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2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIVE TITLE AMENDMENT (TECHNICAL AMENDMENTS) BILL 2007
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)
Abbreviations used in the Supplementary Explanatory Memorandum
1998 Act Native Title Amendment Act 1998
2007 Act Native Title Amendment Act 2007
2007 transitional provisions Items 89 and 90 of Schedule 2 of the
Native Title Amendment Act 2007
Bill Native Title Amendment (Technical
Amendments) Bill 2007
CATSI Act Corporations (Aboriginal and Torres
Strait Islander) Act 2006
CATSI Consequential Act Corporations (Aboriginal and Torres
Strait Islander) Consequential,
Transitional and Other Measures Act
2006
Committee Senate Standing Committee on Legal
and Constitutional Affairs
Commonwealth Authorities and Commonwealth Authorities and
Companies Act Companies Act 1997
Court Federal Court of Australia
ILUA Indigenous Land Use Agreement
Mining Act Mining Act 1971 (SA)
Native Title Act Native Title Act 1993
NNTT National Native Title Tribunal
PBC Prescribed Body Corporate
Registrar Native Title Registrar
Representative body Representative Aboriginal/Torres Strait
Islander body
RNTBC Registered native title body corporate
AMENDMENTS TO THE NATIVE TITLE AMENDMENT (TECHNICAL
AMENDMENTS) BILL 2007
Outline
The purpose of these amendments to the Native Title Amendment (Technical
Amendments) Bill 2007 (the Bill) is to respond to the report of the Senate Standing
Committee on Legal and Constitutional Affairs (the Committee) following its inquiry
into the Bill, to rectify or clarify the drafting of a number of provisions in the Bill, and
to make further minor amendments to the Native Title Act 1993 (Native Title Act).
The amendments to Schedule 1 of the Bill would:
· prevent simultaneous review of registration decisions by the Federal Court of
Australia (Court) and the National Native Title Tribunal (NNTT)
(implementing Recommendation 2 of the Committee's report)
· provide the reconsideration of registration decisions should be conducted by
a member of the NNTT, rather than the Native Title Registrar (Registrar)
(implementing Recommendation 3 of the Committee's report)
· address gaps in section 94C, which requires the Court to dismiss applications
made in response to future act notices in certain circumstances
(implementing part of Recommendation 5 of the Committee's report)
· clarify the scope of amendments to address defective authorisation of
applications
· rectify a drafting error in amendments that remove the requirement for
amended claims to undergo the registration test again in certain
circumstances
· correct an oversight in the bank guarantee provisions
· amend the powers of the Registrar to ensure the Registrar is properly
authorised to carry out the new functions conferred by the Bill
· amend the provisions relating to the Register of Indigenous Land Use
Agreements (ILUAs) to provide that the contact details for parties to an
ILUA may be updated on the Register, and
· make other technical corrections to rectify drafting errors (implementing the
remainder of Recommendation 5 of the Committee's report).
The amendments to Schedule 2 of the Bill would add an explanatory note to
provisions dealing with the application of the Commonwealth Authorities and
Companies Act 1997 (Commonwealth Authorities and Companies Act) to
representative Aboriginal/Torres Strait Islander bodies (representative bodies).
The amendments to Schedule 3 of the Bill would:
· ensure only the Court can determine prescribed bodies corporate (PBCs)
(consistent with part of Additional Recommendation 2 of the Committee's
Minority Report, and with discussion in the Majority Report)
· put beyond doubt that regulations can specify the bodies corporate or kinds
of bodies corporate that may be determined as PBCs
· make it clear that the Registrar of Aboriginal and Torres Strait Islander
Corporations is intended to retain a general discretion not to give an opinion
on fees charged by PBCs
· rectify oversights in provisions requiring the National Native Title Register
to be updated when a PBC replaces another PBC or changes its functions
· rectify an error in the definition of registered native title body corporate
(RNTBC), and ensure that the definition covers replacement PBCs and PBCs
that change their functions, and
· ensure existing regulations are not affected by changes to the PBC
provisions.
The amendments would also insert Schedule 5 into the Bill which would rectify a
drafting oversight in the transitional and application provisions of the Native Title
Amendment Act 2007 (2007 Act) relating to the dismissal of unregistered claims.
Financial impact statement
There is no direct financial impact on Government revenue from this Bill.
NOTES ON AMENDMENTS
Commencement provisions
Amendment 1
4.1 Amendment 1 is consequential to Amendments 10 and 13, and would amend the
table in Clause 2 of the Bill which sets out when various parts of the Bill commence.
4.2 Amendment 13 would insert items 91A to 91E. These amendments would rectify
a drafting error in section 94C of the Native Title Act (implementing
Recommendation 5 of the Committee's report). Section 94C provides the Court must,
in certain circumstances, dismiss applications made in response to a future act notice.
However, due to a drafting oversight, existing section 94C does not cover all
applications made in response to future act notices.
4.3 Most of the amendments in Schedule 1 of the Bill commence on proclamation to
ensure all parties are aware of, and take into account, the relevant changes to
processes made by the Bill. However, the amendment to section 94C merely rectifies
a drafting oversight in the provision in the Native Title Act to ensure it operates as
was intended. It is appropriate that this provision commence as soon as practicable.
Table item 4B would provide that the amendments to section 94C commence on the
day after Royal Assent.
4.4 Amendment 10 would insert items 83A, 83B and 83C as a consequence of the
changes made by Amendment 13. It is therefore appropriate that table item 3 provide
items 83A, 83B and 83C commence at the same time as items 91A to 91E.
4.5 The remainder of the items in the table in Amendment 1 reflect the existing
commencement provisions in items 2 to 4 of the table in Clause 2 of the Bill.
Amendment 2
4.6 Amendment 2 would provide for proposed new item 10A of Schedule 3
(proposed to be inserted by Amendment 38) to commence immediately after the
commencement of Schedule 1 of the Corporations (Aboriginal and Torres Strait
Islander) Consequential, Transitional and Other Measures Act 2006 (CATSI
Consequential Act). This is further explained under Amendment 38. The remainder
of Amendment 2 would re-enact existing commencement provisions for certain items
in Schedule 3.
Amendment 3
4.7 Amendment 3 is consequential to Amendment 40, and would insert a new item
into the table setting out the commencement information for the Bill. The new item
relates to the commencement of proposed Schedule 5, which would be inserted by
Amendment 40. Schedule 5 would rectify a drafting oversight in the 2007 Act. The
2007 Act changed the provisions relating to registration of claims. It was intended all
claims made or amended following commencement of the 2007 Act would be
captured by the new provisions and that the transitional provisions in the 2007 Act
would reapply the registration test to all claims that are currently unregistered.
However, some claims were not captured. Schedule 5 would provide that these
claims must be considered or reconsidered for registration and that the provisions in
force immediately before this Bill commences apply. This will ensure all claims are
treated comparably under the amended provisions.
4.8 New item 12 in the table would provide that proposed Schedule 5 commences at
the same time as the provisions in item 2 of the table. Item 2 of the table provides
that Schedule 1 of the Bill, which contains technical amendments to the Native Title
Act, commences on a day to be fixed by proclamation. If at the end of six months
after Royal Assent these provisions have not been proclaimed to commence, they will
come into effect the following day.
Amendments to Schedule 1
Amendment 4
4.9 Amendment 4 would omit item 22 of Schedule 1 of the Bill and substitute items
22 and 22A as a consequence of amendments made by Amendment 22.
4.10 Existing item 22 would amend subparagraph 24CL(2)(b)(ii) as a consequence of
the provisions in the Bill that provide for a new mechanism for review of registration
decisions and renumber the sections of the Native Title Act relating to the review of
registration decisions by the Court.
4.11 The Bill currently provides for native title claimants to apply to the Registrar to
reconsider his or her decision not to accept the claim for registration. Amendment 22
would amend the Bill to provide that the NNTT, rather than the Registrar, must
perform this reconsideration function. This implements Recommendation 3 of the
Committee's report on the Bill.
4.12 Amendment 4 would amend item 22 to retain the reference to review of
registration decisions by the Court under section 190F but remove the reference to
reconsideration of registration decisions by the Registrar.
4.13 Item 22A would insert proposed subparagraph 24CL(2)(b)(iia) which would
reflect the fact that a claim may be accepted for registration as a result of
reconsideration of the initial registration decision by the NNTT.
Amendment 5
4.14 Amendment 5 would omit item 31 of Schedule 1 of the Bill and insert items 31
and 31A as a consequence of amendments made by Amendment 22.
4.15 Existing item 31 would amend paragraph 24FE(b)(ii) as a consequence of the
provisions in the Bill that provide for a new mechanism for review of registration
decisions and renumber the sections of the Native Title Act relating to the review of
registration decisions by the Court.
4.16 The Bill currently provides for native title claimants to apply to the Registrar to
reconsider his or her decision not to accept the claim for registration. Amendment 22
would amend the Bill to provide that the NNTT, rather than the Registrar, must
perform this reconsideration function. This implements Recommendation 3 of the
Committee's report on the Bill.
4.17 Amendment 5 would amend item 31 to retain the reference to review of
registration decisions by the Court under section 190F but remove the reference to
reconsideration of registration decisions by the Registrar.
4.18 Item 31A would insert proposed subparagraph 24FE(b)(iia) which would reflect
the fact that a claim may be accepted for registration as a result of reconsideration of
the initial registration decision by the NNTT.
Amendment 6
4.19 Amendment 6 would repeal and replace column 3 of table item 5 in item 69 of
Schedule 1 of the Bill. Proposed subsection 52(2) provides that if a condition to be
complied with under a determination made under section 36A or section 38 or a
declaration made under section 42 is that an amount is to be secured by bank
guarantee given by an authorised deposit-taking institution in favour of the Registrar,
the Registrar would need to take specific action when certain circumstances occur.
The circumstances and required actions are set out in the table under proposed
subsection 52(2).
4.20 Table item 5 sets out the circumstance when a compensation determination is
made and the amount secured by bank guarantee is more than the amount of
compensation determined. The provision in column 3 of table item 5 requires the
Registrar to direct the authorised deposit-taking institution to pay the amount secured
to the Registrar, pay an amount equal to the amount determined to the ultimate
beneficiary, and pay the remainder to the person who secured the amount by bank
guarantee.
4.21 The provision in table item 5 currently does not cover the situation where the
person who secured the amount by bank guarantee no longer exists. Amendment 6
would oblige the Registrar to apply to the Court for a direction as to the payment of
the remainder, where the person who secured the amount no longer exists.
Amendment 7
4.22 Amendment 7 would repeal and replace column 3 of table item 8 in item 69 of
Schedule 1 of the Bill. Proposed subsection 52(2) provides that if a condition to be
complied with under a determination made under section 36A or section 38 or a
declaration made under section 42 is that an amount is to be secured by bank
guarantee given by an authorised deposit-taking institution in favour of the Registrar,
the Registrar would need to take specific action when certain circumstances occur.
The circumstances and required actions are set out in the table under proposed
subsection 52(2).
4.23 Table item 8 sets out the circumstance when the Registrar makes an application
to the Court under subsection 52(3). Subsection 52(3) requires the Registrar to apply
to the Court for a direction as to the payment of the amount secured by bank
guarantee when some or all of the compensation amount is constituted by the transfer
of property or the provision of goods or services. The provision in column 3 of table
item 8 provides that if the Court orders that an amount be paid to the person (the
ultimate beneficiary), the Registrar must direct the authorised deposit-taking
institution to pay the amount secured to the Registrar. The Registrar would then pay
an amount equal to the amount the Court orders to be paid. If the amount the Court
orders is less than the amount secured, the Registrar must pay any remainder to the
person who secured the amount by bank guarantee.
4.24 The provision in table item 8 currently does not cover the situation where the
person who secured the amount by bank guarantee no longer exists. Amendment 7
would oblige the Registrar to follow the direction of the Court as to the payment of
the remainder (if any), where the person who secured the amount no longer exists.
Under proposed subsection 52(3), the Court may make an order as to the payment of
the secured amount including any amount remaining after payment to the ultimate
beneficiary.
Amendment 8
4.25 Amendment 8 would amend proposed subsection 52(4) in item 69 of the Bill as
a consequence of Amendments 6 and 7. Amendments 6 and 7 would provide that the
Registrar must apply to the Federal Court for a direction as to the payment of a
secured amount in certain situations. Amended subsection 52(4) would provide that
the Court has jurisdiction in relation to these matters.
Amendment 9
4.26 Amendment 9 would amend item 78 of Schedule 1 of the Bill as a consequence
of amendments made by Amendment 22.
4.27 Item 78 would omit and substitute paragraph 64(3)(b) as a consequence of the
provisions in the Bill that provide for a new mechanism for review of registration
decisions. The Bill currently provides for native title claimants to apply to the
Registrar to reconsider his or her decision not to accept the claim for registration.
Amendment 22 would amend the Bill to provide that the NNTT, rather than the
Registrar, must perform the reconsideration function. Amendment 9 would amend
paragraph 64(3)(b) to refer to reconsideration by the NNTT rather than
reconsideration by the Registrar.
Amendment 10
4.28 Amendment 10 would insert items 83A, 83B and 83C as a consequence of
amendments to section 94C in Amendment 13.
4.29 Amendment 13 would insert Item 91A, which would, in turn, repeal subsection
94C(1)(d). Item 91A would also provide that the criteria currently contained in
paragraph 94C(1)(d) be included in proposed paragraph 94C(1)(c). Items 83B and
83C make amendments to provisions referring to paragraph 94C(1)(d).
4.30 Item 83B would repeal paragraph 66C(1)(d) of the Native Title Act, as that
paragraph solely refers to paragraph 94C(1)(d). Paragraph 66C(1)(c) already refers to
paragraph 94C(1)(c), which will contain the criteria previously in
paragraph 94C(1)(d). Accordingly, it is not necessary for that section to be amended
to refer to that provision.
4.31 Item 83A makes an amendment to paragraph 66C(1)(c) to remove the word
`and' as a consequence of the repeal of paragraph 66C(1)(d).
4.32 Item 83C would amend paragraph 66C(2)(b) to replace its reference to
paragraph 94C(1)(d) with a reference to paragraph 94C(1)(c).
Amendment 11
4.33 Amendment 11 would amend item 88 of Schedule 1 of the Bill to correct a
drafting error and would partially implement Recommendation 5 of the Committee's
report on the Bill. Item 88 would insert proposed section 84D, which would enable
the Court to make various orders where there are defects in the authorisation of a
claim.
4.34 Subsection 84D(2) would enable the Court to make an order, on its own motion
or on application of certain persons, requiring a person who made an application
under section 61 to produce evidence to the Court that he or she was authorised to
make the application or deal with matters arising in relation to the application.
Proposed paragraph 84D(2)(b) inadvertently omits the words `on the application of' at
the start of the paragraph. Amendment 11 would insert these words at the beginning
of paragraph 84D(2)(b).
Amendment 12
4.35 Amendment 12 would amend item 88 of Schedule 1 of the Bill. Item 88 inserts
proposed subsection 84D(4), which would make clear that the Court may, in certain
circumstances, hear and determine an application, despite a defect in the authorisation
of the claim, if subsection 84D(3) applies. Subsection 84D(3) sets out the types of
defects in authorisation to which this provision would apply.
4.36 It was intended that paragraph 84D(3)(a) would deal with circumstances in
which there was a defect in the process that authorised the making of the claim.
Paragraph 84D(3)(b) was intended to deal with circumstances in which the claim was
properly authorised at the time it was made but the applicant was (at some time
subsequent to the making of the application), or is no longer, properly authorised.
4.37 However, proposed paragraph 84D(3)(b) does not make clear that the person in
question must have been someone who was, at some point during proceedings,
properly authorised to be the applicant.
4.38 Amendment 12 would clarify the scope of paragraph 84D(3)(b) by providing
that the Court may hear and determine an application, provided the other requirements
are satisfied, if a person has dealt with, or deals with, a matter arising in relation to an
application in circumstances where the person was not authorised to do so.
4.39 Amendment 12 would also insert a note following subsection 84D(3) noting that
section 251B states what it means to be authorised to make an application and deal
with matters arising in relation to the application.
Amendment 13
4.40 Amendment 13 would insert new items 91A to 91E. Items 91A to 91E would
give effect to Recommendation 5 of the Committee by rectifying a drafting error in
section 94C of the Native Title Act, which was inserted by the 2007 Act. Section 94C
provides the Court must, in certain circumstances, dismiss applications made in
response to a future act notice. Section 94C sets out the circumstances in which an
application will be deemed to be made in response to a future act notice. It was
intended this provision would apply to applications made in response to future act
notices given under section 29 of the Native Title Act, and also equivalent notices
given under the provisions of alternative State and Territory laws.
4.41 The provisions in section 94C effectively deem a claim to be made in response
to a future act notice if the claim is made within three months of the `notification day'
specified in the notice and the claim is registered within four months of the
notification day. This reflects the criteria which a person must satisfy in order to be a
`native title party' for the purpose of negotiations under Subdivision P of Division 3
of Part 2 (see paragraph 30(1)(a)), while excluding persons who are native title parties
because they had an application over the relevant area prior to the future act notice
and persons who hold native title.
4.42 However, future act notices given under section 29 as it was in force prior to
commencement of the Native Title Amendment Act 1998 (1998 Act) did not specify a
notification day. Prior to the 1998 Act, a person was a native title party for the
purposes of future act negotiations if the claim was registered within two months of
the date of the notice given under section 29.
4.43 Similarly, notices equivalent to section 29 given under alternative provisions of
a State or Territory law may not include a `notification day'. For example, while the
Mining Act 1971 (SA) (the Mining Act), which is a recognised section 43 scheme,
includes provision for giving notice to potential claimants and gives registered native
title claimants a right to object to future acts, the terms of the South Australian
provisions are different to those used in the Native Title Act. The Mining Act
provides that persons with a registered native title claim within two months of a future
act notice being given will be a native title party for the purposes of negotiations.
Notices given under the Mining Act are not required to include a notification day.
Item 91A
4.44 Item 91A would repeal and substitute paragraphs 94C(1)(b) and (c) and repeal
paragraph 94C(1)(d).
4.45 Existing subsection 94C(1) requires the Court to dismiss a claim if the criteria in
paragraphs 94C(1)(a) to (e) are met. Existing paragraphs 94C(1)(b) and (c) set out the
circumstances in which a claim will be deemed to be made in response to a future act
notice. Existing paragraph 94C(1)(d) provides that before the Court can consider
dismissing the claim, there must be a decision, agreement or determination about
whether or not each act in the relevant future act notice that prompted the filing of the
claim in question can be done. Paragraph 94C(1)(d) refers to existing provisions in
the Native Title Act that have the effect of authorising a future act to be done or
determining that a future act cannot be done.
4.46 The specific criteria in paragraphs 94C(1)(b), (c) and (d) would be replaced by
proposed paragraphs 94C(1)(b) and (c). Proposed paragraph 94C(1)(b) would
provide that it must be apparent from the timing of the application that it is in
response to the relevant future act notice. Proposed paragraph 94C(1)(c) would
provide that the future act requirements must be satisfied in relation to each future act
identified in the future act notice. Although set out differently, the criteria in
paragraph 94C(1)(c) will reflect that previously contained in paragraph 94C(1)(d).
Item 91B
4.47 Item 91B would insert subsections 94C(1A) to (1G).
4.48 Proposed subsections 94C(1A), (1B) and (1C) set out in detail when, for the
purposes of paragraph 94C(1)(b), it will be apparent from the timing of the
application that is it is responding to the relevant future act notice. Similarly,
proposed subsections 94C(1D), (1E), (1F) and (1G) set out in detail when, for the
purposes of paragraph 94C(1)(c), the future act requirements will be satisfied in
relation to each future act identified in a future act notice.
4.49 Proposed subsection 94C(1A) deals with applications made in response to a
future act notice to which the provisions of Subdivision P of Division 3 of Part 2 of
the Native Title Act apply. The term `future act to which the current law applies' is
defined in proposed subsection 94C(6) (see item 91C). Proposed subsection 94C(1A)
sets out the requirements currently set out in paragraphs 94C(1)(b) to (c) of the Native
Title Act.
4.50 Proposed subsection 94C(1B) deals with claims made in response to a future act
notice to which the provisions of the Native Title Act prior to the commencement of
the 1998 Act apply. The term `future act to which the pre-1998 law applies' is
defined in proposed subsection 94C(6) (see item 91D). Subsection 94C(1B) would
provide that a claim will be deemed to be made in response to a future act notice
given prior to the commencement of the 1998 Act if the future act notice was given in
relation to land or waters wholly or partly within the area covered by the application
and the person becomes a registered native title claimant in relation to the claim
within two months from the date the notice was given. This reflects the criteria which
a person was required to satisfy to be a native title party under the pre-1998 law (see
paragraph 30(a) of the Native Title Act, as it was in force prior to the 1998 Act),
while excluding persons who were native title parties because they had an application
over the relevant area prior to the future act notice and persons who hold native title.
4.51 Proposed subsection 94C(1C) would provide for regulations to be made
prescribing, for the purpose of paragraph 94C(1)(b), other circumstances in which it is
taken to be apparent from the timing of an application that it was made in response to
a future act notice. The provision specifically provides that regulations may be made
in relation to the alternative provisions of a State or Territory. It is likely the
provisions of each alternative State or Territory regime established under section 43
will vary, including the content of future act notices, the time in which persons must
become a registered native title claimant to be a native title party for the purposes of
negotiations, and the provisions which authorise a future act to be done or determine
that a future act cannot be done. The regulation-making power in subsection 94C(1C)
would enable regulations to be made specifically prescribing the relevant provisions
of alternative provisions.
4.52 Proposed subsection 94C(1D) deals with the circumstances in which the future
act requirements will be satisfied in relation to a future act notice to which the current
law applies. Paragraphs 94C(1D)(a) to (g) replicate existing subparagraphs
94C(1)(d)(i) to (vii) of the Native Title Act. Paragraph 94C(1D)(h) would enable
regulations to prescribe any other circumstances in which the future act requirements
will be taken to have been satisfied.
4.53 Proposed subsection 94C(1E) deals with the circumstances in which the future
act requirements will be satisfied in relation to a future act notice to which the
pre-1998 law applies. Proposed subsection 94C(1E) sets out the provisions in the
Native Title Act, as it was in force prior to commencement of the 1998 Act, that had
the effect of authorising a future act to be done or determining that a future act could
not be done. These requirements are similar to the requirements set out in proposed
subsection 94C(1D).
4.54 Similar to proposed subsection 94C(1C), proposed subsection 94C(1F) would
provide for regulations to be made prescribing, for the purpose of
paragraphs 94C(1D)(h) and 94C(1E)(g), other circumstances in which the future act
requirements are taken to be satisfied.
4.55 Proposed subsection 94C(1G) would provide for regulations to be made
prescribing circumstances in which the future act requirements will be satisfied in
relation to a future act notice given under alternative provisions. Prescribing these
circumstances by regulation will give flexibility to specify each of the relevant
provisions of alternative provisions that authorises the doing of a future act or
determines that a future act may not be done.
Item 91C
4.56 Item 91C would insert a definition of `future act notice to which the current law
applies' into subsection 94C(6) of the Native Title Act. This definition is relevant for
the purposes of proposed subsections 94C(1A) and (1D).
4.57 A `future act notice to which the current law applies' is defined as a future act
notice to which the provisions in Subdivision P of Division 3 of Part 2 of the Native
Title Act apply. Subdivision P was inserted into the Native Title Act by the 1998 Act.
The term `future act notice' is defined in existing subsection 94C(6) to include a
notice given under section 29 of the Native Title Act and a notice of a future act given
under alternative provisions of a State or Territory. The provisions of Subdivision P
only apply to future act notices given under section 29 of the Native Title Act after
the commencement of the 1998 Act.
Item 91D
4.58 Item 91D would insert a definition of `future act notice to which the pre-1998
law applies' into subsection 94C(6) of the Native Title Act. This definition is relevant
for the purposes of proposed subsections 94C(1B) and (1E).
4.59 A `future act notice to which the pre-1998 law applies' is defined as a future act
notice to which the provisions in Subdivision B of Division 3 of Part 2 of the Native
Title Act, as it was in force immediately before commencement of the 1998 Act
(including as it applies in accordance with Schedule 5 of the 1998 Act) apply.
4.60 Prior to the commencement of the 1998 Act, Subdivision B set out the
provisions dealing with future act notices and the right to negotiate. The term `future
act notice' is defined in existing subsection 94C(6) to include a notice given under
section 29 of the Native Title Act and a notice of a future act given under alternative
provisions of a State or Territory. The provisions of Subdivision B will only apply to
future act notices given under section 29 of the Native Title Act prior to the
commencement of the 1998 Act. Schedule 5 of the 1998 Act sets out the transitional
and application provisions for the amendments made by the 1998 Act.
Item 91E
4.61 Item 91E would insert a definition of `pre-1998 law' into subsection 94C(6).
This definition is relevant for the purposes of proposed subsections 94C(1B) and (1E)
and the definition of `future act notice to which the pre-1998 law applies' which
would be inserted into subsection 94C(6) by item 91D. `Pre-1998 law' is defined to
mean the Native Title Act, as in force immediately before the commencement of the
1998 Act, including as the 1998 Act applies in accordance with Schedule 5 of that
Act. Schedule 5 of the 1998 Act set out the transitional and application provisions for
the amendments made by the 1998 Act.
Amendment 14
4.62 Amendment 14 would insert item 91F, which would in turn insert proposed
section 96A into Part 5 of the Native Title Act. Part 5 of the Act sets out the powers
and functions of the Registrar. The Registrar has the powers given to him or her
under Part 5, which includes, for example, powers set out in Part 3 in relation to
applications and powers set out in Parts 7, 8 and 8A in relation to the various registers
maintained by the Registrar.
4.63 Amendments made to Part 2 of the Native Title Act by the Bill would give the
Registrar additional powers and functions. For example, items 6, 17 and 26 of
Schedule 1 of the Bill would amend Part 2 to provide the Registrar may assist parties
in preparing applications to have an ILUA registered.
4.64 Part 5 of the Act does not specifically give the Registrar powers in relation to
Part 2 of the Native Title Act. Proposed section 96A would provide the Registrar has
the powers set out in Part 2. This provision is intended to avoid any doubt about
whether the Registrar has the powers given to him under Part 2 of the Native Title
Act.
Amendment 15
4.65 Amendment 15 would insert item 91G, which would in turn insert proposed
subsection 108(1AA). Section 108 sets out the functions of the NNTT. This
amendment is consequential to the changes made by Amendment 22. Amendment 22
would provide that where a claim is not accepted for registration, the applicant may
seek to have the NNTT reconsider the decision not to accept the claim for registration.
Proposed subsection 108(1AA) would ensure the NNTT is able to perform this
function.
Amendment 16
4.66 Amendment 16 would insert item 91H as a consequence of Amendment 22.
Item 91H would insert proposed paragraph 123(1)(cb).
4.67 Section 123 of the Native Title Act enables the President of the NNTT to give
directions about the arrangement of business of the NNTT. The Bill currently
provides for the Registrar to reconsider a decision not to accept a claim for
registration. Amendment 22 would require the reconsideration function to be
performed by a single member of the NNTT, rather than the Registrar.
4.68 Proposed paragraph 123(1)(cb) would enable the President to make directions
about the person who is to constitute the NNTT for the purposes of reconsidering a
decision of the Registrar not to accept a claim for registration.
Amendment 17
4.69 Amendment 17 would insert item 96A as a consequence of Amendment 22.
Item 96A would amend subparagraph 186(1)(g)(i) of the Native Title Act.
4.70 The Bill currently provides for native title claimants to apply to the Registrar to
reconsider his or her decision not to accept the claim for registration. Amendment 22
would amend the Bill to require the reconsideration function to be performed by a
single member of the NNTT, rather than the Registrar.
4.71 Section 186 sets out the requirements for the Registrar to include certain
information on the Register of Native Title Claims when a claim is accepted for
registration. Existing paragraph 186(1)(g) provides the Registrar must describe the
native title rights and interests in the claim the Registrar considered could be
established when applying subsection 190B(6). Item 96A would amend
paragraph 186(1)(g) to also refer to the native title rights and interests in the claim the
NNTT considered could be established.
Amendment 18
4.72 Amendment 18 would substitute item 97 of Schedule 1 of the Bill as a
consequence of amendments made by Amendment 22.
4.73 Existing item 97 would amend paragraph 190A(1)(a) as a consequence of the
provisions in the Bill that provide for a new mechanism for review of registration
decisions and renumber the sections of the Native Title Act relating to the review of
registration decisions by the Court.
4.74 The Bill currently provides for native title claimants to apply to the Registrar to
reconsider his or her decision not to accept the claim for registration. Amendment 22
would amend the Bill to provide that the NNTT, rather than the Registrar, must
perform this reconsideration function. This implements Recommendation 3 of the
Committee's report on the Bill.
4.75 Section 190 sets out the requirement for the Registrar to include details of
claims that are accepted for registration on the Register of Native Title Claims.
Amendment 18 would amend paragraph 190(1)(a) to make clear that the Registrar
must include details of claims accepted for registration by the Registrar in response to
notification by the NNTT under section 190E.
Amendment 19
4.76 Amendment 19 would substitute item 99 of Schedule 1 of the Bill as a
consequence of amendments made by Amendment 22.
4.77 Existing item 99 would amend paragraph 190A(3)(b) as a consequence of the
provisions in the Bill that provide for a new mechanism for review of registration
decisions.
4.78 The Bill currently provides for native title claimants to apply to the Registrar to
reconsider his or her decision not to accept the claim for registration. Amendment 22
would amend the Bill to provide that the NNTT, rather than the Registrar, must
perform this reconsideration function. This implements Recommendation 3 of the
Committee's report on the Bill.
4.79 Paragraph 190(3)(b) sets out the requirements for the Registrar to remove details
of amended claims from the Register of Native Title Claims if the amended claim is
not accepted for registration. Amendment 19 would amend paragraph 190(3)(b) to
make clear that the Registrar must remove details of claims not accepted for
registration by the Registrar in response to notification by the NNTT under section
190E.
Amendment 20
4.80 Amendment 20 would correct a drafting error in paragraph 190A(6A)(d) in
item 102. Item 102 would insert proposed subsection 190A(6A). This subsection
would remove the requirement for amended claims to undergo the registration test
again in specified circumstances. This is designed to encourage native title claimants
to amend their claims to improve their clarity and quality, with a view to making
those claims more easily understood and hence more amenable to resolution.
4.81 As drafted, the registration test would not be applied to an amended application
if one of the listed types of changes was made, but the Registrar would be required to
re-apply the registration test if two or more changes were made to the application.
4.82 The intention of paragraph 190A(6A)(d) was to encourage claimants to amend
their application to ensure it remains accurate. It was always intended that any of the
types of amendments listed could be made without the Registrar having to reapply the
registration test. This amendment would ensure the provision operates as intended.
Amendment 21
4.83 Amendment 21 would substitute section 190D of item 107. Section 190E of the
Bill currently provides for native title claimants to apply to the Registrar to reconsider
his or her decision not to accept the claim for registration. Amendment 22 would
provide that the reconsideration of registration decisions should be conducted by the
NNTT, rather than the Registrar, and would make other consequential amendments.
Amendment 21 would amend proposed section 190D as a consequence of
Amendment 22. These amendments implement a recommendation of the Committee
(Recommendation 3).
4.84 Section 190D currently provides that where the Registrar does not accept a
claim for registration, the Registrar must given written notice of his or her decision to
the Court and the applicant. The notice must include a statement of the Registrar's
reasons. Amendment 21 would amend section 190D to provide that where the
Registrar does not accept the claim for registration because the NNTT notifies the
Registrar that he or she should not do so, the notice must include the statement of the
NNTT's reasons for its decision. In all other circumstances, the Registrar will
continue to be required to provide a statement of his or her reasons for the decision
not to accept the claim for registration.
4.85 The substance of proposed subsections 190D(2) and (3) replicates the provisions
currently in the Bill.
Amendment 22
4.86 Amendment 22 would substitute section 190E of item 107. Section 190E of the
Bill currently provides for the Registrar to reconsider registration decisions.
Amendment 22 would amend section 190E to provide that this function must be
performed by the NNTT.
4.87 Proposed subsection 190E(1) would provide that where the applicant is given a
notice under subsection 190D(1) then, subject to proposed subsections 190E(3) and
(4), the applicant may apply to the NNTT to reconsider the claim for registration.
4.88 Proposed subsection 190E(2) sets out the requirements for the application for
reconsideration.
4.89 Proposed subsection 190E(3) would provide the applicant may not apply to the
NNTT for reconsideration if the applicant has already applied for review of the
registration decision by the Court, under subsection 190F(1).
4.90 Proposed subsection 190E(4) would provide the applicant may only apply to the
NNTT for reconsideration of the claim once.
4.91 Proposed subsection 190E(5) would provide that for the purpose of
reconsidering registration decisions, the NNTT must be constituted by a single
member.
4.92 Proposed subsection 190E(6) would provide that a member who reconsiders a
registration decision may not take any further part in proceedings related to the claim,
unless the parties to the proceeding otherwise agree. This provision would prevent a
member from performing other functions under the Native Title Act, including
presiding over mediation conferences, or conducting connection reviews or native
title application inquiries in relation to the proceedings, unless the consent of all
parties to the proceedings is obtained. This provision is similar to the restrictions
placed on members who preside over mediation conferences (subsection 136A(5)),
members who conduct a connection review (subsection 136GC(8)) and members who
conduct or assist at a native title application inquiry (subsection 138C(2)) and is
intended to avoid any perception of bias on the part of the member who conducts the
reconsideration.
4.93 Proposed subsection 190E(7) would require the NNTT to have regard to any
information the Registrar was required to have regard to under subsection 190A(3) to
(5) in the initial consideration of the claim for registration. This provision will ensure
that even if the Registrar did not have regard to all the information he or she was
required to under section 190A, the NNTT will consider this information in
reconsidering the claim. Subsection 190E(7) also provides the NNTT may have
regard to any other information the NNTT regards as appropriate.
4.94 Proposed subsection 190E(8) would provide that the member reconsidering a
claim must use his or her best endeavours to finish reconsidering the claim within
certain time periods if, either before the member begins considering the claim or
while the member is considering the claim, certain future act notices are given over
some or all of the claim area. This is consistent with the timeframes imposed on the
Registrar when he or she first considers the claim for registration (see subsection
190A(2) as amended by item 101 of the Bill). Proposed subsection 190E(9) would
provide that in all other circumstances, the NNTT must finish reconsidering the claim
as soon as is practicable. This is consistent with the requirements on the Registrar
when he or she first considers a claim for registration (see subsection 190A(2A) as
inserted by item 101 of Schedule 1 of the Bill).
4.95 Proposed subsection 190E(10) would provide that if the NNTT is satisfied the
claim satisfies all of the conditions in section 190B (conditions about merit) and
section 190C (conditions about procedure), the NNTT must notify the Registrar that
the Registrar should accept the claim for registration. Proposed subsection 190E(13)
provides that the Registrar must comply with this notice.
4.96 Proposed subsection 190E(11) would provide that if the NNTT is not satisfied
the claim satisfies all of the conditions in section 190B (conditions about merit) and
section 190C (conditions about procedure), the NNTT must notify the Registrar that
the Registrar should not accept the claim for registration. Proposed
subsection 190E(13) provides that the Registrar must comply with this notice. The
notice must include a statement of the NNTT's reasons for the decision. The
statement of reasons must include a statement about whether, in the opinion of the
member who reconsiders the claim, the claim satisfies all of the conditions about
merit in section 190B and if it is not possible to determine whether the claim satisfies
all of the conditions about merit in section 190B because the claim fails to satisfy the
conditions about procedure in section 190C. Statements of reasons given by the
Registrar when he or she first considers a claim must include these statements (see
subsections 190D(2) and (3)).
Amendment 23
4.97 Amendment 23 would amend subsection 190F(1) of item 107 of Schedule 1 of
the Bill. Subsection 190F(1) would provide that if the Registrar gives a notice under
subsection 190D(1) that a claim has not been accepted for registration, either on
initial consideration by the Registrar or on reconsideration by the NNTT, the
applicant may apply to the Court for review of the decision not to accept the claim.
4.98 As drafted, it would be possible for an applicant to seek review by the Court of a
registration decision at the same time the decision is being reconsidered by the
NNTT. Amendment 23 would provide that an application for review of the
registration decision by the Court could only be made if the NNTT is not already
reconsidering the claim under section 190E. This amendment does not prevent an
applicant from seeking both reconsideration by the NNTT and review by the Court,
but rather prevents simultaneous review of the registration decision. This amendment
implements a recommendation of the Committee (Recommendation 2).
Amendment 24
4.99 Amendment 24 would amend proposed paragraph 190F(5)(a) as a consequence
of the amendments made by Amendment 22.
4.100 The Bill currently provides for the Registrar to reconsider a decision not to
accept a claim for registration. Amendment 22 would require the reconsideration
function to be performed by a single member of the NNTT, rather than the Registrar.
4.101 Paragraph 190F(5)(a) currently provides that subsection 190F(6) will apply if,
among other things, the Registrar does not accept the claim for registration because,
in the opinion of the Registrar, either the claim does not satisfy all of the conditions
about merit in section 190B (subparagraph 190F(5)(a)(i)), or it is not possible to
determine whether the conditions about merit have been satisfied because the claim
fails to meet the conditions about procedure in section 190C (subparagraph
190F(5)(a)(ii)). However, where a claim is reconsidered for registration, the Registrar
may not accept the claim for registration because, in the opinion of the NNTT, the
criteria in subparagraphs 190F(5)(a)(i) and (ii) are not satisfied.
4.102 Amendment 24 would amend proposed paragraph 190F(5)(a) to refer to the
opinion of the Registrar or, if the claim is reconsidered under section 190E, of the
member of the NNTT reconsidering the claim.
Amendment 25
4.103 Amendment 25 would insert proposed subsection 199B(4). Section 199B
provides for the Registrar to include certain information on the Register of ILUAs.
The Registrar must include on the Register of ILUAs details of an ILUA accepted for
registration, including the name of each party to the agreement and the party's contact
details (paragraph 199B(1)(b)).
4.104 There is no provision for the Registrar to change details of an agreement that is
on the Register of ILUAs. Proposed subsection 199B(4) would enable the Registrar
to update the Register to reflect a change in a party's contact address, where the party
notifies the Registrar of the change.
4.105 Amendment 25 would assist in ensuring that if a member of the public
searches the Register of ILUAs, he or she receives accurate contact details.
Amendment 26
4.106 Amendment 26 would make a technical correction to item 123 and would
partially implement Recommendation 5 of the Committee's report. Item 123 sets out
the application provisions for amendments relating to application of the registration
test and the new avenue of review of registration decisions reconsideration by the
NNTT.
4.107 Currently item 123 indicates these amendments apply in relation to claims
made under section 63 or amended claims made under subsection 64(4) made on or
after the commencing day. The effect of this provision is that claims made before the
commencing day, but amended after the commencing day, would not gain the benefit
of the amendments made in the items listed in item 123.
4.108 Item 123 also incorrectly refers to claims made under section 63 or
subsection 64(4) of the Native Title Act. Claims are made pursuant to section 61.
Section 63 and subsection 64(4) require the Registrar of the Federal Court to provide
copies of new or amended applications to the Registrar.
4.109 Amendment 26 would rectify these errors in item 123 by providing that the
items listed in item 123 apply to a native title determination application made or
amended on or after the commencing day. This amendment would ensure all claims
amended after commencement of the Bill will gain the benefit of the provisions in the
Bill, including the new mechanism for reviewing registration decisions and the
change to the requirement for the Registrar to apply the registration test to all
amended claims.
4.110 Amendment 26 would also amend item 123 to apply the item to additional
items. The items currently listed in item 123 make amendments in relation to
sections 190A to 190D. Amendments 4, 5, 15, 16 and 17 insert items 22A, 31A, 91G,
91H and 96A. These items would make amendments in relation to sections 190A to
190D as a consequence of Amendment 22. Amendment 26 would amend item 123 to
include these item numbers.
Amendment 27
4.111 Amendment 27 would insert item 132A as a consequence of Amendments 10
and 13.
4.112 Amendment 13 would insert items 91A to 91E. These amendments would
rectify a drafting error in section 94C of the Native Title Act (implementing
Recommendation 5 of the Committee's report). Section 94C provides the Court must,
in certain circumstances, dismiss applications made in response to a future act notice.
However, due to a drafting oversight, existing section 94C does not cover all
applications made in response to future act notices.
4.113 Amendment 10 would insert items 83A, 83B and 83C as a consequence of the
changes made by Amendment 13. Items 83A, 83B and 83C would amend
section 66C of the Native Title Act.
4.114 Sections 66C and 94C of the Native Title Act were inserted by the 2007 Act.
The application provisions in the 2007 Act provided that sections 66C and 94C
applied to applications made under section 61, regardless of whether the application
was made before or after the commencing day.
4.115 Similarly, proposed item 132A would apply the changes to sections 66B and
94C made by items 83A to 83C and 91A to 91E to applications made under section
61 regardless of whether the application was made before or after the commencing
day. This amendment will ensure that all claims that should have been captured by
section 94C, as inserted by the 2007 Act, are captured by the amendments to rectify
the error in this provision.
Amendment 28
4.116 Amendment 28 would substitute item 136. Item 136 is an avoidance of doubt
provision relating to the application of items in the Bill to items 89 and 90 of
Schedule 2 of the 2007 Act (2007 transitional provisions). The 2007 transitional
provisions provide for the Registrar to consider, or reconsider, all unregistered claims
for registration. Claims which fail the merits component of the registration test
following consideration or reconsideration pursuant to the 2007 transitional
provisions will be referred to the Court and the Court may dismiss these claims. Item
136 is intended to make clear that where a claim is not accepted for registration
following application of the registration test pursuant to the 2007 transitional
provisions, the applicant cannot seek reconsideration of that decision under proposed
section 190E of the Bill.
4.117 Item 136 presently refers to the amendment of sections 190A to 190D made in
items 22, 23, 31, 32, 78, 84, 97, 98, 99, 101, 102, 103, 104 and 107. However, of the
items listed, only items 101, 102, 103, 104 and 107 amend sections 190A to 190D.
The other items make amendments to other sections in the Native Title Act as a
consequence of the amendments to section 190A to 190D. Amendment 28 would
clarify this drafting oversight.
4.118 Item 136 also refers to the amendment of section 190D. Item 107 of the Bill
repeals and replaces section 190D with proposed sections 190D, 190E and 190F.
Amendment 28 would state that the amendment of section 190D includes the
insertion of proposed sections 190E and 190F, to avoid any doubt.
4.119 The amendment would not change the effect of the provision. The listed
provisions would not apply to claims that are being considered or reconsidered
pursuant to the 2007 transitional provisions.
4.120 Amendment 28 would also apply item 136 to additional items. The items
currently listed in item 136 make amendments in relation to sections 190A to 190D.
Amendments 4, 5, 15, 16 and 17 insert items 22A, 31A, 91G, 91H and 96A. These
items would make amendments in relation to sections 190A to 190D as a consequence
of amendment 22. Item 136 would include these item numbers.
Amendments to Schedule 2
Amendment 29
4.121 Item 4 of Schedule 2 of the Bill would remove regulatory duplication by
ensuring that provisions of the Commonwealth Authorities and Companies Act
presently applied to representative bodies do not apply where similar provisions are
contained in a representative body's incorporation statute. Amendment 29 would add
an explanatory note to this effect (after proposed subsection 203EA(2)) with respect
to representative bodies registered under the Corporations (Aboriginal and Torres
Strait Islander) Act 2006 (CATSI Act) (proposed Note 1). A similar note dealing
with representative bodies incorporated under the Corporations Act 2001 presently
included after proposed subsection 203EA(2) would be included as proposed Note 2.
Amendments to Schedule 3
Background
4.122 When it makes a determination that native title exists, the Court must:
· under paragraph 56(2)(b), determine a PBC to hold the native title
rights and interests in trust for the common law native title holders.
These PBCs are referred to in this Supplementary Explanatory Memorandum
as trust PBCs, or
· under paragraph 56(2)(c), determine that the common law native title
holders hold the rights and interests.
Under subsection 57(2), the Court must also in this case determine the PBC
which, after becoming a RNTBC, is to perform the functions mentioned in
subsection 57(3). These PBCs are referred to in this Supplementary
Explanatory Memorandum as agent PBCs. (A definition of agent PBC was
inserted by the 2007 Act).
4.123 A PBC becomes a RNTBC when its details are entered on the National Native
Title Register (see existing sections 193 and 253).
Amendment 30
4.124 Amendment 30 would narrow the regulation-making power in proposed
paragraph 56(4)(c) in item 1 of Schedule 3 to ensure that only the Court can
determine a trust PBC that replaces another trust PBC.
4.125 Similar changes are proposed to other regulation-making powers that allow for
the determination of replacement PBCs (see Amendments 31, 32 and 34). This is
consistent with part of Additional Recommendation 2 of the Committee's Minority
Report, and with discussion in the Majority Report.
Amendment 31
4.126 Amendment 31 would narrow the regulation-making power in proposed
paragraph 56(4)(e) in item 1 of Schedule 3 to ensure that only the Court can
determine an agent PBC that replaces a trust PBC.
4.127 Similar changes are proposed to other regulation-making powers that allow for
the determination of replacement PBCs (see Amendments 30, 32 and 34). This is
consistent with part of Additional Recommendation 2 of the Committee's Minority
Report, and with discussion in the Majority Report.
Amendment 32
4.128 Amendment 32 would narrow the regulation-making power in proposed
paragraph 56(7)(a) in item 2 of Schedule 3 to ensure that only the Court can
determine a trust PBC that replaces an agent PBC.
4.129 Similar changes are proposed to other regulation-making powers that allow for
the determination of replacement PBCs (see Amendments 30, 31 and 34). This is
consistent with part of Additional Recommendation 2 of the Committee's Minority
Report, and with discussion in the Majority Report.
Amendment 33
4.130 Proposed paragraphs 56(4)(c) and 56(4)(e) (in item 1 of Schedule 3), 56(7)(a)
(in item 2 of Schedule 3), and 60(b) (in item 6 of Schedule 3) would allow regulations
to provide for the determination of replacement PBCs. It is proposed that these
regulation-making powers be narrowed so that only the Court can determine
replacement PBCs (see Amendments 30, 31, 32 and 34). While these provisions are
also intended to allow for regulations to specify the bodies corporate or kinds of
bodies corporate that may be determined, it is not completely clear that they are broad
enough to do so. Amendment 33 would therefore insert proposed subsection 59(3) in
item 5 of Schedule 3 to put beyond doubt that regulations may specify the bodies
corporate or kinds of bodies corporate that may be determined by the Court as
replacement PBCs.
Amendment 34
4.131 Amendment 34 would narrow the regulation-making power in proposed
paragraph 60(b) in item 6 of Schedule 3 to ensure that only the Court can determine
an agent PBC that replaces another agent PBC.
4.132 Similar changes are proposed to other regulation-making powers that allow for
the determination of replacement PBCs (see Amendments 30, 31 and 32). This is
consistent with part of Additional Recommendation 2 of the Committee's Minority
Report, and with discussion in the Majority Report.
Amendment 35
4.133 Proposed subsection 60AC(2) in item 7 of Schedule 3 provides that the
Registrar of Aboriginal and Torres Strait Islander Corporations may give an opinion
about whether fees charged by RNTBCs may be charged under proposed section
60AB (which allows RNTBCs to charge fees for negotiating certain agreements).
Proposed subsection 60AC(4) (also in item 7 of Schedule 3) provides that the
Registrar of Aboriginal and Torres Strait Islander Corporations' opinion is not a
legislative instrument. This provision is included for the avoidance of doubt as the
Registrar of Aboriginal and Torres Strait Islander Corporations' opinion, which does
not determine or alter the content of the law, is not of a legislative character.
4.134 Proposed paragraph 60AC(5)(a) (also in item 7 of Schedule 3) would allow for
regulations to specify the circumstances in which the Registrar of Aboriginal and
Torres Strait Islander Corporations may decline to give an opinion. Proposed
subsection 60AC(2) would already give the Registrar of Aboriginal and Torres Strait
Islander Corporations a general discretion in this regard. If regulations under
paragraph 60AC(5)(a) prescribed certain circumstances in which the Registrar of
Aboriginal and Torres Strait Islander Corporations may decline to give an opinion, the
Registrar would probably be required to give an opinion in all other circumstances.
As it would be difficult to predict all possible circumstances in which the Registrar of
Aboriginal and Torres Strait Islander Corporations could reasonably decline to give
an opinion, regulations under proposed paragraph 60AC(5)(a) could unduly fetter the
Registrar's discretion under proposed subsection 60AC(2) and would thus be unlikely
to be made. Amendment 35 would therefore remove proposed paragraph 60AC(5)(a).
Amendment 36
4.135 Proposed subsection 193(4) in item 8 of Schedule 3 would require the
Registrar to update the National Native Title Register where a PBC is replaced by
another PBC or changes its functions. Proposed paragraph 193(4)(d) deals with
replacement of an agent PBC by a trust PBC. However, because it refers to `another
PBC' rather than `a PBC' it does not cover situations where an agent PBC changes its
functions to those of a trust PBC (while retaining the same underlying corporation).
Amendment 36 would remedy this oversight.
Amendment 37
4.136 Proposed paragraph 193(4)(d) also refers to a trust PBC being `appointed' to
replace an agent PBC. Amendment 37 would amend this paragraph to reflect the fact
that a trust PBC that replaces an agent PBC will be determined rather than appointed
(see proposed paragraph 56(7)(a)).
Amendment 38
4.137 Amendment 38 would insert proposed new item 10A in Schedule 3 of the Bill.
This item would commence immediately after Schedule 1 of the CATSI
Consequential Act commences on 1 July 2007 (see Amendment 2). It would repeal
and replace the definition of `registered native title body corporate' to be inserted by
item 8 of Schedule 1 of the CATSI Consequential Act. This definition was designed
to remedy a technical deficiency in the existing definition in section 253 preventing
replacement agent PBCs from becoming RNTBCs.
4.138 The definition in the CATSI Consequential Act refers to a `prescribed body
corporate' whose name and address are registered on the National Native Title
Register under paragraphs 193(2)(e) or (f) (which will be inserted by item 4 of
Schedule 1 of the CATSI Consequential Act). However, paragraph 193(2)(f) refers to
bodies corporate, not prescribed bodies corporate. The definition to be inserted by
Amendment 38 would therefore refer to a prescribed body corporate whose details are
registered under paragraph 193(2)(e), or a body corporate whose details are registered
under paragraph 193(2)(f).
4.139 The definition to be inserted by Amendment 38 would also expressly refer to
PBCs whose details are registered on the National Native Title Register under
proposed subsection 193(4) (in item 8 of Schedule 3), which would require the
Registrar to update the National Native Title Register where a PBC is replaced by
another PBC or changes its functions. This would ensure that replacement PBCs and
PBCs that change their functions can become or continue to be RNTBCs.
Amendment 39
4.140 Amendment 39 would substitute item 11 in Schedule 3 of the Bill. Existing
item 11 provides that, to avoid doubt, amendments to sections 59 and 60 made by
items 5 and 6 of Schedule 3 do not affect regulations made under those sections or
anything done under those regulations. However, it does not make similar provision
with respect to existing regulations made under section 56. This amendment would
remedy this oversight by providing that amendments to section 56 to be made by
item 1 of Schedule 3 do not affect regulations made under that section or anything
done under those regulations.
Inclusion of Schedule 5
Amendment 40
4.1 Amendment 40 would insert proposed Schedule 5.
4.2 The transitional provisions of the 2007 Act provide for the Registrar to consider,
or reconsider, for registration all claims that were unregistered at the time of
commencement of the 2007 Act (see items 89 and 90 of Schedule 2 of the 2007 Act).
Claims which fail the merits component of the registration test under this transitional
process may be dismissed by the Court. It was intended all claims that were
unregistered on the date of commencement of the 2007 Act would be captured by the
2007 transitional provisions.
4.3 Following commencement of the 2007 Act, it has become apparent some
unregistered claims made prior to commencement of the 2007 Act have not been
caught by the 2007 transitional provisions. The claims not captured are those which
were considered for registration under the transitional provisions of the 1998 Act,
were accepted for registration, were subsequently amended and then either failed
registration when the registration test was reapplied or were not reconsidered for
registration prior to the 2007 Act coming into force.
4.4 Similarly, amendments to section 190D made by item 73 of Schedule 2 of the
2007 Act provide that claims that fail the merits component of the registration test
may be dismissed by the Court. The application provision in item 88 of Schedule 2 of
the 2007 Act provided that the amendments to section 190D in item 73 apply to all
claims made on or after the commencement of the 2007 Act. It was intended all
claims required to undergo the registration test after the commencement of the 2007
Act (excluding those affected by the 2007 transitional provisions) would be captured
by section 190D as amended by the 2007 Act.
4.5 However, it has become apparent that section 190D, as amended by the 2007 Act,
will not apply to claims made prior to the commencement of the 2007 Act but
amended after that Act came into force, as item 88 of Schedule 2 of the 2007 Act only
refers to claims made on or after the commencing day. On commencement of this
Bill, claims made or amended on or after the commencing day that fail the merits
component of the registration test will be subject to dismissal by the Court, as a result
of the application provision in item 123 of the Bill (including as amended by
Amendment 26).
4.6 However, there may be some claims that are amended between the
commencement of the 2007 Act and the commencement of item 123 of this Bill that
fail the merits component of the registration test. These claims would not be subject
to dismissal under section 190D of the Native Title Act, as amended by the 2007 Act
but not incorporating amendments made by this Bill. Rather, section 190D as it was
in force immediately before commencement of the 2007 Act would apply to these
claims.
4.7 Item 1 of Schedule 5 would rectify these unintended oversights. Proposed item 1
would ensure those claims not captured by either the 2007 transitional provisions, or
by section 190D as amended by the 2007 Act, are subject to the same processes as all
other claims.
4.8 Subitem 1(1) would provide that this item would apply if the following criteria
are met.
· The application is a native title determination application amended before
the commencement of this item.
Amendment 1 provides that this item commences at the same time as Schedule 1
of the Bill. Only claims that have been amended prior to the commencement of
this Bill are not captured by the provisions in the 2007 Act.
· The application as amended is not one to which the transitional provisions in
items 89 or 90 of Schedule 2 of the 2007 Act applies.
If the 2007 transitional provisions apply to the application, it is not necessary for
this item to apply to that application.
· Either:
- the Registrar has decided not to accept the amended claim for
registration before the commencement of this item, and the decision of
the Registrar is one to which section 190D, as in force immediately before
commencement of the 2007 Act, applies, or
This criterion will capture claims where the Registrar has decided that the
claim does not meet the requirements of the registration test and the claim is
not already subject to the provisions in section 190D, as amended by the 2007
Act.
- the Registrar has not yet decided whether to accept the claim made in the
amended application for registration by the day on which this item
commences, and section 190D, as in force immediately before
commencement of the 2007 Act, applies.
This criterion will capture claims where the Registrar has not commenced
considering the claim for registration, or has not completed considering the
claim for registration and, if the claim were considered for registration, would
not already be subject to section 190D as amended by the 2007 Act.
· The claim is not on the Register of Native Title Claims on the day on which
this item commences.
It is possible a claim that was not accepted by the Registrar for registration will
be subsequently accepted for registration, for example, as a result of review of the
registration decision by the Federal Court. It is important that claims that have
been registered are not inadvertently required to undergo the registration test
again.
4.9 If all of the criteria in subitem 1(1) are met, subitem 1(2) would provide that the
Registrar must either reconsider, or consider, the claim under section 190A, as
amended by the 2007 Act but not incorporating the amendments to section 190A
made by this Bill. The Registrar must reconsider the amended claim if it has already
been considered for registration and consider the claim if the Registrar has not
completed consideration of the claim at the time this item commences. Subitem 1(2)
would also provide the Registrar must use his or her best endeavours to finish
considering or reconsidering the claim by the end of one year after the day on which
this item commences. If the Registrar does not finish considering or reconsidering the
claim within one year, the Registrar must complete this as soon as reasonably
practicable afterwards. These timeframes are consistent with the timeframes imposed
on the Registrar pursuant to the 2007 transitional provisions.
4.10 Subitem 1(3) would provide the Registrar must use his or her best endeavours to
finish considering a claim for registration within certain time periods where, either
before the Registrar begins considering the claim or while the Registrar is considering
the claim, certain future act notices are given over some or all of the claim area. This
provision replicates subitems 89(3) and 90(3) of the 2007 transitional provisions, as
amended by items 118 and 119 of Schedule 1 of the Bill.
4.11 Subitem 1(4) sets out matters relating to the information which the Registrar
must and may have regard to in considering or reconsidering the claim for
registration. This provision is equivalent to subitems 89(4) and 90(4) of the 2007
transitional provisions.
4.12 Subitem 1(5)(a) would provide that if a claim does not satisfy all of the
conditions in section 190B (conditions about merit) and all of the conditions in
section 190C (conditions about procedure), the Registrar must give written notice as
required by subsection 190D(1), as amended by the 2007 Act but not incorporating
amendments made to that section by this Bill. Subitem 1(5) would also provide that if
a claim is not accepted for registration after consideration or reconsideration pursuant
to this item, and the Registrar gives written notice of this decision as required by
subitem 1(5)(a), other provisions of sections 190A to 190D, as amended by the 2007
Act but not incorporating amendments made to those sections by this Bill, then apply.
This will ensure that if a claim fails the merits component of the registration test
following consideration or reconsideration pursuant to this item, the claim may be
dismissed by the Court.
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