2008-2009 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Native Title Amendment Bill 2009 No. , 2009 (Attorney-General) A Bill for an Act to amend the Native Title Act 1993, and for other purposes [Page Break] 1 Short title ............................................................................................ 1 2 Commencement .................................................................................. 1 3 Schedule(s) ......................................................................................... 2 Schedule 1--Amendme nts relating to mediation 3 Part 1--Amendments 3 Native Title Act 1993 3 Part 2--Application provisions 23 Schedule 2--Powe rs of the Court 25 Native Title Act 1993 25 Schedule 3--Rules of evidence 29 Native Title Act 1993 29 Schedule 4--Assistance in relation to inquiries etc. 30 Native Title Act 1993 30 Schedule 5--Amendme nts relating to representative bodies 34 Part 1--Removal of transitional arrangements 34 Native Title Act 1993 34 Part 2--Recognition of representative bodies 36 Native Title Act 1993 36 Schedule 6--Other ame ndments 47 Part 1--Amendments 47 Native Title Act 1993 47 Part 2--Application etc. provisions 53 i Native Title Amendment Bill 2009 No. , 2009 [Page Break] 2 and for other purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Native Title Amendment Act 2009. 6 2 Commence ment 7 (1) Each provision of this Act specified in column 1 of the table 8 commences, or is taken to have commenced, in accordance with 9 column 2 of the table. Any other statement in column 2 has effect 10 according to its terms. 11 Native Title Amendment Bill 2009 No. , 2009 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedules 1 to The later of: 4 (a) the day after this Act receives the Royal Assent; and (b) 1 July 2009. 3. Schedule 5, The later of: Part 1 (a) the day after this Act receives the Royal Assent; and (b) 1 July 2009. 4. Schedule 5, Immediately after the commencement of the Part 2 provision(s) covered by table item 3. 5. Schedule 6 The later of: (a) the day after this Act receives the Royal Assent; and (b) 1 July 2009. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 2 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 2 Schedule 1--Amendments relating to 3 mediation 4 Part 1--Amendments 5 Native Title Act 1993 6 1 After paragraph 4(7)(a) 7 Insert: 8 (aa) provides for the Federal Court to refer native title and 9 compensation applications for mediation; and 10 (ab) provides for the Federal Court to make orders to give effect 11 to terms of agreements reached by parties to proceedings 12 including terms that involve matters other than native title; 13 and 14 2 Paragraph 79A(a) 15 Omit "to the NNTT". 16 3 At the end of section 79A 17 Add: 18 ; (e) mediation (see Division 4). 19 4 Division 1B of Part 4 (heading) 20 Repeal the heading, substitute: 21 Division 1B--Reference for mediation 22 5 Subsections 86A(1) and (2) 23 Omit "by the NNTT". 24 6 Subsection 86B(1) 25 Repeal the subsection, substitute: 26 Federal Court must refer applications for mediation 27 (1) Unless an order is made under subsection (3) that there be no 28 mediation under this Act, the Federal Court must refer each Native Title Amendment Bill 2009 No. , 2009 3 [Page Break] Part 1 A mend ments 1 application made under section 61 to an appropriate person or body 2 for mediation, including the ascertaining of agreed facts, as soon as 3 practicable after the end of the period specified in the notice under 4 section 66. 5 (2) In deciding whether to refer the application to a particular person 6 or body, the Court may take into account the training, 7 qualifications and experience of the person who is to be, or is 8 likely to be, the person conducting the mediation. 9 (2A) Without limiting subsection (1), the application may be referred to 10 the Registrar, a Deputy Registrar, a District Registrar or a Deputy 11 District Registrar of the Court. 12 Note: The heading to section 86B is altered by omitting "to NNTT". 13 7 Subsection 86B(3) 14 Omit "by the NNTT" (first occurring), substitute "under this Act". 15 8 Paragraph 86B(3)(a) 16 Omit "(whether or not by the NNTT)". 17 9 Paragraph 86B(3)(b) 18 Omit "by the NNTT", substitute "under this Act". 19 10 Subsection 86B(4) 20 Omit "by the NNTT" (first occurring), substitute "under this Act". 21 11 Paragraph 86B(4)(ea) 22 Repeal the paragraph. 23 12 Subsection 86B(5) 24 Repeal the subsection, substitute: 25 Whole or part of a proceeding may be referred at any time 26 (5) In addition to referring a proceeding for mediation under 27 subsection (1), the Court may, at any time in a proceeding, refer 28 the whole or a part of the proceeding to an appropriate person or 29 body for mediation if the Court considers that the parties will be 30 able to reach agreement on, or on facts relevant to, any of the 31 matters set out in subsection 86A(1) or (2). 4 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 (5A) In deciding whether to refer the whole or part of the proceeding to 2 a particular person or body, the Court may take into account the 3 training, qualifications and experience of the person who is to be, 4 or is likely to be, the person conducting the mediation. 5 (5B) Without limiting subsection (5), the whole or part of the 6 proceeding may be referred to the Registrar, a Deputy Registrar, a 7 District Registrar or a Deputy District Registrar of the Court. 8 Orders about how mediation is to be provided etc. 9 (5C) If the Court refers, under subsection (1) or (5), the whole or a part 10 of a proceeding to a person or body for mediation, the Court may at 11 any time after the referral make an order about the following 12 matters: 13 (a) the way in which the mediation is to be provided; 14 (b) whether the person who is to conduct the mediation may be 15 assisted by another individual; 16 (c) any other matter that the Court considers relevant. 17 Note: The following heading to subsection 86B(6) is inserted "No other referral for mediation 18 etc.". 19 13 Section 86BA 20 Repeal the section, substitute: 21 86BA Mediator may appear before the Court 22 (1) A mediator may appear before the Court at a hearing that relates to 23 any matter that is currently before the mediator for mediation if the 24 Court considers that the mediator may be able to assist the Court in 25 relation to a proceeding. 26 (2) To avoid doubt, subsection 94D(4) applies to the mediator when 27 appearing before the Court. 28 (3) Subsection 94D(5) does not prevent: 29 (a) the mediator from appearing before the Court under 30 subsection (1); or 31 (b) if the mediator may appear before the Court under 32 subsection (1) and the person conducting the mediation is not 33 the mediator--that person from representing the mediator 34 before the Court. Native Title Amendment Bill 2009 No. , 2009 5 [Page Break] Part 1 A mend ments 1 (4) This section does not give the mediator, or the person conducting 2 the mediation, the right to become a party to the proceeding. 3 14 Subsection 86C(1) 4 Omit "the NNTT" (first occurring), substitute "a mediator". 5 15 Paragraph 86C(1)(a) 6 Omit "(whether or not by the NNTT)". 7 16 Paragraph 86C(1)(b) 8 Omit "the NNTT", substitute "the mediator". 9 17 At the end of subsection 86C(1) 10 Add: 11 ; or (c) it is appropriate to do so for any other reason. 12 18 Subsection 86C(2) 13 Omit "the NNTT", substitute "a mediator". 14 19 Subsections 86C(3) and (4) 15 Omit "the NNTT", substitute "the mediator". 16 20 Subsection 86C(5) 17 Omit "136G(2), (2A), (3), (3A) or (3B)", substitute "94N(2), (3), (4) or 18 (5)". 19 Note: The heading to subsection 86C(5) is altered by omitting "NNTT report" and substituting 20 "reports etc.". 21 21 At the end of section 86C 22 Add: 23 Court may make other orders 24 (6) If the Court makes an order under subsection (1), (3) or (4) in 25 relation to a mediation, the Court may make any other orders that 26 the Court considers are reasonably necessary or appropriate to deal 27 with the cessation of the mediation. 6 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 Later referral for mediation 2 (7) The making of an order under subsection (1), (3) or (4) does not 3 prevent a later referral for mediation under subsection 86B(5). 4 22 Subsection 86D(1) 5 Omit "the NNTT" (first occurring), substitute "a mediator". 6 23 Subsection 86D(1) 7 Omit "the NNTT" (second occurring), substitute "the mediator". 8 24 Subsection 86D(1) (note) 9 Omit "Under subsection 136D(1), the presiding member of the NNTT", 10 substitute "Under subsection 94H(1), the person conducting the 11 mediation". 12 25 Subsection 86D(2) 13 Omit "the NNTT", substitute "the mediator". 14 26 Subsection 86D(3) 15 Omit "136G(3B)", substitute "94N(5)". 16 27 Subsection 86D(3) (note) 17 Omit "Under subsection 136G(3B), the presiding member at a 18 mediation conference may make a report to the Court if the presiding 19 member", substitute "Under subsection 94N(5), the person conducting 20 the mediation may provide a report to the Court if the person". 21 28 Subsection 86E(1) 22 Omit "the NNTT" (first occurring), substitute "a mediator". 23 Note: The heading to section 86E is altered by omitting "NNTT" and substituting "a 24 mediator". 25 29 Subsection 86E(1) 26 Omit "the NNTT" (second occurring), substitute "the mediator". 27 30 Subsection 86E(2) 28 Omit "the NNTT" (first occurring), substitute "one or more mediators". 29 31 Paragraphs 86E(2)(a) and (b) Native Title Amendment Bill 2009 No. , 2009 7 [Page Break] Part 1 A mend ments 1 Omit "the NNTT", substitute "that mediator or those mediators". 2 32 Section 94B 3 Omit "to the NNTT". 4 Note: The heading to section 94B is altered by omitting "to NNTT". 5 33 Paragraph 94B(a) 6 Omit "136G(1), (2) or (3)", substitute "94N(1), (2) or (4)". 7 34 Paragraph 94B(b) 8 Omit "136G(2A) or (3A)", substitute "94N(3)". 9 35 At the end of Part 4 10 Add: 11 Division 4--Mediation 12 94D Mediation conferences 13 Mediator may hold conferences 14 (1) If the Federal Court refers the whole or a part of a proceeding 15 under section 86B for mediation, the mediator may hold such 16 conferences of the parties or their representatives as the mediator 17 considers will help in resolving the matter. 18 Note: The person conducting the mediation may request the Federal Court to 19 refer for review by the NNTT the issue of whether there are native 20 title rights and interests: see subsections 136GC(2) and (3). 21 Who must conduct conferences 22 (2) A conference must be conducted by: 23 (a) if the mediator is an individual--the mediator; or 24 (b) if the mediator is the NNTT--a member of the NNTT; or 25 (c) in any other case--an individual nominated by the mediator. 26 Assistance 27 (3) Subject to an order made under subsection 86B(5C) in relation to 28 the mediation, the person conducting the mediation may be 29 assisted: 8 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 (a) if the person is a member of the NNTT--by another member 2 of the NNTT or a member of the staff of the NNTT; and 3 (b) in any other case--by such other individuals as the person 4 considers appropriate. 5 Statements at conference are without prejudice 6 (4) In a proceeding before the Court, unless the parties otherwise 7 agree, evidence may not be given, and statements may not be 8 made, concerning any word spoken or act done at a conference. 9 Person conducting the mediation etc. not to take further part in 10 relation to a proceeding 11 (5) Unless the parties otherwise agree or the Court gives leave, the 12 person conducting the mediation, or another person who assists 13 that person, may not, in any other capacity, take any further part in 14 the proceeding before the Court. 15 Participation by telephone etc. 16 (6) The person conducting the mediation may allow a person to 17 participate by: 18 (a) telephone; or 19 (b) closed-circuit television; or 20 (c) any other means of communication. 21 Division applies as if consultant were a member 22 (7) If: 23 (a) the mediator is the NNTT; and 24 (b) a consultant is engaged under subsection 131A(1) to conduct 25 mediation in relation to a particular matter under this 26 Division; 27 this Division applies in relation to that matter as if the consultant 28 were a member of the NNTT. Native Title Amendment Bill 2009 No. , 2009 9 [Page Break] Part 1 A mend ments 1 94E Parties at confe rences 2 Requiring parties to attend conferences 3 (1) The person conducting the mediation may direct a party to attend 4 at a conference. 5 Limiting parties at conferences 6 (2) The person conducting the mediation may direct that only one or 7 some of the parties may attend, and be represented, at a conference. 8 Excluding parties from conferences 9 (3) If the person conducting the mediation considers that: 10 (a) a party, or a party's representative, at a conference is 11 disrupting or hindering the conference; or 12 (b) excluding a party, or a party's representative, from a 13 conference would help to resolve matters; 14 the person may direct that the party or representative not attend at 15 that conference or at other conferences. 16 Parties may be represented 17 (4) A party may be represented by a barrister, a solicitor or another 18 person. 19 Mediation in good faith 20 (5) Each party, and each person representing a party, must act in good 21 faith in relation to the conduct of the mediation. 22 94F Othe r persons attending or participating in conferences 23 The person conducting the mediation may, with the consent of all 24 of the parties present at a conference: 25 (a) direct that other persons be permitted to attend as observers 26 of the conference; or 27 (b) if he or she considers it would assist the parties to reach 28 agreement on any of the matters mentioned in subsection 29 86A(1) or (2)--direct that other persons be permitted to 30 participate in the conference. 10 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 94G Producing documents 2 The person conducting the mediation may, for the purposes of a 3 conference, direct a party to produce a document to the person on 4 or before a day specified in the direction, if the person considers 5 that: 6 (a) the document is in the possession, custody or control of the 7 party; and 8 (b) the production of the document may assist the parties to 9 reach agreement on any matters mentioned in subsection 10 86A(1) or (2). 11 94H Referral of questions of fact or law 12 Referral of questions to Federal Court 13 (1) Subject to subsections (2) and (3), if the person conducting the 14 mediation considers that it would expedite the reaching of an 15 agreement on any matter that is the subject of mediation, he or she 16 may refer to the Federal Court a question of fact or law relating to 17 a proceeding that arises during the mediation. 18 Note: Under subsection 86D(1), the Federal Court may determine a question 19 of fact or law that a mediator refers to it. 20 Person conducting the mediation not a consultant 21 (2) If the person conducting the mediation is not a consultant engaged 22 under subsection 131A(1), the question may only be referred to the 23 Court under subsection (1) of this section: 24 (a) on the initiative of the person; or 25 (b) at the request of a party. 26 Person conducting the mediation a consultant 27 (3) If the person conducting the mediation is a consultant engaged 28 under subsection 131A(1), the question may only be referred to the 29 Court under subsection (1) of this section: 30 (a) on the initiative of the person, if a presidential member 31 agrees; or 32 (b) at the request of a party. Native Title Amendment Bill 2009 No. , 2009 11 [Page Break] Part 1 A mend ments 1 Mediation may continue 2 (4) If a question of fact or law arising during mediation has been 3 referred to the Court under this section, the person conducting the 4 mediation may continue mediation if he or she considers that it is 5 appropriate. 6 94J Referral of questions about whether a party should be dis missed 7 Referral of questions to Federal Court 8 (1) Subject to subsections (3) and (4), if the person conducting the 9 mediation considers that a party to a proceeding does not have a 10 relevant interest in the proceeding, he or she may refer to the 11 Federal Court the question of whether the party should cease to be 12 a party to the proceeding. 13 (2) For the purposes of the determination by the Court of that question, 14 subsection 94D(4) does not apply to the extent that words spoken 15 or acts done at a conference under section 94D relate to that 16 question. 17 Person conducting the mediation not a consultant 18 (3) If the person conducting the mediation is not a consultant engaged 19 under subsection 131A(1), the question may only be referred to the 20 Court under subsection (1) of this section: 21 (a) on the initiative of the person; or 22 (b) at the request of a party, if the person agrees. 23 Person conducting the mediation a consultant 24 (4) If the person conducting the mediation is a consultant engaged 25 under subsection 131A(1), the question may only be referred to the 26 Court under subsection (1) of this section: 27 (a) on the initiative of the person, if a presidential member 28 agrees; or 29 (b) at the request of a party, if both the person and a presidential 30 member agree. 12 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 Mediation may continue 2 (5) If a question has been referred to the Court under this section, the 3 person conducting the mediation may continue mediation if he or 4 she considers that it is appropriate. 5 Meaning of relevant interest 6 (6) In this section, a person has a relevant interest in a proceeding if 7 the person's interests may be affected by a determination in the 8 proceeding. 9 94K Conferences to be held in private 10 A conference must be held in private, unless the person conducting 11 the mediation directs otherwise and no party objects. 12 94L Pe rson conducting the mediation may prohibit disclosure of 13 information etc. 14 (1) The person conducting the mediation may direct that: 15 (a) any information given, or statements made, at a conference; 16 or 17 (b) the contents of any document produced at a conference; 18 must not be disclosed, or must not be disclosed except in such 19 manner, and to such other persons, as the person specifies. 20 Applications etc. 21 (2) The person conducting the mediation may make the direction on 22 his or her own initiative or on an application by a party. 23 Person conducting the mediation may disclose information etc. if 24 parties agree 25 (3) If the parties agree, the person conducting the mediation may, 26 despite the direction, disclose things of the kind mentioned in 27 paragraph (1)(a) or (b). 28 Offence 29 (4) A person commits an offence if: Native Title Amendment Bill 2009 No. , 2009 13 [Page Break] Part 1 A mend ments 1 (a) the person discloses any material in contravention of a 2 direction made under subsection (1); and 3 (b) the disclosure is not permitted by subsection (3). 4 Penalty: 40 penalty units. 5 (5) Subsection (4) is an offence of strict liability. 6 Note: For strict liability, see section 6.1 of the Criminal Code. 7 94M Person conducting the mediation etc. must not be required to 8 give evidence or produce docume nts to a court 9 (1) The person conducting the mediation, or another person who 10 assists that person, is not competent, and must not be required, to 11 give evidence to a court relating to a matter if: 12 (a) the giving of the evidence would be contrary to a direction 13 under subsection 94L(1); or 14 (b) an application has been made for a direction under that 15 subsection concerning the matter to which the evidence 16 would relate and the person conducting the mediation has not 17 determined that application. 18 (2) The person conducting the mediation, or another person who 19 assists that person, must not be required to produce in a court a 20 document given in connection with a mediation if: 21 (a) the production of the document would be contrary to a 22 direction under subsection 94L(1); or 23 (b) an application has been made for a direction under that 24 subsection in relation to the document and the person 25 conducting the mediation has not determined that application. 26 (3) In this section: 27 court includes any tribunal, authority or person having power to 28 require the production of documents or the answering of questions. 29 produce includes permit access to. 14 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 94N Report etc. to be given to Federal Court 2 Report after mediation concludes 3 (1) The person conducting the mediation must, as soon as practicable 4 after mediation is successfully concluded, provide a written report 5 to the Federal Court setting out the results of the mediation. 6 Report requested under subsection 86E(1) 7 (2) The person conducting the mediation must provide a written report 8 to the Federal Court setting out the progress of the mediation if 9 requested to do so under subsection 86E(1). 10 Report or plan requested under subsection 86E(2) 11 (3) If one or more mediators have been requested under subsection 12 86E(2) to provide a regional mediation progress report or a 13 regional work plan, that mediator or those mediators must provide 14 the report or plan to the Federal Court. 15 Progress report 16 (4) The person conducting the mediation may provide a written report 17 to the Federal Court setting out the progress of the mediation if the 18 person considers that it would assist the Court in progressing the 19 proceeding in relation to which the mediation is being undertaken. 20 Report about failure to comply with a direction 21 (5) If a direction made under subsection 94E(1) or section 94G has not 22 been complied with, the person conducting the mediation may 23 provide a written report to the Federal Court setting out: 24 (a) the details of the direction; and 25 (b) the reasons for giving the direction. 26 Agreement on facts 27 (6) If the parties agree, a report provided under subsection (1), (2) or 28 (4) must include any agreement on facts between the parties that 29 was reached during the mediation concerned. Native Title Amendment Bill 2009 No. , 2009 15 [Page Break] Part 1 A mend ments 1 94P Reports about breaches of the requirement to act in good faith 2 Reports to government 3 (1) If the person conducting the mediation considers that a party 4 mentioned in column 1 of the following table in relation to an item, 5 or a person representing such a party, did not act or is not acting in 6 good faith in relation to the conduct of the mediation, the person 7 may report that failure to the person mentioned in column 2 of the 8 table in relation to the item: 9 Reports about persons who do or di d not act in good fai th Item If the party is or a person then, the person conducting the represents ... medi ati on may report the failure to act in g ood faith to ... 1 the Co mmonwealth the Co mmonwealth M inister. 2 a State or Territory the State Minister or the Territory Minister for the State or Territory. 3 a party that is provided with the Attorney-General. funds by the Attorney-General under section 213A 4 a representative body that is the Secretary of the Depart ment. provided with funds by the Secretary of the Depart ment under section 203C 5 a person or body performing the Secretary of the Depart ment. functions of a representative body that is provided with funds by the Secretary of the Depart ment under section 203FE 10 Reports to legal professional bodies 11 (2) If the person conducting the mediation considers that a legal 12 practitioner did not act or is not acting in good faith in relation to 13 the conduct of the mediation, the person may report that failure to 14 the relevant State or Territory legal professional body that issued 15 the legal practitioner with a practising certificate. 16 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 (3) For the purposes of a report made under subsection (2), subsection 2 94D(4) does not apply to the extent that words spoken or acts done 3 at a conference under section 94D relate to the failure mentioned 4 under subsection (2) of this section. 5 Reports to the Federal Court 6 (4) If the person conducting the mediation considers that a party, or the 7 party's representative, did not act or is not acting in good faith in 8 relation to the conduct of the mediation, the person may, despite 9 subsection 94D(4), report that failure to the Federal Court (whether 10 or not a report is also provided as mentioned in subsection (1) or 11 (2) of this section). 12 What a report must include 13 (5) A report must include: 14 (a) the details of the failure to act in good faith; and 15 (b) the context in which the conduct took place. 16 Copy of report to be provided to the person to whom it relates 17 (6) At the time that a report is provided as mentioned in subsection (1), 18 (2) or (4), a copy of the report must also be provided to the person 19 to whom it relates. 20 Person conducting the mediation not a consultant 21 (7) If the person conducting the mediation is not a consultant engaged 22 under subsection 131A(1), a report may only be provided under 23 this section on the initiative of the person. 24 Person conducting the mediation a consultant 25 (8) If the person conducting the mediation is a consultant engaged 26 under subsection 131A(1), a report may only be provided under 27 this section on the initiative of the person if a presidential member 28 agrees. 29 Mediation may continue 30 (9) If a report is provided under this section, the person conducting the 31 mediation may continue mediation if he or she considers that it is 32 appropriate. Native Title Amendment Bill 2009 No. , 2009 17 [Page Break] Part 1 A mend ments 1 94Q Public reporting about breaches of the requirement to act in 2 good faith 3 Scope 4 (1) This section applies if the person conducting a mediation is a 5 member of the NNTT. 6 Annual report may include particulars of failure to act in good 7 faith etc. 8 (2) If the person considers that a Government party, or that party's 9 representative, did not act or is not acting in good faith in relation 10 to the conduct of the mediation, the report prepared under 11 section 133 may include particulars of that failure and the reasons 12 why the person considers that the conduct was not in good faith. 13 (3) If it is proposed to make an inclusion in the report, the person must 14 inform the Government party, or that party's representative, before 15 doing so. 16 94R Protection of person conducting the mediation 17 A person conducting the mediation has, in the performance of his 18 or her duties as a person conducting the mediation, the same 19 protection and immunity as a Justice of the High Court. 20 94S Regulations about mediation 21 (1) The regulations may make provision in relation to the way in 22 which any mediation is provided under this Division. 23 (2) Such regulations must not be inconsistent with this Division. 24 36 Subsection 108(1A) 25 Omit "Division 4A or 4AA", substitute "Division 4 of Part 4 and 26 Division 4AA of this Part". 27 37 Paragraph 123(1)(ca) 28 Omit "are to", substitute "may". 29 38 Subsection 133(2A) 18 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 Omit "136GB", substitute "94Q". 2 39 Division 4A of Part 6 3 Repeal the Division. 4 40 Subsections 136GC(1), (2) and (3) 5 Repeal the subsections, substitute: 6 Referral by the Federal Court on its own motion 7 (1) The Federal Court may, on its own motion, refer for review by the 8 Tribunal the issue of whether a native title claim group who is a 9 party in a proceeding holds native title rights and interests, as 10 defined in subsection 223(1), in relation to land or waters within 11 the area that is the subject of the proceeding. 12 Referral by the Federal Court on request 13 (2) The Federal Court may refer for review by the Tribunal the issue of 14 whether a native title claim group who is a party in a proceeding 15 holds native title rights and interests, as defined in subsection 16 223(1), in relation to land or waters within the area that is the 17 subject of the proceeding if: 18 (a) the issue arises in the course of mediation in relation to the 19 proceeding; and 20 (b) the person conducting the mediation requests the Court to 21 refer the issue for review by the Tribunal. 22 (3) The person conducting the mediation may only make the request if 23 the person considers, after consultation with the parties to the 24 proceeding, that a review of the issue would assist the parties to 25 reach agreement on any of the matters mentioned in subsection 26 86A(1). 27 41 Subsection 136GC(9) 28 Omit "presiding member", substitute "person conducting the 29 mediation". 30 42 Paragraph 136GE(1)(a) 31 Repeal the paragraph, substitute: 32 (a) the person conducting the mediation; and Native Title Amendment Bill 2009 No. , 2009 19 [Page Break] Part 1 A mend ments 1 43 Subsection 136GE(3) 2 Omit "presiding member in the mediation", substitute "person 3 conducting the mediation". 4 44 Subsection 136H(2) 5 Omit "Division 4A, Division 4AA", substitute "Division 4 of Part 4, 6 Division 4AA of this Part". 7 45 Paragraph 138A(a) 8 Omit "to the Tribunal". 9 46 Subsection 138B(1) 10 Omit "President", substitute "Federal Court". 11 47 Paragraph 138B(1)(a) 12 Repeal the paragraph, substitute: 13 (a) on its own motion; or 14 48 Paragraph 138B(1)(c) 15 Repeal the paragraph, substitute: 16 (c) at the request of the person conducting the mediation; 17 49 Subsection 138B(2) 18 Omit "President", substitute "Court". 19 50 Paragraph 138B(2)(a) 20 Omit "he or she", substitute "the Court". 21 51 Subsection 138B(3) 22 Omit "to the Tribunal". 23 52 Subsection 138C(1) 24 Omit "President", substitute "Federal Court". 25 53 Subsection 138D(1) 26 Omit "directing that an inquiry be held, the President", substitute 27 "beginning the inquiry, the Tribunal". 20 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 54 Paragraph 138D(1)(c) 2 Repeal the paragraph. 3 55 Subsection 138E(1) 4 Omit "presiding member", substitute "person conducting the 5 mediation". 6 56 Subsection 138E(2) 7 Omit "subsection 136GC(1)", substitute "section 136GC". 8 57 Subsection 138E(2) (note) 9 Omit "Subsection 136GC(1) allows the President", substitute 10 "Section 136GC allows the Federal Court". 11 58 Subsection 176(1) 12 Omit "136F,". 13 59 Paragraph 181(2)(a) 14 Omit "or to a direction of the presiding member under subsection 15 136F(1)". 16 60 Paragraph 181(2)(b) 17 Omit ", or to the presiding member for a direction under section 136F,". 18 61 Paragraph 181(2)(b) 19 Omit "or the presiding member". 20 62 Paragraph 181(3)(a) 21 Omit "or to a direction of the presiding member under subsection 22 136F(1)". 23 63 Paragraph 181(3)(b) 24 Omit ", or to the presiding member for a direction under section 136F,". 25 64 Paragraph 181(3)(b) 26 Omit "or the presiding member". 27 65 After subparagraph 207B(9)(a)(i) Native Title Amendment Bill 2009 No. , 2009 21 [Page Break] Part 1 A mend ments 1 Insert: 2 (ia) the provisions of Division 4 of Part 4, other than 3 subsection 94H(1); 4 66 Subparagraph 207B(9)(a)(iii) 5 Omit "subsection 136D(1) and". 6 67 Section 253 7 Insert: 8 mediator means: 9 (a) in relation to an application--the person or body to which the 10 application has been referred under subsection 86B(1) for 11 mediation; or 12 (b) in relation to the whole or a part of a proceeding--the person 13 or body to which the whole or the part of the proceeding has 14 been referred under subsection 86B(5) for mediation. 15 68 Section 253 16 Insert: 17 person conducting the mediation means the person mentioned in 18 subsection 94D(2) who conducts a conference under section 94D 19 in relation to the mediation concerned. 20 22 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Application provisions Part 2 1 2 Part 2--Application provisions 3 69 Application--subsection 86B(1) of the Native Title Act 4 Subsection 86B(1) of the Native Title Act 1993, as inserted by this 5 Schedule, applies in relation to an application under section 61 of that 6 Act made before or after the commencement of this item. 7 70 Application--subsection 86B(5C) and Division 4 of Part 4 8 of the Native Title Act 9 (1) The following provisions of the Native Title Act 1993, as inserted by 10 this Schedule, apply in relation to a referral under subsection 86B(1) or 11 (5) of that Act made before or after the commencement of this item: 12 (a) subsection 86B(5C); 13 (b) any provision of Division 4 of Part 4. 14 (2) If: 15 (a) a thing was done under, or for the purposes of, a provision of 16 Division 4A of Part 6 of the Native Title Act 1993 in relation 17 to a mediation; and 18 (b) the mediation has not been completed before commencement 19 of this item; 20 the thing has effect, after that commencement, as if it had been done 21 under, or for the purposes of, the corresponding provision of Division 4 22 of Part 4 of that Act. 23 71 Application--section 86C and subsections 136GC(2) and 24 138B(1) of the Native Title Act 25 The following provisions of the Native Title Act 1993, as inserted or 26 amended by this Schedule, apply in relation to a mediation that begins 27 before or after the commencement of this item: 28 (a) section 86C; 29 (b) subsection 136GC(2); 30 (c) subsection 138B(1). 31 72 Referral for review under subsection 136GC(1) of the 32 Native Title Act 33 If: Native Title Amendment Bill 2009 No. , 2009 23 [Page Break] Part 2 Application provisions 1 (a) an issue was referred for review under subsection 136GC(1) 2 of the Native Title Act 1993 as in force before the 3 commencement of this item; and 4 (b) the review has not been completed before that 5 commencement; 6 then, despite the repeal of that subsection by this Schedule, the referral 7 has effect, after that commencement, as if it were a referral under 8 subsection 136GC(2) of that Act as inserted by this Schedule. 9 73 Direction to hold an inquiry under subsection 138B(1) of 10 the Native Title Act 11 If: 12 (a) the Tribunal was directed to hold an inquiry under subsection 13 138B(1) of the Native Title Act 1993 as in force before the 14 commencement of this item; and 15 (b) the inquiry has not been completed before that 16 commencement; 17 then, despite the amendments of that subsection made by this Schedule, 18 the direction has effect, after that commencement, as if it were a 19 direction under subsection 138B(1) of that Act as amended by this 20 Schedule. 21 24 Native Title Amendment Bill 2009 No. , 2009 [Page Break] 1 2 Schedule 2--Powers of the Court 3 4 Native Title Act 1993 5 1 Subsection 87(1) 6 Omit "If", substitute "This section applies if" 7 Note: The heading to subsection 87(1) is replaced by the heading "Application". 8 2 Paragraph 87(1)(c) 9 Omit "Court; and", substitute "Court.". 10 3 Subsection 87(1) 11 Omit all the words after paragraph (c). 12 4 After subsection 87(1)(c) 13 Insert: 14 Power of Court 15 (1A) The Court may, if it appears to the Court to be appropriate to do so, 16 act in accordance with: 17 (a) whichever of subsection (2) or (3) is relevant in the particular 18 case; and 19 (b) if subsection (5) applies in the particular case--that 20 subsection. 21 5 At the end of section 87 22 Add: 23 Orders about matters other than native title 24 (4) Without limiting subsection (2) or (3), if the order under that 25 subsection does not involve the Court making a determination of 26 native title, the order may give effect to terms of the agreement that 27 involve matters other than native title. 28 (5) Without limiting subsection (2) or (3), if the order under that 29 subsection involves the Court making a determination of native 30 title, the Court may also make an order under this subsection that Native Title Amendment Bill 2009 No. , 2009 25 [Page Break] 1 gives effect to terms of the agreement that involve matters other 2 than native title. 3 (6) The jurisdiction conferred on the Court by this Act extends to: 4 (a) making an order under subsection (2) or (3) that gives effect 5 to terms of the agreement that involve matters other than 6 native title; and 7 (b) making an order under subsection (5). 8 (7) The regulations may specify the kinds of matters other than native 9 title that an order under subsection (2), (3) or (5) may give effect 10 to. 11 Agreed statement of facts 12 (8) If some or all of the parties to the proceeding have reached 13 agreement on a statement of facts, one of those parties may file a 14 copy of the statement with the Court. 15 (9) Within 7 days after a statement of facts agreed to by some of the 16 parties to the proceeding is filed, the Registrar of the Court must 17 give notice to the other parties to the proceeding that the statement 18 has been filed with the Court. 19 (10) In considering whether to make an order under subsection (2), (3) 20 or (5), the Court may accept a statement of facts that has been 21 agreed to by some or all of the parties to the proceedings but only 22 if those parties include: 23 (a) the applicant; and 24 (b) the party that the Court considers was the principal 25 government respondent in relation to the proceedings at the 26 time the agreement was reached. 27 (11) In considering whether to accept under subsection (10) a statement 28 of facts agreed to by some of the parties to the proceedings, the 29 Court must take into account any objections that are made by the 30 other parties to the proceedings within 21 days after the notice is 31 given under subsection (9). 32 6 Subsection 87A(4) 33 After "consistent with," (wherever occurring), insert "the terms of". 34 Note: The heading to subsection 87A(4) is altered by omitting "Order" and substituting 35 "Orders". 26 Native Title Amendment Bill 2009 No. , 2009 [Page Break] 1 7 Subsection 87A(5) 2 Repeal the subsection, substitute: 3 (5) Without limiting subsection (4), if the Court makes an order under 4 that subsection, the Court may also make an order under this 5 subsection that gives effect to terms of the agreement that involve 6 matters other than native title if the Court considers that: 7 (a) the order would be within its power; and 8 (b) it would be appropriate to do so. 9 (6) The jurisdiction conferred on the Court by this Act extends to 10 making an order under subsection (5). 11 (7) The regulations may specify the kinds of matters other than native 12 title that an order under subsection (5) may give effect to. 13 Objections 14 (8) In considering whether to make an order under subsection (4) or 15 (5), the Court must take into account any objections made by the 16 other parties to the proceedings. 17 Agreed statement of facts 18 (9) If some or all of the parties to the proceeding have reached 19 agreement on a statement of facts, one of those parties may file a 20 copy of the statement with the Court. 21 (10) Within 7 days after a statement of facts agreed to by some of the 22 parties to the proceeding is filed, the Registrar of the Court must 23 give notice to the other parties to the proceeding that the statement 24 has been filed with the Court. 25 (11) In considering whether to make an order under subsection (4) or 26 (5), the Court may accept a statement of facts that has been agreed 27 to by some or all of the parties to the proceedings but only if those 28 parties include: 29 (a) the applicant; and 30 (b) the party that the Court considers was the principal 31 government respondent in relation to the proceedings at the 32 time the agreement was reached. Native Title Amendment Bill 2009 No. , 2009 27 [Page Break] 1 (12) In considering whether to accept under subsection (11) a statement 2 of facts agreed to by some of the parties to the proceedings, the 3 Court must take into account any objections that are made by the 4 other parties to the proceedings within 21 days after the notice is 5 given under subsection (10). 6 28 Native Title Amendment Bill 2009 No. , 2009 [Page Break] 1 2 Schedule 3--Rules of evidence 3 4 Native Title Act 1993 5 1 Before section 215 6 Insert: 7 214 Application of ame nded rules of evidence in proceedings before 8 the Federal Court 9 Scope 10 (1) This section applies to a proceeding before the Federal Court that 11 relates to a matter arising under this Act if: 12 (a) the hearing of the proceeding began before the 13 commencement of Schedule 1 to the Evidence Amendment 14 Act 2008; and 15 (b) evidence has been adduced or admitted in relation to the 16 proceeding. 17 Application of amendments 18 (2) Despite item 95 of that Schedule, the amendments of the Evidence 19 Act 1995 made by that Schedule apply in relation to the proceeding 20 if: 21 (a) the parties to the proceeding consent to the amendments 22 applying in relation to the proceeding; or 23 (b) the Court orders, after taking into account the views of the 24 parties to the proceedings, that it is in the interests of justice 25 that the amendments apply in relation to the proceedings. 26 Native Title Amendment Bill 2009 No. , 2009 29 [Page Break] 1 2 Schedule 4--Assistance in relation to 3 inquiries etc. 4 5 Native Title Act 1993 6 1 Section 183 7 Repeal the section. 8 2 After section 213 9 Insert: 10 213A Assistance from Attorney-General 11 Assistance in relation to inquiries etc. 12 (1) A person who is a party, or who intends to apply to be a party, to 13 an inquiry, mediation or proceeding related to native title may 14 apply to the Attorney-General for the provision of assistance under 15 this section in relation to the inquiry, mediation or proceeding. 16 Assistance in relation to agreements and disputes 17 (2) A person who: 18 (a) is or intends to become a party to an indigenous land use 19 agreement or an agreement about rights conferred under 20 subsection 44B(1); or 21 (b) is in dispute with any other person about rights conferred 22 under subsection 44B(1); 23 may apply to the Attorney-General for the provision of assistance 24 under this section in relation to: 25 (c) negotiating the agreement; or 26 (d) any inquiry, mediation or proceeding in relation to the 27 agreement; or 28 (e) resolving the dispute. 29 (3) A person who is, or intends to become, a grantee party in relation 30 to a future act to which Subdivision P of Division 3 of Part 2 31 applies may apply to the Attorney-General for the provision of 32 assistance under this section in relation to: 30 Native Title Amendment Bill 2009 No. , 2009 [Page Break] 1 (a) the development of a standard form of agreement to facilitate 2 negotiation in good faith as mentioned in paragraph 31(1)(b); 3 or 4 (b) the development of a standard form of agreement which, if 5 agreed by a grantee party in relation to a future act to which 6 the Subdivision applies, would make it more likely that the 7 Government party doing the act would consider it an act 8 attracting the expedited procedure; or 9 (c) a review of an existing standard form of agreement 10 mentioned in paragraph (a) or (b), with a view to improving 11 the standard form. 12 Note: Subdivision P of Division 3 of Part 2 deals with the right to negotiate. 13 Attorney-General may grant assistance 14 (4) If the Attorney-General is satisfied that: 15 (a) the applicant is not eligible to receive assistance in relation to 16 the matter concerned from any other source (including from a 17 representative Aboriginal/Torres Strait Islander body); and 18 (b) the provision of assistance to the applicant in relation to the 19 matter concerned is in accordance with the guidelines (if any) 20 made under subsection (5); and 21 (c) in all the circumstances, it is reasonable that the application 22 be granted; 23 the Attorney-General may authorise the provision by the 24 Commonwealth to the applicant, either unconditionally or subject 25 to such conditions as the Attorney-General determines, of such 26 legal or financial assistance as the Attorney-General determines. 27 Attorney-General may make guidelines 28 (5) The Attorney-General may, in writing, make guidelines that are to 29 be applied in authorising the provision of assistance under this 30 section. 31 Assistance not to be provided to Ministers 32 (6) The Attorney-General cannot authorise the provision of assistance 33 under this section to the Commonwealth Minister, a State Minister 34 or a Territory Minister. Native Title Amendment Bill 2009 No. , 2009 31 [Page Break] 1 Assistance not to be provided to native title claimants etc. 2 (7) The Attorney-General must not authorise the provision of 3 assistance under this section to a person in relation to: 4 (a) any claim by the person, in an inquiry, mediation or 5 proceeding, to hold native title or to be entitled to 6 compensation in relation to native title; or 7 (b) an indigenous land use agreement, if the person holds or 8 claims to hold native title in relation to the area covered by 9 the agreement; or 10 (c) an agreement or dispute about rights conferred under 11 subsection 44B(1), if the person is included in the native title 12 claim group concerned. 13 Delegation by Attorney-General 14 (8) The Attorney-General may, in writing, delegate any or all of his or 15 her powers under subsection (4) to: 16 (a) the Secretary of the Department; or 17 (b) a person engaged under the Public Service Act 1999 who 18 occupies a specified position in the Department. 19 3 Transitional and saving provisions relating to section 183 20 of the Native Title Act 21 (1) An application made under subsection 183(1) of the Native Title Act 22 1993 but not determined before the commencement of this item is taken 23 to have been made under subsection 213A(1) of that Act as inserted by 24 this Schedule. 25 (2) An application made under subsection 183(2) of the Native Title Act 26 1993 but not determined before the commencement of this item is taken 27 to have been made under subsection 213A(2) of that Act as inserted by 28 this Schedule. 29 (3) An application made under subsection 183(2A) of the Native Title Act 30 1993 but not determined before the commencement of this item is taken 31 to have been made under subsection 213A(3) of that Act as inserted by 32 this Schedule. 33 (4) If: 32 Native Title Amendment Bill 2009 No. , 2009 [Page Break] 1 (a) the provision of assistance was authorised under subsection 2 183(3) of that Act before the commencement of this item; 3 and 4 (b) the assistance has not been provided before that 5 commencement; 6 then, despite the repeal of that subsection by this Schedule, the 7 authorisation has effect, after that commencement, as if it were an 8 authorisation under subsection 213A(4) of that Act as inserted by this 9 Schedule. 10 (5) Guidelines determined under subsection 183(4) of that Act that were in 11 force immediately before the commencement of this item continue to 12 have effect after that commencement as if they were guidelines made 13 under subsection 213A(5) of that Act as inserted by this Schedule. 14 (6) A delegation in force under subsection 183(7) of that Act immediately 15 before the commencement of this item continues to have effect after 16 that commencement as if it were a delegation under subsection 213A(8) 17 of that Act as inserted by this Schedule. 18 Native Title Amendment Bill 2009 No. , 2009 33 [Page Break] Part 1 Removal of transitional arrangements 1 2 Schedule 5--Amendments relating to 3 representative bodies 4 Part 1--Removal of transitional arrangements 5 Native Title Act 1993 6 1 Section 201A (definition of transitional commencing day) 7 Repeal the definition. 8 2 Section 201A (definition of transitionally affected area) 9 Repeal the definition. 10 3 Section 201A (definition of transition period) 11 Repeal the definition. 12 4 Section 201C 13 Repeal the section. 14 5 Subsection 203A(1) 15 Omit "Subject to section 203AA, the", substitute "The". 16 6 Section 203AA 17 Repeal the section. 18 7 Subsection 203AB(1) 19 Omit "Subject to subsection (3), an", substitute "An". 20 8 Subsection 203AB(3) 21 Repeal the subsection. 22 9 Subsection 203AC(1A) 23 Repeal the subsection, substitute: 24 (1A) The Commonwealth Minister must determine applications under 25 section 203AB as soon as practicable after whichever of the 26 following periods ends last: 34 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Removal o f transitional arrangements Part 1 1 (a) the period specified under subsection 203A(3); 2 (b) if a further period applies under subsection 203AB(2) in 3 relation to one or more of those applications--the last such 4 further period; 5 (c) if the Commonwealth Minister has, in relation to one or more 6 of those applications, given to a body a notice under 7 subsection (1) of this section requiring the body to give 8 further information within a specified period--the last such 9 period. 10 10 Subsection 203AD(1) 11 Omit "Subject to subsection (1A), the", substitute "The". 12 11 Subsections 203AD(1A), (1B), (2), (2A), (2B) and (2C) 13 Repeal the subsections, substitute: 14 Period of recognition 15 (2) The recognition of the body as a representative body: 16 (a) takes effect on the day specified in the instrument of 17 recognition; and 18 (b) ceases to have effect at the end of the day specified in that 19 instrument unless the body's recognition is earlier withdrawn 20 under section 203AH. 21 12 Saving provision--recognition under subsection 22 203AD(1A) of the Native Title Act 1993 23 (1) This item applies if: 24 (a) an eligible body was recognised under subsection 25 203AD(1A) of the Native Title Act 1993 before the 26 commencement of this item; and 27 (b) the recognition is in effect immediately before that 28 commencement. 29 (2) Despite the amendments made by this Part, the recognition continues to 30 have effect after the commencement of this item as if those amendments 31 had not been made. 32 Native Title Amendment Bill 2009 No. , 2009 35 [Page Break] Part 2 Recognition of representative bodies 1 2 Part 2--Recognition of representative bodies 3 Native Title Act 1993 4 13 Paragraph 201B(1)(b) 5 Omit "at the commencement of this section". 6 14 Subsection 203A(1) 7 After "Minister may", insert ", in writing". 8 15 Paragraph 203A(1)(a) 9 Omit ", in the way determined in writing by the Commonwealth 10 Minister,". 11 16 Paragraph 203A(1)(b) 12 Omit ", in writing,". 13 17 After subsection 203A(1) 14 Insert: 15 Invitations may specify an area for which there is a representative 16 body 17 (1A) The invitation may specify an area for which there is a 18 representative body. 19 Note: An eligible body must not be recognised as the representative body for 20 an area with effect from a particular day if the recognition of a body as 21 the representative body for all or part of the area will be in effect on 22 that day: see subsection 203AD(4). 23 18 Subsections 203A(3A), (3B) and (4) 24 Repeal the subsections, substitute: 25 Invitations to specify information that must be included in 26 applications 27 (4) The invitation must specify the information that must be included 28 in the application or applications that are given to the 29 Commonwealth Minister. 36 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Recognition of representative bodies Part 2 1 Invitations to contain statement about revocation of invitations 2 (5) The invitation must contain a statement setting out the effect of 3 section 203AA (which deals with the revocation of invitations). 4 Invitations to contain statement about notification requirement 5 (6) If the invitation is made under paragraph (1)(b), the invitation must 6 contain a statement setting out the effect of section 203AAA 7 (which requires an eligible body to notify the Commonwealth 8 Minister if it decides not to apply for recognition etc.). 9 Invitations may be general 10 (7) For the purposes of paragraph (1)(a), the Commonwealth Minister 11 may arrange for the publication of general invitations and need not 12 make a separate invitation to each eligible body. 13 19 After section 203A 14 Insert: 15 203AA Revocation of invitations 16 (1) The Commonwealth Minister may, in writing, revoke an invitation 17 made under subsection 203A(1) if: 18 (a) the Commonwealth Minister considers it appropriate to do 19 so; and 20 (b) the period that applies under subsection 203AB(2) has not 21 expired. 22 (2) If: 23 (a) an eligible body, to whom the invitation was made, has made 24 an application under section 203AB; and 25 (b) at the time of revocation, the application has not been 26 determined; 27 then the application is taken never to have been made. 28 (3) If the invitation was made under paragraph 203A(1)(a), the 29 Commonwealth Minister may arrange for the publication of the 30 revocation and need not give a separate document to each eligible 31 body to whom the invitation was made. Native Title Amendment Bill 2009 No. , 2009 37 [Page Break] Part 2 Recognition of representative bodies 1 203AAA Eligible body must notify the Commonwealth Minister if it 2 decides not to apply for recognition etc. 3 Scope 4 (1) This section applies if an eligible body is invited under paragraph 5 203A(1)(b) to apply for recognition. 6 Notification of decision not to apply for recognition 7 (2) If the eligible body decides not to apply for recognition, the 8 eligible body must, in writing, notify the Commonwealth Minister 9 of that decision before the end of the period specified in the 10 invitation under subsection 203A(3). 11 Deemed notification 12 (3) If the eligible body does not: 13 (a) give a notification under subsection (2); or 14 (b) make an application before the end of the period that applies 15 under subsection 203AB(2); 16 the eligible body is taken to have given a notification under 17 subsection (2) of this section at the end of that period. 18 20 Subsection 203AB(1) 19 Omit ", in the form approved by the Commonwealth Minister,". 20 21 Subsection 203AD(1) 21 After "an area", insert "or areas". 22 22 Subsection 203AD(1) 23 After "the area", insert "or areas". 24 23 Paragraph 203AD(2)(b) 25 Before "ceases", insert "subject to subsection (3),". 26 24 Subsections 203AD(2D) and (2E) 27 Repeal the subsections, substitute: 28 (3) If an area for which a body is recognised as the representative body 29 is varied under subsection 203AE(1) so as to reduce the area to 38 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Recognition of representative bodies Part 2 1 zero, the recognition of the body ceases immediately after the 2 variation takes effect. 3 (3A) The period of recognition specified in the instrument of recognition 4 must be at least 1 year but not more than 6 years. 5 (3B) In deciding the period of recognition to specify in the instrument of 6 recognition, the Commonwealth Minister must consider the 7 following: 8 (a) whether the body is under external administration; 9 (b) whether a person is currently appointed, under a condition 10 imposed by the Secretary in compliance with paragraph 11 203CA(1)(e), to deal with funds provided under Division 4 of 12 this Part to the body; 13 (c) what period of recognition would, in the opinion of the 14 Commonwealth Minister, promote the efficient performance 15 of the functions mentioned in subsection 203B(1). 16 (3C) In deciding the period of recognition to specify in the instrument of 17 recognition, the Commonwealth Minister may consider any 18 information in the possession of the Minister or the Department 19 that is relevant to that decision. 20 (3D) Subsections (3B) and (3C) do not limit any other matters that the 21 Minister may take into account in deciding the period of 22 recognition. 23 25 Subsection 203AD(5) 24 After "an area", insert "or areas". 25 26 Sections 203AE, 203AF and 203AG 26 Repeal the sections, substitute: 27 203AE Commonwealth Minister may vary an area for which a body 28 is the representative body 29 (1) Subject to this section, the Commonwealth Minister may, by 30 legislative instrument, vary an area for which a body is the 31 representative body if the Commonwealth Minister is satisfied that, 32 after the variation, the body will satisfactorily perform its functions 33 in relation to the varied area. Native Title Amendment Bill 2009 No. , 2009 39 [Page Break] Part 2 Recognition of representative bodies 1 Variation to add the whole or a part of another area 2 (2) The Commonwealth Minister must not vary an area (the original 3 area) under subsection (1) to add the whole or a part of another 4 area (the additional area) unless the boundary of the original area 5 adjoins the boundary of the additional area. 6 Reduction of area 7 (3) Without limiting subsection (1), the Commonwealth Minister may 8 vary an area under that subsection so as to reduce the area, 9 including reduce the area to zero. 10 (4) In deciding whether to vary an area so as to reduce it to zero, the 11 Commonwealth Minister need not be satisfied of the matter 12 mentioned in subsection (1). 13 Variation on application or on the Commonwealth Minister's own 14 initiative 15 (5) The Commonwealth Minister may vary an area under 16 subsection (1) for which a body is the representative body: 17 (a) on application, in writing, by the body; or 18 (b) subject to section 203AF, on the Commonwealth Minister's 19 own initiative. 20 (6) If an application is made under paragraph (5)(a) in relation to an 21 area, the Commonwealth Minister may vary the area as the 22 Commonwealth Minister considers appropriate. 23 Consideration of reports etc. 24 (7) In deciding whether to vary the area, the Commonwealth Minister 25 may consider the following: 26 (a) any reports under section 203DF of audits or investigations 27 of the body; 28 (b) any reports under section 193X of the Aboriginal and Torres 29 Strait Islander Act 2005 in relation to funding provided to the 30 body under section 203C or 203FE of this Act; 31 (c) any notices that the Secretary of the Department has given to 32 the Commonwealth Minister under section 203F in relation 33 to the body; 40 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Recognition of representative bodies Part 2 1 (d) any information in the possession of the Minister or 2 Department that is relevant to the variation. 3 (8) Subsection (7) does not limit any other matters that the 4 Commonwealth Minister may take into account in deciding 5 whether to vary the area. 6 Consideration of submissions 7 (9) In deciding whether to vary the area, the Commonwealth Minister 8 must consider any submissions made by a body or person within 9 the period mentioned in subsection 203AF(6). 10 When the variation takes effect 11 (10) The variation of the area takes effect on: 12 (a) the day on which the instrument varying the area is made; or 13 (b) if a later day is specified in that instrument--that day. 14 203AF Notification requirements for the variation of an area on the 15 Commonwealth Minister's own initiative 16 Notification requirements 17 (1) Subject to subsection (7), the Commonwealth Minister must not 18 vary an area under subsection 203AE(1) on his or her own 19 initiative unless the Minister complies with subsection (2) of this 20 section. 21 (2) The Commonwealth Minister must: 22 (a) notify, in writing, each of the following that the variation of 23 the area (the initial area) is being considered: 24 (i) the body that is the representative body for the initial 25 area; 26 (ii) if there is a representative body for another area (the 27 other area) that has a boundary that the Commonwealth 28 Minister proposes to vary as result of varying the initial 29 area--that body; 30 (iii) the Aboriginal peoples or Torres Strait Islanders who 31 live in the initial area and, if subparagraph (ii) applies, 32 who live in the other area; and Native Title Amendment Bill 2009 No. , 2009 41 [Page Break] Part 2 Recognition of representative bodies 1 (b) arrange for the publication in a newspaper (if any) circulating 2 generally in the initial area of a notice that states that the 3 variation is being considered; and 4 (c) if the newspaper mentioned in paragraph (b) does not also 5 circulate generally in the other area--arrange for the 6 publication of the notice mentioned in paragraph (b) in a 7 newspaper (if any) circulating generally in the other area. 8 (3) For the purposes of subparagraph (2)(a)(iii), the Commonwealth 9 Minister may arrange for the publication of a general notification 10 and need not give a separate notification to the persons mentioned 11 in that subparagraph. 12 Content of notice 13 (4) The notice to a body mentioned in subparagraph (2)(a)(i) or (ii) 14 must: 15 (a) identify the proposed variation; and 16 (b) state the reasons why the Minister is considering varying the 17 initial area; and 18 (c) state that the body may make submissions to the 19 Commonwealth Minister, within the period specified in the 20 notice, about whether the initial area should be varied. 21 (5) The notice to a person mentioned in subparagraph (2)(a)(iii) must 22 state that the person may make submissions to the Commonwealth 23 Minister, within the period specified in the notice, about whether 24 the initial area should be varied. 25 (6) The period specified in the notice under paragraph (4)(c) or 26 subsection (5) must not begin before the day on which the notice is 27 given to the body or person concerned and must be a period of at 28 least 60 days. 29 Exception to notification requirements 30 (7) The Commonwealth Minister need not comply with subsection (2) 31 in relation to the variation of the other area if: 32 (a) the variation is to be made as a result of the variation of the 33 initial area; and 42 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Recognition of representative bodies Part 2 1 (b) notification under that subsection of the variation of the 2 initial area has been previously given to the representative 3 body for the other area. 4 203AG Notice of decision on variation 5 (1) As soon as practicable after deciding whether to vary an area under 6 subsection 203AE(1), the Commonwealth Minister must: 7 (a) notify, in writing, each of the following of the decision and 8 the reasons for the decision: 9 (i) the body that is the representative body for the area; 10 (ii) the Aboriginal peoples or Torres Strait Islanders who 11 live in the area to which the decision relates; and 12 (b) arrange for the publication in a newspaper (if any) circulating 13 generally in the area of a notice setting out the decision and 14 the reasons for the decision. 15 (2) For the purposes of subparagraph (1)(a)(ii), the Commonwealth 16 Minister may arrange for the publication of a general notification 17 and need not give a separate notification to the persons mentioned 18 in that subparagraph. 19 27 Subsection 203AH(1) 20 Omit all the words after paragraph (b). 21 28 After subsection 203AH(1) 22 Insert: 23 (1A) A request under paragraph (1)(b) must be accompanied by a signed 24 statement that the request has been authorised by the members of 25 the body in accordance with the body's processes. 26 29 Subsection 203AH(3) 27 Omit "At least 60 days before deciding to withdraw the recognition 28 under subsection (2), the Commonwealth Minister must notify", 29 substitute "The Commonwealth Minister must not decide to withdraw 30 the recognition under subsection (2) unless the Minister notifies". 31 30 Paragraph 203AH(3)(b) 32 Omit "invite the body to", substitute "state that the body may". Native Title Amendment Bill 2009 No. , 2009 43 [Page Break] Part 2 Recognition of representative bodies 1 31 Subsection 203AH(3) 2 Omit "at least 60 days", substitute "at least 30 days". 3 32 After subsection 203AH(3) 4 Insert: 5 (3A) The Commonwealth Minister may, in writing, extend the period 6 specified in the notice under subsection (3) if: 7 (a) the body applies, in writing, for an extension; and 8 (b) the application is made before that period ends. 9 33 At the end of subsection 203AH(4) 10 Add: 11 ; (d) any information in the possession of the Minister or 12 Department that is relevant to the matter mentioned in 13 paragraph (2)(a) or (b) of this section. 14 34 Subsection 203AH(6) 15 Omit all the words after "made by", substitute: 16 the body: 17 (a) within the period specified in the notice under subsection (3); 18 or 19 (b) if that period has been extended under subsection (3A)-- 20 within the extended period. 21 35 Subsection 203AI(1) 22 Omit all the words after "Minister's opinion,", substitute "the body will 23 comply with, or is complying with, section 203BA (which deals with 24 how functions of representative bodies are to be performed)." 25 Note: The heading to subsection 203AI(1) is deleted. 26 36 Subsection 203AI(2) 27 Repeal the subsection. 28 Note: The heading to subsection 203AI(3) is deleted. 29 37 Paragraph 203BA(2)(c) 30 Repeal the paragraph, substitute: 44 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Recognition of representative bodies Part 2 1 (c) ensures that the structures and processes operate in a fair 2 manner, having particular regard to: 3 (i) the opportunities for the Aboriginal peoples or Torres 4 Strait Islanders for whom it might act to participate in 5 its processes; and 6 (ii) the extent to which its processes involve consultation 7 with those Aboriginal peoples or Torres Strait Islanders; 8 and 9 (iii) its procedures for making decisions and for reviewing 10 its decisions; and 11 (iv) its rules or requirements relating to the conduct of its 12 executive officers; and 13 (v) the nature of its management structures and 14 management processes; and 15 (vi) its procedures for reporting back to persons who hold or 16 may hold native title in the area, and to the Aboriginal 17 peoples or Torres Strait Islanders living in the area. 18 38 Subsection 203FC(5) (definition of former area) 19 After "the area", insert ", or the part of an area,". 20 39 Application--sections 203AE, 203AF and 203AG of the 21 Native Title Act 22 (1) Despite the repeal of section 203AE of the Native Title Act 1993 by this 23 Part, that section (as in force immediately before the commencement of 24 this item) continues to apply, in relation to the following, as if the repeal 25 had not happened: 26 (a) an application made under that section but not determined 27 before that commencement; 28 (b) a notice of a proposed extension given under that section if a 29 decision has not been made about the proposed extension 30 before that commencement. 31 (2) Despite the repeal of section 203AF of that Act by this Part, that section 32 (as in force immediately before the commencement of this item) 33 continues to apply, in relation to the following, as if the repeal had not 34 happened: 35 (a) an application made under that section but not determined 36 before that commencement; Native Title Amendment Bill 2009 No. , 2009 45 [Page Break] Part 2 Recognition of representative bodies 1 (b) a notice of a proposed variation given under that section if a 2 decision has not been made about the proposed variation 3 before that commencement. 4 (3) Despite the repeal of section 203AG of that Act by this Part, that section 5 (as in force immediately before the commencement of this item) 6 continues to apply, in relation to a notice of a proposed reduction given 7 under that section if a decision has not been made about the proposed 8 reduction before that commencement, as if the repeal had not happened. 9 46 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 2 Schedule 6--Other amendments 3 Part 1--Amendments 4 Native Title Act 1993 5 1 Paragraphs 28(2)(a) and (b) 6 Repeal the paragraphs, substitute : 7 (a) in a case where an amount is to be secured by bank guarantee 8 in favour of the Registrar in compliance with a condition of a 9 determination made under section 36A or 38 or a declaration 10 made under section 42: 11 (i) the Registrar is informed by the Government party as 12 mentioned in item 2 of the table in subsection 52(2) that 13 it no longer proposes to do the act; and 14 (ii) the Government party does the act without again 15 complying with the requirements of this Subdivision; or 16 (b) in a case where a trustee is holding an amount in trust under 17 this Subdivision in respect of the act until it is dealt with in 18 accordance with section 52A: 19 (i) the trustee is informed by the Government party as 20 mentioned in paragraph 52A(1)(b) that it no longer 21 proposes to do the act; and 22 (ii) the Government party does the act without again 23 complying with the requirements of this Subdivision. 24 2 After subsection 36C(5A) 25 Insert: 26 Trust condition 27 (5B) If a condition to be complied with is that an amount is to be paid 28 and held in trust until it is dealt with in accordance with 29 section 52A: 30 (a) the arbitral body must determine the amount; and Native Title Amendment Bill 2009 No. , 2009 47 [Page Break] Part 1 A mend ments 1 (b) the amount, when paid, must be held in trust in accordance 2 with the regulations until it is dealt with in accordance with 3 section 52A. 4 Note: The NNTT cannot determine compensation (see Division 5 of this 5 Part and Division 1 of Part 3). However, if the arbitral body is not the 6 NNTT, it may be able to do so. 7 3 At the end of section 41 8 Add: 9 Trust condition 10 (5) If, in the case of a determination by the arbitral body, a condition 11 to be complied with is that an amount is to be paid and held in trust 12 until it is dealt with in accordance with section 52A: 13 (a) the arbitral body must determine the amount; and 14 (b) the amount, when paid, must be held in trust in accordance 15 with the regulations until it is dealt with in accordance with 16 section 52A. 17 Note: The NNTT cannot determine compensation (see Division 5 of this 18 Part and Division 1 of Part 3). However, if the arbitral body is not the 19 NNTT, it may be able to do so. 20 4 After subsection 42(5A) 21 Insert: 22 Trust condition 23 (5B) If a condition to be complied with is that an amount is to be paid 24 and held in trust until it is dealt with in accordance with 25 section 52A: 26 (a) the arbitral body concerned must determine the amount; and 27 (b) the amount, when paid, must be held in trust in accordance 28 with the regulations until it is dealt with in accordance with 29 section 52A. 30 Note: The NNTT cannot determine compensation (see Division 5 of this 31 Part and Division 1 of Part 3). However, if the arbitral body is not the 32 NNTT, it may be able to do so. 33 5 Paragraph 43(2)(j) 34 Repeal the paragraph, substitute: 48 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 (j) make appropriate provision for compensation for the act, 2 including provision for: 3 (i) bank guarantees on similar terms to those in subsections 4 36C(5), 41(3) and 42(5), and regulations made for the 5 purposes of subsections 36C(5A), 41(4) and 42(5A); or 6 (ii) for trusts on similar terms to those in subsections 7 36C(5B), 41(5) and 42(5B); and 8 6 Subsection 52(2) (paragraph (a) in column 3 of table item 5) 9 Omit "the amount secured (the original amount)", substitute "an 10 amount equal to the amount determined". 11 7 Subsection 52(2) (paragraph (b) in column 3 of table item 5) 12 Omit "an amount equal to the amount determined", substitute "that 13 amount". 14 8 Subsection 52(2) (paragraph (c) in column 3 of table item 5) 15 Repeal the paragraph, substitute: (c) d irect the ADI to cancel the guarantee. 16 9 After section 52 17 Insert: 18 52A Payme nt held in trust unde r right to negotiate procedures 19 When section applies 20 (1) This section applies if an amount (the trust amount) in respect of 21 an act is being held in trust in accordance with paragraph 22 36C(5B)(b), subsection 41(5) or paragraph 42(5B)(b) and any of 23 the following happens: 24 (a) an approved determination of native title is made to the effect 25 that there is no native title in relation to the area concerned 26 immediately before the act takes place; 27 (b) the Government party informs the trustee in writing that it is 28 not going to do the act; 29 (c) the following requirements are satisfied: 30 (i) an approved determination of native title is made to the 31 effect that the native title parties concerned are 32 (disregarding any holding of the native title in trust Native Title Amendment Bill 2009 No. , 2009 49 [Page Break] Part 1 A mend ments 1 under Division 6) the native title holders in relation to 2 the area affected by the act; 3 (ii) the registered native title body corporate advises the 4 trustee that it wishes to accept the trust amount instead 5 of any compensation to which the native title holders 6 may be entitled under Division 3 for the act; 7 (iii) the person who paid the trust amount advises the trustee 8 that the person agrees to the registered native title body 9 corporate accepting the trust amount instead of any 10 compensation to which the native title holders may be 11 entitled under Division 3 for the act; 12 (d) a determination is made, on a claim for compensation in 13 respect of the act: 14 (i) in accordance with this Division; or 15 (ii) on just terms under a compulsory acquisition law; 16 that a person is entitled to compensation, or that no 17 compensation is payable to any person; 18 (e) none of paragraphs (a), (b), (c) and (d) applies and the 19 Federal Court decides, on application by any person, that it 20 would be just and equitable in all the circumstances to pay 21 the trust amount to that person or another person. 22 Paragraph (1)(a) or (b) case 23 (2) In a paragraph (1)(a) or (b) case, the trustee must: 24 (a) repay the trust amount to the person who paid it to the 25 trustee; or 26 (b) if that person no longer exists--apply to the Federal Court 27 for a direction as to the payment of the trust amount. 28 Paragraph (1)(c) case 29 (3) In a paragraph (1)(c) case: 30 (a) the trustee must pay the trust amount to the body corporate; 31 and 32 (b) subject to section 53, there is no entitlement to compensation 33 under Division 3 for the act. 50 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Amend ments Part 1 1 Paragraph (1)(d) case where monetary compensation 2 (4) In a paragraph (1)(d) case where the determination is that a person 3 is entitled to an amount of monetary compensation: 4 (a) if the trust amount is the same as the amount determined-- 5 the trustee must pay the trust amount to the person; or 6 (b) if the trust amount is less than the amount determined--the 7 trustee must pay the trust amount to the person and the 8 Government party must pay the shortfall to the person; or 9 (c) if the trust amount is more than the amount determined--the 10 trustee must: 11 (i) pay the person so much of the trust amount as equals the 12 amount determined; and 13 (ii) refund the excess to the person who paid the trust 14 amount to the trustee or, if that person no longer exists, 15 apply to the Federal Court for a direction as to its 16 payment. 17 Paragraph (1)(d) case where non-monetary compensation 18 (5) In a paragraph (1)(d) case where the transfer of property or the 19 provision of goods or services constitutes some or all of the 20 compensation, the trustee must apply to the Federal Court for a 21 direction as to the payment of the trust amount. 22 Paragraph (1)(d) case where no compensation 23 (6) In a paragraph (1)(d) case where the determination is that no 24 compensation is payable or to be given to any person, the trustee 25 must repay the trust amount to the person who paid it to the trustee 26 or, if that person no longer exists, apply to the Federal Court for a 27 direction as to its payment. 28 Paragraph (1)(e) case 29 (7) In a paragraph (1)(e) case, the trustee must pay the trust amount in 30 accordance with the decision of the Federal Court mentioned in 31 that paragraph. 32 10 Section 55 33 After "time as", insert ", or as soon as practicable after,". Native Title Amendment Bill 2009 No. , 2009 51 [Page Break] Part 1 A mend ments 1 11 Section 55 2 Omit "the determinations in", substitute "such determinations as are 3 required by". 4 12 Section 55 5 Omit "or 57", substitute "and 57". 6 13 Paragraph 66C(1)(c) 7 Omit "in relation to the applicant", substitute "for each future act 8 identified in the future act notice referred to in that paragraph". 9 14 Subsections 171(1) and 172(1) (penalty) 10 Omit "Maximum Penalty", substitute "Penalty". 11 15 Section 173 (penalty) 12 Omit "Maximum Penalty", substitute "Penalty". 13 16 Subsections 174(1) and 176(1) (penalty) 14 Omit "Maximum Penalty", substitute "Penalty". 15 17 Section 177 (penalty) 16 Omit "Maximum Penalty", substitute "Penalty". 17 52 Native Title Amendment Bill 2009 No. , 2009 [Page Break] Application etc. provisions Part 2 1 2 Part 2--Application etc. provisions 3 18 Application of amendment 4 The amendment made by item 5 of this Schedule applies in relation to: 5 (a) the making of a determination under paragraph 43(1)(b) of 6 the Native Title Act 1993 after the commencement of this 7 item; and 8 (b) the revocation after the commencement of this item of such a 9 determination whether made before or after that 10 commencement. 11 19 Validation etc. of pre-commencement determinations 12 (1) A determination made under paragraph 43(1)(b) of the Native Title Act 13 1993 before the commencement of this item is as valid, and is taken 14 always to have been as valid, as it would have been if paragraph 15 43(2)(j) of that Act, as inserted by this Schedule, had been in force at 16 the time the determination was made. 17 (2) For the purposes of subsection 43(3) of that Act, paragraph 43(2)(j) of 18 that Act, as inserted by this Schedule, is taken: 19 (a) to have been in force when the determination was made; and 20 (b) to have remained in force until the commencement of this 21 item. Native Title Amendment Bill 2009 No. , 2009 53