim or amends a claim, the Registrar must, as soon as practicable:

                     (a)  if the claim is accepted for registration under section 190A—amend the Register to reflect the amendment; or

                     (b)  if the claim is not accepted for registration under section 190A—amend the Register to remove any entry relating to the claim.

Amending Register where additional information provided

          (3A)  If:

                     (a)  the Registrar accepts for registration a claim made in an application under section 63 or an amended application under subsection 64(4); and

                     (b)  in accordance with this section, the Registrar includes in the Register details of the claim and a description of the nature and extent of the native title rights and interests concerned; and

                     (c)  afterwards, but before a native title determination in relation to the application or amended application is made, the applicant provides to the Registrar further information relating to any native title rights and interests that were claimed in the application but whose details and description were not included in the Register; and

                     (d)  the Registrar considers that, if the information had been provided before the claim had been accepted for registration, the details and description would have been included in the Register;

the Registrar must amend the Register to include the details and description.

Entries removed or amended after determination, decision or withdrawal

             (4)  If:

                     (a)  the Registrar is notified under section 189 or 189A of a decision or determination covering a claim; or

                     (b)  the Registrar is notified by a recognised State/Territory body of a decision or determination covering a claim; or

                     (c)  the Registrar is notified that an application that contained a claim has been withdrawn;

the Registrar must, as soon as practicable:

                     (d)  if the application in question has been withdrawn, dismissed or otherwise finalised—remove the entry on the Register that relates to the claim; or

                     (e)  in any other case—amend the entry on the Register that relates to the claim so that it only relates to the matters in relation to which the application has not been finalised.

Note:       If an application has been finalised in relation to part of the area claimed, the Register would be amended to remove references to that area. If the application has been finalised by an approved determination of native title, that determination would be entered on the National Native Title Register.

190A   Registrar to consider claims

Claims made to Federal Court

             (1)  If the Registrar is given a copy of a claimant application under section 63 or subsection 64(4), the Registrar must, in accordance with this section, consider the claim made in the application.

Note:          In the case of an amended application (under subsection 64(4)), the Registrar would be required to consider the claim in the amended application even if the Registrar had already accepted for registration the claim in the original application. In such a case, if the claim in the amended application were then accepted for registration, the Registrar would be required under subsection 190(3) to amend the Native Title Register to reflect the amendment.

Effect of section 29 notice

             (2)  If, either before the Registrar begins to do so or while he or she is doing so, a notice is given under section 29 in relation to an act affecting any of the land or waters in the area covered by the application, the Registrar must use his or her best endeavours to finish considering the claim by the end of 4 months after the notification day specified in the notice.

Information to be considered

             (3)  In considering a claim under this section, the Registrar must have regard to:

                     (a)  information contained in the application and in any other documents provided by the applicant; and

                     (b)  any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and

                     (c)  to the extent that it is reasonably practicable to do so in the circumstances—any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar’s opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;

and may have regard to such other information as he or she considers appropriate.

Information about other rights and interests

             (4)  Without limiting subsection (3), information mentioned in that subsection may include information about current or previous non-native title rights and interests in, or in relation to, the land or waters in the area covered by the application.

Effect of paragraph (3)(b)

             (5)  The fact that no information of the kind referred to in paragraph (3)(b) has been supplied at a particular time does not prevent the Registrar accepting a claim for registration under this section.

Notification about amending application

          (5A)  Before the Registrar has decided whether or not to accept the claim for registration, he or she may notify the applicant that the application may be amended under the Federal Court Rules.

Test for registration

             (6)  The Registrar must accept the claim for registration if the claim satisfies all of the conditions in:

                     (a)  section 190B (which deals mainly with the merits of the claim); and

                     (b)  section 190C (which deals with procedural and other matters).

In any other case, the Registrar must not accept the claim for registration.

Note:          The fact that the Registrar is considering the claim under this section does not mean that the application cannot be amended: see subsection 64(3).

Effect of withdrawal etc. of application

             (7)  If:

                     (a)  before the Registrar has decided whether or not to accept the claim for registration; or

                     (b)  after the Registrar has decided to accept the claim for registration but before the Registrar has included details of the claim in the Register of Native Title Claims;

the Registrar is notified under section 189 or 189A of a decision or determination to the effect that the application has been dismissed or otherwise finalised, or is notified that the application has been withdrawn, the Registrar must not:

                     (c)  decide whether or not to accept the claim for registration; or

                     (d)  enter the details in the Register;

as the case requires.

190B   Registration: conditions about merits of the claim

             (1)  This section contains the conditions mentioned in paragraph 190A(6)(a).

Identification of area subject to native title

             (2)  The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Identification of native title claim groups

             (3)  The Registrar must be satisfied that:

                     (a)  the persons in the native title claim group are named in the application; or

                     (b)  the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Identification of claimed native title

             (4)  The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

Factual basis for claimed native title

             (5)  The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

                     (a)  that the native title claim group have, and the predecessors of those persons had, an association with the area; and

                     (b)  that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

                     (c)  that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

Prima facie case

             (6)  The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Note:          If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process).

Physical connection

             (7)  The Registrar must be satisfied that at least one member of the native title claim group:

                     (a)  currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

                     (b)  previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:

                              (i)  the Crown in any capacity; or

                             (ii)  a statutory authority of the Crown in any capacity; or

                            (iii)  any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.

No failure to comply with section 61A

             (8)  The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

No extinguishment etc. of claimed native title

             (9)  The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that:

                     (a)  to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas—the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas; or

                     (b)  to the extent that the native title rights and interests claimed relate to waters in an offshore place—those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place; or

                     (c)  in any case—the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).

190C   Registration: conditions about procedural and other matters

             (1)  This section contains the conditions mentioned in paragraph 190A(6)(b).

Information etc. required by sections 61 and 62

             (2)  The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.

No previous overlapping claim groups

             (3)  The Registrar must be satisfied that no person included in the native title claim group for the application (the current application ) was a member of the native title claim group for any previous application, if:

                     (a)  the previous application covered the whole or part of the area covered by the current application; and

                     (b)  an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and

                     (c)  the entry was made, or not removed, as a result of consideration of the previous application under section 190A.

Identity of claimed native title holders

             (4)  The Registrar must be satisfied that either of the following is the case:

                     (a)  the application has been certified under paragraph 202(4)(d) by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or

                     (b)  the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

Note:          The word authorise is defined in section 251B.

Requirements for uncertified applications

             (5)  If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application:

                     (a)  includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and

                     (b)  briefly sets out the grounds on which the Registrar should consider that it has been met.

Overlapping representative body areas

             (6)  Paragraph (4)(a) does not require certification by a particular representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions if:

                     (a)  the application has been certified under paragraph 202(4)(d) by another representative Aboriginal Torres/Strait Islander body whose area includes all of the area of land or waters, to which the application relates, that is within the first-mentioned body’s area; or

                     (b)  the application has been certified under paragraph 202(4)(d) by 2 or more other representative Aboriginal/Torres Strait Islander bodies whose areas, when combined, include all of the area of land or waters, to which the application relates, that is within the first-mentioned body’s area.

Definition of area

             (7)  In subsection (6):

area , in relation to a representative Aboriginal/Torres Strait Islander body, means the area in relation to which the body has been determined under section 202 to be a representative Aboriginal/Torres Strait Islander body.

190D   If the claim cannot be registered

             (1)  If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including a statement of the reasons for the decision.

Content of notice where failure to satisfy physical connection test

          (1A)  If the only reason why the Registrar cannot accept the claim for registration is that the condition in subsection 190B(7) (which is about a physical connection with the claim area) is not satisfied, the notice must advise the applicant of the applicant’s right to make an application to the Federal Court under subsection (2) and of the power of the Court to make an order in accordance with subsection (4) in respect of the application.

Applicant may apply to Federal Court for review

             (2)  If the Registrar gives the applicant a notice under subsection (1), the applicant may apply to the Federal Court for a review of the Registrar’s decision not to accept the claim.

Federal Court has jurisdiction

             (3)  The Court has jurisdiction to hear and determine an application made to it under subsection (2).

Court order where physical connection test failed

             (4)  If, on an application under subsection (2) in a case to which subsection (1A) applies, the Court is satisfied that:

                     (a)  prima facie, at least some of the native title rights and interests claimed in the application can be established; and

                     (b)  at some time in his or her lifetime, at least one parent of one member of the native title claim group had a traditional physical connection with any part of the land or waters and would reasonably have been expected to have maintained that connection but for things done (other than the creation of an interest in relation to land or waters) by:

                              (i)  the Crown in any capacity; or

                             (ii)  a statutory authority of the Crown in any capacity; or

                            (iii)  any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease;

the Court may order the Registrar to accept the claim for registration.

Opportunity to be heard

             (5)  Before making an order under subsection (4), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.

65  Section 191

After “Registrar may”, insert “, if the State or Territory concerned agrees,”.

66  Subsection 192(2)

Before “Registrar”, insert “Native Title”.

67  Paragraph 193(1)(a)

Omit “the NNTT,”.

68  Paragraph 193(2)(d)

Repeal the paragraph, substitute:

                     (d)  the matters determined, including:

                              (i)  whether or not native title exists in relation to the land or waters covered by the determination; and

                             (ii)  if it exists—who the common law holders of the native title are and a description of the nature and extent of the native title rights and interests concerned; and

                            (iii)  in the case of an approved determination of native title by the Federal Court, where the determination is that native title exists—the name and address of any prescribed body corporate that holds the native title rights and interests concerned on trust or that is determined under section 57 in relation to the native title; and

                            (iv)  in the case of an approved determination of native title by a recognised State/Territory body, where the determination is that native title exists—the name and address of any body corporate that holds the native title rights and interests concerned on trust or that is determined in relation to the native title under a provision of a law of the State or Territory concerned that corresponds to section 57.

69  Section 196

Repeal the section.

70  Subsection 200(1)

Omit all the words before “Commonwealth”, substitute “The”.

71  Paragraph 200(1)(a)

Omit “arising under Part 2”, substitute “for acts affecting native title”.

72  Paragraph 200(1)(c)

After “State/Territory body”, insert “, or equivalent body (within the meaning of subsection 207B(1)),”.

73  Paragraph 206(d)

Omit “at the end of 2 years after the commencement of this Part”, substitute “from time to time”.

74  Section 207

Omit “at the end of 5 years after the Parliamentary Joint Committee is first appointed”, substitute “on 23 March 2004”.

75  After Part 12

Insert:

Part 12A State/Territory bodies

   

207B   Equivalent State/Territory bodies

Equivalent bodies

             (1)  This section applies if the State Minister for a State, or the Territory Minister for a Territory, nominates to the Commonwealth Minister one or more offices, tribunals or bodies (each of which is an equivalent body ), established by or under a law of the State or Territory, for the purpose of each performing specified functions or exercising specified powers of the NNTT or the Native Title Registrar, in specified circumstances, under specified equivalent body provisions (see subsection (9)).

Different functions/powers etc.

             (2)  To avoid doubt, the nomination may specify:

                     (a)  different functions or powers in relation to different equivalent bodies; or

                     (b)  different functions or powers in different circumstances.

Determination

             (3)  The Commonwealth Minister may, in writing, determine that the one or more equivalent bodies are to perform the specified functions or exercise the specified powers in the specified circumstances, under the specified equivalent body provisions.

Criteria to be satisfied

             (4)  In order to ensure that there is a nationally consistent approach to the recognition and protection of native title, the Commonwealth Minister must not make the determination unless the Commonwealth Minister is satisfied that:

                     (a)  the one or more equivalent bodies will have available to them, through the bodies’ membership, appropriate expertise (including expertise in matters relating to Aboriginal peoples and Torres Strait Islanders) for performing their functions or exercising their powers under the determination; and

                     (b)  under the law of the State or Territory, the procedures of the one or more equivalent bodies in performing those functions or exercising those powers will be fair, just, informal, accessible and expeditious; and

                     (c)  the one or more equivalent bodies will have adequate resources to enable them to perform those functions or exercise those powers; and

                    (ca)  members of the one or more equivalent bodies will enjoy security of tenure no less favourable than that enjoyed by members of the NNTT or the Native Title Registrar, as the case requires; and

                     (d)  the law of the State or Territory will enable and require the one or more equivalent bodies to perform those functions or exercise those powers if the Commonwealth Minister makes the determination; and

                     (e)  if any of the functions or powers that the one or more equivalent bodies will perform or exercise under the determination involves the maintenance of any register under this Act—the law of the State or Territory will require the functions to be performed or the powers to be exercised in a way that ensures that the register will be maintained in a nationally integrated and accessible manner; and

                      (f)  if any of the functions or powers that will be performed or exercised under the determination are those of the NNTT—the law of the State or Territory will require the member or at least one of the members of the equivalent body to be a member of the NNTT; and

                     (g)  any other requirement that the Commonwealth Minister considers relevant will be satisfied.

Modified application of Act etc.

             (5)  While the determination is in force, this Act, and Schedule 5 to the Native Title Amendment Act 1998 , have effect, in relation to a function or power of the NNTT or Native Title Registrar specified in the determination, as if, in the specified circumstances:

                     (a)  the one or more equivalent bodies had the functions or powers, instead of the NNTT or the Registrar; and

                     (b)  if one of the powers specified in the determination is the power to make determinations under Subdivision P of Division 3 of Part 2 of this Act—for the purposes of sections 36A, 36B, 36C and 42 of this Act, the State Minister or the Territory Minister of the relevant State or Territory had the powers of the Commonwealth Minister under that section, instead of the Commonwealth Minister.

Note:          The Administrative Decisions (Judicial Review) Act 1977 will apply to decisions that an equivalent body or a State or Territory Minister may, because of this section, make under this Act to the same extent to which it applies to corresponding decisions of the NNTT, the Native Title Registrar or the Commonwealth Minister under this Act.

Vesting of functions and powers in equivalent bodies

             (6)  While the determination is in force, the functions and powers specified in the determination are vested in the one or more equivalent bodies, in the circumstances set out in the determination.

Revocation of determination

             (7)  If, at any time:

                     (a)  the law of the State or Territory is amended; and

                     (b)  as a result, the Commonwealth Minister ceases to be satisfied as mentioned in subsection (4) in relation to any or all of the equivalent bodies;

he or she must:

                     (c)  advise the State Minister or the Territory Minister concerned in writing of the fact; and

                     (d)  if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the Commonwealth Minister is still not satisfied as mentioned in subsection (4)—in writing, revoke the determination.

Regulations to make transitional provisions

             (8)  The regulations may prescribe any modifications of this Act that are necessary or convenient to deal with transitional matters arising from the making or revocation of determinations under this section.

Equivalent body provisions

             (9)  The equivalent body provisions are:

                     (a)  all of the provisions of this Act, except the following:

                              (i)  this section;

                             (ii)  Part 5;

                            (iii)  the provisions of Part 6, other than subsection 136D(1) and sections 139, 145, 169, 178 and 179; and

                     (b)  Schedule 5 to the Native Title Amendment Act 1998 .

76  After paragraph 215(2)(a)

Insert:

                    (aa)  the regulations may make provision:

                              (i)  prescribing fees to be paid to obtain access to, or information from, records or information kept by the Native Title Registrar as mentioned in section 98A; and

                             (ii)  for or in relation to the waiver or refund, in whole or part, of such fees; and

77  Subparagraph 215(2)(b)(i)

Before “Registrar”, insert “Native Title”.

78  After subparagraph 215(2)(b)(i)

Insert:

                            (ia)  the waiver, in whole or in part, of those fees; and

79  Section 222 (table)

Repeal the table, substitute:

List of Definitions

Expression

Section

Aboriginal peoples

253

Aboriginal/Torres Strait Islander land or waters

253

act

226

act attracting the expedited procedure

237

affect

227

agricultural lease

247

applicant

253

approved determination of native title

253

arbitral body

253

assessor

253

attributable

239

authorise

253

category A intermediate period act

232B

category A past act

229

category B intermediate period act

232C

category B past act

230

category C intermediate period act

232D

category C past act

231

category D intermediate period act

232E

category D past act

232

Chief Justice

253

claimant application

253

coastal sea

253

commercial lease

246

common law holders

253

Commonwealth Minister

253

community purposes lease

249A

determination of native title

225

exclusive agricultural lease

247A

exclusive pastoral lease

248A

explore

253

extinguish

237A

Federal Court

253

forest operations

253

former judge

253

future act

233

Government party

253

grantee party

253

horticulture

253

indigenous land use agreement

253

infrastructure facility

253

interest

253

intermediate period act

232A

Judge

253

jurisdictional limits

253

land

253

land or waters on which a public work is constructed, established or situated

251D

lease

242

lessee

243

major earthworks

253

member

253

mine

253

mining lease

245

National Native Title Register

253

National Native Title Tribunal

253

native title

223

native title claim group

253

native title group

24CD, 24DE

native title holder

224

native title party

253

Native Title Registrar

253

native title rights and interests

223

negotiation party

253

NNTT

253

non-claimant application

253

non-exclusive agricultural lease

247B

non-exclusive pastoral lease

248B

non-extinguishment principle

238

non-presidential member

253

notify the public in the determined way

252

offshore place

253

onshore place

253

ordinary title

253

paragraph 51(xxxi) acquisition of property

253

paragraph 51(xxxi) just terms

253

past act

228

pastoral lease

248

permit

244

perpetual lease

249B

prescribed

253

President

253

presidential member

253

previous exclusive possession act

23B

previous non-exclusive possession act

23F

primary production activity

24GA

procedural right

253

public work

253

recognised State/Territory body

253

Register of Indigenous Land Use Agreements

253

Register of Native Title Claims

253

registered native title body corporate

253

registered native title claimant

253

Registrar

253

representative Aboriginal/Torres Strait Islander body

253

representative body

253

residential lease

249

right to negotiate application

253

Scheduled interest

249C

similar compensable interest test

240

special matter

253

State Minister

253

statutory authority

253

subject to section 24FA protection

253

Territory Minister

253

Torres Strait Islander

253

town or city

251C

traditional activity

44A

Tribunal

253

valid

253

waters

253

 

80  Section 225

Repeal the section, substitute:

225   Determination of native title

                   A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area ) of land or waters and, if it does exist, a determination of:

                     (a)  who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

                     (b)  the nature and extent of the native title rights and interests in relation to the determination area; and

                     (c)  the nature and extent of any other interests in relation to the determination area; and

                     (d)  the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

                     (e)  to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:          The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

81  Subsection 226(2)

Omit “Subject to subsection (4), act includes”, substitute “An act includes”.

82  Subsection 226(3)

Omit “Subject to subsection (4), an”, substitute “An”.

83  Subparagraph 251(2)(a)(ii)

Omit “and”.

84  Subparagraph 251(2)(a)(iii)

Repeal the subparagraph.

85  After paragraph 251(2)(a)

Insert:

                    (aa)  any procedures under the law of the State or Territory for determinations whether acts affecting native title may be done will be consistent with those set out in this Act; and

                    (ab)  the law of the State or Territory will require a decision to be made whether a claim in respect of native title satisfies conditions equivalent to those set out in sections 190B and 190C; and

86  Paragraph 251(2)(g)

Repeal the paragraph.

87  After subparagraph 251(2)(i)(i)

Insert:

                            (ia)  any claims contained in any such applications (including amended applications) that have been found to satisfy conditions equivalent to those set out in sections 190B and 190C; and

                            (ib)  any amendments of applications covered by subparagraph (ia), if the claims contained in the application as amended have been found not to satisfy conditions equivalent to those set out in sections 190B and 190C; and

                            (ic)  any withdrawal or dismissal of applications covered by subparagraph (i); and

88  Paragraph 251(4)(b)

After “90 days”, insert “, or such longer period as the Commonwealth Minister allows,”.

89  Subsection 251(6)

Omit “Division 1 of Part 4”, substitute “Division 1A of Part 4”.

90  Section 251

After amending the section in accordance with this Schedule, move the section to new Part 12A (so that it appears immediately after the heading to that Part) and re-number the section as 207A.

91  Section 253 (paragraph (c) of the definition of Aboriginal/Torres Strait Islander land or waters )

After “law”, insert “, or part of a law,”.

92  Section 253

Insert:

applicant has a meaning affected by subsection 61(2).

93  Section 253

Insert:

claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

94  Section 253 (definition of land , after the note)

Insert:

Note 2:       Because of the definition of waters , the area between high water and low water will not be included in land .

95  Section 253

Insert:

native title claim group means:

                     (a)  in relation to a claim in an application for a determination of native title made to the Federal Court—the native title claim group mentioned in relation to the application in the table in subsection 61(1); or

                     (b)  in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body—the person or persons making the claim, or on whose behalf the claim is made.

96  Section 253 (definition of non-claimant application )

Repeal the definition, substitute:

non-claimant application means a native title determination application that is not a claimant application.

97  Section 253 (definition of recognised State/Territory body )

Omit “section 251”, substitute “section 207A”.

98  Section 253 (definition of registered native title body corporate )

Repeal the definition, substitute:

registered native title body corporate means:

                     (a)  a prescribed body corporate whose name and address are registered on the National Native Title Register under subparagraph 193(2)(d)(iii); or

                     (b)  a body corporate whose name and address are registered on the National Native Title Register under subparagraph 193(2)(d)(iv).

99  Section 253 (definition of registered native title claimant )

Repeal the definition, substitute:

registered native title claimant , in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.

100  Section 253 (definition of unopposed application )

Repeal the definition.

101  Section 253 (at the end of the definition of waters )

Add:

               ; or (c)  the shore, or subsoil under or airspace over the shore, between high water and low water.



 

Part 2 Federal Court of Australia Act 1976

102  After subsection 18AB(2)

Insert:

          (2A)  The Judges, or a majority of them, may also make Rules of Court delegating to the Judicial Registrars all or any of the following powers of the Court:

                     (a)  to determine parties to proceedings under the Native Title Act 1993 ;

                    (aa)  to hear and determine applications under subsection 50(2) of that Act for determinations of compensation, where:

                              (i)  the amount of the compensation to which the applicant claims to be entitled is less than $100,000 or such other amount as is prescribed instead for the purposes of this paragraph; and

                             (ii)  at the time the hearing and determination takes place, one or more approved determinations of native title have been made in relation to the whole of the area concerned;

                     (b)  to make orders under sections 86D and 87 of that Act.

          (2B)  If, in accordance with subsection (2A), Rules of Court are made delegating to the Judicial Registrars the powers of the Court to hear and determine applications under subsection 50(2) of the Native Title Act 1993 for determinations of compensation as mentioned in paragraph (2A)(aa), the Judges, or a majority of them, may, in respect of any such application, give such directions as they consider appropriate for the purpose of ensuring that, so far as is reasonably practicable, the application is determined as expeditiously and cheaply as possible and without unnecessary formality.

          (2C)  Without limiting the directions that may be made, they may cover all or any of the following:

                     (a)  principles and procedures to be applied in hearing and determining the application;

                     (b)  referring any matter for mediation;

                     (c)  ensuring that the issues in dispute are identified as soon as possible and that the procedures to be applied, and the evidence that may be given, in the proceedings are limited to what is necessary to resolve those issues;

                     (d)  limiting the amount of costs of the proceedings that may be awarded against the claimant;

                     (e)  requiring some or all of the costs of the claimant to be paid by another party to the proceedings.

103  Subsections 18AB(3), (6) and (7)

After “subsection (1)” (wherever occurring), insert “or (2A)”.



 

Schedule 3 Amendments relating to representative Aboriginal/Torres Strait Islander bodies

Part 1 Initial amendments

1  Before section 202

Insert:

Division 1 Preliminary

201A   Definitions

                   In this Part, unless the contrary intention appears:

director , in relation to a representative body, means a member of the governing body of the representative body.

executive officer , in relation to a representative body, means:

                     (a)  a director of the representative body; or

                     (b)  any other person who is concerned in, or takes part in, the management of the representative body at a senior level.

exempt State body means a body established by a law of a State that confers functions or powers on the body to be performed or exercised in its capacity as a body representing the interests of, or acting on behalf of, Aboriginal peoples or Torres Strait Islanders.

functions , in relation to a representative body, means the functions conferred on the body by this Act and includes the obligations imposed on the body by this Act, whether or not any of those functions or obligations are also conferred or imposed on the body under a law of a State or Territory.

governing body , in relation to a representative body, means the group of persons (by whatever name called) who are responsible for the executive decisions of the representative body.

powers , in relation to a representative body, means the powers conferred on the body by this Act, whether or not any of those powers are also conferred on the body under a law of a State or Territory.

transition period means the period:

                     (a)  beginning on the day on which Division 2 commences; and

                     (b)  ending immediately before Division 3 commences.

201B   Eligible bodies

             (1)  For the purposes of this Part, an eligible body is:

                     (a)  a body corporate, incorporated under Part IV of the Aboriginal Councils and Associations Act 1976 , the objects of which enable the body to perform the functions of a representative body under Division 3 of this Part; or

                     (b)  a body corporate that is a representative body at the commencement of this section; or

                     (c)  a body corporate established by or under a law of the Commonwealth, a State or a Territory, or a part of such a law, prescribed for the purposes of this paragraph.

However, a registered native title body corporate cannot be an eligible body.

             (2)  A regulation prescribing a law, or a part of a law, for the purposes of paragraph (1)(c) may be limited in its application to bodies corporate included in a specified class or classes of bodies corporate.

Division 1A Original representative Aboriginal/Torres Strait Islander bodies

2  Subsection 202(4)

Omit “may”, substitute “determined under this section may do the following”.

3  Paragraphs 202(4)(a) and (b)

Omit “claims”, substitute “applications”.

4  Paragraphs 202(4)(a) and (b)

Omit “or” (last occurring).

5  Paragraph 202(4)(c)

Repeal the paragraph, substitute:

                     (c)  assist such individuals or groups by representing them, if requested to do so, in negotiations and proceedings relating to:

                              (i)  the doing of acts affecting native title; or

                             (ii)  the provision of compensation in relation to such acts; or

                            (iii)  indigenous land use agreements or other agreements in relation to native title; or

                            (iv)  rights of access conferred under this Act or otherwise; or

                             (v)  any other matter relevant to the operation of this Act;

                     (d)  certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body;

                     (e)  certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body;

                      (f)  become a party to indigenous land use agreements.

6  At the end of section 202

Add:

Certification of applications for determinations of native title

             (5)  A representative body must not certify under paragraph (4)(d) an application for a determination of native title unless it is of the opinion that:

                     (a)  the applicant has authority to make the application, and deal with matters arising in relation to it, on behalf of all the other persons in the native title claim group; and

                     (b)  all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.

Note:          Section 251B deals with authority to make the application.

Overlapping applications for determinations of native title

             (6)  If the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware, the representative body must make all reasonable efforts:

                     (a)  to achieve agreement, relating to native title over the land or waters, between the persons in respect of whom the applications are, or would be, made; and

                     (b)  to minimise the number of applications covering the land or waters.

However, a failure by the representative body to comply with this subsection does not invalidate any certification of the application by the representative body.

Statement to be included in certifications of applications for determinations of native title

             (7)  A certification of an application for a determination of native title by a representative body must:

                     (a)  include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and

                     (b)  briefly set out the body’s reasons for being of that opinion; and

                     (c)  where applicable, briefly set out what the representative body has done to meet the requirements of subsection (6).

Certification of applications for registration of indigenous land use agreements

             (8)  A representative body must not certify under paragraph (4)(e) an application for registration of an indigenous land use agreement unless it is of the opinion that:

                     (a)  all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

                     (b)  all of the persons so identified have authorised the making of the agreement.

Note:          Section 251A deals with authority to make the agreement.

Statement to be included in certifications of applications for registration of indigenous land use agreements

             (9)  A certification of an application for registration of an indigenous land use agreement by a representative body must:

                     (a)  include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (8)(a) and (b) have been met; and

                     (b)  briefly set out the body’s reasons for being of that opinion.

7  After section 202

Insert:

202A   Entering indigenous land use agreements

                   Before becoming a party to an indigenous land use agreement, a representative body must, as far as practicable, consult with, and have regard to the interests of, persons who hold or may hold native title in relation to land or waters in that area.

8  Subsection 203(1)

After “Islander body”, insert “determined under section 202”.

9  Subsection 203(1)

Omit “the Commonwealth Minister or”.

10  Subsection 203(2)

Repeal the subsection.

Note:       The heading to subsection 203(3) is altered by omitting “ —ATSIC ”.

11  At the end of Part 11

Add:

Division 2 Recognition of representative Aboriginal/Torres Strait Islander bodies

203A   Inviting applications for recognition

Commonwealth Minister may invite applications

             (1)  Subject to section 203AA, the Commonwealth Minister may, in the way determined in writing by the Commonwealth Minister, invite applications from eligible bodies for recognition as the representative body for an area.

Invitations may cover more than one area

             (2)  The invitation may specify more than one area for which applications are invited.

Invitations to specify application period

             (3)  The invitation must specify the period (of at least 28 days) within which applications are to be given to the Commonwealth Minister.

Invitations may be general

             (4)  For the avoidance of doubt, the way determined under subsection (1) for inviting applications may provide for the publication of general invitations to eligible bodies, and need not require that a separate invitation be made to each eligible body.

203AA   Inviting applications from representative bodies during the transition period

Commonwealth Minister to invite applications

             (1)  As soon as practicable after the start of the transition period, the Commonwealth Minister must make invitations under section 203A relating to areas that, taken together, cover all the land and waters to which this Act extends. The invitations need not all be made at the same time.

Matters to which Commonwealth Minister must have regard

             (2)  Without limiting the matters to which the Commonwealth Minister may have regard in deciding the areas in relation to which the invitations will be made, he or she must have regard to the following:

                     (a)  the areas for the representative bodies that are already in existence;

                     (b)  the need to minimise any disruption to the performance of the functions of those representative bodies;

                     (c)  the requirements of subsection 203AD(4) in relation to the recognition of representative bodies.

Invitation to representative bodies

             (3)  If an invitation under section 203A relates to an area (the original invitation area ) that wholly or partly covers an area for which a body was, on the day on which this section commenced, a representative body:

                     (a)  the invitation must initially be made only to each of the bodies that was, on that day, a representative body for an area wholly or partly covered by the original invitation area; and

                     (b)  other than as provided in subsection (4), no other invitations may be made under section 203A, for areas that wholly or partly cover the original invitation area, until the end of the transition period.

Situations where general invitations can still be made

             (4)  If the Commonwealth Minister has, as mentioned in paragraph (3)(a), made an invitation in respect of the original invitation area to a representative body or bodies, the Commonwealth Minister may make another invitation within the transition period in respect of the original invitation area, or an area wholly or partly within the original invitation area, if:

                     (a)  none of the bodies invited as mentioned in paragraph (3)(a) applied for recognition as the representative body for the original invitation area within the relevant application period under subsection 203A(3); or

                     (b)  the Commonwealth Minister has rejected the application of each of the bodies so invited that did apply.

Diagram of the rules for making invitations

             (5)  This diagram shows when, under section 203A and this section, invitations can be made, during the transition period, for applications for recognition as the representative body for a particular area.

Note:          These rules will not apply once the transition period has ended.

203AB   Application for recognition

Eligible bodies may apply

             (1)  Subject to subsection (3), an eligible body may apply to the Commonwealth Minister, in the form approved by the Commonwealth Minister, for recognition as the representative body for the area, or for one or more of the areas, in respect of which applications have been invited under section 203A.

Application period

             (2)  The application must be given to the Commonwealth Minister within the period specified under subsection 203A(3), or within such further period as the Commonwealth Minister allows (whether or not the initial period has expired).

Invitation to existing representative bodies

             (3)  If the invitation in question was one to which subsection 203AA(3) applied, an application can only be made by an eligible body that has been invited to apply in accordance with subsection 203AA(3) or (4), as the case requires.

203AC   Dealing with applications

          (1A)  The Commonwealth Minister must determine applications under section 203AB:

                     (a)  as soon as practicable after:

                              (i)  the period specified under subsection 203A(3); or

                             (ii)  if a further period applies under subsection 203AB(2) in relation to one or more of those applications—the last such further period to end; or

                            (iii)  if the Commonwealth Minister has, in relation to one or more of those applications, given to a body a notice under subsection (1) requiring the body to give further information within a specified period—the last such period to end;

                            whichever occurs last; and

                     (b)  if the applications are in respect of an invitation to which subsection 203AA(3) applied—in any event before the end of the transition period.

             (1)  The Commonwealth Minister may give to a body that has made an application under section 203AB a notice requiring the body to give further information relating to the application within a period specified in the notice.

             (2)  The period specified:

                     (a)  must not begin before the day on which the notice was given; and

                     (b)  must be a period of at least 21 days.

             (3)  The fact that no further information has been given to the Commonwealth Minister as at the end of the period specified in the notice does not prevent the Commonwealth Minister from determining the application.

             (4)  The notice must contain a statement setting out the effect of subsection (3).

203AD   Recognition of representative bodies

Commonwealth Minister may recognise representative bodies

             (1)  The Commonwealth Minister may, by written instrument, recognise, as the representative body for an area, an eligible body that has applied under section 203AB to be the representative body for the area if the Commonwealth Minister is satisfied that:

                     (a)  the body will satisfactorily represent persons who hold or may hold native title in the area; and

                     (b)  the body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area; and

                     (c)  if the body is already a representative body—the body satisfactorily performs its existing functions; and

                     (d)  the body would be able to perform satisfactorily the functions of a representative body.

When recognition takes effect

             (2)  The recognition of the body as a representative body takes effect on the day specified in the instrument of recognition. However, that day must not precede the day on which Division 3 commences.

Exempt State bodies

             (3)  The Commonwealth Minister must not recognise an exempt State body unless satisfied that the obligations it would have under this Act, together with its other obligations under the laws of a State, provide an appropriate level of accountability.

Commonwealth Minister not to recognise more than one body for an area

             (4)  The Commonwealth Minister must not, under this section, recognise a body as the representative body for an area at a particular time if, at that time, there is already a representative body recognised under this section (whether or not the recognition has taken effect) for all or part of that area.

Note:          The fact that a representative body has previously been determined under section 202 will not prevent recognition of a body under this section.

Notifying unsuccessful applicants

             (5)  If the Commonwealth Minister decides not to recognise as the representative body for an area a body that applied for that recognition, the Commonwealth Minister must notify the body, in writing, of the decision and the reasons for the decision.

203AI   Matters to which Commonwealth Minister must have regard

Fairness of organisational structures and administrative processes

             (1)  In considering, for the purposes of making a decision under this Division in relation to a particular area, whether a body:

                     (a)  will satisfactorily represent persons who hold or may hold native title in the area; or

                     (b)  will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area;

the Commonwealth Minister must take into account whether, in the Commonwealth Minister’s opinion, the body’s organisational structures and administrative processes will operate in a fair manner.

Criteria for assessing fairness

             (2)  Without limiting the matters to which the Commonwealth Minister may have regard in assessing the fairness of the body’s organisational structures and administrative processes, the Commonwealth Minister must have particular regard to:

                     (a)  the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and

                     (b)  the level of consultation with them involved in its processes; and

                     (c)  its procedures for making decisions and for reviewing its decisions; and

                     (d)  its rules or requirements relating to the conduct of its executive officers; and

                     (e)  the nature of its management structures and management processes; and

                      (f)  its procedures for reporting back to persons who hold or may hold native title in the area, and to the Aboriginal peoples or Torres Strait Islanders living in the area.

Commonwealth Minister’s consideration of other matters unaffected

             (3)  This section does not limit any other matters that the Commonwealth Minister may take into account in making a decision under this Division.

Note:          Divisions 3 to 6 of this Part are to be inserted, and will enter into force, at the end of the transition period (see Part 2 of Schedule 3 to the Native Title Amendment Act 1998 ).

Division 7 Miscellaneous

203FC   Transfer of documents and records

Commonwealth Minister may issue directions

             (1)  The Commonwealth Minister may, by written instrument, issue directions requiring, or relating to, either or both of the following:

                     (a)  a former representative body returning documents and records, relating to the performance of its functions or the exercise of its powers in respect of its former area, to the person or persons who provided them to the body;

                     (b)  the former representative body allowing access to, giving or giving copies of documents and records held by the former representative body to a body (the replacement body ) that has become the representative body for all or part of the former representative body’s former area, where the documents and records are reasonably necessary for the performance of the functions, or the exercise of the powers, of the replacement body.

Directions take effect on the day on which they are issued.

Limit on directions

             (2)  Directions must not require the former representative body to allow access to, give or give copies of documents and records, of the kind mentioned in paragraph (1)(b) that relate to:

                     (a)  a claim in a claimant application or a compensation application; or

                     (b)  native title rights and interests that are the subject of a determination of native title;

to the replacement body, unless the replacement body has been asked by the claimants to assist them in relation to the claim, or has been asked by the persons who have been determined to hold the native title rights and interests to assist them in relation to those rights and interests.

Bodies must comply with directions

             (3)  A body to which directions apply must comply with those directions.

Orders by the Federal Court

             (4)  If a body fails to comply with subsection (3), the Federal Court may, on the application of a person affected by the non-compliance, make such orders as it thinks fit to ensure the body’s compliance.

Definitions

             (5)  In this section:

former area , in relation to a former representative body, means the area for which the body is no longer a representative body.

former representative body means a body that:

                     (a)  has ceased to be a representative body; or

                     (b)  has ceased to be a representative body for a particular area; or

                     (c)  has had the area for which it is a representative body reduced.

203FCA   Representative body etc. to comply with wishes of traditional custodians

             (1)  If:

                     (a)  a representative body, in performing its functions and exercising its powers; or

                     (b)  a former representative body (as defined in subsection 203FC(5)), in complying with directions in accordance with subsection 203FC(3);

deals with traditional materials, or any information contained in them, the body must make all reasonable efforts to comply with the wishes of the traditional custodians of the traditional materials about the way in which the traditional materials or information is to be dealt with.

Definitions

             (2)  In this section:

traditional custodian of traditional materials means a person who, according to the traditional laws and customs concerned, is responsible for the traditional materials.

traditional materials means documents, records or other things that are of significance to Aboriginal peoples or Torres Strait Islanders according to their traditional laws and customs .

203FD   Liability of executive officers etc.

                   An executive officer or a member of a representative body is not personally liable to an action or other proceeding for damages in relation to an act done or omitted to be done in good faith:

                     (a)  by the representative body; or

                     (b)  by the person in the capacity of executive officer or member;

in connection with the performance of the representative body’s functions or the exercise of its powers.

203FH   Conduct by directors, employees and agents

State of mind of directors, employees or agents of bodies corporate

             (1)  If, for the purposes of this Part, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

                     (a)  that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

                     (b)  that the director, employee or agent had the state of mind.

Conduct of directors, employees or agents of bodies corporate

             (2)  Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

State of mind of employees or agents of persons other than bodies corporate

             (3)  If, for the purposes of this Part, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular conduct, it is sufficient to show:

                     (a)  that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and

                     (b)  that the employee or agent had the state of mind.

Conduct of employees or agents of persons other than bodies corporate

             (4)  Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the person unless the person establishes that the person took reasonable precautions and exercised due diligence to avoid the conduct.

Other persons not to be punished by imprisonment

             (5)  If:

                     (a)  a person other than a body corporate is convicted of an offence; and

                     (b)  the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;

the person is not liable to be punished by imprisonment for that offence.

Meaning of state of mind

             (6)  A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:

                     (a)  the knowledge, intention, opinion, belief or purpose of the person; and

                     (b)  the person’s reasons for the intention, opinion, belief or purpose.

Meaning of director

             (7)  A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.

Failing etc. to engage in conduct

             (8)  A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

12  Section 253 (at the end of the definition of representative Aboriginal/Torres Strait Islander body )

Add “or that is recognised under section 203AD”.

13  Section 253

Insert:

representative body means a representative Aboriginal/Torres Strait Islander body.



 

Part 2 Later amendments

14  Paragraph 24CG(3)(a)

Omit “paragraph 202(4)(e)”, substitute “paragraph 203BE(1)(b)”.

15  Subparagraph 24CH(2)(d)(i)

Omit “paragraphs 202(8)(a) and (b)”, substitute “paragraphs 203BE(5)(a) and (b)”.

16  Subsection 24CI(1)

Omit “paragraphs 202(8)(a) and (b)”, substitute “paragraphs 203BE(5)(a) and (b)”.

17  Paragraph 24CK(2)(c)

Omit “paragraphs 202(8)(a) and (b)”, substitute “paragraphs 203BE(5)(a) and (b)”.

18  Subparagraph 24EB(5)(b)(i)

Omit “paragraph 202(8)(b)”, substitute “paragraph 203BE(5)(b)”.

19  Subsection 108(1B)

Repeal the subsection, substitute:

Assistance and mediation generally

          (1B)  The Tribunal has the functions of:

                     (a)  providing assistance, or mediating, in accordance with any provision of this Act; and

                     (b)  entering into agreements as mentioned in subsection 203BK(3) in relation to assistance of the kind referred to in that subsection.

20  Paragraph 190C(4)(a)

Omit “paragraph 202(4)(d)”, substitute “Part 11”.

21  At the end of paragraph 190C(4)(a)

Add:

Note:       An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d).

22  Subsections 190C(6) and (7)

Repeal the subsections.

23  Subparagraph 199C(1)(b)(i)

Omit “paragraph 202(8)(b)”, substitute “paragraph 203BE(5)(b)”.

24  Section 201A

Insert:

ATSIC means the Aboriginal and Torres Strait Islander Commission established by the Aboriginal and Torres Strait Islander Commission Act 1989 .

native title application means an application under subsection 24DJ(1) or section 61, 69 or 75, and includes an appeal under subsection 169(1).

25  Division 1A of Part 11

Repeal the Division.

26  After section 203AD

Insert:

203AE   Extension of areas

                   The Commonwealth Minister may, by written instrument, extend the area for which a body is the representative body by adding adjoining land or waters to the area if:

                     (a)  there is no representative body for the adjoining land or waters; and

                     (b)  the Commonwealth Minister considers that the adjoining land or waters are not of such significance that invitations should be made under section 203A in respect of them; and

                     (c)  the Commonwealth Minister is satisfied that the body will satisfactorily represent persons who hold or may hold native title in the adjoining land or waters; and

                     (d)  the Commonwealth Minister is satisfied that the body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area of the adjoining land or waters; and

                     (e)  the Commonwealth Minister is satisfied that the body will satisfactorily perform its functions in relation to the adjoining land or waters; and

                      (f)  the body has agreed to the adjoining land or waters being added.

203AF   Variation of adjoining areas

Applications to vary areas

             (1)  If the boundary of an area for which a body is the representative body adjoins the boundary of an area for which another body is the representative body, the bodies may jointly apply in writing to the Commonwealth Minister to vary the area for which each body is the representative body. The proposed variations are to relate only to the adjoining boundary.

Consultation prior to applications

             (2)  Before making an application under subsection (1), the bodies must:

                     (a)  take all reasonable steps to consult the Aboriginal peoples or Torres Strait Islanders who could reasonably be expected to be affected by the proposed variations; and

                     (b)  satisfy themselves that there is broad support for the variations among the persons who hold, or may hold, native title in the area that will be covered by a different representative body as a result of the variations.

Matters to be included in applications

             (3)  The application must:

                     (a)  include a statement of the steps the bodies took in consulting the Aboriginal peoples or Torres Strait Islanders referred to in paragraph (2)(a); and

                     (b)  briefly set out the grounds on which the bodies are satisfied that there is broad support for the variations among the persons referred to in paragraph (2)(b).

Commonwealth Minister may vary areas

             (4)  The Commonwealth Minister may, by written instrument, vary the areas for which each body is the representative body in accordance with the application if the Commonwealth Minister is satisfied that, after the variations:

                     (a)  each body will satisfactorily represent the native title holders and persons who may hold native title in the area for which it will, after the variations, be the representative body; and

                     (b)  each body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area for which it will, after the variations, be the representative body; and

                     (c)  each body will satisfactorily perform its functions.

203AG   Reduction of areas

Grounds for reducing the areas of representative bodies

             (1)  The Commonwealth Minister may, by written instrument, reduce the area for which a body is the representative body by excising a specified part of the area if satisfied that:

                     (a)  the body is not satisfactorily representing native title holders or persons who may hold native title in that part of the area; or

                     (b)  the body is not consulting effectively with Aboriginal peoples and Torres Strait Islanders living in that part of the area; or

                     (c)  the body is not satisfactorily performing its functions in relation to that part of the area.

Effect on remainder of areas

             (2)  The Commonwealth Minister must not so reduce the area unless satisfied that, after the reduction, the body:

                     (a)  will satisfactorily represent native title holders or persons who may hold native title in the remainder of the area; and

                     (b)  will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the remainder of the area; and

                     (c)  will satisfactorily perform its functions in relation to the remainder of the area.

Notice that reduction of area is being considered

             (3)  At least 90 days before deciding to reduce the area, the Commonwealth Minister must notify the body that the reduction is being considered. The notice must be in writing and must:

                     (a)  state the reasons why the Minister is considering reducing the area; and

                     (b)  invite the body to make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the area should be reduced.

The period specified must not begin before the day on which the notice was given, and must be a period of at least 90 days.

Consideration of reports etc.

             (4)  In deciding whether to reduce the area, the Commonwealth Minister may consider the following:

                     (a)  any reports under section 203DF of audits or investigations of the body;

                     (b)  any reports under section 76 of the Aboriginal and Torres Strait Islander Commission Act 1989 in relation to a grant made to the body under section 203C or 203FE of this Act;

                     (c)  any notices that ATSIC has given to the Minister under section 203F in relation to the body;

                     (d)  any information or documents that ATSIC has given to the Minister under section 203FA in relation to the body.

Commonwealth Minister’s consideration of other matters unaffected

             (5)  Subsection (4) does not limit any other matters that the Commonwealth Minister may take into account in deciding whether to reduce the area.

Consideration of submissions

             (6)  In deciding whether to reduce the area, the Commonwealth Minister must consider any submissions made by the body within the period referred to in subsection (3).

Notice of decision

             (7)  As soon as practicable after deciding whether to reduce the area, the Commonwealth Minister must notify the body, in writing, of:

                     (a)  the decision; and

                     (b)  if the decision is that the area be reduced—the reasons for the decision.

203AH   Withdrawal of recognition

Mandatory grounds for withdrawing recognition

             (1)  The Commonwealth Minister must, by written instrument, withdraw the recognition of a body as the representative body for an area if:

                     (a)  the body has ceased to exist; or

                     (b)  the body makes a written request to the Commonwealth Minister for the recognition to be withdrawn.

However, paragraph (b) only applies if the request was authorised by a meeting of the body open to all its members and convened and conducted in accordance with the procedures governing the convening and conduct of such meetings by the body. The body must include in its request to the Commonwealth Minister evidence that the request was so authorised.

Discretionary grounds for withdrawing recognition

             (2)  The Commonwealth Minister may, by written instrument, withdraw the recognition of a body as the representative body for an area if satisfied that:

                     (a)  the body:

                              (i)  is not satisfactorily representing the native title holders or persons who may hold native title in the area; or

                             (ii)  is not consulting effectively with Aboriginal peoples and Torres Strait Islanders living in the area; or

                            (iii)  is not satisfactorily performing its functions; and

                     (b)  the body is unlikely to take steps to ensure that, within a reasonable period, none of subparagraphs (a)(i), (ii) and (iii) apply in relation to the body.

Notice that withdrawal of recognition is being considered

             (3)  At least 90 days before deciding to withdraw the recognition under subsection (2), the Commonwealth Minister must notify the body that withdrawal of the recognition is being considered. The notice must be in writing and must:

                     (a)  state the reasons why the Minister is considering withdrawal of the recognition; and

                     (b)  invite the body to make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the recognition should be withdrawn.

The period specified must not begin before the day on which the notice was given, and must be a period of at least 90 days.

Consideration of reports etc.

             (4)  In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister may consider the following:

                     (a)  any reports under section 203DF of audits or investigations of the body;

                     (b)  any reports under section 76 of the Aboriginal and Torres Strait Islander Commission Act 1989 in relation to a grant made to the body under section 203C or 203FE of this Act;

                     (c)  any notices that ATSIC has given to the Minister under section 203F in relation to the body;

                     (d)  any information or documents that ATSIC has given to the Minister under section 203FA in relation to the body.

Commonwealth Minister’s consideration of other matters unaffected

             (5)  Subsection (4) does not limit any other matters that the Commonwealth Minister may take into account in making a decision under subsection (2).

Consideration of submissions

             (6)  In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must consider any submissions made by the body within the period referred to in subsection (3).

Notice of decision

             (7)  As soon as practicable after deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must notify the body, in writing, of:

                     (a)  the decision; and

                     (b)  if the decision is that the recognition be withdrawn—the reasons for the decision.

27   Paragraph 203AI(1)(a)

After “will satisfactorily represent”, insert “, or is not satisfactorily representing,”.

28  Paragraph 203AI(1)(b)

After “will be able to consult effectively”, insert “, or is not consulting effectively,”.

29  Subsection 203AI(1)

After “operate”, insert “, or are operating,”.

30  Subsection 203AI(3) (note)

Repeal the note.

31  After Division 2 of Part 11

Insert:

Division 3 Functions and powers of representative bodies

203B   Functions of representative bodies

General

             (1)  A representative body has the following functions:

                     (a)  the facilitation and assistance functions referred to in section 203BB;

                     (b)  the certification functions referred to in section 203BE;

                     (c)  the dispute resolution functions referred to in section 203BF;

                     (d)  the notification functions referred to in section 203BG;

                     (e)  the agreement making function referred to in section 203BH;

                      (f)  the internal review functions referred to in section 203BI;

                     (g)  the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.

Other laws may confer functions

             (2)  The functions conferred on a representative body by this Act are in addition to, and not instead of, any functions conferred on the representative body (whether in its capacity as a representative body or otherwise) by or under:

                     (a) any other law of the Commonwealth; or

                     (b)  a law of a State or Territory.

Representative bodies to perform functions

             (3)  Except as mentioned in section 203BB, 203BD or 203BK, a representative body must not enter into an arrangement with another person under which the person is to perform the functions of the representative body.

Priorities of representative bodies

             (4)  A representative body:

                     (a)  must from time to time determine the priorities it will give to performing its functions under this Part; and

                     (b)  may allocate resources in the way it thinks fit so as to be able to perform its functions efficiently;

but must give priority to the protection of the interests of native title holders.

203BA   How functions of representative bodies are to be performed

Functions to be performed in a timely manner

             (1)  A representative body must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:

                     (a)  the time limits under this Act; or

                     (b)  time limits, under another law of the Commonwealth or a law of a State or Territory, that are relevant to the performance of its functions.

Maintenance of organisational structures and processes

             (2)  A representative body must perform its functions in a manner that:

                     (a)  maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body; and

                     (b)  maintains organisational structures and administrative processes that promote effective consultation with Aboriginal peoples and Torres Strait Islanders living in the area for which it is the representative body; and

                     (c)  ensures that the structures and processes operate in a fair manner, having particular regard to the matters set out in paragraphs 203AI(2)(a) to (f).

203BB   Facilitation and assistance functions

General

             (1)  The facilitation and assistance functions of a representative body are:

                     (a)  to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and

                     (b)  to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:

                              (i)  native title applications;

                             (ii)  future acts;

                            (iii)  indigenous land use agreements or other agreements in relation to native title;

                            (iv)  rights of access conferred under this Act or otherwise;

                             (v)  any other matters relating to native title or to the operation of this Act.

Facilitation and assistance functions only exercisable on request

             (2)  A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.

Facilitation and assistance functions only exercisable within a representative body’s area

             (3)  A representative body can only perform its facilitation and assistance functions in relation to a matter that relates to land or waters:

                     (a)  that are wholly within the area for which the body is the representative body; or

                     (b)  that are partly within that area.

If paragraph (b) applies, the body must not perform the functions for the part of the land or waters that is outside that area except in accordance with section 203BD.

Consent required if matters relate to same land or waters

             (4)  If:

                     (a)  a registered native title body corporate or a person who holds or may hold native title requests that a representative body represent the body or the person (the new body or person ) in relation to a particular matter that relates to particular land or waters; and

                     (b)  the representative body is already representing another body or person (the original body or person ) in relation to one or more other matters that relate wholly or partly to that land or those waters;

the representative body must not represent the new body or person unless the representative body has obtained consent, from the original body or person, for the representative body also to represent the new body or person to the extent that the other matters relate to the land or waters.

 “Briefing out” matters that relate to the same land or waters

             (5)  Subsection (4) does not prevent a representative body from facilitating the representation of a body or person, in relation to a particular matter, by entering into an arrangement with another person under which the other person represents the body or person in relation to that matter.

Definition

             (6)  In this section and section 203BC:

matter means a native title application, or a consultation, mediation, negotiation or proceeding of a kind referred to in paragraph (1)(b).

203BC   How facilitation and assistance functions are to be performed

General

             (1)  In performing its facilitation and assistance functions in relation to any matter, a representative body must:

                     (a)  consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter; and

                     (b)  if the matter involves the representative body representing such bodies corporate, native title holders or persons—be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter.

Consent of native title holders etc.

             (2)  For the purposes of paragraph (1)(b), a native title holder or a person who may hold native title is taken to have consented to action if:

                     (a)  where there is a process of decision-making that, under the traditional laws and customs of the group to which he or she belongs, must be complied with in relation to giving consent of that kind—the consent was given in accordance with that process; or

                     (b)  where there is no such process of decision-making—the consent was given in accordance with a process of decision-making agreed to and adopted by the members of the group to which he or she belongs in relation to giving the consent or giving consent of that kind.

Streamlining of applications process

             (3)  In performing its facilitation and assistance functions in relation to an application under section 61 in relation to land or waters wholly or partly within the area for which the body is the representative body, the representative body must:

                     (a)  act in a way that promotes an orderly, efficient and cost-effective process for making such applications; and

                     (b)  if the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware—make all reasonable efforts to minimise the number of applications covering the land or waters.

203BD   Matters that overlap different representative body areas

                   If:

                     (a)  a native title application covers land or waters partly within the area for which the body is the representative body and partly within an adjoining area for which another body is the representative body; or

                     (b)  a consultation, mediation, negotiation or proceeding relates to:

                              (i)  a native title application; or

                             (ii)  a future act; or

                            (iii)  an indigenous land use agreement or other agreement in relation to native title; or

                            (iv)  a right of access conferred under this Act or otherwise; or

                             (v)  any other matter relating to native title or to the operation of this Act;

                            in respect of the areas referred to in paragraph (a);

the first-mentioned representative body may perform its facilitation and assistance functions, in relation to the application, consultation, mediation, negotiation or proceeding, for the part of the land or waters within the adjoining area, if it is acting in accordance with a written arrangement entered into with the other representative body.

203BE   Certification functions

General

             (1)  The certification functions of a representative body are:

                     (a)  to certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area for which the body is the representative body; and

                     (b)  to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.

Certification of applications for determinations of native title

             (2)  A representative body must not certify under paragraph (1)(a) an application for a determination of native title unless it is of the opinion that:

                     (a)  all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and

                     (b)  all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.

Note:          Section 251B deals with authority to make the application.

Overlapping applications for determinations of native title

             (3)  If the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware, the representative body must make all reasonable efforts to:

                     (a)  achieve agreement, relating to native title over the land or waters, between the persons in respect of whom the applications are, or would be, made; and

                     (b)  minimise the number of applications covering the land or waters.

However, a failure by the representative body to comply with this subsection does not invalidate any certification of the application by the representative body.

Statement to be included in certifications of applications for determinations of native title

             (4)  A certification of an application for a determination of native title by a representative body must:

                     (a)  include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (2)(a) and (b) have been met; and

                     (b)  briefly set out the body’s reasons for being of that opinion; and

                     (c)  where applicable, briefly set out what the representative body has done to meet the requirements of subsection (3).

Certification of applications for registration of indigenous land use agreements

             (5)  A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:

                     (a)  all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

                     (b)  all the persons so identified have authorised the making of the agreement.

Note:          Section 251A deals with authority to make the agreement.

Statement to be included in certifications of applications for registration of indigenous land use agreements

             (6)  A certification of an application for registration of an indigenous land use agreement by a representative body must:

                     (a)  include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and

                     (b)  briefly set out the body’s reasons for being of that opinion.

203BF   Dispute resolution functions

Dispute resolution functions

             (1)  The dispute resolution functions of a representative body are:

                     (a)  to assist in promoting agreement between its constituents about:

                              (i)  the making of native title applications; or

                             (ii)  the conduct of consultations, mediations, negotiations or proceedings about native title applications, future acts, indigenous land use agreements, rights of access conferred under this Act or otherwise or about any other matter relating to native title or the operation of this Act; and

                     (b)  to mediate between its constituents about the making of such applications or the conduct of such consultations, mediations, negotiations or proceedings.

Meaning of constituent

             (2)  In this section:

constituent means:

                     (a)  a person on whose behalf the representative body is acting or may act; or

                     (b)  a registered native title body corporate in relation to native title in the area in respect of which the representative body is recognised; or

                     (c)  a native title holder in relation to native title in that area; or

                     (d)  a person who may hold native title in that area.

203BG   Notification functions

                   The notification functions of a representative body are:

                     (a)  to ensure that, as far as reasonably practicable, notices:

                              (i)  that are given to the representative body (whether under this Act or otherwise); and

                             (ii)  that relate to land or waters wholly or partly within the area for which the body is a representative body;

                            are brought to the attention of any person who the representative body is aware holds or may hold native title in relation to the land or waters, where the representative body considers that the notices would be unlikely to come to the attention of the person by some other means; and

                     (b)  as far as is reasonably practicable, to identify and notify other persons who hold or may hold native title in relation to the land or waters about notices of the kind mentioned in paragraph (a); and

                     (c)  as far as is reasonably practicable, to advise the persons referred to in paragraphs (a) and (b) of relevant time limits under this Act or another law of the Commonwealth or a law of a State or a Territory, if the person would not otherwise be notified of those time limits.

Note 1:       Subsection 203BA(1) requires a representative body to make its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by time limits.

Note 2:       This Act also imposes notification obligations on other persons.

203BH   Agreement making function

             (1)  The agreement making function of a representative body is to be a party to indigenous land use agreements.

             (2)  In performing its agreement making function in respect of an area, a representative body must, as far as practicable, having regard to the matters proposed to be covered by the agreement, consult with, and have regard to the interests of, persons who hold or may hold native title in relation to land or waters in that area.

203BI   Internal review functions

                   The internal review functions of a representative body are:

                     (a)  to provide a process for registered native title bodies corporate, native title holders and persons who may hold native title to seek review by the representative body of its decisions and actions, made or taken in the performance of its functions or the exercise of its powers, that affect them; and

                     (b)  to publicise that process appropriately.

203BJ   Other functions

                   In addition to the functions referred to in sections 203BB to 203BI, a representative body must:

                     (a)  as far as is reasonably practicable, enter into written arrangements with other representative bodies so that the representative body can exercise its facilitation and assistance functions in relation to a matter of a kind referred to in paragraph 203BD(a) or (b); and

                     (b)  as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body; and

                     (c)  as far as is reasonably practicable, take such action as the body considers appropriate to promote understanding, among Aboriginal people and Torres Strait Islanders living in the area, about matters relevant to the operation of this Act; and

                     (d)  as far as is reasonably practicable, inform such of the following as the representative body knows are, in relation to the area:

                              (i)  registered native title bodies corporate;

                             (ii)  native title holders;

                            (iii)  persons who may hold native title;

                            of any matter that the representative body considers may relate to, or may have an impact upon, native title in the area; and

                     (e)  whenever the body considers it necessary in the performance of its functions—consult with Aboriginal or Torres Strait Islander communities that might be affected by the matters with which the body is dealing; and

                      (f)  as far as is reasonably practicable, co-operate with other representative bodies for the purpose of promoting the effective and efficient exercise of the functions and powers of representative bodies.

203BK   Powers of representative bodies

             (1)  A representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

             (2)  Without limiting subsection (1), a representative body has power to enter into arrangements and contracts to obtain services to assist in the performance by the representative body of its functions.

Assistance in performing dispute resolution functions

             (3)  Without limiting subsection (1), in performing its dispute resolution functions in a particular case, a representative body may be assisted by the NNTT, but only if the representative body and the NNTT have entered into an agreement under which the representative body is liable to pay the NNTT for the assistance .

Division 4 Finance

203C   Grants to representative bodies

Representative body may apply for grant

             (1)  A representative body may apply to ATSIC for a grant of money under this section for the purpose of enabling the body to perform its functions or exercise its powers.

Grants of money

             (2)  ATSIC may make a grant of money to the representative body from money appropriated for the purposes of ATSIC.

             (3)  The grant of money may be:

                     (a)  in respect of a financial year; or

                     (b)  in respect of a part of a financial year; or

                     (c)  in respect of any other period not exceeding 3 years.

203CA   Grant conditions

Conditions of grants

             (1)  A grant of money to a representative body under this Division may be subject to such conditions as ATSIC thinks fit. However, ATSIC must impose conditions relating to:

                     (a)  the purposes for which the money may be spent; and

                     (b)  the period within which the money is to be spent; and

                     (c)  the acquittal of money spent; and

                     (d)  the giving of information relating to expenditure of the money; and

                     (e)  the appointment of a person, in cases where ATSIC considers that grant money has not been spent in accordance with the conditions of the grant, with the power to prevent expenditure of further grant money otherwise than in accordance with the conditions of the grant; and

                      (f)  the representative body’s continuing satisfactory performance of its functions and continuing compliance with this Act; and

                     (g)  the giving of information relating to the performance of the body’s functions and its compliance with this Act.

Repayment of part of grant on withdrawal of recognition

          (1A)  The grant is also subject to a condition that if:

                     (a)  the representative body’s recognition as a representative body is withdrawn under section 203AH; and

                     (b)  the withdrawal takes effect during the period to which the grant relates;

the representative body must repay to ATSIC an amount equal to so much (if any) of the grant as is uncommitted at the time the recognition is withdrawn.

Uncommitted amount of the grant

          (1B)  For the purposes of subsection (1A), the amount of the grant that is uncommitted is the difference (if any) between:

                     (a)  the portion (if any) of the grant that has, at the time the recognition is withdrawn, been paid to the representative body by ATSIC; and

                     (b)  the sum of:

                              (i)  the portion (if any) of the grant that has, at that time, been spent by the representative body in connection with the performance of its functions and the exercise of its powers; and

                             (ii)  the portion (if any) of the grant that the representative body is, at that time, liable to pay to other persons in connection with the performance of its functions and the exercise of its powers.

Strategic plan to be considered in making grants

             (2)  In making the grant and deciding on the conditions to be imposed under subsection (1), ATSIC must have regard to the matters set out in the strategic plan (see section 203D) of the representative body concerned. The conditions of the grant must be consistent with the strategic plan.

Bodies must comply with conditions of grants

             (3)  The representative body must comply with the conditions of the grant.

Application of ATSIC Act

             (4)  Sections 20, 21, 21A and 22 of the Aboriginal and Torres Strait Islander Commission Act 1989 apply to a grant under this Division as if the grant had been made under section 14 of that Act.

Note:          The effect of this subsection is to enable ATSIC to recover from a representative body amounts of grants if the body breaches conditions of those grants.

Serious or repeated breaches of conditions

             (5)  If ATSIC considers that the representative body:

                     (a)  has committed, or is committing, serious breaches of conditions of a grant under this Division; or

                     (b)  has repeatedly breached, or is repeatedly breaching, conditions of a grant under this Division;

ATSIC must give to the Commonwealth Minister a written notice informing the Minister of the breaches and stating what measures ATSIC is taking, or proposes to take, as a result of the breaches.

203CB   Banking and investment

Payment into bank account

             (1)  A representative body must pay all money received by it under this Division into an account maintained by it with a bank.

Surplus money

             (2)  The representative body may invest surplus money:

                     (a)  on deposit with a bank; or

                     (b)  in securities of the Commonwealth or of a State or Territory; or

                     (c)  in securities guaranteed by the Commonwealth, a State or a Territory; or

                     (d)  in any other manner approved by the Treasurer in writing.

Restrictions on entering into contracts

             (3)  A provision of the law by or under which the representative body is incorporated to the effect that the body must not enter into a contract involving expenditure or payment of more than a specified amount of money without a specified person’s approval does not apply to a contract for the investment of money under subsection (2), unless:

                     (a)  the provision expressly states that it applies to such a contract; or

                     (b)  the body concerned is an exempt State body.

Definitions

             (4)  In this section, unless the contrary intention appears:

bank means:

                     (a)  a person who carries on the business of banking, either in Australia or outside Australia; or

                     (b)  any other institution:

                              (i)  that carries on a business in Australia that consists of or includes taking money on deposit; and

                             (ii)  the operations of which are subject to prudential supervision or regulation under a law of the Commonwealth, a State or a Territory.

surplus money means money received by the representative body under this Division that is not immediately required for the purposes of the body.

Division 5 Accountability

203D   Strategic plan

Representative body must prepare strategic plan

             (1)  A representative body must prepare a strategic plan relating to its functions for each period (of not less than 3 years) determined in writing by the Minister.

Note:          A reference to a representative body’s functions is a reference to its functions and obligations under this Act—see section 201A.

Matters to be included in strategic plan

             (2)  The strategic plan must include, but is not limited to, the following matters:

                     (a)  a general financial plan;

                     (b)  a general statement of the objectives of the body in relation to the performance of its functions and the exercise of its powers;

                     (c)  a general statement of the strategies and policies proposed to achieve those objectives, including, but not limited to, strategies and policies about the following:

                              (i)  consultation with Aboriginal peoples and Torres Strait Islanders about matters relevant to the operation of this Act;

                             (ii)  procedures for making decisions and for providing the review process referred to in paragraph 203BI(a);

                            (iii)  the setting of priorities by the body in relation to the performance of its functions and the exercise of its powers.

Strategic plan to be prepared in consultation with ATSIC

             (3)  The representative body must prepare the strategic plan in consultation with ATSIC.

Revision of strategic plan

             (4)  The representative body may revise the strategic plan during the period to which the strategic plan relates if the representative body considers, after consultation with ATSIC, that circumstances have arisen that could significantly affect the achievement of the objectives set out in the strategic plan.

Strategic plan to be given to Commonwealth Minister for approval

             (5)  The representative body must give the strategic plan or revised strategic plan, as the case requires, to the Commonwealth Minister for approval as soon as practicable after it is prepared or revised.

Commonwealth Minister to be informed of significant matters

             (6)  The representative body must inform the Commonwealth Minister about matters that might significantly affect the achievement of the objectives in the strategic plan.

Strategic plan to be made available

             (7)  The representative body must make copies of the strategic plan generally available to:

                     (a)  native title holders in relation to land or waters in the area for which the body is the representative body; and

                     (b)  registered native title bodies corporate in relation to native title in that area; and

                     (c)  persons who may hold native title in that area; and

                     (d)  Aboriginal persons and Torres Strait Islanders living in that area.

203DA   Accounting records

Proper accounts and records to be kept

             (1)  A representative body must keep accounting records that properly record and explain its transactions and financial position, to the extent that its transactions and financial position relate to the performance of its functions or the exercise of its powers. It must keep those records in a way that:

                     (a)  enables the preparation of the financial statements required by this Division; and

                     (b)  allows those financial statements to be conveniently and properly audited in accordance with this Division.

Accounting records to be separate from others

             (2)  The body must keep accounts and records required to be kept by subsection (1) separate from any other accounts and records kept by the body.

Retention of accounting records

             (3)  The body must retain those records for at least 7 years after completion of the transactions to which they relate.

Availability of accounting records

             (4)  The body must make those records available at all reasonable times for inspection by any director of the body.

203DB   Payments to be properly made etc.

                   A representative body must do all things necessary to ensure that payments out of the money of the body are correctly made and properly authorised, and that adequate control is maintained over:

                     (a)  the assets of, or in the custody of, the body; and

                     (b)  the incurring of liabilities by the body;

to the extent that the payments, or the assets or liabilities, relate to the performance of its functions or the exercise of its powers.

203DC   Annual reports by representative body

Annual report

             (1)  A representative body must, in respect of each financial year:

                     (a)  prepare a report of the operations of the body during that year, together with financial statements in respect of that year; and

                     (b)  give the report and the financial statements to ATSIC by 15 October in the next financial year.

Extensions of the deadline

             (2)  ATSIC may grant an extension of time (whether or not the initial deadline has expired) in special circumstances.

Report to relate to representative body functions

             (3)  The report and the financial statements are to relate only to the performance of its functions or the exercise of its powers.

Form of financial statements

             (4)  The financial statements must be in such form as the Commonwealth Minister approves in writing, and must be accompanied by a copy of the report on those statements prepared in accordance with subsection (5).

Audit of financial statements

             (5)  The financial statements must be audited by a person having the prescribed qualifications and appointed by the body for the purpose, who is to report to the body:

                     (a)  whether the statements are based on proper accounts and records; and

                     (b)  whether the statements are in agreement with the accounts and records; and

                     (c)  whether the receipt, expenditure and the investment of money, and the acquisition and disposal of assets, by the body during the year have been in accordance with this Act and any grant conditions imposed under subsection 203CA(1); and

                     (d)  as to such other matters arising out of the statements as the person appointed considers should be reported to the body.

Report to be laid before Parliament

             (6)  On receipt of a report and financial statements given under subsection (1), ATSIC must provide a copy of each document to the Commonwealth Minister, who must cause them to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Commonwealth Minister receives that report and those financial statements.

203DD   Modified requirements for first year of recognition

Body recognised during last 3 months of a financial year

             (1)  If the recognition of a representative body under section 203AD takes effect during the last 3 months of a financial year:

                     (a)  the representative body is not required to prepare an annual report and financial statements for that financial year; and

                     (b)  the period from the time of recognition to the end of the financial year must be dealt with in the next annual report and financial statements.

Representative body established during first 9 months of a financial year

             (2)  Subject to section 203DE, if the recognition of a representative body under section 203AD takes effect during the first 9 months of a financial year, the annual report and financial statements for the financial year must cover the period from the time of recognition to the end of the financial year.

203DE   Modified requirements for bodies whose recognition is withdrawn

                   If the recognition of a body as a representative body is withdrawn under section 203AH during a financial year, the annual report and financial statements must cover the period from the beginning of the financial year to the time at which the withdrawal of recognition takes effect.

203DF   Inspection and audit, or investigation, of a representative body

Appointment of person to conduct inspection and audit or investigation

             (1)  The Commonwealth Minister may appoint a person who, in the Commonwealth Minister’s opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of an inspection and audit or investigation under this section to:

                     (a)  inspect and audit the accounts and records kept by a representative body under section 203DA; or

                     (b)  investigate the body’s performance of its functions and exercise of its powers.

Note:          A representative body may also be audited under Division 9 of Part 2 of the Aboriginal and Torres Strait Islander Commission Act 1989 , which enables the Office of Evaluation and Audit, when requested to do so by the Commonwealth Minister or ATSIC, to evaluate and audit the operations of a body that has received a grant from ATSIC.

Circumstances in which auditor or investigator can be appointed

             (2)  The Commonwealth Minister must not appoint a person under subsection (1) to conduct an inspection and audit, or an investigation, of a representative body unless the Commonwealth Minister is of the opinion that there is, or may be:

                     (a)  serious or repeated irregularities in the financial affairs of the representative body; or

                     (b)  a serious failure, or repeated failure, to perform its functions.

Notice requirements

             (3)  If the Commonwealth Minister decides that an inspection and audit, or an investigation, is to be undertaken under this section, the Commonwealth Minister must give written notice of that decision to the representative body concerned. The notice must name the person who is to carry out the inspection and audit or the investigation.

Report to Commonwealth Minister

             (4)  A person appointed under subsection (1) to conduct an inspection and audit or an investigation must give to the Commonwealth Minister a report on the results of that inspection and audit or investigation.

Irregularity to be disclosed

             (5)  A report under subsection (4) must draw attention to:

                     (a)  any irregularity in the financial affairs of the body disclosed by the inspection and audit or the investigation; or

                     (b)  any failure by the body to perform its functions disclosed by the inspection and audit or the investigation.

Report not to contain matters subject to legal professional privilege

             (6)  A report under subsection (4) must not contain any information, or include any document or record, that is subject to legal professional privilege or that is derived from information that is subject to legal professional privilege.

Legal professional privilege must be claimed

             (7)  For the purposes of subsection (6), information, or a document or record, is not taken to be subject to legal professional privilege unless, at or before the time it was obtained by the person appointed under subsection (1), it was claimed to be subject to legal professional privilege by a person entitled to make such a claim.

Auditor or investigator taken to be a Commonwealth officer

             (8)  To avoid doubt, a person appointed under subsection (1) of this section is taken, for the purposes of sections 70, 72, 73, 74 and 75 of the Crimes Act 1914 , to be a Commonwealth officer.

203DG   Access to information

General

             (1)  For the purpose of conducting an inspection and audit, or an investigation, of a representative body under section 203DF, the person appointed under subsection 203DF(1):

                     (a)  is entitled at all reasonable times to full and free access to documents relating to the representative body; and

                     (b)  may make copies, or take extracts from, any such document; and

                     (c)  may require a representative body:

                              (i)  to answer such questions; and

                             (ii)  to produce such documents in the representative body’s possession or to which the representative body has access;

                            as the person so appointed considers necessary for that purpose.

Use of legally professionally privileged documents

             (2)  A representative body must produce a document or record or disclose information as required under paragraph (1)(c), whether or not the document, record or information is the subject of legal professional privilege.

Production does not affect legal professional privilege

             (3)  A document, record or information does not cease to be the subject of legal professional privilege merely because it is produced under paragraph (1)(c).

Failure to comply with paragraph (1)(c)

             (4)  A representative body who, without reasonable excuse, refuses or fails to comply with the requirement under paragraph (1)(c) is guilty of an offence punishable upon conviction by a fine not exceeding 20 penalty units.

Self-incrimination

             (5)  For the purposes of subsection (4), it is not a reasonable excuse for a representative body to refuse or fail:

                     (a)  to give information; or

                     (b)  to produce a record or document;

in accordance with a requirement under paragraph (1)(c), on the ground that the information or the production of the document or record, as the case may be, might tend to incriminate the representative body or make the representative body liable to a penalty.

Admissibility in criminal proceedings

             (6)  Despite subsection (5):

                     (a)  giving the information or producing the document or record; or

                     (b)  any information, document, record or thing obtained as a direct or indirect consequence of the giving of the information or production of the document or record;

is not admissible in evidence against the person in any criminal proceedings, other than proceedings against, or arising out of, subsection (4) or (7).

Knowingly making a statement that is false or misleading

             (7)  A representative body who, in purported compliance with the requirement under paragraph (1)(c), makes a statement that it knows to be false or misleading in a material particular, is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.

203DH   Effect of withdrawal of recognition

                   A withdrawal of the body’s recognition under section 203AH does not affect the undertaking of an inspection and audit, or investigation, under section 203DF.

Division 6 Conduct of directors and other executive officers

203E   Application of Division

Relation to representative body functions and powers

             (1)  This Division does not apply to anything that is not related to the performance of the functions of a representative body or the exercise of its powers.

Exempt State bodies

             (2)  This Division does not apply to the directors or executive officers of a representative body that is an exempt State body, except to the extent that a law of a State provides that it does so apply.

203EA   Application of certain provisions of the Commonwealth Authorities and Companies Act

                   Subject to this section and to section 203EB, Division 4 of Part 3 and Schedule 2 (other than clauses 8 and 12) of the Commonwealth Authorities and Companies Act 1997 apply in relation to a representative body as if:

                     (a)  each reference in that Division and in that Schedule to a Commonwealth authority were a reference to the representative body; and

                     (b)  each reference in that Division to an officer of a Commonwealth authority were a reference to an executive officer of the representative body; and

                     (c)  each reference in that Division to a former officer of a Commonwealth authority were a reference to a former executive officer of the representative body; and

                     (d)  each reference in that Division and in that Schedule to a director of a Commonwealth authority were a reference to a director of the representative body; and

                     (e)  each reference in that Division to the Board of a Commonwealth authority were a reference to the governing body of the representative body; and

                      (f)  each reference in that Schedule to the Finance Minister were a reference to the Commonwealth Minister.

203EB   Application of section 21 of the Commonwealth Authorities and Companies Act

                   Section 21 of the Commonwealth Authorities and Companies Act 1997 applies in relation to a representative body as if subsections (3), (4) and (5) were omitted and the following subsection substituted:

             (3)  The director:

                     (a)  must not be present during any deliberation by the governing body on the matter; and

                     (b)  must not take part in any decision of the governing body on the matter.

203EC   Sections 203EA and 203EB not to affect certain obligations

                   To avoid doubt, sections 203EA and 203EB do not affect the obligations imposed by the Commonwealth Authorities and Companies Act 1997 upon a representative body that is a Commonwealth authority within the meaning of section 7 of that Act.

32  Before section 203FC

Insert:

203F   ATSIC to inform Minister of certain matters

                   If ATSIC is of the opinion that:

                     (a)  a representative body is not satisfactorily representing the native title holders or persons who may hold native title in the area for which the body is the representative body; or

                     (b)  a representative body is not effectively consulting with Aboriginal peoples and Torres Strait Islanders living in the area; or

                     (c)  a representative body is not satisfactorily performing its functions; or

                     (d)  there may be irregularities in the financial affairs of a representative body;

ATSIC must give written notice of its opinion to the Commonwealth Minister.

Note:          ATSIC must also give written notice of breaches of grant conditions to the Commonwealth Minister—see subsection 203CA(5).

203FA   ATSIC to give information etc. about certain matters to Minister

                   If the Commonwealth Minister suspects that, in relation to a particular matter:

                     (a)  a representative body is not satisfactorily representing the native title holders or persons who may hold native title in the area for which the body is the representative body; or

                     (b)  a representative body is not effectively consulting with Aboriginal peoples and Torres Strait Islanders living in the area; or

                     (c)  a representative body is not satisfactorily performing its functions; or

                     (d)  there may be irregularities in the financial affairs of the representative body; or

                     (e)  the representative body has breached, or is breaching, a condition of a grant under Division 4;

the Commonwealth Minister may request that ATSIC provide to the Commonwealth Minister all information or documents, or specified information or documents, in ATSIC’s possession that relates to that matter. ATSIC must comply with the request.

203FB   Review of assistance decisions

Person may apply for review

             (1)  An Aboriginal person or Torres Strait Islander affected by a decision of a representative body not to assist him or her in the performance of its facilitation and assistance functions under section 203BB may apply to ATSIC for review of the decision.

Note:          The Aboriginal person or Torres Strait Islander is able to obtain a statement of reasons etc. for the decision from the representative body under section 13 of the Administrative Decisions (Judicial Review) Act 1977.

Appointment of person to conduct the review

             (2)  As soon as practicable after receiving the application, ATSIC must appoint to conduct the review a person who, in ATSIC’s opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of the review.

Review of decision

             (3)  Subject to subsection (4), the person appointed must review the decision and report to ATSIC whether:

                     (a)  the decision should be affirmed; or

                     (b)  ATSIC should make a grant of money under section 203FE to a person or body for the purpose of performing specified facilitation and assistance functions of a representative body in relation to the matter to which the decision relates.

Failure to use internal review procedures

             (4)  The person appointed may refuse to review the decision if satisfied that the applicant did not, before applying for the review, make all reasonable efforts to seek a review by the representative body of its decision.

Report to be given within 3 months

             (5)  The person appointed must give the report referred to in subsection (3) to ATSIC within 3 months after the day on which he or she was appointed, or within such other period as ATSIC allows (whether or not the 3 months have expired).

Inviting submissions

             (6)  Before reviewing the decision, the person appointed must invite the representative body that made the decision to make a submission in relation to the decision. The invitation must specify a period of not less than 14 days within which submissions must be made.

Action to be taken by ATSIC

             (7)  ATSIC must, within one month of the end of the period referred to in subsection (5):

                     (a)  affirm the decision; or

                     (b)  make a grant of money under section 203FE as mentioned in paragraph (3)(b) of this section.

Notice of decision on review

             (8)  ATSIC must give the applicant and the representative body written notice of its decision under subsection (7). The notice must include the reasons for that decision.

33  After section 203FD

Insert:

203FE   Grants of assistance by ATSIC

Grants if there is no representative body

             (1)  ATSIC may make one or more grants of money to a person or body for the purpose of enabling the person or body to perform, in respect of a specified area for which there is no representative body:

                     (a)  all the functions of a representative body; or

                     (b)  specified functions of a representative body;

either generally or in relation to one or more specified matters.

Grants following certain decisions under section 203FB

             (2)  ATSIC may make one or more grants of money to a person or body for the purpose of enabling the person or body to perform specified facilitation and assistance functions of a representative body in relation to a matter to which a decision under paragraph 203FB(7)(b) relates.

Conditions of grants

             (3)  A grant of money to a person or body under this section may be subject to such conditions as ATSIC thinks fit. However, ATSIC must impose conditions relating to:

                     (a)  the purposes for which the money may be spent; and

                     (b)  the period within which the money is to be spent; and

                     (c)  the acquittal of money spent; and

                     (d)  the giving of information relating to expenditure of the money; and

                     (e)  the appointment of a person, in cases where ATSIC considers that grant money has not been spent in accordance with the conditions of the grant, with the power to prevent expenditure of further grant money otherwise than in accordance with the conditions of the grant; and

                      (f)  the person’s or body’s continuing satisfactory performance of its functions referred to in subsection (1) or (2), as the case requires; and

                     (g)  the giving of information relating to the performance of the functions referred to in subsection (1) or (2), as the case requires.

Grant period to be specified

             (4)  ATSIC must determine the period during which the person or body may spend the money.

Grant period may be extended

             (5)  If ATSIC considers it appropriate, ATSIC may determine that the period during which the person or body may spend the money is extended for a specified further period.

Persons or bodies must comply with conditions etc.

             (6)  The person or body must comply with the conditions of the grant, and with any determinations under subsection (4) or (5).

Application of ATSIC Act

             (7)  Sections 20, 21, 21A and 22 of the Aboriginal and Torres Strait Islander Commission Act 1989 apply to a grant under this section as if the grant had been made under section 14 of that Act.

Note:          The effect of this subsection is to enable ATSIC to recover from a person or body amounts of grants if the person or body breaches conditions of those grants.

203FF   Financial and accountability requirements imposed by other legislation

Obligations under other laws unaffected

             (1)  The obligations imposed on a representative body by Divisions 4 and 5 are in addition to, and not instead of, requirements imposed by any other law of the Commonwealth, a State or Territory.

Combined reports to the Commonwealth Minister

             (2)  A representative body that has an obligation under another law of the Commonwealth to give a report to the Commonwealth Minister may include as a part of that report a report that it is obliged to give to the Minister under Division 5. However, that part must be identified in the report as a report under Division 5.

203FG   False statements etc.

                   A person is guilty of an offence if the person:

                     (a)  makes a statement or presents a document in or in connection with an application to ATSIC for a grant under section 203C; and

                     (b)  does so knowing that the statement is, or that the document contains information that is, false or misleading in a material particular.

Penalty:  Imprisonment for 6 months or 30 penalty units, or both.

34  Paragraph 214(a)

Omit “202(1),”.

35  At the end of paragraph 214(b)

Add “, 203AE, 203AF or 203AG or subsection 203AH(2)”.

36  At the end of section 215

Add:

Transitional or saving provisions

             (4)  Without limiting subsection (1), the regulations may make such transitional or saving provisions as are necessary or convenient as a result of the recognition of representative Aboriginal/Torres Strait Islander bodies being withdrawn under section 203AH.

37  Section 253 (definition of representative Aboriginal/Torres Strait Islander body )

Omit “that is the subject of a determination under subsection 202(1) or”.

Note:       This amendment will have the effect that, when this Part commences, representative bodies under subsection 202(1) will no longer be representative bodies.



 

Schedule 4 Addition of Schedule

   

Native Title Act 1993

1  At the end of the Act

Add:

Schedule 1 Scheduled interests

Note:       This Schedule lists things that are covered by the expression Scheduled interest (see section 249C).

Part 1 New South Wales

1   Crown Lands Occupation Act 1861

                   A lease for special purposes under section 30 of the Crown Lands Occupation Act 1861 .

2   Crown Lands Act 1884

             (1)  A conditional lease under the Crown Lands Act 1884 .

             (2)  A special lease under section 89 of the Crown Lands Act 1884 .

             (3)  A special lease under section 90 of the Crown Lands Act 1884 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

agriculture; bakery; bee and poultry farm; boiling down works; brick-kiln; bridge; building or repairing ships or boats; construction of a drainage canal; construction of an irrigation canal; cricket; cultivation of eucalyptus; dairying; dam; erection of machinery; factory; ferry; freezing works; graving dock; inn; irrigation or drainage canal; lime-kiln; mail station; night soil depot; nursery garden; patent slip; pig and poultry farm; punt-house; residence; saw-mill; sericulture; sheep and cattle yard; show ground; site for storage of explosives; skin drying and skin packing; slaughterhouse; slaughterhouse accommodation paddock; smelting works; smithy; storage; store; tank; tannery; tobacco growing; tramway; vegetable garden; wattle growing; well; wharf; wool washing establishment.

             (4)  A special lease under section 92 of the Crown Lands Act 1884 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

                     (a)  irrigation or drainage canals;

                     (b)  forming and maintaining tramways and crossings and other necessary approaches and works in connection with forming and maintaining tramways and crossings.

3   Western Lands Act 1901 , Crown Lands Consolidation Act 1913 and other land Acts

             (1)  A residential lease (whether an original or an additional holding) under section 48 of the Crown Lands Act 1889 , section 50 of the Crown Lands Act 1895 or section 80 of the Crown Lands Consolidation Act 1913 .

             (2)  A homestead selection or grant (whether an original or an additional holding) under the Crown Lands Act 1895 or the Crown Lands Consolidation Act 1913 .

             (3)  A settlement lease (whether an original or an additional holding) under the Crown Lands Act 1895 or the Crown Lands Consolidation Act 1913 , other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                     (b)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

             (4)  A lease under section 23 of the Western Lands Act 1901 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

agriculture or any similar purpose; agriculture (or any similar purpose) and grazing combined; mixed farming or any similar purpose other than grazing.

             (5)  A conditional lease under the Western Lands Act 1901 or the Crown Lands Consolidation Act 1913 .

             (6)  A special lease under section 28A of the Western Lands Act 1901 or section 75 or 75B of the Crown Lands Consolidation Act 1913 that permits the lessee to use the land or waters covered by the lease solely or primarily for a business purpose of any of the following:

accommodation building; bus depot; cafe; caravan and camping park; concrete batching plant; factory; feedlot; fish marketing and processing; fuel depot; garage; holiday accommodation; hospital; hotel; kiosk; manufacturing works; marina; motel; motor repair facility; nursing home; office accommodation; oyster depuration; oyster processing; processing plant; restaurant; retail shop; retirement village; service station; showroom; storage; tourist accommodation and facilities; workshop.

             (7)  A special lease under section 28A of the Western Lands Act 1901 or section 75 or 75B of the Crown Lands Consolidation Act 1913 that permits the lessee to use the land or waters covered by the lease solely or primarily for a waterfront business of a marina, slipway, retail shop or food sales.

             (8)  A special lease under section 28A of the Western Lands Act 1901 or section 75 or 75B of the Crown Lands Consolidation Act 1913 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

abattoirs accommodation paddock; abattoirs and resting paddock; accommodation house; aerodrome; agriculture; agriculture or any similar purpose; agriculture (or any similar purpose) and grazing combined; archery ground; bakery; basketball court; bee and poultry farm; boatshed; boiling down works; bowling green; brick kiln; bridge; building and repairing boats; building and repairing boats or ships; building or repairing of ships; bushfire brigade facilities; cable station; church and school site; community centre; construction of drainage canal; construction of irrigation canal; council chambers; council depot; council office; coursing ground and plumpton; cricket; cultivation; cultivation of eucalyptus; Country Women’s Association rest rooms; dairying; dam; dam, weir or tank; day care centre; depot; dog and animal pound; dog racing course; domestic garden; driver training ground; equestrian grounds; erection of building; erection of coke oven; erection of dwelling; erection of machinery; factory; feedlot; ferries; freezing works; golf course; graving dock; gymnasium; horse racing course; horticulture; inn; kindergarten; land-based aquaculture; library; lime-kiln; mail station; manufacture of eucalyptus oil; market garden; mixed farming or any similar purpose other than grazing; motel; motor car and bike racing track; motor sports activities and facilities; neighbourhood depot; night soil depot; nursery garden; orchard; parking area; patent slip; pig and poultry farm; piggery; planting; poultry farm; power house, engine house, boiler house, bathroom, loading facilities or coal washery in connection with coal mining; pre-school; punt house; railway siding; railway station and depot; reclamation; refreshment room; refuse tip site; research centre; residence; residential development; residential subdivision; retirement village; rifle and pistol range; sale yard; sawmill; school and church site; school or other educational institution; septic tank; sericulture; sewage farm; sheep and cattle yard; showground; site for storage of explosives; skin drying and skin packing; slaughterhouse or abattoirs accommodation paddock; slaughterhouse; slip; smelting works; smithy; sporting club building; sporting ground; sporting ground and facilities; stable; storage of explosives; storage purposes; store; sugar cane growing; surf life saving club; swimming pool; tank; tannery; telecommunications or broadcasting tower, mast or building; tobacco growing; tramway; tree farming; vegetable garden; vegetable garden and nursery; velodrome; vineyard; volunteer rescue facilities; waste depot; water race; water storage; wattle growing; weighbridge; well; whaling station; wharf; wool washing establishment.

             (9)  A conditional purchase lease (whether an original or an additional holding) under the Crown Lands (Amendment) Act 1905 or the Crown Lands Consolidation Act 1913 .

           (10)  A Crown lease (whether an original or an additional holding) under the Crown Lands (Amendment) Act 1912 or the Crown Lands Consolidation Act 1913 , other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                     (b)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

           (11)  A suburban holding (whether an original or an additional holding), a town land lease within an irrigation area, a homestead farm (whether an original or an additional holding), an irrigation farm lease or a non-irrigable lease, under the Crown Lands (Amendment) Act 1912 or the Crown Lands Consolidation Act 1913 .

           (12)  A week-end lease under the Crown Lands Consolidation Act 1913 .

           (13)  A special conditional purchase lease (whether an original or an additional holding) under the Crown Lands Consolidation Act 1913 .

           (14)  A lease under section 69A of the Crown Lands Consolidation Act 1913 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

army depot; artillery range; beacon site; bombing range; firing range; lighthouse; naval facilities; pilot station; pistol range; quarantine station; rifle range; Royal Australian Air Force base; telecommunications or broadcasting tower, mast or building; training facility.

           (15)  A special lease under section 74 of the Crown Lands Consolidation Act 1913 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

artificial reef; boatshed; building and repairing boats; dam; erection of a building; erection of machinery; floating dock; jetty; pier; reclamation; waterfront business for the purpose of a marina, retail shop, restaurant or boat repairs; whaling station; wharf.

           (16)  A special lease under section 76 of the Crown Lands Consolidation Act 1913 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

irrigation or drainage canal; forming and maintaining tramways and crossings and other necessary approaches and works in connection with forming and maintaining tramways and crossings.

           (17)  A lease of town land under section 82A of the Crown Lands Consolidation Act 1913 .

4   Returned Soldiers Settlement Act 1916

                   A lease under section 4 of the Returned Soldiers Settlement Act 1916 .

5   Closer Settlement Amendment (Conversion) Act 1943

                   A group purchase lease, closer settlement lease or settlement purchase lease, under the Closer Settlement Amendment (Conversion) Act 1943 .

6   Crown Lands Act 1989

                   A lease under section 34 of the Crown Lands Act 1989 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

agriculture; aquatic centre; boatshed; building for the use of charitable or community service organisation; bushfire brigade facilities; cafe; caravan and camping area; childcare facilities; commercial retail purposes; community centre; council depot; day care centre; equestrian centre; factory; feedlot; golf course; hotel; industrial depot; kindergarten; kiosk; library; marina; motel; office accommodation; registered club; residential purposes; restaurant; rifle and pistol range; sporting club; sporting ground; sporting ground and facilities; storage area; telecommunications or broadcasting tower, mast or building; tennis court; tourist accommodation and facilities; volunteer rescue facilities; youth organisation facilities.

7   National Parks legislation

             (1)  A lease under subsection 11(3) of the Kosciusko State Park Act 1944 .

             (2)  A lease under paragraph 30(1)(a) or (b) of the National Parks and Wildlife Act 1967 .

             (3)  A lease under paragraph 151(1)(a), (b), (c), (d) or (e) of the National Parks and Wildlife Act 1974 .

8   Various Acts

                   A lease under section 5 of the Public Parks Act 1854 , section 6 of the Public Parks Act 1884 , section 7 of the Public Parks Act 1902 , Part IIIA or Division 3 of Part IIIB of the Crown Lands Consolidation Act 1913 , Schedule 9A to the National Parks and Wildlife Act 1974 or Division 5 of Part 5 of the Crown Lands Act 1989 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

accommodation house; amusement centre; art gallery; boat storage; boatshed; bowling green; building for use by community and charitable bodies; cafe; caravan park and camping ground; craft centre; day care centre; dog racing course and facilities; driver training ground; entertainment centre; football; golf course; Guide hall; historic building, structure and display; horse racing course and facilities; jetty; kindergarten; kiosk; launching ramp; marina; museum; restaurant; retail shop; retirement village; Scout hall; sporting club; sporting ground; sporting ground and facilities; sports stadium; swimming pool; tea room; telecommunications or broadcasting tower, mast or building; tourist information centre; volunteer rescue organisation; wharf; wharf and jetty; youth club; youth organisation facilities.



 

Part 2 Victoria

9   Land Acts etc.

             (1)  A lease under section XXI, XXIII or XLVII of the Land Act 1862 .

             (2)  A lease under section L of the Land Act 1862 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection 3, 5, 8 or 9 of that section, or for a bathing house, bridge, ferry, punt house or quay or for depositing materials.

             (3)  A lease under section 13 or 38 of the Amending Land Act 1865 .

             (4)  A lease under section 37 of the Amending Land Act 1865 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection 3, 5, 8 or 9 of section L of the Land Act 1862 or for a bathing house, bridge, ferry, punt house or quay or for depositing materials.

             (5)  A lease under section 20, 31, 33 or 46 of the Land Act 1869 .

             (6)  A lease under section 45 of the Land Act 1869 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection (III), (V), (VIII) or (IX) of that section, or for a bathing house, bridge, ferry, punt house or quay or for depositing materials.

             (7)  A lease under section 18, 44, 92 or 94 of the Land Act 1884 .

             (8)  A lease under the Land Act 1884 in accordance with the conditions contained in a non-residence licence under section 49 of that Act.

             (9)  A lease under section 91 of the Land Act 1884 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection (3), (5), (8) or (9) of that section, or for a bathing house, bridge, ferry, punt house or quay or for depositing materials.

           (10)  A lease of an agricultural allotment, or an agricultural lease, under the Land Act 1884 , the Land Act 1890 , the Land Act 1898 , the Land Act 1900 , the Land Act 1900 (No. 2) , the Land Act 1901 , the Land Act 1911 , the Land Act 1915 , the Land Act 1928 , the Land Act 1941 or the Land Act 1958 .

           (11)  A lease of drained and reclaimed swamp land under section 85 of the Land Act 1884 , section 85 of the Land Act 1890 , section 131 of the Land Act 1901 , section 110 of the Land Act 1915 , section 110 of the Land Act 1928 or section 110 of the Land Act 1958 that permits the lessee to use the land or waters covered by the lease solely or primarily for agricultural or residential purposes.

           (12)  A lease under section 18 or 100 of the Land Act 1890 .

           (13)  A lease under section 97 of the Land Act 1890 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection (3), (5), (8) or (9) of that section, or for a bathing house, bridge, ferry, punt house or quay or for depositing materials.

           (14)  A lease under the Land Act 1890 in accordance with the conditions contained in a non-residence licence under section 49 of that Act or section 51 of the Land Act 1898 .

           (15)  A lease of a village community allotment under the Settlement on Lands Act 1893 or the Land Act 1901 .

           (16)  A lease of a township allotment under the Settlement on Lands Act 1893 or the Land Act 1901 .

           (17)  A lease of a homestead section under the Settlement on Lands Act 1893 or the Land Act 1901 .

           (18)  A lease under section 2 of the Land Act 1896 .

           (19)  A perpetual lease under the Land Act 1898 , the Land Act 1900 , the Land Act 1900 (No. 2) , the Land Act 1901 , the Land Act 1904 , the Land Act 1911 , the Land Act 1915 , the Land Act 1928 , the Land Act 1941 , the Land Settlement Act 1953 , the Land Settlement Act 1958 or the Land Act 1958 , other than a perpetual lease under Division 3 of Part II of the Land Act 1958 .

           (20)  A conditional purchase lease under the Land Act 1898 , the Land Act 1900 , the Land Act 1900 (No. 2) , the Land Act 1901 , the Murray Settlements Act 1907 , the Land Act 1911 , the Land Act 1915 , the Land Act 1928 , the Land Act 1933 , the Land Act 1941 or the Land Act 1958 .

           (21)  A lease of a grazing allotment under section 61 of the Land Act 1898 or section 56 of the Land Act 1901 .

           (22)  A lease under section 19 of the Land Act 1900 .

           (23)  A lease under section 18, 143, 144, 309, 311, 402 or 411 of the Land Act 1901 .

           (24)  A lease under the Land Act 1901 in accordance with the conditions contained in a non-residence licence under section 50 of that Act.

           (25)  A lease under section 142 of the Land Act 1901 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection (3), (5), (8) or (9) of that section, or for a bathing house, bridge, ferry, punt house or quay or for depositing materials.

           (26)  A residential lease of a selection purchase allotment, non-residential lease of a selection purchase allotment, or selection purchase lease, under the Land Act 1901 , the Land Act 1911 , the Land Act 1915 , the Land Act 1915 (No. 2) , the Land Act 1928 , the Land Act 1941 or the Land Act 1958 .

           (27)  A lease under section 28 of the Land Act 1904 .

           (28)  A lease under section 73 of the Land Act 1911 .

           (29)  A lease under section 125 of the Land Act 1915 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection (3), (5), (8) or (9) of that section, or for a bathing house, bridge, ferry, punt house or quay or for depositing materials.

           (30)  A lease under section 127 or 128 of the Land Act 1915 .

           (31)  A lease under section 4 of the Land Act 1915 (No. 2) .

           (32)  A lease under subsection 126(2) or section 127, 128 or 356 of the Land Act 1928 .

           (33)  A lease under section 125 or 352 of the Land Act 1928 or subsection 7(2) or section 14 of the Land Act 1941 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in paragraph 125(1)(c), (e), (h) or (i) of the Land Act 1928 , or for a bathing house, bridge, ferry, punt house or quay or for depositing materials.

           (34)  A right to occupy a residence area under the Land (Residence Areas) Act 1935 or the Land Act 1958 .

           (35)  A lease under section 14 of the Land Act 1941 to or by the holder of a lease under subsection 126(2) or section 127, 128 or 356 of the Land Act 1928 .

           (36)  A development lease under the Land (Development Leases) Act 1951 or the Land Act 1958 .

           (37)  An improvement purchase lease under the Land (Improvement Purchase Lease) Act 1956 or the Land Act 1958 .

           (38)  A cultivation lease under section 133B of the Land Act 1958 .

           (39)  A lease under section 134 of the Land Act 1958 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in paragraph (1)(c), (e), (h) or (i) of that section or for any of the following:

Aboriginal health services centre; accommodation and facilities for tourists; ambulance station; amusement park; bathing house; bowling club; bowling club and car park; bowls; bridge; car parking; caravan park; caravan park and camping ground; chair lift; church; clubhouse; clubroom; communications tower; Country Women’s Association centre; craft centre; creative arts communication centre; depositing materials; depot; equestrian events; factory; ferry; ferry terminal; film and performing arts centre; fire station; fish freezing works; fish processing and freezing; fish processing works; football club; gas regulating and metering station; Girl Guides hall; gliding club; gliding field; golf; golf club; golf club house; golf course; golf driving range; grain testing facility; Guide hall; gun club; hall; harness racing club; health and fitness club and restaurant; holiday accommodation and agricultural farming; industrial purposes; industrial storage; jetty pens; lawn tennis club; line depot; manufacture of industrial accessories; manufacture of salt; manufacturing and storage; marina; marine education centre; marine operations terminal; marine workshop and sales; maritime industry warehouse; mobile telecommunications tower; motor car club; motor cycle club; museum and interpretive centre; office accommodation; office; pistol club; pistol range; processing and storage of petrol; processing, freezing and retailing fish; production of salt; punt house; purification plant; quay; radio relay station; radio repeater station; radio station; radio telephone and repeaters; radio transmission tower; radio transmitting station; relay station; retail shopping centre; rifle range; Returned Services League club; salt extraction; sawmill; school; Scout hall; sea pilot’s station and amenities; shooting range; site for a line depot; stadium; storage of materials; telecommunications tower; television transmitting station; tennis court; tennis courts and clubroom; toll house; transmission tower; vehicular ferry terminal; warehouse; waste transfer station; water industry training centre and accommodation; yacht club; yacht clubhouse and yard.

           (40)  A lease under subsection 135(2) or section 136, 137, 151E, 222A, 222B of the Land Act 1958 .

           (41)  A lease under Subdivision 1 of Division 9 of Part I of the Land Act 1958 that permits the lessee to use the land or waters covered by the lease solely or primarily for industrial purposes or for the generation of electricity for supply or sale.

           (42)  An industrial lease, industrial purchase lease, or industrial development lease, under the Land Act 1958 .

10   Water Acts etc.

             (1)  A lease under section 75 of the Victorian Water Conservation Act 1881 .

             (2)  A lease under section 118 of the Irrigation Act 1886 .

             (3)  A lease under section 68, 243 or 292 of the Water Act 1890 , section 299 of the Water Act 1905 , section 299 of the Water Act 1915 , section 299 of the Water Act 1928 , section 324 of the Water Act 1958 or section 132 of the Water Act 1989 , that permits the lessee to use the land or waters covered by the lease solely or primarily for:

                     (a)  agricultural or residential purposes; or

                     (b)  an angling club or the storage and launching of boats.

             (4)  A lease under section 277 of the Water Act 1890 .

             (5)  A lease under section 213 of the Water Act 1905 .

             (6)  A lease under section 184 of the Water Act 1915 .

             (7)  A lease under section 184 of the Water Act 1928 .

             (8)  A lease under section 200 of the Water Act 1958 .

11   Forests Acts

             (1)  A lease under section 39 of the Forests Act 1918 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes of a dwelling-house or business premises.

             (2)  A lease under section 51 of the Forests Act 1958 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

cabin accommodation; caravan park; dwelling house; hotel; mobile communications base station; nursery; preservation of an historic building; rifle range; saw mill; ski lodge; softwood production; steel tower and storage shed; telecommunications tower; television transmitter station; training and research centre; transmission tower.

             (3)  A lease under section 51 of the Forests Act 1958 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in paragraph 134(1)(c), (e), (h) or (i) of the Land Act 1958 , or for a bathing house, bridge, ferry, punt house or quay or for depositing materials.

             (4)  A lease under section 57B of the Forests Act 1958 .

12   National Parks Act 1975

             (1)  A lease or tenancy under paragraph 19(2)(a) or section 30AA, 32AB or 32B of the National Parks Act 1975 .

             (2)  A tenancy of a building under paragraph 19(2)(b) of the National Parks Act 1975 .

             (3)  A lease under section 31AA of the National Parks Act 1975 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in paragraph (2)(a) or (c) of that section.

             (4)  A tenancy under section 32C of the National Parks Act 1975 that permits the lessee to use the land or waters covered by the lease solely or primarily for residential purposes or for erecting, providing or using particular structures, facilities or equipment in connection with the keeping of horses or the conduct of a riding school.

13   Alpine Resorts Act 1983

             (1)  A lease under subsection 28(2) of the Alpine Resorts Act 1983 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in paragraph (a) or (b) of that subsection.

             (2)  A lease under paragraph 28(2)(c) of the Alpine Resorts Act 1983 that permits the lessee to use the land or waters covered by the lease solely or primarily for a fire station, telecommunications relay station or telephone exchange.

             (3)  A lease under section 28A of the Alpine Resorts Act 1983 .

14   Gardens Acts

             (1)  A lease under subsection 24(2) of the Royal Botanic Gardens Act 1991 that permits the lessee to use the land or waters covered by the lease solely or primarily for a kiosk, cafe, restaurant, shop or other outlet providing refreshment services.

             (2)  A lease under subsection 24(3A) of the Royal Botanic Gardens Act 1991 .

             (3)  A lease under paragraph 33(2)(a) of the Zoological Parks and Gardens Act 1995 that permits the lessee to use the land or waters covered by the lease solely or primarily for a kiosk, cafe, restaurant, shop or other outlet providing refreshment services.

15   Settlement Acts etc.

             (1)  A settlement interim lease, settlement purchase lease or purchase lease under the Soldier Settlement Act 1946 , the Soldier Settlement Act 1958 , the Land Act 1958 , the Land Settlement Act 1959 or the Rural Finance Act 1988 .

             (2)  A perpetual lease under the North-West Mallee Settlement Areas Act 1948 or Division 3 of Part II of the Land Act 1958 , other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                     (b)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

             (3)  A lease under section 43 of the Soldier Settlement Act 1958 pending the grant of an interim lease under that Act.

             (4)  A temporary lease under the Land Settlement Act 1959 .

             (5)  A lease under section 47 of the Land Settlement Act 1959 .

16   Crown Land (Reserves) Act 1978

             (1)  A lease under section 14D, 16, 17C or 17D of the Crown Land (Reserves) Act 1978 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

antenna; caravan park; caravan park and camping ground; clubhouse; curtilage to a dwelling; curtilage to a private club; environmental education centre; fire tower; golf club; golf course; historic society; house encroachment; houseboat hire and servicing; kiosk, tea room, fish shop and jetty; marine research laboratory; mobile communications base station; museum; museum and interpretative centre; pistol range; pre-school centre; preserving historic building; public hall; radio transmission tower; rescue station; residence; sailing school; theatre; water filtration plant; water pump and underground tank.

             (2)  A lease under section 22 or 23 of the Crown Land (Reserves) Act 1978 .

             (3)  A lease under section 29A of the Crown Land (Reserves) Act 1978 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in paragraph (1)(b) of that section.

17   Melbourne and Metropolitan Board of Works Acts

             (1)  A lease under section 147 of the Melbourne and Metropolitan Board of Works Act 1890 , section 209 of the Melbourne and Metropolitan Board of Works Act 1915 , section 209 of the Melbourne and Metropolitan Board of Works Act 1928 or section 235 of the Melbourne and Metropolitan Board of Works Act 1958 that permits the lessee to use the land or waters covered by the lease solely or primarily for industrial or residential purposes.

             (2)  A building or improving lease under section 148 of the Melbourne and Metropolitan Board of Works Act 1890 , section 210 of the Melbourne and Metropolitan Board of Works Act 1915 , section 210 of the Melbourne and Metropolitan Board of Works Act 1928 or section 236 of the Melbourne and Metropolitan Board of Works Act 1958 that permits the lessee to use the land or waters covered by the lease solely or primarily for industrial or residential purposes.

18   Port Acts etc.

             (1)  A lease under section 35 of the Harbor Boards Act 1958 , paragraph 24(2)(b) or 26B(1)(a) or subsection 46(1) of the Port of Geelong Authority Act 1958 , paragraph 50(2)(b) or 56A(1)(a) or section 50A of the Port of Melbourne Authority Act 1958 , paragraph 17A(2)(b) or 17E(1)(a) or subsection 19(2) of the Port of Portland Authority Act 1958 or paragraph 65(4)(d) of the Port Services Act 1995 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

berthing and mooring facilities; jetty; loading and unloading of commercial shipping; pier and associated rock wall; storage of cargo or storage and operation of equipment and machinery for shipping operations or launching boats; wharf.

             (2)  A lease under paragraph 24(2)(b) or 26B(1)(a) or subsection 46(1) of the Port of Geelong Authority Act 1958 that permits the lessee to use the land or waters covered by the lease for any of the purposes mentioned in subsection 46(1) of that Act.

             (3)  A lease under subsection 20(2) or 24(1) of the Docklands Authority Act 1991 that permits the lessee to use the land or waters covered by the lease solely or primarily for a shipping terminal, workshop, port services headquarters or the operation of the Port of Melbourne, or for industrial purposes.

19   Railway and Transport Acts

             (1)  A lease under section 76 of the Railways Act 1958 that permits the lessee to use the land or waters covered by the lease solely or primarily for cultivation, for grazing and cultivation, or for residential purposes.

             (2)  A lease under paragraph 41(1)(a) of the Emerald Tourist Railway Act 1977 of a refreshment room, shed, office, shop, house, stall or other building, of a site for the erection of a refreshment room, shed, office, shop, house, stall or other building, or for storage.

             (3)  A lease under subparagraph 21(1)(f)(i) of the Railway Construction and Property Board Act 1979 that permits the lessee to use the land or waters covered by the lease solely or primarily for industrial or residential purposes.

             (4)  A lease or tenancy under subsection 25(3) or 26(1) of the Railway Construction and Property Board Act 1979 .

             (5)  A lease under paragraph 47(2)(b) of the Transport Act 1983 that permits the lessee to use the land or waters covered by the lease solely or primarily for cultivation, for grazing and cultivation, or for residential purposes.

20   Various Acts

             (1)  A lease under section 17 or 20A of the Education Act 1958 that permits the lessee to use the land or waters covered by the lease solely or primarily for a cultural centre, sports ground, school or other educational institution.

             (2)  A lease under section 3 of the Land (Surf Life Saving Association) Act 1967 .

             (3)  A lease under subsection 7(2) or paragraph 15(1)(f) of the Albury-Wodonga Agreement Act 1973 that permits the lessee to use the land or waters covered by the lease solely or primarily for agricultural or residential purposes.

             (4)  A lease or tenancy under paragraph 6(2)(a) of the Melbourne Wholesale Fruit and Vegetable Market Trust Act 1977 or paragraph 7(2)(a) of the Melbourne Market Authority Act 1977 that permits the lessee to use the land or waters covered by the lease solely or primarily for storing, distributing or selling vegetables, fruit, flowers or other produce.

             (5)  A lease under paragraph 13(1)(i) of the Government Employee Housing Authority Act 1981 .

             (6)  A lease under section 128K of the Casino Control Act 1991 .

             (7)  A lease under paragraph 24(1)(b) of the Melbourne Sports and Aquatic Centre Act 1994 , or a lease deemed to be granted under subsection 24(2) of that Act, that permits the lessee to use the land or waters covered by the lease solely or primarily for sport or gaming activities or an entertainment centre.

             (8)  A lease under section 7 of the Australian Food Industry Science Centre Act 1995 that permits the lessee to use the land or waters covered by the lease solely or primarily for agricultural research.



 

Part 3 Queensland

21   Leases under various Land Acts etc.

             (1)  A lease under section XII of the Alienation of Crown Lands Act 1860 .

             (2)  A lease under section 51 of the Crown Lands Alienation Act 1868 .

             (3)  A special lease under section 69 of the Crown Lands Alienation Act 1868 , section 70 of the Crown Lands Alienation Act 1876 or section 188 of the Land Act 1897 .

             (4)  A lease under the Gold Fields Town Lands Act 1869 .

             (5)  A lease under section 28 of the Crown Lands Alienation Act 1876 .

             (6)  A perpetual town allotment lease under the Land Act 1897 .

             (7)  A perpetual suburban allotment lease under the Land Act 1897 .

             (8)  A lease under section 119A of the Land Act 1910 .

             (9)  A lease under subsection 185(2) of the Land Act 1910 , section 343 of the Land Act 1962 or subsection 57(1) of the Land Act 1994 , a special lease under the Land Act 1910 or the Land Act 1962 , a lease for a term of years or a perpetual lease under section 22B of the State Housing Act 1945 , or a term lease or perpetual lease under the Land Act 1994 , that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

abattoir; accommodation; accommodation paddock adjoining an abattoir; aerodrome; aeromodellers club; aged persons’ home; agricultural and horticultural society showground; agriculture; air traffic control facilities; aircraft hangar site; aircraft hangar, repair and administration building; aircraft landing ground; airfield; airstrip; airstrip and terminal; all sports complex; amphitheatre; amusement and entertainment park and pub; animal refuge boarding kennel; animal refuge home; Apex club; archery club; archery range; arts and craft centre; automatic telephone exchange; aviation building; band hall site; bank; basketball; basketball club; basketball court; beacon; boat building; boat hire; boat pilot base and wharf; boat ramp; boat repair; boat sales; boat shed; boating and fishing club; bowhunting; bowhunting club; bowhunting range; bowling club; bowling green; bowls club; Boy Scouts hall; Boys Brigade hall; British Australian club; broadcasting tower, mast or facility; building encroachment; building or repairing boats; bulk fuel depot; bulk storage; bulk storage depot; burning of sawmill waste; bus depot; butchery; cafe; cafeteria; cane employees’ accommodation; car parking; car storage; car wrecking yard; caravan park; catamaran club; cattle transport depot or yard; causeway; change rooms and associated facilities; charitable organisation; child care centre; church; church and church hall; church school; city band hall; civil aviation anemometer site; civil aviation visual omni range; clubhouse; clubhouse for the Grand Lodge of the Royal Antediluvian Order of Buffaloes; coast guard facilities; coffee growing; coffee shop; coke works; commercial building development; communal bore; communal dam; communal storage building; communal tank; community centre; compressor station site; concrete batching plant; concrete manufacturing and storage of earthmoving equipment; conservatorium of music; coral art display and sales shop and residence; coral art display and sales shop or centre; crane hire; cricket; cricket club; cricket ground; cricket ground and grandstand; crocodile farm; croquet club; croquet pitch; culture centre; dairy; dam; dam site and agriculture; dance hall; dart playing hall; delicatessen-snack bar; depot; development office; dining hall; dip site; dog training; drive-in picture theatre; driver training; drug and alcohol rehabilitation centre; dry dock; educational institution; electricity generator and depot; electricity substation; electricity transmission tower; elevated passenger cable way pylons and building; Endeavour workshop; engineering workshop; equestrian and general sporting purposes; equestrian club; equestrian field; equestrian or pony field; explosive magazine; explosive manufacture, testing and storage; export game meat receival and kangaroo pet food depot; fast food outlet; feed lot; ferry terminal; fertiliser storage depot; fibre board plant; field archery range; fire brigade station; fire observation tower; fish depot; fishing club; flood mitigation dam or canal; flying field and soaring/gliding building; football; football club; football ground; freight terminal and barge ramp; fruit growing; fruit storage; fuel and garage facilities; fuel depot; fuel storage; game collection centre; game fishing club; garage; gas compressor; gas offtake and pressure regulating system; gas storage tank; gas treatment plant; general engineering workshop; general store; Girl Guides hall; golf club; golf course; golf links; grain handling facilities; grain storage depot; gravel treatment; grazing and horticulture; grocery shop; gun club; heavy engineering and fabrication; helipad site; historical museum; hockey club; hockey pitch; holiday unit; home unit; horse and pony club; horse stabling; horticulture; hostel; hotel; hotel-casino; housing purposes; indoor sports centre; industrial development; industrial purposes; Jaycees room; jetty; judo; kindergarten; kiosk; knackery; land-based aquaculture; land-based aquaculture inlet canal; land-based mariculture; licensed club; light industrial purposes; lighthouse; line depot; log storage; lot feeding; machinery shed; machinery storage; maintenance depot; manufacturing; marina; marine stadium; marine workshop and slipway; market garden; market gardening; Masonic lodge; mechanical workshop; medical centre; memorial club; metal fabrication; microwave radio feeder station; microwave radio tower, mast or building; microwave repeater station; milk depot; mobile telecommunications tower, mast or building; mobile two way radio tower, mast or building; monorail train operation; motel; motocross track; motorbike sales and service; motorbike track; motor club; motorcycle club; motorcycle raceway; motor raceway; motor racing; motor sports; multi-unit residential development; multi-purpose family centre; music hall; netball; netball club; netball court; newsagency; nursery; office; offtake and pressure regulating station; oil depot; on-shore boat house; optical fibre repeater station; orchard; pharmacy; piggery; pine plantation; pipe band hall; pistol club; pistol range; plant nursery; playground; Police Citizens Youth Club; polocrosse; polocrosse club; polocrosse field; pony club; pony field; post office; pottery club; power and sailing boat club and launching, storage and preparation area; power station; power substation; prawn receiving depot; pre-school; preparation and distribution of meals; private school; produce store; professional fishing base, building and wharf; Progress Association hall; pump site and agriculture; pump station; pumping plant; pumping station; quarry depot; racecourse; racecourse and showground; radio communication tower, mast or building; radio station; radio telephone station; radio transmitter; radio-telephone transmitter; rail transport infrastructure; railway; railway loop and train loading facilities; reclamation; repeater station; residential building development; residential flats; residential purposes; restaurant; restoration of historical structure and tourist accommodation and facilities; retail liquor outlet; retail shopping; retail shops and/or commercial office; retirement village; Returned Services League club; rice growing and small crops; rifle club; rifle range; roadhouse; roadside stall; rodeo ground; rowing club; rugby league clubhouse; rural training school; rural youth hall; sailing club; saleyard; salt production; sand blasting workshop; sawmill; sawmill products storage; school; school playground; sea cadets hall; secondary school; seed storage; service and maintenance depot; service station; settling pond; sewage disposal; sewage treatment plant; sewage treatment works; shed; shooting range; shop premises; shopping centre; shopping complex; shop; show society and associated sporting ground; showground; showroom; single person’s quarters; skating rink; skeet shooting range; ski club; slaughterhouse; sleeper sawmill; slipway and associated facilities; small bore rifle range; soccer club; speedway and associated purposes; sporting complex; sporting field; sports club or complex; sports ground, field, pitch, stadium or oval; spray painting and mechanical repair; spraypainting; squash court; State Emergency Service purposes; stockpiling gravel; stockpiling sand and gravel; stock trucking yard; storage and milling of rice; storage of boats; storage of containers; storage of electrical equipment; storage of ilmenite; storage of plant and machinery; storage shed; sugar cane growing; sugar mill pumping site; sugar storage; supermarket; surf life saving facility; swimming club; swimming pool; tank site; tannery; tannery and knackery; target bowhunting; telecommunications tower, mast or building; telephone optical fibre repeater site; television tower site; television translator; television transmitting tower, mast or building; tennis club; tennis court; theatre; theatre or hall; timber storage; timber yard; tobacco growing; toll bridge; tourist accommodation; tourist accommodation and facilities; train loading facilities; tramway; tramway loading siding; transformer site; translator broadcasting station; transport depot; transport terminal; travel agency; tropical science field station; truck and machinery depot; trucking depot; trucking yard; union office and associated facilities; vehicle parking; vehicle service and maintenance; vehicle traffic ramp and loading dock; vehicle wrecking yard; vehicles and machinery depot; vineyard; voltage regulator site; war graves; war veterans’ home; warehouse; warehouse storage; water activity centre for Scouts; water bore site; water dissipation plant; water pumping station; water ski club; water storage facilities; waterfront shop; weighbridge; welding workshop; well site; wheat storage and handling depot; wheat storage shed or silo; wholesale plant nursery; workers’ accommodation and marshalling yard; workshop; workshop for handicapped persons; yacht club; youth hall.

           (10)  A development lease under the Crown Land Development Act 1959 or the Land Act 1962 that permits the lessee to use the land or waters covered by the lease solely or primarily for manufacturing, business, industrial, residential or tourist and recreational purposes.

22   Freeholding leases

             (1)  A freeholding lease under the State Housing Act 1945 .

             (2)  A grazing homestead freeholding lease under the Land Act 1962 or the Land Act 1994 .

             (3)  A freeholding lease as defined in Schedule 6 to the Land Act 1994 .

23   Homestead interests

             (1)  A homestead lease under the Gold Fields Homestead Act 1870 , the Gold Fields Homestead Leases Act 1886 or the Mineral Homesteads Leases Act 1891 .

             (2)  A homestead selection under the Homestead Areas Act 1872 or the Crown Lands Alienation Act 1876 .

             (3)  An agricultural homestead under the Land Act 1897 , the Special Agricultural Homesteads Act 1901 or the Land Act 1910 .

             (4)  A free homestead under the Land Act 1897 or the Land Act 1910 .

             (5)  A miner’s homestead perpetual lease under the Miners’ Homestead Leases Act 1913 .

             (6)  A miner’s homestead lease under the Miners’ Homestead Leases Act 1913 , the Mining Act 1898 or any Act repealed by the Mining Act 1898 .

             (7)  A grazing homestead under the Upper Burnett and Callide Land Settlement Act 1923 .

             (8)  A grazing homestead perpetual lease under the Land Act 1962 .

24   Settlement farm leases

             (1)  A settlement farm lease under the Closer Settlement Act 1906 , the Land Act 1910 , the Brigalow and Other Lands Development Act 1962 , the Land Act 1962 or the Irrigation Areas (Land Settlement) Act 1962 .

             (2)  A designed settlement farm lease under the Land Act 1910 .

25   Agricultural farms

                   An agricultural farm under the Crown Lands Act 1884 , the Agricultural Lands Purchase Act 1894 , the Agricultural Lands Purchase Act 1897 , the Land Act 1897 , the Special Agricultural Selections Act 1901 , the Closer Settlement Act 1906 , the Land Act 1910 , the Brigalow and Other Lands Development Act 1962 , the Irrigation Areas (Land Settlement) Act 1962 or the Land Act 1962 .

26   Perpetual lease selections

                   A perpetual lease selection under the Land Act 1897 , the Closer Settlement Act 1906 , the Land Act 1910 , the Discharged Soldiers’ Settlement Act 1917 , the Upper Burnett and Callide Land Settlement Act 1923 , the Sugar Workers’ Perpetual Lease Selections Act 1923 , the Tully Sugar Works Area Land Regulations Ratification Act 1924 , the Irrigation Acts Amendment Act 1933 , the Brigalow and Other Lands Development Act 1962 , the Irrigation Areas (Land Settlement) Act 1962 or the Land Act 1962 .

27   Perpetual town leases

             (1)  A perpetual town lease, including an auction perpetual lease that is a perpetual town lease, under the Closer Settlement Act 1906 , the Land Act 1910 , the Discharged Soldiers’ Settlement Act 1917 , the Workers’ Homes Act 1919 , the Tully Sugar Works Area Land Regulations Ratification Act 1924 , the Irrigation Acts Amendment Act 1933 , the State Housing Act 1945 , the Irrigation Areas (Land Settlement) Act 1962 or the Land Act 1962 .

             (2)  A perpetual town lease without competition under the Land Act 1910 , the Irrigation Areas (Land Settlement) Act 1962 or the City of Brisbane (Flood Mitigation Works Approval) Act 1952 .

             (3)  A perpetual town lease (non-competitive lease) under the Irrigation Areas (Land Settlement) Act 1962 or the Land Act 1962 .

28   Perpetual suburban leases

             (1)  A perpetual suburban lease, including an auction perpetual lease that is a perpetual suburban lease, under the Closer Settlement Act 1906 , the Land Act 1910 , the Discharged Soldiers’ Settlement Act 1917 , the Workers’ Homes Act 1919 , the Tully Sugar Works Area Land Regulations Ratification Act 1924 , the State Housing Act 1945 , the Irrigation Areas (Land Settlement) Act 1962 or the Land Act 1962 .

             (2)  A perpetual suburban lease without competition under the Land Act 1910 , the Irrigation Areas (Land Settlement) Act 1962 or the City of Brisbane (Flood Mitigation Works Approval) Act 1952 .

             (3)  A perpetual suburban lease (non-competitive lease) under the Irrigation Areas (Land Settlement) Act 1962 or the Land Act 1962 .

29   Perpetual country leases

             (1)  A perpetual country lease, including an auction perpetual lease that is a perpetual country lease, under the Closer Settlement Act 1906 , the Land Act 1910 , the Tully Sugar Works Area Land Regulations Ratification Act 1924 , the Irrigation Areas (Land Settlement) Act 1962 or the Land Act 1962 .

             (2)  A perpetual country lease without competition under the Land Act 1910 or the City of Brisbane (Flood Mitigation Works Approval) Act 1952 .

             (3)  A perpetual country lease (non-competitive lease) under the Irrigation Areas (Land Settlement) Act 1962 or the Land Act 1962 .

30   Prickly pear-related interests

             (1)  A prickly pear frontage selection under the Land Act 1897 .

             (2)  A prickly pear infested selection under the Land Act 1897 .

             (3)  A prickly-pear selection under the Prickly Pear Selections Act 1901 or the Land Act 1910 .

             (4)  A perpetual lease prickly-pear development selection under the Land Act 1910 or the Prickly-pear Land Acts Amendment Act 1930 .

             (5)  A prickly-pear development selection under the Land Act 1910 or the Prickly-pear Land Acts Amendment Act 1930 .

31   Leases under agreements given the force of law

             (1)  Any special lease granted to Amoco Australia Pty Limited under clause 3 of the Agreement that is given the force of law by section 3 of the Amoco Australia Pty Limited Agreement Act 1961 .

             (2)  The lease granted to Austral-Pacific Fertilizers Limited under clause 4(b) or 4(c) of the Agreement that is given the force of law by section 3 of the Austral-Pacific Fertilizers Limited Agreement Act 1967 .

             (3)  Any special lease granted to Austral-Pacific Fertilizers Limited under clause 4(d) of the Agreement that is given the force of law by section 3 of the Austral-Pacific Fertilizers Limited Agreement Act 1967 .

             (4)  The special lease granted to the Gateway Bridge Company Limited under clause 1(5) of Part III of the Agreement that is given the force of law by section 4 of the Gateway Bridge Agreement Act 1980 .

             (5)  The special lease granted to the Sunshine Motorway Company Limited under clause 1(4) of Part III of the Agreement that is given the force of law by section 4 of the Motorways Agreements Act 1987 .

32   Various interests

             (1)  A lease under the Leasing Act 1866 .

             (2)  A lease under the Gold Fields Homestead Act Amendment Act 1880 .

             (3)  An unconditional selection under the Crown Lands Act 1891 , the Land Act 1897 , the Closer Settlement Act 1906 or the Land Act 1910 .

             (4)  A designed agricultural selection under the Land Acts Amendment Act 1952 .

             (5)  A perpetual lease under section 8 of the Clermont Flood Relief Act 1917 .

             (6)  A sugar workers’ agricultural farm under the Tully Sugar Works Area Land Regulations Ratification Act 1924 .

             (7)  A lease under section 64A of the Harbours Act 1955 .

             (8)  A purchase lease under the Brigalow and Other Lands Development Act 1962 .

             (9)  An auction purchase freehold under the Land Act 1962 , including a lease under section 176 of that Act.

           (10)  A special lease purchase freehold under the Land Act 1962 , including a lease under subsection 207(7) of that Act.

           (11)  A sub-lease under subsection 6A(2) of the Industrial Development Act 1963 .

           (12)  A lease under paragraph 24(b) of the Industrial Development Act 1963 .

           (13)  A mining titles freeholding lease under the Mining Titles Freeholding Act 1980 .



 

Part 4 Western Australia

33   Legislation before 1898

             (1)  A lease of town land under the Land Regulations 1829 that permits the lessee to use the land or waters covered by the lease solely or primarily for residential purposes.

             (2)  A lease of special occupation land under the Land Regulations 1872 .

             (3)  A conditional purchase lease under clause 46, 47, 48, 49, 50, 52 or 53 of the Land Regulations 1887 .

             (4)  A lease under subsection 12(5) of the Mineral Lands Act 1892 .

             (5)  A homestead farm under the Homesteads Act 1893 .

             (6)  A homestead lease under the Homesteads Act 1893 .

             (7)  A lease under the Agricultural Lands Purchase Act 1896 .

34   Land Act 1898 and Land Act 1933

             (1)  A lease under section 41a of the Land Act 1898 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

agriculture; artificial limb factory; bakehouse and store; boarding house; boat repairing and shed for crews; bowling green; brickmaking; brine evaporation plant; cultivation; dairying; experimental cultivation; experimental gardening purposes; fish curing, canning and manufacture of by-products; fruit and confectionary shop; golf links; hospital site; manure and cement factory; market garden; pig and poultry farm; post office; residential purposes; sandalwood stack and store; slaughter yard; stable and storage yard; stacking firewood; stacking telegraph poles; store and dwelling; tramway and timber yard; tropical agriculture; vegetable growing; veterinary hospital.

             (2)  A lease under section 152 of the Land Act 1898 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection (3), (5), (8), (12) or (13) of that section.

             (3)  A lease under section 152 of the Land Act 1898 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

artificial lake; bathing house; billiard room; blacksmith and wheelwright shop; boarding house; boat building, fish canning and horse paddock; boat shed; bone crushing mill; brick kiln; bridge; building and repairing boats; butchering and slaughtering; canning and preserving works; cement works; chemical works; church site; clayhole and brick kiln; collection in catchment ditches and manufacture of salt; cultivation; cultivation of tobacco; dairying; depositing of materials; depot for sponge fishery; explosives magazine; factory site; ferry; fertiliser factory; fire brick manufacture; fishing station; foundry; gardening; growing cotton; hotel site; inn and general store; jetty site; land base for pearling activities; landing and packing pearl shell; laying up, repairing and fitting pearling vessels; lime burning; lime kiln; machinery depot; manufacturing aerated water; manufacturing plaster of paris and manure; manufacturing white lead; market garden; mixed gardening; monumental site; news and general agent; permanent pearling camp accommodation; piggery; poultry farm; preserving fish; private hospital; pumping station; punt house; quay; repairing luggers; residence; residential purposes; rope and twine factory; sanitary plant and stable; school; sheep dip; site for stores, dwelling or jetty; skating rink; slaughter yard; slipway for boats; stock yard; storage of fodder; storage of sandalwood; store and garden; store site; storing brewery requisites; tea and refreshment rooms; tennis club; tile factory; toll house; tramway siding; whaling factory; whaling station; wharf; wood shed; wool scouring shed; yacht clubhouse; yard for horses.

             (4)  A lease of town or suburban land under section 153 of the Land Act 1898 that permits the lessee to use the land or waters covered by the lease solely or primarily for residential purposes.

             (5)  A lease under section 153a of the Land Act 1898 .

             (6)  A homestead farm under the Land Act 1898 or the Land Act 1933 .

             (7)  A conditional purchase lease under Part V or VI of the Land Act 1898 or Part V of the Land Act 1933 .

             (8)  A lease of special settlement land under the Land Act 1898 or the Land Act 1933 .

             (9)  A lease of a working man’s block under the Land Act 1898 or the Land Act 1933 .

           (10)  A lease under subsection 32(1) of the Land Act 1933 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

aerodrome; agriculture; angling clubhouse; aviary; boat shed; building; bulk wheat storage; caravan park; children’s playground; concrete batching plant and stockpiling metal products; constructed stock and domestic water supply facility; cropping; cultivation; field laboratory for rock lobster research; fishing depot, building, repairing and hiring of boats, and petrol service station; fishing station; freezer works and residence; fuel depot; garage and building; garden and parking area; garden and poultry raising; golf links; holiday campsite consisting of residential buildings; hotel; land-based experimental aquaculture; lighthouse; market garden; monumental works; office extension; plant for treatment of mineral bearing earth; pound; radio translator; residence; residence, garden and apiary; rest room; rifle range; road train access and turn around area; sawmill; service station; shore whaling station; siding for delivery of wheat; slaughter yard; stock holding paddock adjoining transport facilities for stock awaiting transportation; stock holding paddock for abattoir; storage; storage of implements and vehicles; storage of manganese ore; storage of ore; taxi rank; timber mill; timber storage; transport depot; trotting racecourse; vehicle parking; weighbridge; woodyard.

           (11)  A lease under subsection 33(3) of the Land Act 1933 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

aerial landing ground; aged persons’ home; bulk grain terminal; church; foreshore amusement park; livestock sales and produce processing; play group facilities; residential purposes; restaurant; rifle range; surf life saving club.

           (12)  A lease under section 116 of the Land Act 1933 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection (3), (5), (8), (12) or (13) of that section.

           (13)  A lease under section 116 of the Land Act 1933 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

abattoir; accommodation; accommodation and other buildings associated with the cultured pearl industry; aerial landing ground; agriculture; airstrip; airstrip and fishing base; angling clubhouse; aquatic centre; arboretum; auto repair business; automotive metal product fabrication; aviary; base for offshore petroleum operations; bistro-brasserie; boat pen and jetty site; boat shed; bombing range; brick kiln; brickworks; brine catchment ditches; broadcasting and television tower and associated buildings; bulk fuel depot; bulk oil installation; bus depot; cafe; camel farm; camping and caravan park; car club; caravan and chalet park; caravan park; caravan park extension; church; church and church hall; church site; collection in catchment ditches and manufacture of salt; commercial snail farming; commercial tropical agriculture or horticulture; community theatre; company housing and recreation; company housing or accommodation; concrete batching and stockpiling of metal products; concrete batching plant; contractors’ accommodation; conveyor belt; crocodile farm; cropping; cropping and grazing; cropping, grazing and private airstrip; cultivation and grazing; cultivation of plants for pharmaceutical purposes; dam; depositing of materials; depot; depot or storage; dwelling; effluent disposal; equestrian centre; explosive storage and manufacture; extension to commercial premises; extension to timber mill; factory; ferry; field laboratory associated with marine research; fire station; fish processing; fishing base; fishing holiday accommodation; garden; garden and tennis court; garden nursery; gas processing plant; gas production facility; general industry and staff accommodation; grain receival depot; grain storage; grazing and agriculture; group housing; hall; hall and place of worship; heated swimming pool; holiday and tourist resort fishing station; homestead and tourist facility; homestead tourist facilities; horse stable; horse yard; hotel; hotel extension; hotel, motel and service station; housing for workforce; hydroponic vegetable garden; industrial purposes; industrial storage; intensive horticulture; jetty; land base associated with pearl oyster hatchery or pearling activities; land base associated with pearling; land base for fishing industry; land-based aquaculture; land-based experimental aquaculture or oyster hatchery; land-based oyster nursery; land-based pearl farming; land-based scallop/oyster farm; landing ground for aircraft; landscape gardening supplies business; light industrial purposes; light industry; lighthouse; lime burning; lime crushing; loading and unloading stock; lobster receival depot; manganese road train assembly area; manse; manufacture and storage of concrete products; manufacture of salt; market garden; market garden and residence; mechanical workshop; meteorological station; mill; motel; motel and service station; motel unit development; motor cross speedway; motorcycle clubhouse; non-irrigated agriculture; noxious industry; office accommodation; office accommodation and storage; office and employee accommodation; oil storage depot; parking; parking and maintenance of vehicles; parking and spraying of machinery; parking and storage; permanent mining camp accommodation; pig farm; pistol club; plant nursery; potato growing; poultry farm; processing of crayfish; production of algae derivatives; professional fisherman’s permanent camp accommodation; propagation of wildflowers; pumping station; quarantine station; quay; radio mast; radio station; radio translator site; radio transmitter receiving site; recreational game fishing accommodation and facilities; residence; residence and agriculture; residence and depot; residence and dog kennel; residence and garden; residence and market garden; residence and storage; residence and storage of mining equipment; residence, cropping and grazing; restoration and occupation of historical building; retail shop for coffee and light meals; retail shop for gifts, souvenirs and food; rifle clubhouse; rifle range; road train parking; road transport depot; roadhouse; roadhouse, service station and general store; roadhouse, service station and restaurant; rubbish and effluent disposal; sandblasting; sawmill; school; service station; sewage pond, generator shed and landscaping; sewage treatment pond; shearing team quarters; sheep dips; ship or boat building; showroom and workshop; single person’s quarters; slaughterhouse and holding paddock; slaughter yard; small bore pistol clubhouse; souvenir shop; speedway clubhouse and motor racing track; sporting complex; sportsground; stabling of horses; staff accommodation; staff quarters; stock sale yard; stock yard; stockpiling of river sand; storage and display of machinery; storage of cereal grain and bulk storage facility; storage of chemical spraying equipment; storage of machinery; storage yard and depot; store; sugar refinery; tailings dam; tannery; tavern; tea garden; telephone exchange; television station and translator facilities; tourist accommodation and facilities; tourist and travel shop; tourist facility associated with emus; tourist mine; tourist railway; trades hall and offices; transport terminal; tree farming; tropical garden; trotting course; truck depot; warehouse; water storage; water storage and garden; water tank; weather station; weighbridge; wharf; wool shed; workshop vehicle and machinery parking; workshop; workshop and storage of drilling materials; zoo.

           (14)  A lease of town land under section 117 of the Land Act 1933 , other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for the purpose of a yacht harbour or mine buffer zone; or

                     (b)  both:

                              (i)  permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

access; communications; grazing or pastoral purposes; nature trail; pipeline; prawning; quarry; recreation; utilities; water supply;

                                   and

                             (ii)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose, or solely or primarily for any of the following:

accommodation; amusement park; archery range; basketball court; bowhunting; bowling green; caravan park; car park; cropping; croquet pitch; dam; depot; golf course; industrial purposes; jetty; land-based aquaculture; manufacturing; motorbike track; motor racing track; racecourse; residence; rifle range; shop; skating rink; sports centre; sports club; sports field; sports ground; storage; swimming pool; tennis court; theatre; tree farming.

           (15)  A lease of town land under section 117 of the Land Act 1933 that permits the lessee to use the land or waters covered by the lease solely or primarily for a communications tower, mast or building.

           (16)  A lease under section 117A of the Land Act 1933 that permits the lessee to use the land or waters covered by the lease solely or primarily for the construction and maintenance of a subway or bridge.

           (17)  A lease under Part IV of the Land Act 1933 that permits the lessee to use the land or waters covered by the lease solely or primarily for residential purposes.

35   Other legislation after 1898

             (1)  A lease under the Agricultural Lands Purchase Act 1909 .

             (2)  A miner’s homestead lease under Part VIII of the Mining Act 1904 , other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                     (b)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

             (3)  A lease of a worker’s dwelling house under Part V of the State Housing Act 1946-1974 .

             (4)  A perpetual lease under the War Service Land Settlement Scheme Act 1954 .

36   Leases under certain mining-related and other Acts

                   A lease (other than a mineral lease) under the Agreement a copy of which is set out in the Schedule to any of the following Acts:

the Oil Refinery Industry (Kwinana Agreement) Act 1952 ; the Broken Hill Proprietary Company’s Integrated Steel Works Agreement Act 1960 ; the Iron Ore (Hamersley Range) Agreement Act 1963 ; the Iron Ore (Hamersley Range) Agreement Act 1963-1968 ; the Iron Ore (Robe River) Agreement Act 1964 ; the Iron Ore (Mount Goldsworthy) Agreement Act 1964 ; the Iron Ore (Mount Newman) Agreement Act 1964 ; the Leslie Solar Salt Industry Agreement Act 1966 ; the Dampier Solar Salt Industry Agreement Act 1967 ; the Evaporites (Lake MacLeod) Agreement Act 1967 ; the Iron Ore (Hamersley Range) Agreement Act Amendment Act 1968 ; the Irrigation (Dunham River) Agreement Act 1968 ; the Nickel Refinery (Western Mining Corporation Limited) Agreement Act 1968 ; the Alumina Refinery (Pinjarra) Agreement Act 1969 ; the Nickel Refinery (Western Mining Corporation Limited) Agreement Act Amendment Act 1970 ; the Poseidon Nickel Agreement Act 1971 ; the Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 ; the Iron Ore (McCamey’s Monster) Agreement Authorization Act 1972 ; the Iron Ore (Mount Bruce) Agreement Act 1972 ; the Alumina Refinery (Worsley) Agreement Act 1973 ; the Nickel (Agnew) Agreement Act 1974 ; the Mineral Sands (Eneabba) Agreement Act 1975 ; the Alumina Refinery (Wagerup) Agreement and Acts Amendment Act 1978 ; the Collie Coal (Griffin) Agreement Act 1979 ; the Collie Coal (Western Collieries) Agreement Act 1979 ; the North West Gas Development (Woodside) Agreement Act 1979 ; the Diamond (Argyle Diamond Mines) Agreement Act 1981 ; the Shark Bay Solar Salt Industry Agreement Act 1983 ; the Camballin Farms (AIL Holdings Pty Ltd) Agreement Act 1985 ; the Western Mining Limited (Throssell Range) Agreement Act 1985 ; the Iron Ore (Channar Joint Venture) Agreement Act 1987 ; the Iron Ore (Marillana Creek) Agreement Act 1991 ;

that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

accommodation for employees and visitors; aerial landing ground; agriculture; airport; airstrip; ballast stockpile; ballast stockpile site; berthing and loading facilities and stockpiling salt; bulk handling and shipping terminal; bulk handling facilities; bulk loading facilities; camp comprising residential buildings; causeway; caustic soda farm; caustic soda train loader and pumping station; chalet; collection in catchment ditches and manufacture of salt; commissioning and operating of pilot plant for metallurgical research purposes; communications tower; communications tower and associated buildings; construction and maintenance of worker accommodation; construction and operation of branch lines and marshalling yard; construction and operation of railway; construction and use of causeway; contractor’s accommodation; contractor’s laydown area; dam site; dog pound; domestic television transmitter site; employee housing; extension to townsite for residential accommodation; heavy industry; heliport; housing; industrial area; industrial purposes; industrial site and associated facilities, installations and works; industrial stockpiling; irrigated agriculture; jetty with berthing and loading facilities; loading and stockpiling; maintenance and construction of workers’ accommodation; market garden; marshalling yard; materials offloading facility; mine service area comprising contractor accommodation; offloading construction materials; permanent construction camp accommodation for employees; permanent mining camp accommodation; permanent railway construction camp accommodation; permanent way store; plant nursery; plant site area; port industrial area; power station cooling water intake system; produce loading jetty; production plant; pumping installation and reservoir; radio repeater station site; railway; railway and ancillary installations, works and facilities; railway shunting; railway shunting and marshalling; railway spur line; red mud pond; refinery, power station, water storage and buffer zone; residential purposes; sewage disposal site; sewage treatment plant and radio and television transmitter tower; ship loading; shunting lines; stockpile area; stockpile site; stockpile site and shiploading facilities; stockpiling site for railway ballast; storage and maintenance of quarry equipment; storage of railway equipment; supply base; supply base and laydown area; tailing area; transmission mast; treatment plant; treatment plant and administration building; waste disposal site; waste material dump; water tank; wharf; workers’ construction camp accommodation; workforce housing and welfare services; yard or site for ship-building, boat-building, storing of timber, coal, merchandise, goods or other property, or for the erection of a workshop or foundry.



 

Part 5 South Australia

37   Perpetual leases and leases for a term of years

             (1)  A perpetual lease, or a lease for a term of years, of a working man’s block, or a homestead block, (other than a lease of land or waters forming the whole or part of an Aboriginal reserve) under Part XI of the Crown Lands Consolidation Act 1886 , Part VII of the Crown Lands Act 1888 , Part IX of the Crown Lands Act 1903 , Part IX of the Crown Lands Act 1915 or Part IX of the Crown Lands Act 1929 .

             (2)  A perpetual lease under the Crown Lands Act 1888 , the Crown Lands Amendment Act 1893 , the Closer Settlement Act 1897 , the Crown Lands, Closer Settlement, and Blockholders’ Loans Amendment Act 1901 , the Crown Lands Act 1903 , the Crown Lands Act 1915 , the Returned Soldiers Settlement Act 1915 , the Discharged Soldiers Settlement Act 1917 , the Agricultural Graduates Land Settlement Act 1922 , the Discharged Soldiers Settlement Act 1934 , Part V or section 66A or 199 of the Crown Lands Act 1929 , the Marginal Lands Act 1940 , the Crown Lands Development Act 1943-1973 or the Agreement a copy of which is set out in the Schedule to the War Service Land Settlement Agreement Act 1945 , other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                     (b)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

             (3)  A perpetual lease under section 8 of the Broken Hill Proprietary Company Limited’s Hummock Hill to Iron Knob Tramways and Jetties Act 1900 or section 5 of the Hummock Hill to Iron Knob Tramway Extension Act 1927 .

             (4)  A perpetual lease of a block of horticultural or commonage land under Part IV of the Village Settlements Act 1901 , Part VIII of the Crown Lands Act 1915 , the Lyrup Village Association (District Extension) Act 1921 or Part VIII of the Crown Lands Act 1929 .

             (5)  A perpetual lease, or a lease for a term of years, of a block within an irrigation area under the Irrigation and Reclaimed Lands Act 1908 , the Irrigation and Reclaimed Lands Act 1914 , the Irrigation Act 1922 or the Irrigation (Land Tenure) Act 1930 .

             (6)  A lease for a term of years under the Returned Soldiers Settlement Act 1915 , the Discharged Soldiers Settlement Act 1917 or the Discharged Soldiers Settlement Act 1934 , other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                     (b)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

             (7)  A perpetual lease, or a lease for a term of years, of a town allotment within an irrigation area under the Irrigation Act 1922 or the Irrigation (Land Tenure) Act 1930 .

38   Miscellaneous leases

             (1)  A miscellaneous lease (other than a lease of land or waters forming the whole or part of an Aboriginal reserve) under section 1 of the Miscellaneous Leases Act 1872 , section 92 of the Crown Lands Consolidation Act (No. 86, 1877), section 159 of the Crown Lands Consolidation Act 1886 , section 118 of the Crown Lands Act 1888 , section 11 of the Closer Settlement Act 1897 , section 11 of the Closer Settlement Act 1902 , section 80 or 126 of the Crown Lands Act 1903 , section 24 of the Irrigation and Reclaimed Lands Act 1908 , section 26 of the Irrigation and Reclaimed Lands Act 1914 , section 83 or 128 of the Crown Lands Act 1915 , section 48 of the Irrigation Act 1922 , section 77 or 182 of the Crown Lands Act 1929 or section 27 or 44 of the Irrigation (Land Tenure) Act 1930 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

accommodation; aerodrome; agriculture; airstrip and living quarters; amusement centre; bakery; bathing-house; boat building or repairing; boat hire depot; boat landing; boatshed; brick or lime kiln; bridge; building; building for business purposes; building for the use of charitable or community service organisations; bulk fuel agency; bulk fuel agency, transport depot and residence; camel holding for tourists; car park; caravan and camping park; caravan park; cereal growing; church; clubhouse; communications tower; cooling pond and pump house; deposit of materials or produce; drive-in theatre; factory; fellmongering establishment; firearms shooting; fishermen’s residences and drying ground; Girl Guide accommodation cabin; Girl Guide hall; golf club; government building; grazing and cultivation; grazing, cultivation and nursery; hall; holiday accommodation; holiday home; horse training; horticulture; hostel; houseboat marina; houseboat mooring and car parking; industrial purposes; inn; irrigated forest and disposal of winery effluent and waste water; jetty; kindergarten; land-based aquaculture and grazing; land-based aquaculture development; land-based fish farming; land-based oyster cultivation; legal chambers; life saving club; light industrial development; lodge; mail station; manse; manufactory; manufacture of salt; manufacturing; marine research facility; motel; motorcycle track; nursery; operating and maintaining a tramway; paper-mill; parking; parking, effluent disposal, water storage and power house; piggery; pine plantation; plant for ore reduction, manufacture of sulphuric acid and chemical manure; pony club; poultry farming; preservation of historic building; punt house; quay; radio tower; railway; railway station and jetty; residence; residence and kiosk; residence and storage depot; restaurant and kiosk; retail shop; retirement village; rifle range; road house, petrol reselling, motel and caravan park; rubbish dump; salt evaporation pond; sawmill; school or other educational institution; Scout accommodation cabin; Scout hall; shack site; ship building or repairing; showground; site for the depositing of materials or produce; site for wharf, quay, jetty; slaughterhouse; slaughterhouse and agriculture; slaughterhouse and associated yard; smelting works; smithy; sporting car club; sporting club; sporting ground; staff accommodation; stock sale yard; storage; storage and loading facilities; store; tannery; theatre; timber plantation, sawmill and timber processing; toilet block; toll house; tourist accommodation and facilities; tourist facilities; tourist information centre; tourist mine; tramway; transport depot; vegetable and fodder growing and grazing; vegetable growing; vegetable growing, fodder production and pig raising; water ski club; weather station; weighbridge; wharf; working men’s club; working men’s homestead block; worm-growing; wrecking yard and garage; youth cabin accommodation.

             (2)  A miscellaneous lease (other than a lease of land or waters forming the whole or part of an Aboriginal reserve) under section 92 of the Crown Lands Consolidation Act (No. 86, 1877) that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection III, V, VIII or IX of that section or subsection II or III of section 94 of that Act.

             (3)  A miscellaneous lease (other than a lease of land or waters forming the whole or part of an Aboriginal reserve) under section 159 of the Crown Lands Consolidation Act 1886 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection III, V, VIII or IX of that section or subsection II or III of section 162 of that Act.

             (4)  A miscellaneous lease (other than a lease of land or waters forming the whole or part of an Aboriginal reserve) under section 118 of the Crown Lands Act 1888 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection III, V, VIII or IX of that section or subsection I or II of section 123 of that Act.

             (5)  A miscellaneous lease (other than a lease of land or waters forming the whole or part of an Aboriginal reserve) under section 80 of the Crown Lands Act 1903 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection III, V or VII of that section or paragraph II(a) or (b) of section 203 of that Act.

             (6)  A miscellaneous lease (other than a lease of land or waters forming the whole or part of an Aboriginal reserve) under section 83 of the Crown Lands Act 1915 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection III, V or VII of that section or paragraph II(a) or (b) of section 245 of that Act.

             (7)  A miscellaneous lease (other than a lease of land or waters forming the whole or part of an Aboriginal reserve) under section 77 of the Crown Lands Act 1929 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in paragraph (1)III, IV, V or VII of that section or paragraph II(a) or (b) of section 244 of that Act.

             (8)  A miscellaneous lease under section 78B of the Crown Lands Act 1929 that permits the lessee to develop or use the land or waters covered by the lease solely or primarily for the purpose of holiday accommodation or a shack site.

39   Other interests

             (1)  A lease with a right of purchase under the Scrub Lands Act 1866 , the Scrub Lands Act Amendment Act 1867 , the Scrub Lands Act Extension Act 1870-71 , section 58 of the Crown Lands Consolidation Act (No. 86, 1877), section 20 of the Crown Lands Amendment Act 1882 , Part II of the Agricultural Crown Lands Amendment Act 1884 , Part II of the Crown Lands Consolidation Act 1886 , Part III of the Crown Lands Amendment Act 1887 or Part II of the Crown Lands Act 1888 .

             (2)  A credit agreement, or an agreement of sale and purchase on credit, under the Waste Lands Amendment Act 1868-9 , the Waste Lands Alienation Act 1872 , the Crown Lands Consolidation Act (No. 86, 1877), the Crown Lands Amendment Act 1880 , the Crown Lands Amendment Act 1881 , the Crown Lands Amendment Act 1882 , the Agricultural Crown Lands Amendment Act 1884 or the Crown Lands Consolidation Act 1886 .

             (3)  A lease with a right of purchase under section 39 of the Waste Lands Alienation Act 1872 or Part III (other than section 58) of the Crown Lands Consolidation Act (No. 86, 1877) that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes of agriculture or cultivation .

             (4)  A selector’s lease under Part III of the Agricultural Crown Lands Amendment Act 1884 or Part III of the Crown Lands Consolidation Act 1886 .

             (5)  A lease (other than a lease of land or waters forming the whole or part of an Aboriginal reserve) under section 29 of the Crown Lands Amendment Act 1885 .

             (6)  A grazing and cultivation lease, or a lease of grazing and cultivation lands, under Part II of the Crown Lands Consolidation Act 1886 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes of agriculture or cultivation.

             (7)  A lease with a right of purchase under the Crown Lands Act 1888 or the Crown Lands Amendment Act 1893 , other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                     (b)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

             (8)  A villager’s lease under section 80 of the Crown Lands Amendment Act 1893 .

             (9)  An agreement under Part IX of the Crown Lands Act 1903 .

           (10)  A lease under clause 11 of the Indenture a copy of which is set out in the Schedule to the Broken Hill Proprietary Company’s Indenture Act 1937 that permits the lessee to use the land or waters covered by the lease solely or primarily for the purpose of constructing or extending a tramway.

           (11)  A lease under section 35 of the National Parks and Wildlife Act 1972 that permits the lessee to develop or use the land or waters covered by the lease solely or primarily for any of the following:

airstrip; archery clubhouse and archery range; cabin accommodation; canoe clubhouse; caravan park; cottage accommodation for residents, visitors or guests; employee accommodation in huts or other buildings; field station cabin accommodation; fish factory; garden; golf course; golf driving range; grazing and cropping; gymnasium; holiday house; horse and pony riding club; indoor health centre; jetty; kiosk and restaurant; lighthouse; model aircraft flying clubhouse; occupation and maintenance of historic or heritage building; optical fibre repeater building and solar panel; pistol club and shooting range; radio tower; radio/telephone tower and building; research centre; research station; residential accommodation; Scout or Guide hall; shack accommodation; storage of mining equipment; storage, take-off and landing of aircraft; tennis court; tourist accommodation; tourist accommodation, camping facilities, food and fuel outlet and licensed premises; youth hostel.



 

Part 6 Tasmania

40   Crown Lands Acts

             (1)  A lease under section 81 or 82 of the Crown Lands Act 1890 .

             (2)  A lease under section 24 of the Crown Lands Act 1890 , section 24 of the Crown Lands Act 1903 or section 11 of the Crown Lands Act 1911 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

children’s playground; cycling track; dam or weir; fire station; golf club; hospital; monument; public hall; public pound; showground; sports ground; town hall; war memorial; wharf.

             (3)  A lease under subsection 128(1) or section 129 of the Crown Lands Act 1903 .

             (4)  A lease under subsection 128(2) of the Crown Lands Act 1903 , subsection 108(2) of the Crown Lands Act 1911 or subsection 77(4) of the Crown Lands Act 1935 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

bowling green; cool store; council works depot; erecting or working any manufactory, mill or other such work; fish hatchery; fuel depot; golf club; grain elevator; Hydro-Electric Commission substation; hotel; jetty; land-based aquaculture; marina; petrol depot; port facilities; refuse area; rowing club clubhouse; Scout accommodation; senior citizens’ club; sewerage plant; ship building; showground; slipway; tennis court; water pumping station; wharf; yacht club.

             (5)  A lease under subsection 108(1) or section 109 of the Crown Lands Act 1911 .

             (6)  A building lease under the Crown Lands Act 1935 .

             (7)  A lease under subsection 7(2) of the Crown Lands Act 1935 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

aged persons’ home; ambulance centre; aqueduct; bridge; club; communications tower, mast or building; community care institution; construction of a drain; construction of a water course; construction of an irrigation canal; crematorium; dam; fire station; hall; hospital; landing-place; library; literary or scientific institution; museum; quay; reservoir; sports club; sports facilities; sports ground; theatre; trigonometrical station; wharf.

             (8)  A lease under section 23 of the Crown Lands Act 1935 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

air force base; army base; army depot; bombing range; naval base; rifle range.

             (9)  A lease under subsection 77(1) or section 78 of the Crown Lands Act 1935 .

           (10)  A lease under section 29 of the Crown Lands Act 1976 that permits the lessee to use the land or waters covered by the lease solely or primarily for the any of the following:

agriculture; dairying; erection of residential building; growing of trees for commercial or industrial purposes; horticulture; industrial purposes; piggery; poultry farm; viticulture.

41   Closer Settlement Act 1929

                   A lease under Part V of the Closer Settlement Act 1929 , other than:

                     (a)  a lease under section 41 or 42 of that Act; or

                     (b)  a lease that:

                              (i)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                             (ii)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.



 

Part 7 Northern Territory

42   Town leases etc.

             (1)  A lease of town land under Division 4 of Part III of the Crown Lands Ordinance 1912 (No. 3 of 1912) of the Commonwealth, Division 4 of Part III of the Crown Lands Ordinance 1912 (No. 8 of 1912) of the Commonwealth, Division 4 of Part III of the Crown Lands Ordinance 1924 of the Commonwealth, Division 4 of Part III of the Crown Lands Ordinance 1927 (Territory of North Australia) of the Commonwealth, Division 4 of Part III of the Crown Lands Ordinance 1927 (Territory of Central Australia) of the Commonwealth or section 25CF, 74A or 74D or Division 4 of Part III of the Crown Lands Act 1931-1991 of the Northern Territory, other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for a harbour; or

                     (b)  both:

                              (i)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                             (ii)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

             (2)  A town land subdivision lease under Division 6 of Part III of the Crown Lands Act 1931-1991 of the Northern Territory.

43   Agricultural leases etc.

             (1)  A lease of agricultural land, or an agricultural lease, under Division 3 of Part III of the Crown Lands Ordinance 1912 (No. 3 of 1912) of the Commonwealth, Division 3 of Part III of the Crown Lands Ordinance 1912 (No. 8 of 1912) of the Commonwealth, Division 3 of Part III of the Crown Lands Ordinance 1924 of the Commonwealth, Division 3 of Part III of the Crown Lands Ordinance 1927 (Territory of North Australia) of the Commonwealth, Division 3 of Part III of the Crown Lands Ordinance 1927 (Territory of Central Australia) of the Commonwealth, section 25CG, 25DAA, 74A or 74D or Division 3 of Part III of the Crown Lands Act 1931-1991 of the Northern Territory or section 14 of the Agricultural Development Leases Ordinance 1956 of the Commonwealth, or under the Agreement a copy of which is set out in the Schedule to the Rice Development Agreement Ordinance 1956 of the Commonwealth, other than:

                     (a)  an agricultural (mixed farming and grazing) lease; or

                     (b)  a lease that:

                              (i)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                             (ii)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

             (2)  An agricultural lease of an experimental farm under section 16A of the Crown Lands Act 1931-1991 of the Northern Territory, other than a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                     (b)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

             (3)  An agricultural development lease under the Agricultural Development Leases Ordinance 1956 of the Commonwealth or under the Agreement a copy of which is set out in the Schedule to the Rice Development Agreement Ordinance 1956 of the Commonwealth, other than:

                     (a)  an agricultural (mixed farming and grazing) lease; or

                     (b)  a lease that:

                              (i)  permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and

                             (ii)  does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.

44   Leases for special purposes etc.

             (1)  A lease for special purposes, or a special purposes lease, under section 83 of the Northern Territory Land Act 1872 of South Australia, section 79 of the Northern Territory Crown Lands Consolidation Act 1882 of South Australia, section 77 or 78 of the Northern Territory Crown Lands Act 1890 of South Australia or section 4 of the Special Purposes Leases Act of the Northern Territory that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

abattoir; Aboriginal hostel; accommodation; aerodrome; aged home; aged persons’ flats; agricultural farm and garden; agriculture and mixed farming; airstrip; ambulance headquarters; ambulance station; amphitheatre; animal husbandry centre; animal shelter; archery club; archery range; art gallery; aviary; bakery; banana plantation; barge landing; barge terminal; basketball club; basketball court; bathing house; benevolent social work centre; blood centre and meeting rooms; blood transfusion centre; board headquarters; boatyard; botanic gardens; bowhunting club; bowhunting range; bowling club; bowling green; brick factory; brick yard; building or repairing boats; bulk cargo wharf; butcher; cafe; cannery; canteen; car parking; caravan park; caravan park and camping ground; cargo handling; cargo storage; carparking; cattle holding yard; centre for the spiritual and social welfare of children; child care; child minding centre; children’s home; children’s hostel; church; church hall; church manse; church rectory; cinema; civic centre; clinic; club building; club house; club room; college; community creche; community hall; community storage; community welfare centre; company headquarters; convent; convention centre; cooperative society; court house; craft complex; creche; crematorium; cricket club; cricket ground; croquet club; croquet pitch; dairy; depositing materials or produce; disposal of red mud; drive-in theatre; dry cleaners; educational institution; elderly persons’ home; engineering workshop; equestrian club; equestrian field; erection of a wharf, berth, storehouse or slip for building or repairing ships and other vessels; explosive storage; factory; feed lot yard; ferry terminal; fish processing; food processing; football club; football ground; funeral home; game fishing club; game safari base; garage; gas storage facility; general store; Girl Guide accommodation cabin; Girl Guide hall; gliding club; golf club; golf course; greyhound racing; greyhound track; guest house; Guide hall; gun club; hall; headquarters of Australian Red Cross; hockey club; hockey pitch; holiday accommodation and facilities; holiday cabin; horse and pony club; horse stable; horse yard; horticulture; hostel; hotel; hotel/motel; housing units; industrial area; industrial purposes; inflammable materials storage; inn; institute of linguistics; jetty; kennel; kiln; landscaping supply depot; leadership centre; library; light industry; lime works; lodge hall; lodge room; lodge temple; mail station; manufacture of stockfood; marina; marina workshop; Masonic hall; meat packaging; meatwork effluent disposal; meatworks; meeting room; motel; motocross circuit; motorcycle racing; motor racing circuit; motor sports; municipal depot; museum; museum and art gallery; netball club; netball court; nursery; office; office of the Northern Territory Electricity Commission; on-shore tour boat base; on-shore trawler base; ore stockpile; orphanage; patrol headquarters; pearl culture land base; pearling depot; permanent construction camp accommodation; petrol depot; petrol station; pistol club; pistol range; police station; police youth club; polocrosse club; polocrosse field; pony club; pony field; post office; poultry farm; pound; power station; pre-school; preservation and protection of artillery museum; preservation and restoration of well site; private sport site; private sports club; public swimming pool; punt house; quay; racecourse; racing club; radio communications building; radio communications tower; radio receiver station; radio transmitter; rail line; railway spurline; religious centre; research centre; research institute; residence; residential purposes; rest rooms; restaurant; retail store; rice growing; rifle club; rifle range; road house; road transport depot; rural residence; Salvation Army centre; sawmill; sawmilling depot; school; scientific research centre; Scout hall; seafarers’ centre; seed processing plant; service station; sewage treatment; sheltered workshop; ship’s chandlery; ship maintenance facility; shooting range; shore base for oyster cultivation; show ground; showroom; slaughter yard; slipway; speedway; sporting arena; sporting oval; sports club; sports complex; sports field, pitch, stadium or oval; sports ground; sports training ground; stockpiling and loading ore; storage; storage depot; storage of boats; store; studio; surgery; swimming club; swimming pool; television studio; tennis club; tennis court; theatre; toll house; tour base; tourist accommodation; tourist lodge; tourist theme park or facility; training centre; transport depot; warehouse; water treatment plant; watersports; wayside cafe; wayside inn; welfare centre; wharf; wholesale outlet; windmill; windmill servicing depot; wireless aerial site; workshop; youth services centre; zoo.

             (2)  A special purposes lease under section 6 of the Mining (Gove Peninsula Nabalco Agreement) Act of the Northern Territory or subclause 4(2) of the Agreement a copy of which is set out in the Schedule to that Act that permits the lessee to use the land or waters covered by the leases solely or primarily for any of the following:

bulk cargo wharf; disposing of red mud and other effluents; general cargo wharf; industrial purposes; intake and discharge canal associated with plant cooling system; permanent construction camp accommodation; plant cooling system; sewage treatment plant; water reticulation plant.

45   Miscellaneous leases

             (1)  A miscellaneous lease under Division 5 of Part III of the Crown Lands Ordinance 1912 (No. 3 of 1912) of the Commonwealth, Division 5 of Part III of the Crown Lands Ordinance 1912 (No. 8 of 1912) of the Commonwealth, Division 5 of Part III of the Crown Lands Ordinance 1924 of the Commonwealth, Division 5 of Part III of the Crown Lands Ordinance 1927 (Territory of North Australia) of the Commonwealth, Division 5 of Part III of the Crown Lands Ordinance 1927 (Territory of Central Australia) of the Commonwealth or section 25DAA, 74D or 74E or Division 5 of Part III of the Crown Lands Act 1931-1991 of the Northern Territory that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

abattoir; Aboriginal hostel; accommodation; agricultural and mixed farming; agricultural farm and garden; agriculture; airstrip; amphitheatre; amusement hall; animal husbandry centre; archery club; archery range; art gallery; aviary; bakery; banana plantation; basketball club; basketball court; board and lodging house; board headquarters; boatbuilding; boatyard; bowhunting club; bowhunting range; bowling club; bowling green; brewery; brick factory; brick yard; brickmaking; Buffalo temple site; building or repairing boats; butchering; cafe; cannery; cargo storage; cinema; club; club house; club room; convalescent home; convent; convention centre; cotton farming; court house; crematorium; cricket club; cricket ground; croquet club; croquet pitch; cultivation; curing and storage of buffalo hides; dairy; depot; drive-in theatre; dry cleaners; dwelling house; engineering workshop; equestrian club; equestrian field; factory; feed lot yard; ferry terminal; fishing depot; flower seed plantation; football club; football ground; fruit growing; funeral home; game fishing club; game safari base; garage; garden; gas storage facility; general store; golf club; golf course; goods shed; guest house; hangar; hay production; hay shed; hockey club; hockey pitch; holding ground for cattle slaughtering; holiday accommodation and facilities; homestead; horse stable; horse yard; hostel; hotel; hotel store; industrial purposes; irrigation farming; kennel; kiln; kindergarten; landscaping supply depot; laundry; library; lodge room; market garden; motocross circuit; motor racing circuit; netball club; netball court; office; old men’s home; on-shore tour boat base; orchard; orchid garden; pasture seed plantation; permanent construction camp accommodation petrol depot; pig yard; piggery; pistol club; pistol range; plant nursery; plantation; polocrosse club; polocrosse field; pony club; pony field; poultry farm; pound; power station; racecourse; radio communications building; radio communications tower; radio transmission tower; rail line; recreation centre for women; religious centre; repair shop; research centre; residence; rice growing; rifle club; rifle range; rural residence; sawmilling; seafarers’ centre; service station; ship’s chandlery; ship maintenance facility; shop; showroom; slaughter yard; slipway; sports club; sports complex; sports field, pitch, stadium or oval; sports ground; stockyard; storage of boats; store; studio; surgery; swimming club; swimming pool; tank sinking plant; tannery; tennis club; tennis court; theatre; tour base; tourist camel farm; tourist theme park or facility; transport depot; tree farming; tropical agriculture; vineyard; viticulture; warehouse; water treatment plant; welfare centre; wholesale outlet; wireless station; wood yard; wool scouring; workshop.

             (2)  A miscellaneous lease of garden land under section 73A of the Crown Lands Ordinance 1924 of the Commonwealth, section 69 of the Crown Lands Ordinance 1927 (Territory of North Australia) of the Commonwealth, section 69 of the Crown Lands Ordinance 1927 (Territory of Central Australia) of the Commonwealth or section 70 of the Crown Lands Act 1931-1991 of the Northern Territory.

46   Other leases

             (1)  A lease under section 30 or 81 of the Northern Territory Land Act 1872 of South Australia.

             (2)  A lease under section 30 or 77 of the Northern Territory Crown Lands Consolidation Act 1882 of South Australia.

             (3)  A lease under Part II of the Northern Territory Crown Lands Act 1890 of South Australia.

             (4)  A lease under section 54 of the Northern Territory Crown Lands Act 1890 of South Australia.

             (5)  A lease under section 78 of the Northern Territory Crown Lands Act 1890 of South Australia that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes mentioned in subsection III, V, VIII, IX or X of that section or subsection II or III of section 81 of that Act.

             (6)  A lease under section 6A of the Crown Lands Act 1931-1991 of the Northern Territory.

             (7)  A lease under paragraph 23(b) or 23(c) of the Crown Lands Act 1931-1991 of the Northern Territory, or a Crown lease under paragraph 26(a) or (b) of the Crown Lands Act of the Northern Territory, that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following purposes:

aerial sports academy; agricultural and mixed farming; agricultural development and marketing; agricultural farm and garden; agriculture; aircraft landing strip; airstrip; ambulance headquarters; amphitheatre; animal husbandry centre; aquatic entertainment centre; archery club; archery complex; archery range; art gallery; ash disposal pond; aviary; aviation; aviation historical society; banana plantation; basketball club; basketball court; beacon site; bitumen plant; boat landing facility; boatyard; bombing range; bowhunting club; bowhunting range; bowling club; bowling green; brick factory; brick yard; building or repairing boats; bus depot; bus terminal; cannery; car park; car repair shop; car sales yard; car storage and parking; caravan park; cargo storage; cashew production; cement plant; cereal crops; child care centre; children’s playground; church; church hall; cinema; club; club hall; club room; clubhouse; coach terminal; college; commercial building development; commercial cropping; commercial property subdivision; community centre; community hall; community storage; compressor station; convention centre; council complex; council depot; council office; council works yard; court house; creche; crematorium; cricket club; cricket ground; crocodile research facility; cropping; crops; croquet club; croquet pitch; crushing plant; cultivation; cultural centre; Country Women’s Association rest rooms; dairy; dam; day care centre; depot; development of tourist accommodation and facilities; disposal of dangerous goods; dog breeding; dressage-safe riding area; drive-in theatre; dry cleaners; dump; effluent disposal; equestrian centre; equestrian club; equestrian field; factory; feed hay agriculture; feed lot yard; fire station; fodder mill; football club; football ground; freight storage; fuel depot; funeral home; funeral parlour; game fishing club; game safari base; gaol; garbage dump; gas storage facility; Girl Guides cabin accommodation; Girl Guides hall; golf club; golf course; guest house; Guide hall; hall; hay production; hazardous industrial development; headquarters; health centre; health clinic; helicopter base; herb farm; Hindu temple; historic railway; hockey club; hockey pitch; holiday accommodation and facilities; homestead; horse and pony club; horse stable; horse yard; horticulture; hospital; hostel; hotel; indoor recreation; industrial development; industrial development on waterfront; industrial purposes; industrial subdivision; inn; Islamic centre; kennel; kiln; laboratory; land-based aquaculture; land-based commercial prawn farm; land-based fish culture; landscaping supply depot; library; lodge room; mango farm; manufacturing; marina; market gardening; medical centre; meeting room; motel; motor racing circuit; motor sports; motorcross circuit or track; municipal depot; museum; netball club; netball court; nursery; nursing home; office; on-shore fishing base; on-shore houseboat base; on-shore tour boat base; optical fibre regenerator site; orchard; orchid nursery; oval; permanent construction camp accommodation; pharmacy; picture theatre; pistol club; pistol range; polocrosse club; polocrosse field; pony club; pony field; port-related industry; post office; pound; private sports club; protection of heritage building; public car park; racecourse; racing club; radio broadcast aerial station; radio repeater; radio tower; radio transmission tower; railway; rail line; Red Cross centre; refuse tip; research centre; residential development; residential purposes; residential subdivision; resource centre; restaurant; restoration of police station; retail shop; retirement village; rice growing; rifle club; rifle range; roadhouse; rural residence; sailing club; satellite receiving station; school; scientific research centre; Scout hall; seafarers’ centre; seed production; senior citizens’ centre; service station; sheltered workshop; ship’s chandlery; ship maintenance facility; shop; shopping complex; showground; showroom; silviculture; slipway; social club; solid waste disposal facility; sports club; sports complex; sports field, pitch, stadium or oval; sports ground; sports training ground; stable; stock fodder production; stockyard; storage; storage of boats; studio; supermarket; surf life saving club; surgery; swimming club; swimming pool; table grape growing; tavern; temple; tennis club; tennis court; theatre; timber mill; tour base; tourist camel farm; tourist facilities; tourist information centre; tourist lodge; tourist theme park or facility; tower construction; transport depot; transport terminal; trucking yard; units for aged persons; university; vegetable production; vehicle sales yard; vehicle storage; warehouse; water retention basin; water treatment plant; wayside inn; weather station; wharf; wholesale outlet; women’s refuge; workshop; yacht association; yacht club; youth centre; youth club; zoo.

             (8)  A lease under section 68A, 68B, 68C, 68D, 68E, 68F, 68G or 68H of the Crown Lands Act 1931-1991 of the Northern Territory.

             (9)  A lease under section 112A of the Crown Lands Act 1931-1991 of the Northern Territory.

           (10)  A lease under section 2 of the Darwin Leases (Special Purposes) Ordinance 1946 of the Commonwealth or section 3 of the Darwin Short Term Leases Ordinance 1946 of the Commonwealth.

           (11)  A lease under section 3 of the Church Lands Leases Ordinance 1947 of the Commonwealth.

           (12)  A lease under section 4 or 29A of the Darwin Town Area Leases Act 1947-1979 of the Northern Territory .

           (13)  A lease under section 16A, 16AA, 16B, 16C or 16D of the Darwin Town Area Leases Act 1947-1979 of the Northern Territory.

           (14)  A lease under section 5 of the Crown Lands Act of the Northern Territory.



 

Schedule 5 Application and transitional

Part 1 Contents of this Schedule

1  Contents

(1)        This Schedule contains application and transitional provisions in relation to amendments made by this Act about:

                     (a)  future acts (see Part 2); and

                     (b)  native title determination applications etc. (see Parts 3 and 4); and

                     (c)  various other matters (see Part 5).

(2)        This Schedule also:

                     (a)  deals with the effect of the failure to table a particular determination made under the old Act (see Part 6); and

                     (b)  ensures that there will be compensation for the effect of this Act (see Part 7); and

                     (c)  provides for the making of regulations for the purposes of this Act (see Part 8); and

                     (d)  defines terms used in this Schedule (see Part 9).



 

Part 2 Application of future act amendments

2  Application

Subject to this Schedule:

                     (a)  the repeal of Division 3 of Part 2 of the old Act; and

                     (b)  the insertion of Subdivisions A to P of Division 3 of Part 2 of the new Act; and

                     (c)  any related amendments of the new Act;

by this Act apply to future acts taking place after the commencement of this Act.

3  Transitional—certain modified Subdivisions of Division 3 of Part 2 to have effect in period from 23.12.96 until commencement

The old Act applies to future acts taking place after 23 December 1996 but before the commencement of this Act as if:

                     (a)  Subdivisions G to K of Division 3 of Part 2 of the new Act (disregarding paragraph 24GE(1)(f)), and any related provisions of the new Act, were included in the old Act; and

                     (b)  acts to which those Subdivisions apply were permissible future acts.

4  Transitional—old Act section 29 notices etc.

Old Act section 29 notices—section 28 satisfied or arbitral body application

(1)        If, before the commencement of the new “right to negotiate” provisions:

                     (a)  a notice was given in relation to a future act under section 29 of the old Act; and

                     (b)  apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act; and

                     (c)  either:

                              (i)  the requirements of any of paragraphs 28(1)(a) to (f) of the old Act were satisfied; or

                             (ii)  an application was made under section 35 of the old Act to an arbitral body and had not been withdrawn;

then, after the commencement of this Act, the old “right to negotiate” provisions continue to apply, despite the amendments made by this Act, in relation to the future act.

Old Act section 29 notices—old Act native title parties

(2)        If:

                     (a)  a notice under section 29 of the old Act was given in relation to a future act at least 2 months before the commencement of the new “right to negotiate” provisions; and

                     (b)  apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act; and

                     (c)  subitem (1) does not apply to the future act;

then, after the commencement of this Act, the new “right to negotiate” provisions apply in relation to the future act as if:

                     (d)  the only persons who were native title parties were those who were native title parties under the old Act; and

                     (e)  the requirements of section 29 of the new Act had been complied with.

Old Act section 29 notices—expedited procedure

(3)        If:

                     (a)  before the commencement of the new “right to negotiate” provisions:

                              (i)  a notice under section 29 of the old Act was given in relation to a future act; and

                             (ii)  the notice included a statement that the Government party considered the act to be an act attracting the expedited procedure; and

                            (iii)  an objection was lodged under subsection 32(3) of the old Act against the inclusion of the statement; and

                     (b)  by the time the new “right to negotiate” provisions commenced, no determination had been made under section 32(4) of the old Act in relation to the objection; and

                     (c)  apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act;

then, after the commencement of this Act:

                     (d)  the old “right to negotiate” provisions continue to apply, despite the amendments made by this Act, for the purpose of making the determination; and

                     (e)  if the determination is that the act is not an act attracting the expedited procedure, the new “right to negotiate” provisions apply in relation to the future act as if:

                              (i)  the only persons who were native title parties were those who were native title parties under the old Act; and

                             (ii)  the requirements of section 29 of the new Act had been complied with.

Saving of old Act agreements and arbitral determinations

(4)        The amendments made by this Act do not affect any conditions in:

                     (a)  an agreement of the kind mentioned in paragraph 31(1)(b) of the old Act; or

                     (b)  a determination under section 38 of the old Act; or

                     (c)  a declaration under section 42 of the old Act;

that was made before the commencement of this Act.



 

Part 3 Application of amendments relating to section 61 applications: proceedings relating to determinations

5  Table of situations and consequences

The table in item 6 sets out various situations that may exist in relation to an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act, and certain consequences of the commencement of this Act.

6  Table

 



Case

Situation at the commencement of this Act



Consequences

1

Application:

   (a)   is being processed; or

  (b)   is being reviewed by a court; or

   (c)   has been accepted but the Registrar has not started giving notification.

Application is taken to have been made to Federal Court.

2

Registrar has given, or is giving, notification but section 66 period not completed.

Application is taken to have been made to Federal Court. Any notification is taken to be for that application and the same people are the parties.

3

Notification given by Registrar, section 66 period for the application is completed and application is not finalised.

Application is taken to have been made to Federal Court. Any notification is taken to be for that application and the same people are the parties.

If the application is not unopposed, item 7 or 8 applies in relation to mediation.

If the application is a non-claimant application that is unopposed, item 9 applies in relation to section 24FA protection.

4

NNTT has made, or has purported to make, a determination under the old Act that there is no native title in relation to an area.

The normal application and review period defined in subsection 167(10) of the old Act has finished, and case 3 does not apply.

Native Title Registrar must remove any relevant entry from National Native Title Register.

Any determination is taken not to have been an approved determination of native title.

Any determination is taken never to have been registered under section 166 of the old Act.

Item 10 applies in relation to section 24FA protection.

A further native title determination application may be made.

7  Case 3 in item 6—previously directed mediation conference

If:

                     (a)  an application that was made to the Native Title Registrar under section 61 of the old Act is taken to have been made to the Federal Court; and

                     (b)  at or before the commencement of this Act, the President has directed the holding of a conference of the parties or their representatives under subsection 72(1) of the old Act, in respect of the whole or a part of the proceeding; and

                     (c)  the Tribunal has not made a determination under section 73 or 160 of the old Act; and

                     (d)  the Native Title Registrar has not lodged the application with the Federal Court under section 74 of the old Act;

then, for the purposes of the new Act, the Federal Court is taken to have referred the proceeding, or the part of the proceeding, to mediation under section 86B of the new Act. The Court is taken to have made the referral at the commencement of this Act.

8  Case 3 in item 6—application already with Federal Court

If:

                     (a)  an application that was made to the Native Title Registrar under section 61 of the old Act is taken to have been made to the Federal Court; and

                     (b)  the Native Title Registrar has lodged the application with the Federal Court under section 74 of the old Act;

the Federal Court is taken to have made an order, under subsection 86C(1) of the new Act, that mediation cease in relation to the whole of the proceeding.

9  Case 3 in item 6—effect of section 24FA protection

If case 3 in the table in item 6 applies to a non-claimant application covering an area, the area:

                     (a)  is taken to be subject to section 24FA protection (within the meaning of the new Act) unless and until:

                              (i)  the area is covered by an entry in the National Native Title Register specifying that native title exists in relation to the area; or

                             (ii)  the non-claimant application is withdrawn or dismissed; and

                     (b)  is taken to have been subject to section 24FA protection (within the meaning of the new Act) at all times since the end of the period of 2 months worked out under section 66 of the old Act.

10  Case 4 in item 6—effect of section 24FA protection

If case 4 in the table in item 6 applies to an area, any part of the area:

                     (a)  is taken to be subject to section 24FA protection (within the meaning of the new Act) unless and until that part of the area is covered by an entry in the National Native Title Register specifying that native title exists in relation to that part of the area; and

                     (b)  is taken to have been subject to section 24FA protection (within the meaning of the new Act) at all times since the end of the period of 2 months worked out under section 66 of the old Act.



 

Part 4 Application of amendments relating to section 61 applications: registration of claims

11  Registration of claims

Pre-commencement registered claims covered

(1)        This item sets out the consequences of the commencement of this Act in relation to a claim made in an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act if, when this Act commenced, an entry recording details of the claim was on the Register of Native Title Claims.

Excluded case

(2)        However, the item does not apply if, before this Act commenced, an approved determination of native title had been made in relation to the application.

Section 190A to be applied, with expedited consideration, to applications before 27 June 1996 where section 29 notice

(3)        If:

                     (a)  the application was made before 27 June 1996; and

                     (b)  a notice is given under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act or old Act, in relation to an act affecting any of the land or waters covered by the claim; and

                     (c)  no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim;

the Registrar must:

                     (d)  consider the claim under section 190A of the new Act; and

                     (e)  use his or her best endeavours to finish doing so by the end of 4 months after the notice is given.

If he or she does not do so by that time, he or she must consider the claim under that section as soon as reasonably practicable afterwards.

Section 190A to be applied within one year to applications before 27 June 1996 where freehold estate or non-mining lease

(4)        If:

                     (a)  the application was made before 27 June 1996; and

                     (b)  at the commencement of this Act, any part of the area covered by the claim is covered by a freehold estate or a lease (other than a mining lease);

the Registrar must:

                     (c)  consider the claim under section 190A of the new Act; and

                     (d)  use his or her best endeavours to finish doing so by the end of one year after the commencement of this Act.

If he or she does not do so by that time, he or she must consider the claim under that section as soon as reasonably practicable afterwards.

Section 190A to be applied to applications made on or after 27 June 1996

(5)        If the application was made on or after 27 June 1996, the Registrar must consider the claim under section 190A of the new Act as soon as reasonably practicable.

Expedited section 190A consideration where section 29 notice

(6)        If:

                     (a)  either before the Registrar begins to consider the claim in accordance with subitem (4) or (5) or while the Registrar is doing so, a notice is given under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act, in relation to an act affecting any of the land or waters covered by the claim; and

Note:       Subitem 14(4) deems determinations under subsection 43(1) of the old Act to be made under subsection 43(1) of the new Act for post-commencement purposes.

                     (b)  no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim;

the Registrar must use his or her best endeavours to finish considering the claim under section 190A of the new Act by the end of 4 months after the notice is given. If he or she does not do so by that time, he or she must consider the claim under that section as soon as reasonably practicable afterwards.

Order of consideration of claims affected by same section 29 notice

(7)        If:

                     (a)  a notice is given under section 29 of the new Act, or under a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act; and

                     (b)  as a result of the giving of the notice, the Registrar is required by subitem (3) or (6), or by subitems (3) and (6), to consider 2 or more claims under section 190A of the new Act;

then the Registrar must consider the claims under that section in the order in which their details were entered on the Register of Native Title Claims.

Later information to be taken into account

(8)        In considering a claim in accordance with subitems (3) to (7), the Registrar must:

                     (a)  in addition to having regard to information in accordance with subsection 190A(3) of the new Act, also have regard to any information provided by the applicant after the application was made; and

                     (b)  apply section 190A of the new Act as if the conditions in sections 190B and 190C requiring that the application:

                              (i)  contain or be accompanied by certain information or other things; or

                             (ii)  be certified or have other things done in relation to it;

                            also allowed the information or other things to be provided, or the certification or other things to be done, by the applicant or another person after the application is made; and

                     (c)  for the purposes of paragraphs (a) and (b) of this subitem, advise the applicant that the Registrar is considering the claim, and allow the applicant a reasonable opportunity to provide any further information or other things, or to have any things done, in relation to the application.

Removal of claim from Register if it fails test in section 190A of the new Act

(9)        If the claim does not satisfy all of the conditions in sections 190B and 190C of the new Act:

                     (a)  the Registrar must remove the details of the claim from the Register and give written notice as required by subsection 190D(1); and

                     (b)  the other provisions of sections 190A to 190D apply as if the notice mentioned in paragraph (a) were given under subsection 190D(1); and

                     (c)  after the Registrar has complied with subitems (3) to (8) and this subitem (in so far as they are applicable), he or she is taken to have complied with section 190A.

Removal of claim from Register if it fails new State/Territory test

(10)      If:

                     (a)  a law of a State or Territory that deals with notifying the Registrar of claims for the purposes of paragraph 190(1)(c) of the old Act is amended so as to impose conditions for registration of claims equivalent to those set out in sections 190B and 190C of the new Act; and

                     (b)  a recognised State/Territory body of the State or Territory notifies the Registrar that a specified claim, of which details are on the Register when the amendment commences, does not satisfy the new conditions in the law of the State or Territory;

the Registrar must remove the details of the claim from the Register.

Consequences of removal of claim—pre-27 June 1996 cases

(11)      If:

                     (a)  the application was made before 27 June 1996; and

                     (b)  under subitem (9) or (10), the Registrar removes the details of the claim from the Register;

then the new “right to negotiate” provisions (including as modified by Part 2 of this Schedule) or the old “right to negotiate” provisions, as the case requires, apply in relation to any act of which notice was given under section 29 of the old Act, or a provision of a law of a State or Territory that is equivalent to that section, as if the details of the claim had not been removed from the Register.

Consequences of removal of claim—27 June 1996 and later cases

(12)      If:

                     (a)  the application was made on or after 27 June 1996; and

                     (b)  under subitem (9) or (10), the Registrar removes the details of the claim from the Register;

then the new “right to negotiate” provisions (including as modified by Part 2 of this Schedule) or the old “right to negotiate” provisions, as the case requires, apply in relation to:

                     (c)  any act of which notice was given under section 29 of the old Act, or a provision of a law of a State or Territory that is equivalent to that section; and

                     (d)  any act of which notice was given under section 29 of the new Act, or a provision of a law of a State or Territory that is equivalent to that section, before the removal of the details;

as if the details had never been entered in the Register.

Agreements and determinations are not affected

(13)      Despite subitem (12), if:

                     (a)  an agreement of the kind mentioned in paragraph 31(1)(b) of the new Act or of the old Act; or

                     (b)  a determination under section 36A or 38 of the new Act or under section 38 of the old Act; or

                     (c)  a declaration under section 42 of the new Act or of the old Act;

was made in relation to any of the acts mentioned in that subitem before the removal of details relating to the claim, the agreement, determination or declaration remains in effect after the removal of the details as if the subitem had not been enacted.

Note:       This item is subject to any regulations that may be made under subsection 43(4) or 43A(11) of the new Act.



 

Part 5 Various application and transitional provisions

12  Transitional—State and Territory validation legislation

If a law of a State or Territory made before the commencement of this Act contained provisions to the same effect as sections 15 and 16 of the old Act, the provisions continue to have that effect despite the amendments made by this Act.

13  Transitional—former section 21 agreements

The repeal of section 21 of the old Act by this Act does not apply to any agreement covered by that section that was made before the commencement of this Act.

14  Transitional—determinations, approvals, regulations etc.

(1)        Any determination made under paragraph 23(7)(c) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if:

                     (a)  it were a determination made under each of subsections 24MD(7) and 24NA(9) of the new Act; and

                     (b)  it applied to the notification of registered native title claimants in relation to land or waters in the area concerned in the same way as it applied to notification of representative Aboriginal/Torres Strait Islander bodies for that area.

(2)        Any approval of an act under paragraph 26(2)(e) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if it were an approval under subparagraph 26(1)(c)(iv) of the new Act.

(3)        If a determination of an act under paragraph 26(3)(b) of the old Act was in force immediately before the commencement of this Act, the new “right to negotiate” provisions do not apply to the act, until such time as the determination is revoked in writing by the Commonwealth Minister. Such a revocation is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

(4)        Any determination made under subsection 43(1) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if it were made under subsection 43(1) of the new Act.

(5)        Any regulations made for the purposes of subsection 61(2) or 62(2) of the old Act that are in force immediately before the commencement of this Act have effect after the commencement of this Act as if they were made for the purposes of subsection 61(5) of the new Act.

(6)        Any regulations made for the purposes of subsection 75(2) or section 76 of the old Act that are in force immediately before the commencement of this Act have effect after the commencement of this Act as if they were made for the purposes of section 76 of the new Act.

(7)        The repeal of subsection 183(5) of the old Act by this Act does not apply to any delegation made under that subsection before the commencement of this Act.

(8)        Any determination made under subsection 251(1) of the old Act has effect after the commencement of this Act as if it were made under subsection 207A(1) of the new Act.

(9)        Any determination made under subsection 252(1) of the old Act for the purposes of subsection 29(3) or paragraph 66(2)(b) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if it were a determination made for the purposes of subsection 29(3) or paragraph 66(3)(d), respectively, of the new Act.

15  Transitional—section 26D of new Act

Section 26D of the new Act has effect, in addition to its effect apart from this item, as if the reference in subparagraph 26D(1)(b)(ii) to “this Subdivision” included a reference to Subdivision B of Division 3 of Part 2 of the old Act.

16  Transitional—statutory access rights

If, at any time before the commencement of Subdivision Q of Division 3 of Part 2 of the new Act, an entry was made on the Register of Native Title Claims, then, for the purposes of that Subdivision, the persons who claimed to hold the native title concerned, and any others with whom those persons claimed to hold the native title, are taken to be persons included in the native title claim group in relation to the claim, for so long as the entry is on the Register.

17  Application of sections 24GC and 44H

(1)        Section 24GC of the new Act applies to activities done at any time, whether before or after the commencement of that section.

(2)        Section 44H of the new Act applies to the grant, issue or creation of a lease, licence, permit or authority at any time, whether before or after the commencement of that section.

18  Application of compensation limitation provision

Section 51A of the new Act applies if the entitlement to the compensation concerned arose either before or after the commencement of that section.

19  Application of consolidation provision

Section 67 of the new Act applies to applications made either before or after the commencement of that section.

20  Application of native title determination provision

Section 68 of the new Act applies:

                     (a)  whether the first-mentioned native title determination in that section is made before or after the commencement of that section; and

                     (b)  whether the application that results in the second-mentioned determination in that section is made before or after the commencement of that section.

21  Application of strike-out provision

Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.

22  Application of mediation provisions

Division 1A of Part 4, and any related provisions, of the new Act apply in relation to applications made either before or after the commencement of that Division or those provisions.

23  Transitional—assistance to native title claimants

Despite subsection 183(6) of the new Act, if:

                     (a)  before the commencement of that subsection, the Attorney-General authorised the provision of assistance under section 183 of the old Act to a person claiming to hold native title to an area; and

                     (b)  after the commencement of that subsection, the person applies under that section for the provision of further assistance in respect of the same claim;

section 183 of the new Act has effect in relation to the application as if subsection 183(6) were omitted.

24  Application of native title determination provision

The repeal of section 225 of the old Act and insertion of section 225 in the new Act by this Act apply to all determinations made after the commencement of this Act, regardless of when any native title determination application (if relevant) was made.

25  Transitional—definition of registered native title claimant

For the purposes of the definition of registered native title claimant in the new Act, if, at the commencement of this Act, an entry relating to a claim is on the Register of Native Title Claims (other than an entry that had been amended under subsection 190(2) of the old Act to include details of a decision or determination), then, for so long as the entry remains on the Register, the person whose name appears in the entry as the person who is taken to be the claimant in relation to the claim is taken to be a person whose name appears in the entry as the applicant in relation to the claim.



 

Part 6 Validation of certain acts

26  Validation of acts etc.

(1)        In this item:

amending determination means the determination made under the old Act on 12 December 1995 that purported to amend the original determination.

original determination means the determination made under the old Act on 24 December 1993 that, according to the determination, may be cited as Native Title (Notices) Determination No. 1 of 1993.

(2)        If:

                     (a)  before or after the commencement of this item, anything was or is done, or not done, in reliance or purported reliance on a notification or giving of notice; and

                     (b)  the notification or giving of notice took place in the way set out in:

                              (i)  the original determination; or

                             (ii)  the original determination as amended by the amending determination;

then the doing of the thing, or failure to do the thing, is not ineffective, and is taken never to have been ineffective, for the purposes of the Native Title Act 1993 merely because the original determination was not laid before each House of the Parliament within 15 sitting days of that House after its meeting.

Note:       Section 214 of the Native Title Act 1993 made the original determination a disallowable instrument, which meant that it was required under the Acts Interpretation Act 1901 to be tabled.



 

Part 7 Compensation etc.

27  Entitlement to “just terms” compensation

(1)        If, apart from this item, the application of any of the provisions of this Act in any particular case would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by the Native Title Act 1993 , from:

                     (a)  if the compensation is in respect of a future act attributable to a State or a Territory—the State or Territory; or

                     (b)  in any other case—the Commonwealth;

as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.

Federal Court’s jurisdiction

(2)        The Federal Court has jurisdiction with respect to matters arising under subitem (1) and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.



 

Part 8 Regulations

28  Regulations

(1)        The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)        In particular, regulations may be made for transitional measures in relation to the transition from the old Act to the new Act.



 

Part 9 Interpretation

29  Contents of this Part

This Part defines terms used in this Schedule.

30  Meaning of commencement of this Act

The commencement of this Act is the time when this item commences.

31  Meaning of new Act and old Act

(1)        The new Act is the Native Title Act 1993 , as amended at the commencement of this Act.

(2)        The old Act is the Native Title Act 1993 , as in force immediately before the commencement of this Act (including as it applies in accordance with item 3).

32  Meaning of new “right to negotiate” provisions and old “right to negotiate” provisions

(1)        The new “right to negotiate” provisions are the provisions in Subdivision P of Division 3 of Part 2 of the new Act.

(2)        The old “right to negotiate” provisions are the provisions in Subdivision B of Division 3 of Part 2 of the old Act.

33  Meaning of application is being processed

(1)        An application is being processed if:

                     (a)  the application has been given to the Native Title Registrar under subsection 61(1) of the old Act; and

                     (b)  the application is still being reviewed by the Registrar (see subitem (2)) or a presidential member (see subitem (3)).

(2)        An application is being reviewed by the Registrar if:

                     (a)  the Registrar has not yet completed consideration of the application; or

                     (b)  the Registrar has completed consideration of the application and:

                              (i)  has formed an opinion mentioned in paragraph 63(1)(a) or (1)(b) or subsection 64(1) of the old Act; but

                             (ii)  has not referred the application to a presidential member under subsection 63(2) or 64(1) of the old Act.

(3)        An application is being reviewed by a presidential member if:

                     (a)  the Registrar has referred the application to a presidential member under subsection 63(2) or 64(1) of the old Act; and

                     (b)  the presidential member has not completed consideration of the application.

34  Meaning of application is being reviewed by a court

An application is being reviewed by a court if:

                     (a)  the presidential member has made a direction under paragraph 63(3)(c) or 64(2)(c) of the old Act; and

                     (b)  either:

                              (i)  the direction is the subject of a proceeding under the old Act before a court; or

                             (ii)  the period during which an application for some form of review of the direction, or of a decision made on review of the direction, may be made has not yet finished.

35  Meaning of application has been accepted

An application has been accepted if it has been accepted under section 63 or 64 of the old Act.

36  Meaning of application is taken to have been made to Federal Court

If an application is taken to have been made to the Federal Court :

                     (a)  the application is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act; and

                     (b)  the Native Title Registrar must give the application to the Federal Court, but section 63 of the new Act does not apply in relation to the application.

37  Meaning of Registrar is giving notification

The Registrar is giving notification if he or she has given notice of the application to a person whose interests may be affected by a determination but has not given, and is not taken to have given, notice to all such persons.

38  Meaning of Registrar has given notification

The Registrar has given notification if he or she has given, or is taken to have given, notice of the application to all persons whose interests may be affected by a determination in relation to the application, under section 66 of the old Act.

39  Meaning of section 66 period

The section 66 period , for an application, means the period of 2 months worked out under section 66 of the old Act in relation to the application.

40  Meaning of notification is taken to be for that application

If, in relation to an application, notification is taken to be for that application , the notification is to be treated as if it were notice of the application given, or taken to have been given, under section 66 of the new Act, that contained details of the application.

41  Meaning of unopposed

An application is unopposed if the application is unopposed for the purposes of section 70 of the old Act.

42  Meaning of not finalised

An application is not finalised if:

                     (a)  the application is the subject of a proceeding before the NNTT, the Federal Court or the High Court; or

                     (b)  a determination has been made in respect of the application but the normal application and review period defined in subsection 167(10) of the old Act has not finished.

43  Meaning of same people are the parties

If the same people are the parties :

                     (a)  any people who were parties to the application that was made to the Registrar under section 61 of the old Act are taken to be the parties to the application that is taken to have been made to the Federal Court under the relevant provisions of the new Act; and

                     (b)  a person who notifies the Registrar under paragraph 68(2)(b) of the old Act, after the commencement of the new Act but within the period of 2 months worked out under section 66 of the old Act, is also a party.

Note:       Other people may also become parties (see section 84 of the new Act).

 

 

 

[ Minister's second reading speech made in

House of Representatives on 9 March 1998

Senate on 11 March 1998 ]

 

 

 

 

 

 

 

 

 

 

 

 

 

(16/98)