NATIVE TITLE AMENDMENT BILL 2009

i Native Title Amendment Bill 2009 No. , 2009

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Amendme nts relating to mediation

Part 1--Amendments

Native Title Act 1993

Part 2--Application provisions

Schedule 2--Powe rs of the Court

Native Title Act 1993

Schedule 3--Rules of evidence

Native Title Act 1993

Schedule 4--Assistance in relation to inquiries etc.

Native Title Act 1993

Schedule 5--Amendme nts relating to representative bodies

Part 1--Removal of transitional arrangements

Native Title Act 1993

Part 2--Recognition of representative bodies

Native Title Act 1993

Schedule 6--Other ame ndments

Part 1--Amendments

Native Title Act 1993

Part 2--Application etc. provisions

Native Title Amendment Bill 2009 No. , 2009 1

A Bill for an Act to amend the Native Title Act 1993,

and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Native Title Amendment Act 2009.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Native Title Amendment Bill 2009 No. , 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedules 1 to

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) 1 July 2009.

3. Schedule 5,

Part 1

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) 1 July 2009.

4. Schedule 5,

Part 2

Immediately after the commencement of the

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.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 3

Schedule 1

Amendments relating to

mediation

Part 1

Amendments

Native Title Act 1993

1 After paragraph 4(7)(a)

Insert:

(aa) provides for the Federal Court to refer native title and

compensation applications for mediation; and

(ab) provides for the Federal Court to make orders to give effect

to terms of agreements reached by parties to proceedings

including terms that involve matters other than native title;

and

2 Paragraph 79A(a)

Omit "to the NNTT".

3 At the end of section 79A

Add:

; (e) mediation (see Division 4).

4 Division 1B of Part 4 (heading)

Repeal the heading, substitute:

Division 1B--Reference for mediation

5 Subsections 86A(1) and (2)

Omit "by the NNTT".

6 Subsection 86B(1)

Repeal the subsection, substitute:

Federal Court must refer applications for mediation

(1) Unless an order is made under subsection (3) that there be no

mediation under this Act, the Federal Court must refer each

Schedule 1 A mendments relating to med iation

Part 1 A mend ments

4 Native Title Amendment Bill 2009 No. , 2009

application made under section 61 to an appropriate person or body

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.

(2) In deciding whether to refer the application to a particular person

or body, the Court may take into account the training,

qualifications and experience of the person who is to be, or is

likely to be, the person conducting the mediation.

(2A) Without limiting subsection (1), the application may be referred to

the Registrar, a Deputy Registrar, a District Registrar or a Deputy

District Registrar of the Court.

Note:

The heading to section 86B is altered by omitting "to NNTT".

7 Subsection 86B(3)

Omit "by the NNTT" (first occurring), substitute "under this Act".

8 Paragraph 86B(3)(a)

Omit "(whether or not by the NNTT)".

9 Paragraph 86B(3)(b)

Omit "by the NNTT", substitute "under this Act".

10 Subsection 86B(4)

Omit "by the NNTT" (first occurring), substitute "under this Act".

11 Paragraph 86B(4)(ea)

Repeal the paragraph.

12 Subsection 86B(5)

Repeal the subsection, substitute:

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

(5) In addition to referring a proceeding for mediation under

subsection (1), the Court may, at any time in a proceeding, refer

the whole or a part of the proceeding to an appropriate person or

body 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).

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 5

(5A) In deciding whether to refer the whole or part of the proceeding to

a particular person or body, the Court may take into account the

training, qualifications and experience of the person who is to be,

or is likely to be, the person conducting the mediation.

(5B) Without limiting subsection (5), the whole or part of the

proceeding may be referred to the Registrar, a Deputy Registrar, a

District Registrar or a Deputy District Registrar of the Court.

Orders about how mediation is to be provided etc.

(5C) If the Court refers, under subsection (1) or (5), the whole or a part

of a proceeding to a person or body for mediation, the Court may at

any time after the referral make an order about the following

matters:

(a) the way in which the mediation is to be provided;

(b) whether the person who is to conduct the mediation may be

assisted by another individual;

Note:

The following heading to subsection 86B(6) is inserted "No other referral for mediation

etc.".

13 Section 86BA

Repeal the section, substitute:

86BA Mediator may appear before the Court

(1) A mediator may appear before the Court at a hearing that relates to

any matter that is currently before the mediator for mediation if the

Court considers that the mediator may be able to assist the Court in

relation to a proceeding.

(2) To avoid doubt, subsection 94D(4) applies to the mediator when

appearing before the Court.

(3) Subsection 94D(5) does not prevent:

(a) the mediator from appearing before the Court under

subsection (1); or

(b) if the mediator may appear before the Court under

subsection (1) and the person conducting the mediation is not

the mediator--that person from representing the mediator

before the Court.

Schedule 1 A mendments relating to med iation

Part 1 A mend ments

6 Native Title Amendment Bill 2009 No. , 2009

(4) This section does not give the mediator, or the person conducting

the mediation, the right to become a party to the proceeding.

14 Subsection 86C(1)

Omit "the NNTT" (first occurring), substitute "a mediator".

15 Paragraph 86C(1)(a)

Omit "(whether or not by the NNTT)".

16 Paragraph 86C(1)(b)

Omit "the NNTT", substitute "the mediator".

17 At the end of subsection 86C(1)

Add:

; or (c) it is appropriate to do so for any other reason.

18 Subsection 86C(2)

Omit "the NNTT", substitute "a mediator".

19 Subsections 86C(3) and (4)

Omit "the NNTT", substitute "the mediator".

20 Subsection 86C(5)

Omit "136G(2), (2A), (3), (3A) or (3B)", substitute "94N(2), (3), (4) or

(5)".

Note:

The heading to subsection 86C(5) is altered by omitting "NNTT report" and substituting

"reports etc.".

21 At the end of section 86C

Add:

Court may make other orders

(6) If the Court makes an order under subsection (1), (3) or (4) in

relation to a mediation, the Court may make any other orders that

the Court considers are reasonably necessary or appropriate to deal

with the cessation of the mediation.

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 7

Later referral for mediation

(7) The making of an order under subsection (1), (3) or (4) does not

prevent a later referral for mediation under subsection 86B(5).

22 Subsection 86D(1)

Omit "the NNTT" (first occurring), substitute "a mediator".

23 Subsection 86D(1)

Omit "the NNTT" (second occurring), substitute "the mediator".

24 Subsection 86D(1) (note)

Omit "Under subsection 136D(1), the presiding member of the NNTT",

substitute "Under subsection 94H(1), the person conducting the

mediation".

25 Subsection 86D(2)

Omit "the NNTT", substitute "the mediator".

26 Subsection 86D(3)

Omit "136G(3B)", substitute "94N(5)".

27 Subsection 86D(3) (note)

Omit "Under subsection 136G(3B), the presiding member at a

mediation conference may make a report to the Court if the presiding

member", substitute "Under subsection 94N(5), the person conducting

the mediation may provide a report to the Court if the person".

28 Subsection 86E(1)

Omit "the NNTT" (first occurring), substitute "a mediator".

Note:

The heading to section 86E is altered by omitting "NNTT" and substituting "a

mediator".

29 Subsection 86E(1)

Omit "the NNTT" (second occurring), substitute "the mediator".

30 Subsection 86E(2)

Omit "the NNTT" (first occurring), substitute "one or more mediators".

31 Paragraphs 86E(2)(a) and (b)

Schedule 1 A mendments relating to med iation

Part 1 A mend ments

8 Native Title Amendment Bill 2009 No. , 2009

Omit "the NNTT", substitute "that mediator or those mediators".

32 Section 94B

Omit "to the NNTT".

Note:

The heading to section 94B is altered by omitting "to NNTT".

33 Paragraph 94B(a)

Omit "136G(1), (2) or (3)", substitute "94N(1), (2) or (4)".

34 Paragraph 94B(b)

Omit "136G(2A) or (3A)", substitute "94N(3)".

35 At the end of Part 4

Add:

Division 4--Mediation

94D Mediation conferences

Mediator may hold conferences

(1) If the Federal Court refers the whole or a part of a proceeding

under section 86B for mediation, the mediator may hold such

conferences of the parties or their representatives as the mediator

considers will help in resolving the matter.

Note:

The person conducting the mediation may request the Federal Court to

refer for review by the NNTT the issue of whether there are native

title rights and interests: see subsections 136GC(2) and (3).

Who must conduct conferences

(2) A conference must be conducted by:

(a) if the mediator is an individual--the mediator; or

(b) if the mediator is the NNTT--a member of the NNTT; or

Assistance

(3) Subject to an order made under subsection 86B(5C) in relation to

the mediation, the person conducting the mediation may be

assisted:

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 9

(a) if the person is a member of the NNTT--by another member

of the NNTT or a member of the staff of the NNTT; and

(b) in any other case--by such other individuals as the person

considers appropriate.

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.

Person conducting the mediation etc. not to take further part in

relation to a proceeding

(5) Unless the parties otherwise agree or the Court gives leave, the

person conducting the mediation, or another person who assists

that person, may not, in any other capacity, take any further part in

the proceeding before the Court.

Participation by telephone etc.

(6) The person conducting the mediation may allow a person to

participate by:

(a) telephone; or

(b) closed-circuit television; or

Division applies as if consultant were a member

(7) If:

(a) the mediator is the NNTT; and

(b) 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 NNTT.

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Part 1 A mend ments

10 Native Title Amendment Bill 2009 No. , 2009

94E Parties at confe rences

Requiring parties to attend conferences

(1) The person conducting the mediation may direct a party to attend

at a conference.

Limiting parties at conferences

(2) The person conducting the mediation may direct that only one or

some of the parties may attend, and be represented, at a conference.

Excluding parties from conferences

(3) If the person conducting the mediation 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 person may direct that the party or representative not attend at

that conference or at other conferences.

Parties may be represented

(4) A party may be represented by a barrister, a solicitor or another

person.

Mediation in good faith

(5) Each party, and each person representing a party, must act in good

faith in relation to the conduct of the mediation.

94F Othe r persons attending or participating in conferences

The person conducting the mediation 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.

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 11

94G Producing documents

The person conducting the mediation may, for the purposes of a

conference, direct a party to produce a document to the person on

or before a day specified in the direction, if the person considers

that:

(a) the document is in the possession, custody or control of the

party; and

(b) the production of the document may assist the parties to

reach agreement on any matters mentioned in subsection

86A(1) or (2).

94H Referral of questions of fact or law

Referral of questions to Federal Court

(1) Subject to subsections (2) and (3), if the person conducting the

mediation 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 a mediator refers to it.

Person conducting the mediation not a consultant

(2) If the person conducting the mediation 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 person; or

(b) at the request of a party.

Person conducting the mediation a consultant

(3) If the person conducting the mediation 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 person, if a presidential member

agrees; or

(b) at the request of a party.

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Part 1 A mend ments

12 Native Title Amendment Bill 2009 No. , 2009

Mediation may continue

(4) If a question of fact or law arising during mediation has been

referred to the Court under this section, the person conducting the

mediation may continue mediation if he or she considers that it is

appropriate.

94J Referral of questions about whether a party should be dismissed

Referral of questions to Federal Court

(1) Subject to subsections (3) and (4), if the person conducting the

mediation considers that a party to a proceeding does not have a

relevant interest in the proceeding, he or she may refer to the

Federal Court the question of whether the party should cease to be

a party to the proceeding.

(2) For the purposes of the determination by the Court of that question,

subsection 94D(4) does not apply to the extent that words spoken

or acts done at a conference under section 94D relate to that

question.

Person conducting the mediation not a consultant

(3) If the person conducting the mediation 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 person; or

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

Person conducting the mediation a consultant

(4) If the person conducting the mediation 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 person, if a presidential member

agrees; or

(b) at the request of a party, if both the person and a presidential

member agree.

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 13

Mediation may continue

(5) If a question has been referred to the Court under this section, the

person conducting the mediation may continue mediation if he or

she considers that it is appropriate.

Meaning of relevant interest

(6) In this section, a person has a relevant interest in a proceeding if

the person's interests may be affected by a determination in the

proceeding.

94K Conferences to be held in private

A conference must be held in private, unless the person conducting

the mediation directs otherwise and no party objects.

94L Pe rson conducting the mediation may prohibit disclosure of

information etc.

(1) The person conducting the mediation may direct that:

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

(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 other persons, as the person specifies.

Applications etc.

(2) The person conducting the mediation may make the direction on

his or her own initiative or on an application by a party.

Person conducting the mediation may disclose information etc. if

parties agree

(3) If the parties agree, the person conducting the mediation may,

despite the direction, disclose things of the kind mentioned in

paragraph (1)(a) or (b).

Offence

(4) A person commits an offence if:

Schedule 1 A mendments relating to med iation

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14 Native Title Amendment Bill 2009 No. , 2009

(a) the person discloses any material in contravention of a

direction made under subsection (1); and

(b) the disclosure is not permitted by subsection (3).

Penalty: 40 penalty units.

(5) Subsection (4) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

94M Person conducting the mediation etc. must not be required to

give evidence or produce docume nts to a court

(1) The person conducting the mediation, or another person who

assists that person, 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

under subsection 94L(1); or

(b) an application has been made for a direction under that

subsection concerning the matter to which the evidence

would relate and the person conducting the mediation has not

determined that application.

(2) The person conducting the mediation, or another person who

assists that person, must not be required to produce in a court a

document given in connection with a mediation if:

(a) the production of the document would be contrary to a

direction under subsection 94L(1); or

(b) an application has been made for a direction under that

subsection in relation to the document and the person

conducting the mediation has not determined that application.

(3) 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.

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 15

94N Report etc. to be given to Federal Court

Report after mediation concludes

(1) The person conducting the mediation 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 subsection 86E(1)

(2) The person conducting the mediation must provide a written report

to the Federal Court setting out the progress of the mediation if

requested to do so under subsection 86E(1).

Report or plan requested under subsection 86E(2)

(3) If one or more mediators have been requested under subsection

86E(2) to provide a regional mediation progress report or a

regional work plan, that mediator or those mediators must provide

the report or plan to the Federal Court.

Progress report

(4) The person conducting the mediation may provide a written report

to the Federal Court setting out the progress of the mediation if the

person considers that it would assist the Court in progressing the

proceeding in relation to which the mediation is being undertaken.

Report about failure to comply with a direction

(5) If a direction made under subsection 94E(1) or section 94G has not

been complied with, the person conducting the mediation may

provide a written report to the Federal Court setting out:

(a) the details of the direction; and

(b) the reasons for giving the direction.

Agreement on facts

(6) If the parties agree, a report provided under subsection (1), (2) or

(4) must include any agreement on facts between the parties that

was reached during the mediation concerned.

Schedule 1 A mendments relating to med iation

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16 Native Title Amendment Bill 2009 No. , 2009

94P Reports about breaches of the requirement to act in good faith

Reports to government

(1) If the person conducting the mediation considers that a party

mentioned in column 1 of the following table in relation to an item,

or a person representing such a party, did not act or is not acting in

good faith in relation to the conduct of the mediation, the person

may report that failure to the person mentioned in column 2 of the

table in relation to the item:

Reports about persons who do or did not act in good faith

Item If the party is or a person

represents ...

then, the person conducting the

mediation may report the failure

to act in g ood faith to ...

the Co mmonwealth

the Co mmonwealth Minister.

a State or Territory

the State Minister or the Territory

Minister for the State or Territory.

a party that is provided with

funds by the Attorney-General

under section 213A

the Attorney-General.

a representative body that is

provided with funds by the

Secretary of the Department

under section 203C

the Secretary of the Department.

a person or body performing

functions of a representative

body that is provided with funds

by the Secretary of the

Department under

section 203FE

the Secretary of the Department.

Reports to legal professional bodies

(2) If the person conducting the mediation considers that a legal

practitioner did not act or is not acting in good faith in relation to

the conduct of the mediation, the person may report that failure to

the relevant State or Territory legal professional body that issued

the legal practitioner with a practising certificate.

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 17

(3) For the purposes of a report made under subsection (2), subsection

94D(4) does not apply to the extent that words spoken or acts done

at a conference under section 94D relate to the failure mentioned

under subsection (2) of this section.

Reports to the Federal Court

(4) If the person conducting the mediation considers that a party, or the

party's representative, did not act or is not acting in good faith in

relation to the conduct of the mediation, the person may, despite

subsection 94D(4), report that failure to the Federal Court (whether

or not a report is also provided as mentioned in subsection (1) or

(2) of this section).

What a report must include

(5) A report must include:

(a) the details of the failure to act in good faith; and

(b) the context in which the conduct took place.

Copy of report to be provided to the person to whom it relates

(6) At the time that a report is provided as mentioned in subsection (1),

(2) or (4), a copy of the report must also be provided to the person

to whom it relates.

Person conducting the mediation not a consultant

(7) If the person conducting the mediation is not a consultant engaged

under subsection 131A(1), a report may only be provided under

this section on the initiative of the person.

Person conducting the mediation a consultant

(8) If the person conducting the mediation is a consultant engaged

under subsection 131A(1), a report may only be provided under

this section on the initiative of the person if a presidential member

agrees.

Mediation may continue

(9) If a report is provided under this section, the person conducting the

mediation may continue mediation if he or she considers that it is

appropriate.

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18 Native Title Amendment Bill 2009 No. , 2009

94Q Public reporting about breaches of the requirement to act in

good faith

Scope

(1) This section applies if the person conducting a mediation is a

member of the NNTT.

Annual report may include particulars of failure to act in good

faith etc.

(2) If the person considers that a Government party, or that party's

representative, did not act or is not acting in good faith in relation

to the conduct of the mediation, the report prepared under

section 133 may include particulars of that failure and the reasons

why the person considers that the conduct was not in good faith.

(3) If it is proposed to make an inclusion in the report, the person must

inform the Government party, or that party's representative, before

doing so.

94R Protection of person conducting the mediation

A person conducting the mediation has, in the performance of his

or her duties as a person conducting the mediation, the same

protection and immunity as a Justice of the High Court.

94S Regulations about mediation

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

which any mediation is provided under this Division.

(2) Such regulations must not be inconsistent with this Division.

36 Subsection 108(1A)

Omit "Division 4A or 4AA", substitute "Division 4 of Part 4 and

Division 4AA of this Part".

37 Paragraph 123(1)(ca)

Omit "are to", substitute "may".

38 Subsection 133(2A)

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 19

Omit "136GB", substitute "94Q".

39 Division 4A of Part 6

Repeal the Division.

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

Repeal the subsections, substitute:

Referral by the Federal Court on its own motion

(1) The Federal Court may, on its own motion, refer for review by the

Tribunal the issue of whether a native title claim group who is a

party in a proceeding holds native title rights and interests, as

defined in subsection 223(1), in relation to land or waters within

the area that is the subject of the proceeding.

Referral by the Federal Court on request

(2) The Federal Court may refer for review by the Tribunal the issue of

whether a native title claim group who is a party in a proceeding

holds native title rights and interests, as defined in subsection

223(1), in relation to land or waters within the area that is the

subject of the proceeding if:

(a) the issue arises in the course of mediation in relation to the

proceeding; and

(b) the person conducting the mediation requests the Court to

refer the issue for review by the Tribunal.

(3) The person conducting the mediation may only make the request if

the person considers, after consultation with the parties to the

proceeding, that a review of the issue would assist the parties to

reach agreement on any of the matters mentioned in subsection

86A(1).

41 Subsection 136GC(9)

Omit "presiding member", substitute "person conducting the

mediation".

42 Paragraph 136GE(1)(a)

Repeal the paragraph, substitute:

(a) the person conducting the mediation; and

Schedule 1 A mendments relating to med iation

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20 Native Title Amendment Bill 2009 No. , 2009

43 Subsection 136GE(3)

Omit "presiding member in the mediation", substitute "person

conducting the mediation".

44 Subsection 136H(2)

Omit "Division 4A, Division 4AA", substitute "Division 4 of Part 4,

Division 4AA of this Part".

45 Paragraph 138A(a)

Omit "to the Tribunal".

46 Subsection 138B(1)

Omit "President", substitute "Federal Court".

47 Paragraph 138B(1)(a)

Repeal the paragraph, substitute:

(a) on its own motion; or

48 Paragraph 138B(1)(c)

Repeal the paragraph, substitute:

49 Subsection 138B(2)

Omit "President", substitute "Court".

50 Paragraph 138B(2)(a)

Omit "he or she", substitute "the Court".

51 Subsection 138B(3)

Omit "to the Tribunal".

52 Subsection 138C(1)

Omit "President", substitute "Federal Court".

53 Subsection 138D(1)

Omit "directing that an inquiry be held, the President", substitute

"beginning the inquiry, the Tribunal".

Amend ments relating to mediation Schedule 1

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 21

54 Paragraph 138D(1)(c)

Repeal the paragraph.

55 Subsection 138E(1)

Omit "presiding member", substitute "person conducting the

mediation".

56 Subsection 138E(2)

Omit "subsection 136GC(1)", substitute "section 136GC".

57 Subsection 138E(2) (note)

Omit "Subsection 136GC(1) allows the President", substitute

"Section 136GC allows the Federal Court".

58 Subsection 176(1)

Omit "136F,".

59 Paragraph 181(2)(a)

Omit "or to a direction of the presiding member under subsection

136F(1)".

60 Paragraph 181(2)(b)

Omit ", or to the presiding member for a direction under section 136F,".

61 Paragraph 181(2)(b)

Omit "or the presiding member".

62 Paragraph 181(3)(a)

Omit "or to a direction of the presiding member under subsection

136F(1)".

63 Paragraph 181(3)(b)

Omit ", or to the presiding member for a direction under section 136F,".

64 Paragraph 181(3)(b)

Omit "or the presiding member".

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

Schedule 1 A mendments relating to med iation

Part 1 A mend ments

22 Native Title Amendment Bill 2009 No. , 2009

Insert:

(ia) the provisions of Division 4 of Part 4, other than

subsection 94H(1);

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

Omit "subsection 136D(1) and".

67 Section 253

Insert:

mediator means:

(a) in relation to an application--the person or body to which the

application has been referred under subsection 86B(1) for

mediation; or

(b) in relation to the whole or a part of a proceeding--the person

or body to which the whole or the part of the proceeding has

been referred under subsection 86B(5) for mediation.

68 Section 253

Insert:

person conducting the mediation means the person mentioned in

subsection 94D(2) who conducts a conference under section 94D

in relation to the mediation concerned.

Amend ments relating to mediation Schedule 1

Application provisions Part 2

Native Title Amendment Bill 2009 No. , 2009 23

Part 2

Application provisions

69 Application

subsection 86B(1) of the Native Title Act

Subsection 86B(1) of the Native Title Act 1993, as inserted by this

Schedule, applies in relation to an application under section 61 of that

Act made before or after the commencement of this item.

70 Application

subsection 86B(5C) and Division 4 of Part 4

of the Native Title Act

(1)

The following provisions of the Native Title Act 1993, as inserted by

this Schedule, apply in relation to a referral under subsection 86B(1) or

(5) of that Act made before or after the commencement of this item:

(a) subsection 86B(5C);

(b) any provision of Division 4 of Part 4.

(2)

If:

(a) a thing was done under, or for the purposes of, a provision of

Division 4A of Part 6 of the Native Title Act 1993 in relation

to a mediation; and

(b) the mediation has not been completed before commencement

of this item;

the thing has effect, after that commencement, as if it had been done

under, or for the purposes of, the corresponding provision of Division 4

of Part 4 of that Act.

71 Application

section 86C and subsections 136GC(2) and

138B(1) of the Native Title Act

The following provisions of the Native Title Act 1993, as inserted or

amended by this Schedule, apply in relation to a mediation that begins

before or after the commencement of this item:

(a) section 86C;

(b) subsection 136GC(2);

72 Referral for review under subsection 136GC(1) of the

Native Title Act

If:

Schedule 1 A mendments relating to med iation

Part 2 Application provisions

24 Native Title Amendment Bill 2009 No. , 2009

(a) an issue was referred for review under subsection 136GC(1)

of the Native Title Act 1993 as in force before the

commencement of this item; and

(b) the review has not been completed before that

commencement;

then, despite the repeal of that subsection by this Schedule, the referral

has effect, after that commencement, as if it were a referral under

subsection 136GC(2) of that Act as inserted by this Schedule.

73 Direction to hold an inquiry under subsection 138B(1) of

the Native Title Act

If:

(a) the Tribunal was directed to hold an inquiry under subsection

138B(1) of the Native Title Act 1993 as in force before the

commencement of this item; and

(b) the inquiry has not been completed before that

commencement;

then, despite the amendments of that subsection made by this Schedule,

the direction has effect, after that commencement, as if it were a

direction under subsection 138B(1) of that Act as amended by this

Schedule.

Powers of the Court Schedule 2

Native Title Amendment Bill 2009 No. , 2009 25

Schedule 2

Powers of the Court

Native Title Act 1993

1 Subsection 87(1)

Omit "If", substitute "This section applies if"

Note:

The heading to subsection 87(1) is replaced by the heading "Application".

2 Paragraph 87(1)(c)

Omit "Court; and", substitute "Court.".

3 Subsection 87(1)

Omit all the words after paragraph (c).

4 After subsection 87(1)(c)

Insert:

Power of Court

(1A) The Court may, if it appears to the Court to be appropriate to do so,

act in accordance with:

(a) whichever of subsection (2) or (3) is relevant in the particular

case; and

(b) if subsection (5) applies in the particular case--that

subsection.

5 At the end of section 87

Add:

Orders about matters other than native title

(4) Without limiting subsection (2) or (3), if the order under that

subsection does not involve the Court making a determination of

native title, the order may give effect to terms of the agreement that

involve matters other than native title.

(5) Without limiting subsection (2) or (3), if the order under that

subsection involves the Court making a determination of native

title, the Court may also make an order under this subsection that

Schedule 2 Po wers of the Court

26 Native Title Amendment Bill 2009 No. , 2009

gives effect to terms of the agreement that involve matters other

than native title.

(6) The jurisdiction conferred on the Court by this Act extends to:

(a) making an order under subsection (2) or (3) that gives effect

to terms of the agreement that involve matters other than

native title; and

(b) making an order under subsection (5).

(7) The regulations may specify the kinds of matters other than native

title that an order under subsection (2), (3) or (5) may give effect

to.

Agreed statement of facts

(8) If some or all of the parties to the proceeding have reached

agreement on a statement of facts, one of those parties may file a

copy of the statement with the Court.

(9) Within 7 days after a statement of facts agreed to by some of the

parties to the proceeding is filed, the Registrar of the Court must

give notice to the other parties to the proceeding that the statement

has been filed with the Court.

(10) In considering whether to make an order under subsection (2), (3)

or (5), the Court may accept a statement of facts that has been

agreed to by some or all of the parties to the proceedings but only

if those parties include:

(a) the applicant; and

(b) the party that the Court considers was the principal

government respondent in relation to the proceedings at the

time the agreement was reached.

(11) In considering whether to accept under subsection (10) a statement

of facts agreed to by some of the parties to the proceedings, the

Court must take into account any objections that are made by the

other parties to the proceedings within 21 days after the notice is

given under subsection (9).

6 Subsection 87A(4)

After "consistent with," (wherever occurring), insert "the terms of".

Note:

The heading to subsection 87A(4) is altered by omitting "Order" and substituting

"Orders".

Powers of the Court Schedule 2

Native Title Amendment Bill 2009 No. , 2009 27

7 Subsection 87A(5)

Repeal the subsection, substitute:

(5) Without limiting subsection (4), if the Court makes an order under

that subsection, the Court may also make an order under this

subsection that gives effect to terms of the agreement that involve

matters other than native title if the Court considers that:

(a) the order would be within its power; and

(b) it would be appropriate to do so.

(6) The jurisdiction conferred on the Court by this Act extends to

making an order under subsection (5).

(7) The regulations may specify the kinds of matters other than native

title that an order under subsection (5) may give effect to.

Objections

(8) In considering whether to make an order under subsection (4) or

(5), the Court must take into account any objections made by the

other parties to the proceedings.

Agreed statement of facts

(9) If some or all of the parties to the proceeding have reached

agreement on a statement of facts, one of those parties may file a

copy of the statement with the Court.

(10) Within 7 days after a statement of facts agreed to by some of the

parties to the proceeding is filed, the Registrar of the Court must

give notice to the other parties to the proceeding that the statement

has been filed with the Court.

(11) In considering whether to make an order under subsection (4) or

(5), the Court may accept a statement of facts that has been agreed

to by some or all of the parties to the proceedings but only if those

parties include:

(a) the applicant; and

(b) the party that the Court considers was the principal

government respondent in relation to the proceedings at the

time the agreement was reached.

Rules of evidence Schedule 3

Native Title Amendment Bill 2009 No. , 2009 29

Schedule 3

Rules of evidence

Native Title Act 1993

1 Before section 215

Insert:

214 Application of ame nded rules of evidence in proceedings before

the Federal Court

Scope

(1) This section applies to a proceeding before the Federal Court that

relates to a matter arising under this Act if:

(a) the hearing of the proceeding began before the

commencement of Schedule 1 to the Evidence Amendment

Act 2008; and

(b) evidence has been adduced or admitted in relation to the

proceeding.

Application of amendments

(2) Despite item 95 of that Schedule, the amendments of the Evidence

Act 1995 made by that Schedule apply in relation to the proceeding

if:

(a) the parties to the proceeding consent to the amendments

applying in relation to the proceeding; or

(b) the Court orders, after taking into account the views of the

parties to the proceedings, that it is in the interests of justice

that the amendments apply in relation to the proceedings.

Schedule 4 Assistance in relation to inquiries etc.

30 Native Title Amendment Bill 2009 No. , 2009

Schedule 4

Assistance in relation to

inquiries etc.

Native Title Act 1993

1 Section 183

Repeal the section.

2 After section 213

Insert:

213A 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:

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

agreement; or

(e) resolving the dispute.

(3) A person who is, or intends to become, a grantee party in relation

to a future act to which Subdivision P of Division 3 of Part 2

applies may apply to the Attorney-General for the provision of

assistance under this section in relation to:

Assistance in relation to inquiries etc. Schedule 4

Native Title Amendment Bill 2009 No. , 2009 31

(a) the development of a standard form of agreement to facilitate

negotiation in good faith as mentioned in paragraph 31(1)(b);

(b) the development of a standard form of agreement which, if

agreed by a grantee party in relation to a future act to which

the Subdivision applies, would make it more likely that the

Government party doing the act would consider it an act

attracting the expedited procedure; or

mentioned in paragraph (a) or (b), with a view to improving

the standard form.

Note:

Subdivision P of Division 3 of Part 2 deals with the right to negotiate.

Attorney-General may grant assistance

(4) 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)

made under subsection (5); and

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 make guidelines

(5) The Attorney-General may, in writing, make guidelines that are to

be applied in authorising the provision of assistance under this

section.

Assistance not to be provided to Ministers

(6) The Attorney-General cannot authorise the provision of assistance

under this section to the Commonwealth Minister, a State Minister

or a Territory Minister.

Schedule 4 Assistance in relation to inquiries etc.

32 Native Title Amendment Bill 2009 No. , 2009

Assistance not to be provided to native title claimants etc.

(7) 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

subsection 44B(1), if the person is included in the native title

claim group concerned.

Delegation by Attorney-General

(8) The Attorney-General may, in writing, delegate any or all of his or

her powers under subsection (4) to:

(a) the Secretary of the Department; or

(b) a person engaged under the Public Service Act 1999 who

occupies a specified position in the Department.

3 Transitional and saving provisions relating to section 183

of the Native Title Act

(1)

An application made under subsection 183(1) of the Native Title Act

1993 but not determined before the commencement of this item is taken

to have been made under subsection 213A(1) of that Act as inserted by

this Schedule.

(2)

An application made under subsection 183(2) of the Native Title Act

1993 but not determined before the commencement of this item is taken

to have been made under subsection 213A(2) of that Act as inserted by

this Schedule.

(3)

An application made under subsection 183(2A) of the Native Title Act

1993 but not determined before the commencement of this item is taken

to have been made under subsection 213A(3) of that Act as inserted by

this Schedule.

(4)

If:

Assistance in relation to inquiries etc. Schedule 4

Native Title Amendment Bill 2009 No. , 2009 33

(a) the provision of assistance was authorised under subsection

183(3) of that Act before the commencement of this item;

and

(b) the assistance has not been provided before that

commencement;

then, despite the repeal of that subsection by this Schedule, the

authorisation has effect, after that commencement, as if it were an

authorisation under subsection 213A(4) of that Act as inserted by this

Schedule.

(5)

Guidelines determined under subsection 183(4) of that Act that were in

force immediately before the commencement of this item continue to

have effect after that commencement as if they were guidelines made

under subsection 213A(5) of that Act as inserted by this Schedule.

(6)

A delegation in force under subsection 183(7) of that Act immediately

before the commencement of this item continues to have effect after

that commencement as if it were a delegation under subsection 213A(8)

of that Act as inserted by this Schedule.

Schedule 5 A mendments relating to representative bodies

Part 1 Removal of transitional arrangements

34 Native Title Amendment Bill 2009 No. , 2009

Schedule 5

Amendments relating to

representative bodies

Part 1

Removal of transitional arrangements

Native Title Act 1993

1 Section 201A (definition of transitional commencing day)

Repeal the definition.

2 Section 201A (definition of transitionally affected area)

Repeal the definition.

3 Section 201A (definition of transition period)

Repeal the definition.

4 Section 201C

Repeal the section.

5 Subsection 203A(1)

Omit "Subject to section 203AA, the", substitute "The".

6 Section 203AA

Repeal the section.

7 Subsection 203AB(1)

Omit "Subject to subsection (3), an", substitute "An".

8 Subsection 203AB(3)

Repeal the subsection.

9 Subsection 203AC(1A)

Repeal the subsection, substitute:

(1A) The Commonwealth Minister must determine applications under

section 203AB as soon as practicable after whichever of the

following periods ends last:

Amend ments relating to representative bodies Schedule 5

Removal o f transitional arrangements Part 1

Native Title Amendment Bill 2009 No. , 2009 35

(a) the period specified under subsection 203A(3);

(b) if a further period applies under subsection 203AB(2) in

relation to one or more of those applications--the last such

further period;

of those applications, given to a body a notice under

subsection (1) of this section requiring the body to give

further information within a specified period--the last such

period.

10 Subsection 203AD(1)

Omit "Subject to subsection (1A), the", substitute "The".

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

Repeal the subsections, substitute:

Period of recognition

(2) The recognition of the body as a representative body:

(a) takes effect on the day specified in the instrument of

recognition; and

(b) ceases to have effect at the end of the day specified in that

instrument unless the body's recognition is earlier withdrawn

under section 203AH.

12 Saving provision

recognition under subsection

203AD(1A) of the Native Title Act 1993

(1)

This item applies if:

(a) an eligible body was recognised under subsection

203AD(1A) of the Native Title Act 1993 before the

commencement of this item; and

(b) the recognition is in effect immediately before that

commencement.

(2)

Despite the amendments made by this Part, the recognition continues to

have effect after the commencement of this item as if those amendments

had not been made.

Schedule 5 A mendments relating to representative bodies

Part 2 Recognition of representative bodies

36 Native Title Amendment Bill 2009 No. , 2009

Part 2

Recognition of representative bodies

Native Title Act 1993

13 Paragraph 201B(1)(b)

Omit "at the commencement of this section".

14 Subsection 203A(1)

After "Minister may", insert ", in writing".

15 Paragraph 203A(1)(a)

Omit ", in the way determined in writing by the Commonwealth

Minister,".

16 Paragraph 203A(1)(b)

Omit ", in writing,".

17 After subsection 203A(1)

Insert:

Invitations may specify an area for which there is a representative

body

(1A) The invitation may specify an area for which there is a

representative body.

Note:

An eligible body must not be recognised as the representative body for

an area with effect from a particular day if the recognition of a body as

the representative body for all or part of the area will be in effect on

that day: see subsection 203AD(4).

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

Repeal the subsections, substitute:

Invitations to specify information that must be included in

applications

(4) The invitation must specify the information that must be included

in the application or applications that are given to the

Commonwealth Minister.

Amend ments relating to representative bodies Schedule 5

Recognition of representative bodies Part 2

Native Title Amendment Bill 2009 No. , 2009 37

Invitations to contain statement about revocation of invitations

(5) The invitation must contain a statement setting out the effect of

section 203AA (which deals with the revocation of invitations).

Invitations to contain statement about notification requirement

(6) If the invitation is made under paragraph (1)(b), the invitation must

contain a statement setting out the effect of section 203AAA

(which requires an eligible body to notify the Commonwealth

Minister if it decides not to apply for recognition etc.).

Invitations may be general

(7) For the purposes of paragraph (1)(a), the Commonwealth Minister

may arrange for the publication of general invitations and need not

make a separate invitation to each eligible body.

19 After section 203A

Insert:

203AA Revocation of invitations

(1) The Commonwealth Minister may, in writing, revoke an invitation

made under subsection 203A(1) if:

(a) the Commonwealth Minister considers it appropriate to do

so; and

(b) the period that applies under subsection 203AB(2) has not

expired.

(2) If:

(a) an eligible body, to whom the invitation was made, has made

an application under section 203AB; and

(b) at the time of revocation, the application has not been

determined;

then the application is taken never to have been made.

(3) If the invitation was made under paragraph 203A(1)(a), the

Commonwealth Minister may arrange for the publication of the

revocation and need not give a separate document to each eligible

body to whom the invitation was made.

Schedule 5 A mendments relating to representative bodies

Part 2 Recognition of representative bodies

38 Native Title Amendment Bill 2009 No. , 2009

203AAA Eligible body must notify the Commonwealth Minister if it

decides not to apply for recognition etc.

Scope

(1) This section applies if an eligible body is invited under paragraph

203A(1)(b) to apply for recognition.

Notification of decision not to apply for recognition

(2) If the eligible body decides not to apply for recognition, the

eligible body must, in writing, notify the Commonwealth Minister

of that decision before the end of the period specified in the

invitation under subsection 203A(3).

Deemed notification

(3) If the eligible body does not:

(a) give a notification under subsection (2); or

(b) make an application before the end of the period that applies

under subsection 203AB(2);

the eligible body is taken to have given a notification under

subsection (2) of this section at the end of that period.

20 Subsection 203AB(1)

Omit ", in the form approved by the Commonwealth Minister,".

21 Subsection 203AD(1)

After "an area", insert "or areas".

22 Subsection 203AD(1)

After "the area", insert "or areas".

23 Paragraph 203AD(2)(b)

Before "ceases", insert "subject to subsection (3),".

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

Repeal the subsections, substitute:

(3) If an area for which a body is recognised as the representative body

is varied under subsection 203AE(1) so as to reduce the area to

Amend ments relating to representative bodies Schedule 5

Recognition of representative bodies Part 2

Native Title Amendment Bill 2009 No. , 2009 39

zero, the recognition of the body ceases immediately after the

variation takes effect.

(3A) The period of recognition specified in the instrument of recognition

must be at least 1 year but not more than 6 years.

(3B) In deciding the period of recognition to specify in the instrument of

recognition, the Commonwealth Minister must consider the

following:

(a) whether the body is under external administration;

(b) whether a person is currently appointed, under a condition

imposed by the Secretary in compliance with paragraph

203CA(1)(e), to deal with funds provided under Division 4 of

this Part to the body;

Commonwealth Minister, promote the efficient performance

of the functions mentioned in subsection 203B(1).

(3C) In deciding the period of recognition to specify in the instrument of

recognition, the Commonwealth Minister may consider any

information in the possession of the Minister or the Department

that is relevant to that decision.

(3D) Subsections (3B) and (3C) do not limit any other matters that the

Minister may take into account in deciding the period of

recognition.

25 Subsection 203AD(5)

After "an area", insert "or areas".

26 Sections 203AE, 203AF and 203AG

Repeal the sections, substitute:

203AE Commonwealth Minister may vary an area for which a body

is the representative body

(1) Subject to this section, the Commonwealth Minister may, by

legislative instrument, vary an area for which a body is the

representative body if the Commonwealth Minister is satisfied that,

after the variation, the body will satisfactorily perform its functions

in relation to the varied area.

Schedule 5 A mendments relating to representative bodies

Part 2 Recognition of representative bodies

40 Native Title Amendment Bill 2009 No. , 2009

Variation to add the whole or a part of another area

(2) The Commonwealth Minister must not vary an area (the original

area) under subsection (1) to add the whole or a part of another

area (the additional area) unless the boundary of the original area

adjoins the boundary of the additional area.

Reduction of area

(3) Without limiting subsection (1), the Commonwealth Minister may

vary an area under that subsection so as to reduce the area,

including reduce the area to zero.

(4) In deciding whether to vary an area so as to reduce it to zero, the

Commonwealth Minister need not be satisfied of the matter

mentioned in subsection (1).

Variation on application or on the Commonwealth Minister's own

initiative

(5) The Commonwealth Minister may vary an area under

subsection (1) for which a body is the representative body:

(a) on application, in writing, by the body; or

(b) subject to section 203AF, on the Commonwealth Minister's

own initiative.

(6) If an application is made under paragraph (5)(a) in relation to an

area, the Commonwealth Minister may vary the area as the

Commonwealth Minister considers appropriate.

Consideration of reports etc.

(7) In deciding whether to vary 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 193X of the Aboriginal and Torres

Strait Islander Act 2005 in relation to funding provided to the

body under section 203C or 203FE of this Act;

the Commonwealth Minister under section 203F in relation

to the body;

Amend ments relating to representative bodies Schedule 5

Recognition of representative bodies Part 2

Native Title Amendment Bill 2009 No. , 2009 41

(d) any information in the possession of the Minister or

Department that is relevant to the variation.

(8) Subsection (7) does not limit any other matters that the

Commonwealth Minister may take into account in deciding

whether to vary the area.

Consideration of submissions

(9) In deciding whether to vary the area, the Commonwealth Minister

must consider any submissions made by a body or person within

the period mentioned in subsection 203AF(6).

When the variation takes effect

(10) The variation of the area takes effect on:

(a) the day on which the instrument varying the area is made; or

(b) if a later day is specified in that instrument--that day.

203AF Notification requirements for the variation of an area on the

Commonwealth Minister's own initiative

Notification requirements

(1) Subject to subsection (7), the Commonwealth Minister must not

vary an area under subsection 203AE(1) on his or her own

initiative unless the Minister complies with subsection (2) of this

section.

(2) The Commonwealth Minister must:

(a) notify, in writing, each of the following that the variation of

the area (the initial area) is being considered:

(i) the body that is the representative body for the initial

area;

(ii) if there is a representative body for another area (the

other area) that has a boundary that the Commonwealth

Minister proposes to vary as result of varying the initial

area--that body;

(iii) the Aboriginal peoples or Torres Strait Islanders who

live in the initial area and, if subparagraph (ii) applies,

who live in the other area; and

Schedule 5 A mendments relating to representative bodies

Part 2 Recognition of representative bodies

42 Native Title Amendment Bill 2009 No. , 2009

(b) arrange for the publication in a newspaper (if any) circulating

generally in the initial area of a notice that states that the

variation is being considered; and

circulate generally in the other area--arrange for the

publication of the notice mentioned in paragraph (b) in a

newspaper (if any) circulating generally in the other area.

(3) For the purposes of subparagraph (2)(a)(iii), the Commonwealth

Minister may arrange for the publication of a general notification

and need not give a separate notification to the persons mentioned

in that subparagraph.

Content of notice

(4) The notice to a body mentioned in subparagraph (2)(a)(i) or (ii)

must:

(a) identify the proposed variation; and

(b) state the reasons why the Minister is considering varying the

initial area; and

Commonwealth Minister, within the period specified in the

notice, about whether the initial area should be varied.

(5) The notice to a person mentioned in subparagraph (2)(a)(iii) must

state that the person may make submissions to the Commonwealth

Minister, within the period specified in the notice, about whether

the initial area should be varied.

(6) The period specified in the notice under paragraph (4)(c) or

subsection (5) must not begin before the day on which the notice is

given to the body or person concerned and must be a period of at

least 60 days.

Exception to notification requirements

(7) The Commonwealth Minister need not comply with subsection (2)

in relation to the variation of the other area if:

(a) the variation is to be made as a result of the variation of the

initial area; and

Amend ments relating to representative bodies Schedule 5

Recognition of representative bodies Part 2

Native Title Amendment Bill 2009 No. , 2009 43

(b) notification under that subsection of the variation of the

initial area has been previously given to the representative

body for the other area.

203AG Notice of decision on variation

(1) As soon as practicable after deciding whether to vary an area under

subsection 203AE(1), the Commonwealth Minister must:

(a) notify, in writing, each of the following of the decision and

the reasons for the decision:

(i) the body that is the representative body for the area;

(ii) the Aboriginal peoples or Torres Strait Islanders who

live in the area to which the decision relates; and

(b) arrange for the publication in a newspaper (if any) circulating

generally in the area of a notice setting out the decision and

the reasons for the decision.

(2) For the purposes of subparagraph (1)(a)(ii), the Commonwealth

Minister may arrange for the publication of a general notification

and need not give a separate notification to the persons mentioned

in that subparagraph.

27 Subsection 203AH(1)

Omit all the words after paragraph (b).

28 After subsection 203AH(1)

Insert:

(1A) A request under paragraph (1)(b) must be accompanied by a signed

statement that the request has been authorised by the members of

the body in accordance with the body's processes.

29 Subsection 203AH(3)

Omit "At least 60 days before deciding to withdraw the recognition

under subsection (2), the Commonwealth Minister must notify",

substitute "The Commonwealth Minister must not decide to withdraw

the recognition under subsection (2) unless the Minister notifies".

30 Paragraph 203AH(3)(b)

Omit "invite the body to", substitute "state that the body may".

Schedule 5 A mendments relat ing to representative bodies

Part 2 Recognition of representative bodies

44 Native Title Amendment Bill 2009 No. , 2009

31 Subsection 203AH(3)

Omit "at least 60 days", substitute "at least 30 days".

32 After subsection 203AH(3)

Insert:

(3A) The Commonwealth Minister may, in writing, extend the period

specified in the notice under subsection (3) if:

(a) the body applies, in writing, for an extension; and

(b) the application is made before that period ends.

33 At the end of subsection 203AH(4)

Add:

; (d) any information in the possession of the Minister or

Department that is relevant to the matter mentioned in

paragraph (2)(a) or (b) of this section.

34 Subsection 203AH(6)

Omit all the words after "made by", substitute:

the body:

(a) within the period specified in the notice under subsection (3);

(b) if that period has been extended under subsection (3A)--

within the extended period.

35 Subsection 203AI(1)

Omit all the words after "Minister's opinion,", substitute "the body will

comply with, or is complying with, section 203BA (which deals with

how functions of representative bodies are to be performed)."

Note:

The heading to subsection 203AI(1) is deleted.

36 Subsection 203AI(2)

Repeal the subsection.

Note:

The heading to subsection 203AI(3) is deleted.

37 Paragraph 203BA(2)(c)

Repeal the paragraph, substitute:

Amend ments relating to representative bodies Schedule 5

Recognition of representative bodies Part 2

Native Title Amendment Bill 2009 No. , 2009 45

manner, having particular regard to:

(i) the opportunities for the Aboriginal peoples or Torres

Strait Islanders for whom it might act to participate in

its processes; and

(ii) the extent to which its processes involve consultation

with those Aboriginal peoples or Torres Strait Islanders;

and

(iii) its procedures for making decisions and for reviewing

its decisions; and

(iv) its rules or requirements relating to the conduct of its

executive officers; and

(v) the nature of its management structures and

management processes; and

(vi) 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.

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

After "the area", insert ", or the part of an area,".

39 Application

sections 203AE, 203AF and 203AG of the

Native Title Act

(1)

Despite the repeal of section 203AE of the Native Title Act 1993 by this

Part, that section (as in force immediately before the commencement of

this item) continues to apply, in relation to the following, as if the repeal

had not happened:

(a) an application made under that section but not determined

before that commencement;

(b) a notice of a proposed extension given under that section if a

decision has not been made about the proposed extension

before that commencement.

(2)

Despite the repeal of section 203AF of that Act by this Part, that section

(as in force immediately before the commencement of this item)

continues to apply, in relation to the following, as if the repeal had not

happened:

(a) an application made under that section but not determined

before that commencement;

Schedule 5 A mendments relating to representative bodies

Part 2 Recognition of representative bodies

46 Native Title Amendment Bill 2009 No. , 2009

(b) a notice of a proposed variation given under that section if a

decision has not been made about the proposed variation

before that commencement.

(3)

Despite the repeal of section 203AG of that Act by this Part, that section

(as in force immediately before the commencement of this item)

continues to apply, in relation to a notice of a proposed reduction given

under that section if a decision has not been made about the proposed

reduction before that commencement, as if the repeal had not happened.

Other amend ments Schedule 6

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 47

Schedule 6

Other amendments

Part 1

Amendments

Native Title Act 1993

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

Repeal the paragraphs, substitute :

(a) in a case where an amount is to be secured by bank guarantee

in favour of the Registrar in compliance with a condition of a

determination made under section 36A or 38 or a declaration

made under section 42:

(i) the Registrar is informed by the Government party as

mentioned in item 2 of the table in subsection 52(2) that

it no longer proposes to do the act; and

(ii) the Government party does the act without again

complying with the requirements of this Subdivision; or

(b) in a case where a trustee is holding an amount in trust under

this Subdivision in respect of the act until it is dealt with in

accordance with section 52A:

(i) the trustee is informed by the Government party as

mentioned in paragraph 52A(1)(b) that it no longer

proposes to do the act; and

(ii) the Government party does the act without again

complying with the requirements of this Subdivision.

2 After subsection 36C(5A)

Insert:

Trust condition

(5B) If a condition to be complied with is that an amount is to be paid

and held in trust until it is dealt with in accordance with

section 52A:

(a) the arbitral body must determine the amount; and

Schedule 6 Other amendments

Part 1 A mend ments

48 Native Title Amendment Bill 2009 No. , 2009

(b) the amount, when paid, must be held in trust in accordance

with the regulations until it is dealt with in accordance with

section 52A.

Note:

The NNTT cannot determine compensation (see Division 5 of this

Part and Division 1 of Part 3). However, if the arbitral body is not the

NNTT, it may be able to do so.

3 At the end of section 41

Add:

Trust condition

(5) If, in the case of a determination by the arbitral body, a condition

to be complied with is that an amount is to be paid and held in trust

until it is dealt with in accordance with section 52A:

(a) the arbitral body must determine the amount; and

(b) the amount, when paid, must be held in trust in accordance

with the regulations until it is dealt with in accordance with

section 52A.

Note:

The NNTT cannot determine compensation (see Division 5 of this

Part and Division 1 of Part 3). However, if the arbitral body is not the

NNTT, it may be able to do so.

4 After subsection 42(5A)

Insert:

Trust condition

(5B) If a condition to be complied with is that an amount is to be paid

and held in trust until it is dealt with in accordance with

section 52A:

(a) the arbitral body concerned must determine the amount; and

(b) the amount, when paid, must be held in trust in accordance

with the regulations until it is dealt with in accordance with

section 52A.

Note:

The NNTT cannot determine compensation (see Division 5 of this

Part and Division 1 of Part 3). However, if the arbitral body is not the

NNTT, it may be able to do so.

5 Paragraph 43(2)(j)

Repeal the paragraph, substitute:

Other amend ments Schedule 6

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 49

(j) make appropriate provision for compensation for the act,

including provision for:

(i) bank guarantees on similar terms to those in subsections

36C(5), 41(3) and 42(5), and regulations made for the

purposes of subsections 36C(5A), 41(4) and 42(5A); or

(ii) for trusts on similar terms to those in subsections

36C(5B), 41(5) and 42(5B); and

6 Subsection 52(2) (paragraph (a) in column 3 of table item 5)

Omit "the amount secured (the original amount)", substitute "an

amount equal to the amount determined".

7 Subsection 52(2) (paragraph (b) in column 3 of table item 5)

Omit "an amount equal to the amount determined", substitute "that

amount".

8 Subsection 52(2) (paragraph (c) in column 3 of table item 5)

Repeal the paragraph, substitute:

9 After section 52

Insert:

52A Payme nt held in trust unde r right to negotiate procedures

When section applies

(1) This section applies if an amount (the trust amount) in respect of

an act is being held in trust in accordance with paragraph

36C(5B)(b), subsection 41(5) or paragraph 42(5B)(b) and any of

the following happens:

(a) an approved determination of native title is made to the effect

that there is no native title in relation to the area concerned

immediately before the act takes place;

(b) the Government party informs the trustee in writing that it is

not going to do the act;

(i) an approved determination of native title is made to the

effect that the native title parties concerned are

(disregarding any holding of the native title in trust

Schedule 6 Other amendments

Part 1 A mend ments

50 Native Title Amendment Bill 2009 No. , 2009

under Division 6) the native title holders in relation to

the area affected by the act;

(ii) the registered native title body corporate advises the

trustee that it wishes to accept the trust amount instead

of any compensation to which the native title holders

may be entitled under Division 3 for the act;

(iii) the person who paid the trust amount advises the trustee

that the person agrees to the registered native title body

corporate accepting the trust amount instead of any

compensation to which the native title holders may be

entitled under Division 3 for the act;

(d) a determination is made, on a claim for compensation in

respect of the act:

(i) in accordance with this Division; or

(ii) on just terms under a compulsory acquisition law;

that a person is entitled to compensation, or that no

compensation is payable to any person;

(e) none of paragraphs (a), (b), (c) and (d) applies and the

Federal Court decides, on application by any person, that it

would be just and equitable in all the circumstances to pay

the trust amount to that person or another person.

Paragraph (1)(a) or (b) case

(2) In a paragraph (1)(a) or (b) case, the trustee must:

(a) repay the trust amount to the person who paid it to the

trustee; or

(b) if that person no longer exists--apply to the Federal Court

for a direction as to the payment of the trust amount.

Paragraph (1)(c) case

(3) In a paragraph (1)(c) case:

(a) the trustee must pay the trust amount to the body corporate;

and

(b) subject to section 53, there is no entitlement to compensation

under Division 3 for the act.

Other amend ments Schedule 6

Amend ments Part 1

Native Title Amendment Bill 2009 No. , 2009 51

Paragraph (1)(d) case where monetary compensation

(4) In a paragraph (1)(d) case where the determination is that a person

is entitled to an amount of monetary compensation:

(a) if the trust amount is the same as the amount determined--

the trustee must pay the trust amount to the person; or

(b) if the trust amount is less than the amount determined--the

trustee must pay the trust amount to the person and the

Government party must pay the shortfall to the person; or

trustee must:

(i) pay the person so much of the trust amount as equals the

amount determined; and

(ii) refund the excess to the person who paid the trust

amount to the trustee or, if that person no longer exists,

apply to the Federal Court for a direction as to its

payment.

Paragraph (1)(d) case where non-monetary compensation

(5) In a paragraph (1)(d) case where the transfer of property or the

provision of goods or services constitutes some or all of the

compensation, the trustee must apply to the Federal Court for a

direction as to the payment of the trust amount.

Paragraph (1)(d) case where no compensation

(6) In a paragraph (1)(d) case where the determination is that no

compensation is payable or to be given to any person, the trustee

must repay the trust amount to the person who paid it to the trustee

or, if that person no longer exists, apply to the Federal Court for a

direction as to its payment.

Paragraph (1)(e) case

(7) In a paragraph (1)(e) case, the trustee must pay the trust amount in

accordance with the decision of the Federal Court mentioned in

that paragraph.

10 Section 55

After "time as", insert ", or as soon as practicable after,".

Schedule 6 Other amendments

Part 1 A mend ments

52 Native Title Amendment Bill 2009 No. , 2009

11 Section 55

Omit "the determinations in", substitute "such determinations as are

required by".

12 Section 55

Omit "or 57", substitute "and 57".

13 Paragraph 66C(1)(c)

Omit "in relation to the applicant", substitute "for each future act

identified in the future act notice referred to in that paragraph".

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

Omit "Maximum Penalty", substitute "Penalty".

15 Section 173 (penalty)

Omit "Maximum Penalty", substitute "Penalty".

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

Omit "Maximum Penalty", substitute "Penalty".

17 Section 177 (penalty)

Omit "Maximum Penalty", substitute "Penalty".

Other amend ments Schedule 6

Application etc. provisions Part 2

Native Title Amendment Bill 2009 No. , 2009 53

Part 2

Application etc. provisions

18 Application of amendment

The amendment made by item 5 of this Schedule applies in relation to:

(a) the making of a determination under paragraph 43(1)(b) of

the Native Title Act 1993 after the commencement of this

item; and

(b) the revocation after the commencement of this item of such a

determination whether made before or after that

commencement.

19 Validation etc. of pre-commencement determinations

(1)

A determination made under paragraph 43(1)(b) of the Native Title Act

1993 before the commencement of this item is as valid, and is taken

always to have been as valid, as it would have been if paragraph

43(2)(j) of that Act, as inserted by this Schedule, had been in force at

the time the determination was made.

(2)

For the purposes of subsection 43(3) of that Act, paragraph 43(2)(j) of

that Act, as inserted by this Schedule, is taken:

(a) to have been in force when the determination was made; and

(b) to have remained in force until the commencement of this

item.

Commonwealth of Australia Bills

NATIVE TITLE AMENDMENT BILL 2009