NATIVE TITLE AMENDMENT ACT 1998 - SCHEDULE 3 Amendments relating to representative Aboriginal/Torres Strait Islander bodies
NATIVE TITLE AMENDMENT ACT 1998 - SCHEDULE 3
Amendments relating to representative Aboriginal/Torres Strait Islander bodies1 Before section 202
Insert:
In this Part, unless the contrary intention appears:
"director" , in relation to a representative body, means a member of the governing body of the representative body.
"executive officer" , in relation to a representative body, means:
(a) a director of the representative body; or
(b) any other person who is concerned in, or takes part in, the management of the representative body at a senior level.
"exempt State body" means a body established by a law of a State that confers functions or powers on the body to be performed or exercised in its capacity as a body representing the interests of, or acting on behalf of, Aboriginal peoples or Torres Strait Islanders.
"functions" , in relation to a representative body, means the functions conferred on the body by this Act and includes the obligations imposed on the body by this Act, whether or not any of those functions or obligations are also conferred or imposed on the body under a law of a State or Territory.
"governing body" , in relation to a representative body, means the group of persons (by whatever name called) who are responsible for the executive decisions of the representative body.
"powers" , in relation to a representative body, means the powers conferred on the body by this Act, whether or not any of those powers are also conferred on the body under a law of a State or Territory.
"transition period" means the period:
(a) beginning on the day on which Division 2 commences; and
(b) ending immediately before Division 3 commences.
(1) For the purposes of this Part, an eligible body is:
(a) a body corporate, incorporated under Part IV of the Aboriginal Councils and Associations Act 1976 , the objects of which enable the body to perform the functions of a representative body under Division 3 of this Part; or
(b) a body corporate that is a representative body at the commencement of this section; or
(c) a body corporate established by or under a law of the Commonwealth, a State or a Territory, or a part of such a law, prescribed for the purposes of this paragraph.
However, a registered native title body corporate cannot be an eligible body.
(2) A regulation prescribing a law, or a part of a law, for the purposes of paragraph (1)(c) may be limited in its application to bodies corporate included in a specified class or classes of bodies corporate.
Division 1A -- Original representative Aboriginal/Torres Strait Islander bodies
2 Subsection 202(4)
Omit "may", substitute "determined under this section may do the following".
3 Paragraphs 202(4)(a) and (b)
Omit "claims", substitute "applications".
4 Paragraphs 202(4)(a) and (b)
Omit "or" (last occurring).
5 Paragraph 202(4)(c)
Repeal the paragraph, substitute:
(c) assist such individuals or groups by representing them, if requested to do so, in negotiations and proceedings relating to:
(i) the doing of acts affecting native title; or
(ii) the provision of compensation in relation to such acts; or
(iii) indigenous land use agreements or other agreements in relation to native title; or
(iv) rights of access conferred under this Act or otherwise; or
(v) any other matter relevant to the operation of this Act;
(d) certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body;
(e) certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body;
(f) become a party to indigenous land use agreements.
6 At the end of section 202
Add:
Certification of applications for determinations of native title
(5) A representative body must not certify under paragraph (4)(d) an application for a determination of native title unless it is of the opinion that:
(a) the applicant has authority to make the application, and deal with matters arising in relation to it, on behalf of all the other persons in the native title claim group; and
(b) all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.
Note: Section 251B deals with authority to make the application.
Overlapping applications for determinations of native title
(6) If the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware, the representative body must make all reasonable efforts:
(a) to achieve agreement, relating to native title over the land or waters, between the persons in respect of whom the applications are, or would be, made; and
(b) to minimise the number of applications covering the land or waters.
However, a failure by the representative body to comply with this subsection does not invalidate any certification of the application by the representative body.
Statement to be included in certifications of applications for determinations of native title
(7) A certification of an application for a determination of native title by a representative body must:
(a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and
(b) briefly set out the body's reasons for being of that opinion; and
(c) where applicable, briefly set out what the representative body has done to meet the requirements of subsection (6).
Certification of applications for registration of indigenous land use agreements
(8) A representative body must not certify under paragraph (4)(e) an application for registration of an indigenous land use agreement unless it is of the opinion that:
(a) all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and
(b) all of the persons so identified have authorised the making of the agreement.
Note: Section 251A deals with authority to make the agreement.
Statement to be included in certifications of applications for registration of indigenous land use agreements
(9) A certification of an application for registration of an indigenous land use agreement by a representative body must:
(a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (8)(a) and (b) have been met; and
(b) briefly set out the body's reasons for being of that opinion.
7 After section 202
Insert:
202A Entering indigenous land use agreements
Before becoming a party to an indigenous land use agreement, a representative body must, as far as practicable, consult with, and have regard to the interests of, persons who hold or may hold native title in relation to land or waters in that area.
8 Subsection 203(1)
After "Islander body", insert "determined under section 202".
9 Subsection 203(1)
Omit "the Commonwealth Minister or".
10 Subsection 203(2)
Repeal the subsection.
Note: The heading to subsection 203(3) is altered by omitting " --ATSIC ".
11 At the end of Part 11
Add:
Division 2 -- Recognition of representative Aboriginal/Torres Strait Islander bodies
203A Inviting applications for recognition
Commonwealth Minister may invite applications
(1) Subject to section 203AA, the Commonwealth Minister may, in the way determined in writing by the Commonwealth Minister, invite applications from eligible bodies for recognition as the representative body for an area.
Invitations may cover more than one area
(2) The invitation may specify more than one area for which applications are invited.
Invitations to specify application period
(3) The invitation must specify the period (of at least 28 days) within which applications are to be given to the Commonwealth Minister.
Invitations may be general
(4) For the avoidance of doubt, the way determined under subsection (1) for inviting applications may provide for the publication of general invitations to eligible bodies, and need not require that a separate invitation be made to each eligible body.
203AA Inviting applications from representative bodies during the transition period
Commonwealth Minister to invite applications
(1) As soon as practicable after the start of the transition period, the Commonwealth Minister must make invitations under section 203A relating to areas that, taken together, cover all the land and waters to which this Act extends. The invitations need not all be made at the same time.
Matters to which Commonwealth Minister must have regard
(2) Without limiting the matters to which the Commonwealth Minister may have regard in deciding the areas in relation to which the invitations will be made, he or she must have regard to the following:
(a) the areas for the representative bodies that are already in existence;
(b) the need to minimise any disruption to the performance of the functions of those representative bodies;
(c) the requirements of subsection 203AD(4) in relation to the recognition of representative bodies.
Invitation to representative bodies
(3) If an invitation under section 203A relates to an area (the original invitation area ) that wholly or partly covers an area for which a body was, on the day on which this section commenced, a representative body:
(a) the invitation must initially be made only to each of the bodies that was, on that day, a representative body for an area wholly or partly covered by the original invitation area; and
(b) other than as provided in subsection (4), no other invitations may be made under section 203A, for areas that wholly or partly cover the original invitation area, until the end of the transition period.
Situations where general invitations can still be made
(4) If the Commonwealth Minister has, as mentioned in paragraph (3)(a), made an invitation in respect of the original invitation area to a representative body or bodies, the Commonwealth Minister may make another invitation within the transition period in respect of the original invitation area, or an area wholly or partly within the original invitation area, if:
(a) none of the bodies invited as mentioned in paragraph (3)(a) applied for recognition as the representative body for the original invitation area within the relevant application period under subsection 203A(3); or
(b) the Commonwealth Minister has rejected the application of each of the bodies so invited that did apply.
Diagram of the rules for making invitations
(5) This diagram shows when, under section 203A and this section, invitations can be made, during the transition period, for applications for recognition as the representative body for a particular area.
Note: These rules will not apply once the transition period has ended.
203AB Application for recognition
Eligible bodies may apply
(1) Subject to subsection (3), an eligible body may apply to the Commonwealth Minister, in the form approved by the Commonwealth Minister, for recognition as the representative body for the area, or for one or more of the areas, in respect of which applications have been invited under section 203A.
Application period
(2) The application must be given to the Commonwealth Minister within the period specified under subsection 203A(3), or within such further period as the Commonwealth Minister allows (whether or not the initial period has expired).
Invitation to existing representative bodies
(3) If the invitation in question was one to which subsection 203AA(3) applied, an application can only be made by an eligible body that has been invited to apply in accordance with subsection 203AA(3) or (4), as the case requires.
203AC Dealing with applications
(1A) The Commonwealth Minister must determine applications under section 203AB:
(a) as soon as practicable after:
(i) the period specified under subsection 203A(3); or
(ii) if a further period applies under subsection 203AB(2) in relation to one or more of those applications--the last such further period to end; or
(iii) if the Commonwealth Minister has, in relation to one or more of those applications, given to a body a notice under subsection (1) requiring the body to give further information within a specified period--the last such period to end;
whichever occurs last; and
(b) if the applications are in respect of an invitation to which subsection 203AA(3) applied--in any event before the end of the transition period.
(1) The Commonwealth Minister may give to a body that has made an application under section 203AB a notice requiring the body to give further information relating to the application within a period specified in the notice.
(2) The period specified:
(a) must not begin before the day on which the notice was given; and
(b) must be a period of at least 21 days.
(3) The fact that no further information has been given to the Commonwealth Minister as at the end of the period specified in the notice does not prevent the Commonwealth Minister from determining the application.
(4) The notice must contain a statement setting out the effect of subsection (3).
203AD Recognition of representative bodies
Commonwealth Minister may recognise representative bodies
(1) The Commonwealth Minister may, by written instrument, recognise, as the representative body for an area, an eligible body that has applied under section 203AB to be the representative body for the area if the Commonwealth Minister is satisfied that:
(a) the body will satisfactorily represent persons who hold or may hold native title in the area; and
(b) the body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area; and
(c) if the body is already a representative body--the body satisfactorily performs its existing functions; and
(d) the body would be able to perform satisfactorily the functions of a representative body.
When recognition takes effect
(2) The recognition of the body as a representative body takes effect on the day specified in the instrument of recognition. However, that day must not precede the day on which Division 3 commences.
Exempt State bodies
(3) The Commonwealth Minister must not recognise an exempt State body unless satisfied that the obligations it would have under this Act, together with its other obligations under the laws of a State, provide an appropriate level of accountability.
Commonwealth Minister not to recognise more than one body for an area
(4) The Commonwealth Minister must not, under this section, recognise a body as the representative body for an area at a particular time if, at that time, there is already a representative body recognised under this section (whether or not the recognition has taken effect) for all or part of that area.
Note: The fact that a representative body has previously been determined under section 202 will not prevent recognition of a body under this section.
Notifying unsuccessful applicants
(5) If the Commonwealth Minister decides not to recognise as the representative body for an area a body that applied for that recognition, the Commonwealth Minister must notify the body, in writing, of the decision and the reasons for the decision.
203AI Matters to which Commonwealth Minister must have regard
Fairness of organisational structures and administrative processes
(1) In considering, for the purposes of making a decision under this Division in relation to a particular area, whether a body:
(a) will satisfactorily represent persons who hold or may hold native title in the area; or
(b) will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area;
the Commonwealth Minister must take into account whether, in the Commonwealth Minister's opinion, the body's organisational structures and administrative processes will operate in a fair manner.
Criteria for assessing fairness
(2) Without limiting the matters to which the Commonwealth Minister may have regard in assessing the fairness of the body's organisational structures and administrative processes, the Commonwealth Minister must have particular regard to:
(a) the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and
(b) the level of consultation with them involved in its processes; and
(c) its procedures for making decisions and for reviewing its decisions; and
(d) its rules or requirements relating to the conduct of its executive officers; and
(e) the nature of its management structures and management processes; and
(f) its procedures for reporting back to persons who hold or may hold native title in the area, and to the Aboriginal peoples or Torres Strait Islanders living in the area.
Commonwealth Minister's consideration of other matters unaffected
(3) This section does not limit any other matters that the Commonwealth Minister may take into account in making a decision under this Division.
Note: Divisions 3 to 6 of this Part are to be inserted, and will enter into force, at the end of the transition period (see Part 2 of Schedule 3 to the Native Title Amendment Act 1998 ).
203FC Transfer of documents and records
Commonwealth Minister may issue directions
(1) The Commonwealth Minister may, by written instrument, issue directions requiring, or relating to, either or both of the following:
(a) a former representative body returning documents and records, relating to the performance of its functions or the exercise of its powers in respect of its former area, to the person or persons who provided them to the body;
(b) the former representative body allowing access to, giving or giving copies of documents and records held by the former representative body to a body (the replacement body ) that has become the representative body for all or part of the former representative body's former area, where the documents and records are reasonably necessary for the performance of the functions, or the exercise of the powers, of the replacement body.
Directions take effect on the day on which they are issued.
Limit on directions
(2) Directions must not require the former representative body to allow access to, give or give copies of documents and records, of the kind mentioned in paragraph (1)(b) that relate to:
(a) a claim in a claimant application or a compensation application; or
(b) native title rights and interests that are the subject of a determination of native title;
to the replacement body, unless the replacement body has been asked by the claimants to assist them in relation to the claim, or has been asked by the persons who have been determined to hold the native title rights and interests to assist them in relation to those rights and interests.
Bodies must comply with directions
(3) A body to which directions apply must comply with those directions.
Orders by the Federal Court
(4) If a body fails to comply with subsection (3), the Federal Court may, on the application of a person affected by the non - compliance, make such orders as it thinks fit to ensure the body's compliance.
Definitions
(5) In this section:
"former area" , in relation to a former representative body, means the area for which the body is no longer a representative body.
"former representative body" means a body that:
(a) has ceased to be a representative body; or
(b) has ceased to be a representative body for a particular area; or
(c) has had the area for which it is a representative body reduced.
203FCA Representative body etc. to comply with wishes of traditional custodians
(1) If:
(a) a representative body, in performing its functions and exercising its powers; or
(b) a former representative body (as defined in subsection 203FC(5)), in complying with directions in accordance with subsection 203FC(3);
deals with traditional materials, or any information contained in them, the body must make all reasonable efforts to comply with the wishes of the traditional custodians of the traditional materials about the way in which the traditional materials or information is to be dealt with.
Definitions
(2) In this section:
"traditional custodian" of traditional materials means a person who, according to the traditional laws and customs concerned, is responsible for the traditional materials.
"traditional materials" means documents, records or other things that are of significance to Aboriginal peoples or Torres Strait Islanders according to their traditional laws and customs .
203FD Liability of executive officers etc.
An executive officer or a member of a representative body is not personally liable to an action or other proceeding for damages in relation to an act done or omitted to be done in good faith:
(a) by the representative body; or
(b) by the person in the capacity of executive officer or member;
in connection with the performance of the representative body's functions or the exercise of its powers.
203FH Conduct by directors, employees and agents
State of mind of directors, employees or agents of bodies corporate
(1) If, for the purposes of this Part, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, employee or agent had the state of mind.
Conduct of directors, employees or agents of bodies corporate
(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
State of mind of employees or agents of persons other than bodies corporate
(3) If, for the purposes of this Part, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the state of mind.
Conduct of employees or agents of persons other than bodies corporate
(4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the person unless the person establishes that the person took reasonable precautions and exercised due diligence to avoid the conduct.
Other persons not to be punished by imprisonment
(5) If:
(a) a person other than a body corporate is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
Meaning of state of mind
(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
Meaning of director
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
Failing etc. to engage in conduct
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
12 Section 253 (at the end of the definition of representative Aboriginal/Torres Strait Islander body )
Add "or that is recognised under section 203AD".
13 Section 253
Insert:
"representative body" means a representative Aboriginal/Torres Strait Islander body.
14 Paragraph 24CG(3)(a)
Omit "paragraph 202(4)(e)", substitute "paragraph 203BE(1)(b)".
15 Subparagraph 24CH(2)(d)(i)
Omit "paragraphs 202(8)(a) and (b)", substitute "paragraphs 203BE(5)(a) and (b)".
16 Subsection 24CI(1)
Omit "paragraphs 202(8)(a) and (b)", substitute "paragraphs 203BE(5)(a) and (b)".
17 Paragraph 24CK(2)(c)
Omit "paragraphs 202(8)(a) and (b)", substitute "paragraphs 203BE(5)(a) and (b)".
18 Subparagraph 24EB(5)(b)(i)
Omit "paragraph 202(8)(b)", substitute "paragraph 203BE(5)(b)".
19 Subsection 108(1B)
Repeal the subsection, substitute:
Assistance and mediation generally
(1B) The Tribunal has the functions of:
(a) providing assistance, or mediating, in accordance with any provision of this Act; and
(b) entering into agreements as mentioned in subsection 203BK(3) in relation to assistance of the kind referred to in that subsection.
20 Paragraph 190C(4)(a)
Omit "paragraph 202(4)(d)", substitute "Part 11".
21 At the end of paragraph 190C(4)(a)
Add:
Note: An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d).
22 Subsection s 1 90C(6) and (7)
Repeal the subsections.
23 Subparagraph 199C(1)(b)(i)
Omit "paragraph 202(8)(b)", substitute "paragraph 203BE(5)(b)".
24 Section 201A
Insert:
"ATSIC" means the Aboriginal and Torres Strait Islander Commission established by the Aboriginal and Torres Strait Islander Commission Act 1989 .
"native title application" means an application under subsection 24DJ(1) or section 61, 69 or 75, and includes an appeal under subsection 169(1).
25 Division 1A of Part 11
Repeal the Division.
26 After section 203AD
Insert:
The Commonwealth Minister may, by written instrument, extend the area for which a body is the representative body by adding adjoining land or waters to the area if:
(a) there is no representative body for the adjoining land or waters; and
(b) the Commonwealth Minister considers that the adjoining land or waters are not of such significance that invitations should be made under section 203A in respect of them; and
(c) the Commonwealth Minister is satisfied that the body will satisfactorily represent persons who hold or may hold native title in the adjoining land or waters; and
(d) the Commonwealth Minister is satisfied that the body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area of the adjoining land or waters; and
(e) the Commonwealth Minister is satisfied that the body will satisfactorily perform its functions in relation to the adjoining land or waters; and
(f) the body has agreed to the adjoining land or waters being added.
203AF Variation of adjoining areas
Applications to vary areas
(1) If the boundary of an area for which a body is the representative body adjoins the boundary of an area for which another body is the representative body, the bodies may jointly apply in writing to the Commonwealth Minister to vary the area for which each body is the representative body. The proposed variations are to relate only to the adjoining boundary.
Consultation prior to applications
(2) Before making an application under subsection (1), the bodies must:
(a) take all reasonable steps to consult the Aboriginal peoples or Torres Strait Islanders who could reasonably be expected to be affected by the proposed variations; and
(b) satisfy themselves that there is broad support for the variations among the persons who hold, or may hold, native title in the area that will be covered by a different representative body as a result of the variations.
Matters to be included in applications
(3) The application must:
(a) include a statement of the steps the bodies took in consulting the Aboriginal peoples or Torres Strait Islanders referred to in paragraph (2)(a); and
(b) briefly set out the grounds on which the bodies are satisfied that there is broad support for the variations among the persons referred to in paragraph (2)(b).
Commonwealth Minister may vary areas
(4) The Commonwealth Minister may, by written instrument, vary the areas for which each body is the representative body in accordance with the application if the Commonwealth Minister is satisfied that, after the variations:
(a) each body will satisfactorily represent the native title holders and persons who may hold native title in the area for which it will, after the variations, be the representative body; and
(b) each body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area for which it will, after the variations, be the representative body; and
(c) each body will satisfactorily perform its functions.
Grounds for reducing the areas of representative bodies
(1) The Commonwealth Minister may, by written instrument, reduce the area for which a body is the representative body by excising a specified part of the area if satisfied that:
(a) the body is not satisfactorily representing native title holders or persons who may hold native title in that part of the area; or
(b) the body is not consulting effectively with Aboriginal peoples and Torres Strait Islanders living in that part of the area; or
(c) the body is not satisfactorily performing its functions in relation to that part of the area.
Effect on remainder of areas
(2) The Commonwealth Minister must not so reduce the area unless satisfied that, after the reduction, the body:
(a) will satisfactorily represent native title holders or persons who may hold native title in the remainder of the area; and
(b) will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the remainder of the area; and
(c) will satisfactorily perform its functions in relation to the remainder of the area.
Notice that reduction of area is being considered
(3) At least 90 days before deciding to reduce the area, the Commonwealth Minister must notify the body that the reduction is being considered. The notice must be in writing and must:
(a) state the reasons why the Minister is considering reducing the area; and
(b) invite the body to make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the area should be reduced.
The period specified must not begin before the day on which the notice was given, and must be a period of at least 90 days.
Consideration of reports etc.
(4) In deciding whether to reduce the area, the Commonwealth Minister may consider the following:
(a) any reports under section 203DF of audits or investigations of the body;
(b) any reports under section 76 of the Aboriginal and Torres Strait Islander Commission Act 1989 in relation to a grant made to the body under section 203C or 203FE of this Act;
(c) any notices that ATSIC has given to the Minister under section 203F in relation to the body;
(d) any information or documents that ATSIC has given to the Minister under section 203FA in relation to the body.
Commonwealth Minister's consideration of other matters unaffected
(5) Subsection (4) does not limit any other matters that the Commonwealth Minister may take into account in deciding whether to reduce the area.
Consideration of submissions
(6) In deciding whether to reduce the area, the Commonwealth Minister must consider any submissions made by the body within the period referred to in subsection (3).
Notice of decision
(7) As soon as practicable after deciding whether to reduce the area, the Commonwealth Minister must notify the body, in writing, of:
(a) the decision; and
(b) if the decision is that the area be reduced--the reasons for the decision.
203AH Withdrawal of recognition
Mandatory grounds for withdrawing recognition
(1) The Commonwealth Minister must, by written instrument, withdraw the recognition of a body as the representative body for an area if:
(a) the body has ceased to exist; or
(b) the body makes a written request to the Commonwealth Minister for the recognition to be withdrawn.
However, paragraph (b) only applies if the request was authorised by a meeting of the body open to all its members and convened and conducted in accordance with the procedures governing the convening and conduct of such meetings by the body. The body must include in its request to the Commonwealth Minister evidence that the request was so authorised.
Discretionary grounds for withdrawing recognition
(2) The Commonwealth Minister may, by written instrument, withdraw the recognition of a body as the representative body for an area if satisfied that:
(a) the body:
(i) is not satisfactorily representing the native title holders or persons who may hold native title in the area; or
(ii) is not consulting effectively with Aboriginal peoples and Torres Strait Islanders living in the area; or
(iii) is not satisfactorily performing its functions; and
(b) the body is unlikely to take steps to ensure that, within a reasonable period, none of subparagraphs (a)(i), (ii) and (iii) apply in relation to the body.
Notice that withdrawal of recognition is being considered
(3) At least 90 days before deciding to withdraw the recognition under subsection (2), the Commonwealth Minister must notify the body that withdrawal of the recognition is being considered. The notice must be in writing and must:
(a) state the reasons why the Minister is considering withdrawal of the recognition; and
(b) invite the body to make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the recognition should be withdrawn.
The period specified must not begin before the day on which the notice was given, and must be a period of at least 90 days.
Consideration of reports etc.
(4) In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister may consider the following:
(a) any reports under section 203DF of audits or investigations of the body;
(b) any reports under section 76 of the Aboriginal and Torres Strait Islander Commission Act 1989 in relation to a grant made to the body under section 203C or 203FE of this Act;
(c) any notices that ATSIC has given to the Minister under section 203F in relation to the body;
(d) any information or documents that ATSIC has given to the Minister under section 203FA in relation to the body.
Commonwealth Minister's consideration of other matters unaffected
(5) Subsection (4) does not limit any other matters that the Commonwealth Minister may take into account in making a decision under subsection (2).
Consideration of submissions
(6) In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must consider any submissions made by the body within the period referred to in subsection (3).
Notice of decision
(7) As soon as practicable after deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must notify the body, in writing, of:
(a) the decision; and
(b) if the decision is that the recognition be withdrawn--the reasons for the decision.
27 Paragraph 203AI(1)(a)
After "will satisfactorily represent", insert ", or is not satisfactorily representing,".
28 Paragraph 203AI(1)(b)
After "will be able to consult effectively", insert ", or is not consulting effectively,".
29 Subsection 203AI(1)
After "operate", insert ", or are operating,".
30 Subsection 203AI(3) (note)
Repeal the note.
31 After Division 2 of Part 11
Insert:
Division 3 -- Functions and powers of representative bodies
203B Functions of representative bodies
General
(1) A representative body has the following functions:
(a) the facilitation and assistance functions referred to in section 203BB;
(b) the certification functions referred to in section 203BE;
(c) the dispute resolution functions referred to in section 203BF;
(d) the notification functions referred to in section 203BG;
(e) the agreement making function referred to in section 203BH;
(f) the internal review functions referred to in section 203BI;
(g) the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.
Other laws may confer functions
(2) The functions conferred on a representative body by this Act are in addition to, and not instead of, any functions conferred on the representative body (whether in its capacity as a representative body or otherwise) by or under:
(a) any other law of the Commonwealth; or
(b) a law of a State or Territory.
Representative bodies to perform functions
(3) Except as mentioned in section 203BB, 203BD or 203BK, a representative body must not enter into an arrangement with another person under which the person is to perform the functions of the representative body.
Priorities of representative bodies
(4) A representative body:
(a) must from time to time determine the priorities it will give to performing its functions under this Part; and
(b) may allocate resources in the way it thinks fit so as to be able to perform its functions efficiently;
but must give priority to the protection of the interests of native title holders.
203BA How functions of representative bodies are to be performed
Functions to be performed in a timely manner
(1) A representative body must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:
(a) the time limits under this Act; or
(b) time limits, under another law of the Commonwealth or a law of a State or Territory, that are relevant to the performance of its functions.
Maintenance of organisational structures and processes
(2) A representative body must perform its functions in a manner that:
(a) maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body; and
(b) maintains organisational structures and administrative processes that promote effective consultation with Aboriginal peoples and Torres Strait Islanders living in the area for which it is the representative body; and
(c) ensures that the structures and processes operate in a fair manner, having particular regard to the matters set out in paragraphs 203AI(2)(a) to (f).
203BB Facilitation and assistance functions
General
(1) The facilitation and assistance functions of a representative body are:
(a) to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and
(b) to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:
(i) native title applications;
(ii) future acts;
(iii) indigenous land use agreements or other agreements in relation to native title;
(iv) rights of access conferred under this Act or otherwise;
(v) any other matters relating to native title or to the operation of this Act.
Facilitation and assistance functions only exercisable on request
(2) A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.
Facilitation and assistance functions only exercisable within a representative body's area
(3) A representative body can only perform its facilitation and assistance functions in relation to a matter that relates to land or waters:
(a) that are wholly within the area for which the body is the representative body; or
(b) that are partly within that area.
If paragraph (b) applies, the body must not perform the functions for the part of the land or waters that is outside that area except in accordance with section 203BD.
Consent required if matters relate to same land or waters
(4) If:
(a) a registered native title body corporate or a person who holds or may hold native title requests that a representative body represent the body or the person (the new body or person ) in relation to a particular matter that relates to particular land or waters; and
(b) the representative body is already representing another body or person (the original body or person ) in relation to one or more other matters that relate wholly or partly to that land or those waters;
the representative body must not represent the new body or person unless the representative body has obtained consent, from the original body or person, for the representative body also to represent the new body or person to the extent that the other matters relate to the land or waters.
"Briefing out" matters that relate to the same land or waters
(5) Subsection (4) does not prevent a representative body from facilitating the representation of a body or person, in relation to a particular matter, by entering into an arrangement with another person under which the other person represents the body or person in relation to that matter.
Definition
(6) In this section and section 203BC:
"matter" means a native title application, or a consultation, mediation, negotiation or proceeding of a kind referred to in paragraph (1)(b).
203BC How facilitation and assistance functions are to be performed
General
(1) In performing its facilitation and assistance functions in relation to any matter, a representative body must:
(a) consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter; and
(b) if the matter involves the representative body representing such bodies corporate, native title holders or persons--be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter.
Consent of native title holders etc.
(2) For the purposes of paragraph (1)(b), a native title holder or a person who may hold native title is taken to have consented to action if:
(a) where there is a process of decision-making that, under the traditional laws and customs of the group to which he or she belongs, must be complied with in relation to giving consent of that kind--the consent was given in accordance with that process; or
(b) where there is no such process of decision-making--the consent was given in accordance with a process of decision - making agreed to and adopted by the members of the group to which he or she belongs in relation to giving the consent or giving consent of that kind.
Streamlining of applications process
(3) In performing its facilitation and assistance functions in relation to an application under section 61 in relation to land or waters wholly or partly within the area for which the body is the representative body, the representative body must:
(a) act in a way that promotes an orderly, efficient and cost - effective process for making such applications; and
(b) if the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware--make all reasonable efforts to minimise the number of applications covering the land or waters.
203BD Matters that overlap different representative body areas
If:
(a) a native title application covers land or waters partly within the area for which the body is the representative body and partly within an adjoining area for which another body is the representative body; or
(b) a consultation, mediation, negotiation or proceeding relates to:
(i) a native title application; or
(ii) a future act; or
(iii) an indigenous land use agreement or other agreement in relation to native title; or
(iv) a right of access conferred under this Act or otherwise; or
(v) any other matter relating to native title or to the operation of this Act;
in respect of the areas referred to in paragraph (a);
the first-mentioned representative body may perform its facilitation and assistance functions, in relation to the application, consultation, mediation, negotiation or proceeding, for the part of the land or waters within the adjoining area, if it is acting in accordance with a written arrangement entered into with the other representative body.
General
(1) The certification functions of a representative body are:
(a) to certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area for which the body is the representative body; and
(b) to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.
Certification of applications for determinations of native title
(2) A representative body must not certify under paragraph (1)(a) an application for a determination of native title unless it is of the opinion that:
(a) all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and
(b) all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.
Note: Section 251B deals with authority to make the application.
Overlapping applications for determinations of native title
(3) If the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware, the representative body must make all reasonable efforts to:
(a) achieve agreement, relating to native title over the land or waters, between the persons in respect of whom the applications are, or would be, made; and
(b) minimise the number of applications covering the land or waters.
However, a failure by the representative body to comply with this subsection does not invalidate any certification of the application by the representative body.
Statement to be included in certifications of applications for determinations of native title
(4) A certification of an application for a determination of native title by a representative body must:
(a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (2)(a) and (b) have been met; and
(b) briefly set out the body's reasons for being of that opinion; and
(c) where applicable, briefly set out what the representative body has done to meet the requirements of subsection (3).
Certification of applications for registration of indigenous land use agreements
(5) A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:
(a) all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and
(b) all the persons so identified have authorised the making of the agreement.
Note: Section 251A deals with authority to make the agreement.
Statement to be included in certifications of applications for registration of indigenous land use agreements
(6) A certification of an application for registration of an indigenous land use agreement by a representative body must:
(a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and
(b) briefly set out the body's reasons for being of that opinion.
203BF Dispute resolution functions
Dispute resolution functions
(1) The dispute resolution functions of a representative body are:
(a) to assist in promoting agreement between its constituents about:
(i) the making of native title applications; or
(ii) the conduct of consultations, mediations, negotiations or proceedings about native title applications, future acts, indigenous land use agreements, rights of access conferred under this Act or otherwise or about any other matter relating to native title or the operation of this Act; and
(b) to mediate between its constituents about the making of such applications or the conduct of such consultations, mediations, negotiations or proceedings.
Meaning of constituent
(2) In this section:
"constituent" means:
(a) a person on whose behalf the representative body is acting or may act; or
(b) a registered native title body corporate in relation to native title in the area in respect of which the representative body is recognised; or
(c) a native title holder in relation to native title in that area; or
(d) a person who may hold native title in that area.
The notification functions of a representative body are:
(a) to ensure that, as far as reasonably practicable, notices:
(i) that are given to the representative body (whether under this Act or otherwise); and
(ii) that relate to land or waters wholly or partly within the area for which the body is a representative body;
are brought to the attention of any person who the representative body is aware holds or may hold native title in relation to the land or waters, where the representative body considers that the notices would be unlikely to come to the attention of the person by some other means; and
(b) as far as is reasonably practicable, to identify and notify other persons who hold or may hold native title in relation to the land or waters about notices of the kind mentioned in paragraph (a); and
(c) as far as is reasonably practicable, to advise the persons referred to in paragraphs (a) and (b) of relevant time limits under this Act or another law of the Commonwealth or a law of a State or a Territory, if the person would not otherwise be notified of those time limits.
Note 1: Subsection 203BA(1) requires a representative body to make its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by time limits.
Note 2: This Act also imposes notification obligations on other persons.
203BH Agreement making function
(1) The agreement making function of a representative body is to be a party to indigenous land use agreements.
(2) In performing its agreement making function in respect of an area, a representative body must, as far as practicable, having regard to the matters proposed to be covered by the agreement, consult with, and have regard to the interests of, persons who hold or may hold native title in relation to land or waters in that area.
203BI Internal review functions
The internal review functions of a representative body are:
(a) to provide a process for registered native title bodies corporate, native title holders and persons who may hold native title to seek review by the representative body of its decisions and actions, made or taken in the performance of its functions or the exercise of its powers, that affect them; and
(b) to publicise that process appropriately.
In addition to the functions referred to in sections 203BB to 203BI, a representative body must:
(a) as far as is reasonably practicable, enter into written arrangements with other representative bodies so that the representative body can exercise its facilitation and assistance functions in relation to a matter of a kind referred to in paragraph 203BD(a) or (b); and
(b) as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body; and
(c) as far as is reasonably practicable, take such action as the body considers appropriate to promote understanding, among Aboriginal people and Torres Strait Islanders living in the area, about matters relevant to the operation of this Act; and
(d) as far as is reasonably practicable, inform such of the following as the representative body knows are, in relation to the area:
(i) registered native title bodies corporate;
(ii) native title holders;
(iii) persons who may hold native title;
of any matter that the representative body considers may relate to, or may have an impact upon, native title in the area; and
(e) whenever the body considers it necessary in the performance of its functions--consult with Aboriginal or Torres Strait Islander communities that might be affected by the matters with which the body is dealing; and
(f) as far as is reasonably practicable, co-operate with other representative bodies for the purpose of promoting the effective and efficient exercise of the functions and powers of representative bodies.
203BK Powers of representative bodies
(1) A representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(2) Without limiting subsection (1), a representative body has power to enter into arrangements and contracts to obtain services to assist in the performance by the representative body of its functions.
Assistance in performing dispute resolution functions
(3) Without limiting subsection (1), in performing its dispute resolution functions in a particular case, a representative body may be assisted by the NNTT, but only if the representative body and the NNTT have entered into an agreement under which the representative body is liable to pay the NNTT for the assistance .
203C Grants to representative bodies
Representative body may apply for grant
(1) A representative body may apply to ATSIC for a grant of money under this section for the purpose of enabling the body to perform its functions or exercise its powers.
Grants of money
(2) ATSIC may make a grant of money to the representative body from money appropriated for the purposes of ATSIC.
(3) The grant of money may be:
(a) in respect of a financial year; or
(b) in respect of a part of a financial year; or
(c) in respect of any other period not exceeding 3 years.
Conditions of grants
(1) A grant of money to a representative body under this Division may be subject to such conditions as ATSIC thinks fit. However, ATSIC must impose conditions relating to:
(a) the purposes for which the money may be spent; and
(b) the period within which the money is to be spent; and
(c) the acquittal of money spent; and
(d) the giving of information relating to expenditure of the money; and
(e) the appointment of a person, in cases where ATSIC considers that grant money has not been spent in accordance with the conditions of the grant, with the power to prevent expenditure of further grant money otherwise than in accordance with the conditions of the grant; and
(f) the representative body's continuing satisfactory performance of its functions and continuing compliance with this Act; and
(g) the giving of information relating to the performance of the body's functions and its compliance with this Act.
Repayment of part of grant on withdrawal of recognition
(1A) The grant is also subject to a condition that if:
(a) the representative body's recognition as a representative body is withdrawn under section 203AH; and
(b) the withdrawal takes effect during the period to which the grant relates;
the representative body must repay to ATSIC an amount equal to so much (if any) of the grant as is uncommitted at the time the recognition is withdrawn.
Uncommitted amount of the grant
(1B) For the purposes of subsection (1A), the amount of the grant that is uncommitted is the difference (if any) between:
(a) the portion (if any) of the grant that has, at the time the recognition is withdrawn, been paid to the representative body by ATSIC; and
(b) the sum of:
(i) the portion (if any) of the grant that has, at that time, been spent by the representative body in connection with the performance of its functions and the exercise of its powers; and
(ii) the portion (if any) of the grant that the representative body is, at that time, liable to pay to other persons in connection with the performance of its functions and the exercise of its powers.
Strategic plan to be considered in making grants
(2) In making the grant and deciding on the conditions to be imposed under subsection (1), ATSIC must have regard to the matters set out in the strategic plan (see section 203D) of the representative body concerned. The conditions of the grant must be consistent with the strategic plan.
Bodies must comply with conditions of grants
(3) The representative body must comply with the conditions of the grant.
Application of ATSIC Act
(4) Sections 20, 21, 21A and 22 of the Aboriginal and Torres Strait Islander Commission Act 1989 apply to a grant under this Division as if the grant had been made under section 14 of that Act.
Note: The effect of this subsection is to enable ATSIC to recover from a representative body amounts of grants if the body breaches conditions of those grants.
Serious or repeated breaches of conditions
(5) If ATSIC considers that the representative body:
(a) has committed, or is committing, serious breaches of conditions of a grant under this Division; or
(b) has repeatedly breached, or is repeatedly breaching, conditions of a grant under this Division;
ATSIC must give to the Commonwealth Minister a written notice informing the Minister of the breaches and stating what measures ATSIC is taking, or proposes to take, as a result of the breaches.
Payment into bank account
(1) A representative body must pay all money received by it under this Division into an account maintained by it with a bank.
Surplus money
(2) The representative body may invest surplus money:
(a) on deposit with a bank; or
(b) in securities of the Commonwealth or of a State or Territory; or
(c) in securities guaranteed by the Commonwealth, a State or a Territory; or
(d) in any other manner approved by the Treasurer in writing.
Restrictions on entering into contracts
(3) A provision of the law by or under which the representative body is incorporated to the effect that the body must not enter into a contract involving expenditure or payment of more than a specified amount of money without a specified person's approval does not apply to a contract for the investment of money under subsection (2), unless:
(a) the provision expressly states that it applies to such a contract; or
(b) the body concerned is an exempt State body.
Definitions
(4) In this section, unless the contrary intention appears:
"bank" means:
(a) a person who carries on the business of banking, either in Australia or outside Australia; or
(b) any other institution:
(i) that carries on a business in Australia that consists of or includes taking money on deposit; and
(ii) the operations of which are subject to prudential supervision or regulation under a law of the Commonwealth, a State or a Territory.
"surplus money" means money received by the representative body under this Division that is not immediately required for the purposes of the body.
Representative body must prepare strategic plan
(1) A representative body must prepare a strategic plan relating to its functions for each period (of not less than 3 years) determined in writing by the Minister.
Note: A reference to a representative body's functions is a reference to its functions and obligations under this Act--see section 201A.
Matters to be included in strategic plan
(2) The strategic plan must include, but is not limited to, the following matters:
(a) a general financial plan;
(b) a general statement of the objectives of the body in relation to the performance of its functions and the exercise of its powers;
(c) a general statement of the strategies and policies proposed to achieve those objectives, including, but not limited to, strategies and policies about the following:
(i) consultation with Aboriginal peoples and Torres Strait Islanders about matters relevant to the operation of this Act;
(ii) procedures for making decisions and for providing the review process referred to in paragraph 203BI(a);
(iii) the setting of priorities by the body in relation to the performance of its functions and the exercise of its powers.
Strategic plan to be prepared in consultation with ATSIC
(3) The representative body must prepare the strategic plan in consultation with ATSIC.
Revision of strategic plan
(4) The representative body may revise the strategic plan during the period to which the strategic plan relates if the representative body considers, after consultation with ATSIC, that circumstances have arisen that could significantly affect the achievement of the objectives set out in the strategic plan.
Strategic plan to be given to Commonwealth Minister for approval
(5) The representative body must give the strategic plan or revised strategic plan, as the case requires, to the Commonwealth Minister for approval as soon as practicable after it is prepared or revised.
Commonwealth Minister to be informed of significant matters
(6) The representative body must inform the Commonwealth Minister about matters that might significantly affect the achievement of the objectives in the strategic plan.
Strategic plan to be made available
(7) The representative body must make copies of the strategic plan generally available to:
(a) native title holders in relation to land or waters in the area for which the body is the representative body; and
(b) registered native title bodies corporate in relation to native title in that area; and
(c) persons who may hold native title in that area; and
(d) Aboriginal persons and Torres Strait Islanders living in that area.
Proper accounts and records to be kept
(1) A representative body must keep accounting records that properly record and explain its transactions and financial position, to the extent that its transactions and financial position relate to the performance of its functions or the exercise of its powers. It must keep those records in a way that:
(a) enables the preparation of the financial statements required by this Division; and
(b) allows those financial statements to be conveniently and properly audited in accordance with this Division.
Accounting records to be separate from others
(2) The body must keep accounts and records required to be kept by subsection (1) separate from any other accounts and records kept by the body.
Retention of accounting records
(3) The body must retain those records for at least 7 years after completion of the transactions to which they relate.
Availability of accounting records
(4) The body must make those records available at all reasonable times for inspection by any director of the body.
203DB Payments to be properly made etc.
A representative body must do all things necessary to ensure that payments out of the money of the body are correctly made and properly authorised, and that adequate control is maintained over:
(a) the assets of, or in the custody of, the body; and
(b) the incurring of liabilities by the body;
to the extent that the payments, or the assets or liabilities, relate to the performance of its functions or the exercise of its powers.
203DC Annual reports by representative body
Annual report
(1) A representative body must, in respect of each financial year:
(a) prepare a report of the operations of the body during that year, together with financial statements in respect of that year; and
(b) give the report and the financial statements to ATSIC by 15 October in the next financial year.
Extensions of the deadline
(2) ATSIC may grant an extension of time (whether or not the initial deadline has expired) in special circumstances.
Report to relate to representative body functions
(3) The report and the financial statements are to relate only to the performance of its functions or the exercise of its powers.
Form of financial statements
(4) The financial statements must be in such form as the Commonwealth Minister approves in writing, and must be accompanied by a copy of the report on those statements prepared in accordance with subsection (5).
Audit of financial statements
(5) The financial statements must be audited by a person having the prescribed qualifications and appointed by the body for the purpose, who is to report to the body:
(a) whether the statements are based on proper accounts and records; and
(b) whether the statements are in agreement with the accounts and records; and
(c) whether the receipt, expenditure and the investment of money, and the acquisition and disposal of assets, by the body during the year have been in accordance with this Act and any grant conditions imposed under subsection 203CA(1); and
(d) as to such other matters arising out of the statements as the person appointed considers should be reported to the body.
Report to be laid before Parliament
(6) On receipt of a report and financial statements given under subsection (1), ATSIC must provide a copy of each document to the Commonwealth Minister, who must cause them to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Commonwealth Minister receives that report and those financial statements.
203DD Modified requirements for first year of recognition
Body recognised during last 3 months of a financial year
(1) If the recognition of a representative body under section 203AD takes effect during the last 3 months of a financial year:
(a) the representative body is not required to prepare an annual report and financial statements for that financial year; and
(b) the period from the time of recognition to the end of the financial year must be dealt with in the next annual report and financial statements.
Representative body established during first 9 months of a financial year
(2) Subject to section 203DE, if the recognition of a representative body under section 203AD takes effect during the first 9 months of a financial year, the annual report and financial statements for the financial year must cover the period from the time of recognition to the end of the financial year.
203DE Modified requirements for bodies whose recognition is withdrawn
If the recognition of a body as a representative body is withdrawn under section 203AH during a financial year, the annual report and financial statements must cover the period from the beginning of the financial year to the time at which the withdrawal of recognition takes effect.
203DF Inspection and audit, or investigation, of a representative body
Appointment of person to conduct inspection and audit or investigation
(1) The Commonwealth Minister may appoint a person who, in the Commonwealth Minister's opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of an inspection and audit or investigation under this section to:
(a) inspect and audit the accounts and records kept by a representative body under section 203DA; or
(b) investigate the body's performance of its functions and exercise of its powers.
Note: A representative body may also be audited under Division 9 of Part 2 of the Aboriginal and Torres Strait Islander Commission Act 1989 , which enables the Office of Evaluation and Audit, when requested to do so by the Commonwealth Minister or ATSIC, to evaluate and audit the operations of a body that has received a grant from ATSIC.
Circumstances in which auditor or investigator can be appointed
(2) The Commonwealth Minister must not appoint a person under subsection (1) to conduct an inspection and audit, or an investigation, of a representative body unless the Commonwealth Minister is of the opinion that there is, or may be:
(a) serious or repeated irregularities in the financial affairs of the representative body; or
(b) a serious failure, or repeated failure, to perform its functions.
Notice requirements
(3) If the Commonwealth Minister decides that an inspection and audit, or an investigation, is to be undertaken under this section, the Commonwealth Minister must give written notice of that decision to the representative body concerned. The notice must name the person who is to carry out the inspection and audit or the investigation.
Report to Commonwealth Minister
(4) A person appointed under subsection (1) to conduct an inspection and audit or an investigation must give to the Commonwealth Minister a report on the results of that inspection and audit or investigation.
Irregularity to be disclosed
(5) A report under subsection (4) must draw attention to:
(a) any irregularity in the financial affairs of the body disclosed by the inspection and audit or the investigation; or
(b) any failure by the body to perform its functions disclosed by the inspection and audit or the investigation.
Report not to contain matters subject to legal professional privilege
(6) A report under subsection (4) must not contain any information, or include any document or record, that is subject to legal professional privilege or that is derived from information that is subject to legal professional privilege.
Legal professional privilege must be claimed
(7) For the purposes of subsection (6), information, or a document or record, is not taken to be subject to legal professional privilege unless, at or before the time it was obtained by the person appointed under subsection (1), it was claimed to be subject to legal professional privilege by a person entitled to make such a claim.
Auditor or investigator taken to be a Commonwealth officer
(8) To avoid doubt, a person appointed under subsection (1) of this section is taken, for the purposes of sections 70, 72, 73, 74 and 75 of the Crimes Act 1914 , to be a Commonwealth officer.
General
(1) For the purpose of conducting an inspection and audit, or an investigation, of a representative body under section 203DF, the person appointed under subsection 203DF(1):
(a) is entitled at all reasonable times to full and free access to documents relating to the representative body; and
(b) may make copies, or take extracts from, any such document; and
(c) may require a representative body:
(i) to answer such questions; and
(ii) to produce such documents in the representative body's possession or to which the representative body has access;
as the person so appointed considers necessary for that purpose.
Use of legally professionally privileged documents
(2) A representative body must produce a document or record or disclose information as required under paragraph (1)(c), whether or not the document, record or information is the subject of legal professional privilege.
Production does not affect legal professional privilege
(3) A document, record or information does not cease to be the subject of legal professional privilege merely because it is produced under paragraph (1)(c).
Failure to comply with paragraph (1)(c)
(4) A representative body who, without reasonable excuse, refuses or fails to comply with the requirement under paragraph (1)(c) is guilty of an offence punishable upon conviction by a fine not exceeding 20 penalty units.
Self-incrimination
(5) For the purposes of subsection (4), it is not a reasonable excuse for a representative body to refuse or fail:
(a) to give information; or
(b) to produce a record or document;
in accordance with a requirement under paragraph (1)(c), on the ground that the information or the production of the document or record, as the case may be, might tend to incriminate the representative body or make the representative body liable to a penalty.
Admissibility in criminal proceedings
(6) Despite subsection (5):
(a) giving the information or producing the document or record; or
(b) any information, document, record or thing obtained as a direct or indirect consequence of the giving of the information or production of the document or record;
is not admissible in evidence against the person in any criminal proceedings, other than proceedings against, or arising out of, subsection (4) or (7).
Knowingly making a statement that is false or misleading
(7) A representative body who, in purported compliance with the requirement under paragraph (1)(c), makes a statement that it knows to be false or misleading in a material particular, is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
203DH Effect of withdrawal of recognition
A withdrawal of the body's recognition under section 203AH does not affect the undertaking of an inspection and audit, or investigation, under section 203DF.
Division 6 -- Conduct of directors and other executive officers
Relation to representative body functions and powers
(1) This Division does not apply to anything that is not related to the performance of the functions of a representative body or the exercise of its powers.
Exempt State bodies
(2) This Division does not apply to the directors or executive officers of a representative body that is an exempt State body, except to the extent that a law of a State provides that it does so apply.
203EA Application of certain provisions of the Commonwealth Authorities and Companies Act
Subject to this section and to section 203EB, Division 4 of Part 3 and Schedule 2 (other than clauses 8 and 12) of the Commonwealth Authorities and Companies Act 1997 apply in relation to a representative body as if:
(a) each reference in that Division and in that Schedule to a Commonwealth authority were a reference to the representative body; and
(b) each reference in that Division to an officer of a Commonwealth authority were a reference to an executive officer of the representative body; and
(c) each reference in that Division to a former officer of a Commonwealth authority were a reference to a former executive officer of the representative body; and
(d) each reference in that Division and in that Schedule to a director of a Commonwealth authority were a reference to a director of the representative body; and
(e) each reference in that Division to the Board of a Commonwealth authority were a reference to the governing body of the representative body; and
(f) each reference in that Schedule to the Finance Minister were a reference to the Commonwealth Minister.
203EB Application of section 21 of the Commonwealth Authorities and Companies Act
Section 21 of the Commonwealth Authorities and Companies Act 1997 applies in relation to a representative body as if subsections (3), (4) and (5) were omitted and the following subsection substituted:
(3) The director:
(a) must not be present during any deliberation by the governing body on the matter; and
(b) must not take part in any decision of the governing body on the matter.
203EC Sections 203EA and 203EB not to affect certain obligations
To avoid doubt, sections 203EA and 203EB do not affect the obligations imposed by the Commonwealth Authorities and Companies Act 1997 upon a representative body that is a Commonwealth authority within the meaning of section 7 of that Act.
32 Before section 203FC
Insert:
203F ATSIC to inform Minister of certain matters
If ATSIC is of the opinion that:
(a) a representative body is not satisfactorily representing the native title holders or persons who may hold native title in the area for which the body is the representative body; or
(b) a representative body is not effectively consulting with Aboriginal peoples and Torres Strait Islanders living in the area; or
(c) a representative body is not satisfactorily performing its functions; or
(d) there may be irregularities in the financial affairs of a representative body;
ATSIC must give written notice of its opinion to the Commonwealth Minister.
Note: ATSIC must also give written notice of breaches of grant conditions to the Commonwealth Minister--see subsection 203CA(5).
203FA ATSIC to give information etc. about certain matters to Minister
If the Commonwealth Minister suspects that, in relation to a particular matter:
(a) a representative body is not satisfactorily representing the native title holders or persons who may hold native title in the area for which the body is the representative body; or
(b) a representative body is not effectively consulting with Aboriginal peoples and Torres Strait Islanders living in the area; or
(c) a representative body is not satisfactorily performing its functions; or
(d) there may be irregularities in the financial affairs of the representative body; or
(e) the representative body has breached, or is breaching, a condition of a grant under Division 4;
the Commonwealth Minister may request that ATSIC provide to the Commonwealth Minister all information or documents, or specified information or documents, in ATSIC's possession that relates to that matter. ATSIC must comply with the request.
203FB Review of assistance decisions
Person may apply for review
(1) An Aboriginal person or Torres Strait Islander affected by a decision of a representative body not to assist him or her in the performance of its facilitation and assistance functions under section 203BB may apply to ATSIC for review of the decision.
Note: The Aboriginal person or Torres Strait Islander is able to obtain a statement of reasons etc. for the decision from the representative body under section 13 of the Administrative Decisions (Judicial Review) Act 1977.
Appointment of person to conduct the review
(2) As soon as practicable after receiving the application, ATSIC must appoint to conduct the review a person who, in ATSIC's opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of the review.
Review of decision
(3) Subject to subsection (4), the person appointed must review the decision and report to ATSIC whether:
(a) the decision should be affirmed; or
(b) ATSIC should make a grant of money under section 203FE to a person or body for the purpose of performing specified facilitation and assistance functions of a representative body in relation to the matter to which the decision relates.
Failure to use internal review procedures
(4) The person appointed may refuse to review the decision if satisfied that the applicant did not, before applying for the review, make all reasonable efforts to seek a review by the representative body of its decision.
Report to be given within 3 months
(5) The person appointed must give the report referred to in subsection (3) to ATSIC within 3 months after the day on which he or she was appointed, or within such other period as ATSIC allows (whether or not the 3 months have expired).
Inviting submissions
(6) Before reviewing the decision, the person appointed must invite the representative body that made the decision to make a submission in relation to the decision. The invitation must specify a period of not less than 14 days within which submissions must be made.
Action to be taken by ATSIC
(7) ATSIC must, within one month of the end of the period referred to in subsection (5):
(a) affirm the decision; or
(b) make a grant of money under section 203FE as mentioned in paragraph (3)(b) of this section.
Notice of decision on review
(8) ATSIC must give the applicant and the representative body written notice of its decision under subsection (7). The notice must include the reasons for that decision.
33 After section 203FD
Insert:
203FE Grants of assistance by ATSIC
Grants if there is no representative body
(1) ATSIC may make one or more grants of money to a person or body for the purpose of enabling the person or body to perform, in respect of a specified area for which there is no representative body:
(a) all the functions of a representative body; or
(b) specified functions of a representative body;
either generally or in relation to one or more specified matters.
Grants following certain decisions under section 203FB
(2) ATSIC may make one or more grants of money to a person or body for the purpose of enabling the person or body to perform specified facilitation and assistance functions of a representative body in relation to a matter to which a decision under paragraph 203FB(7)(b) relates.
Conditions of grants
(3) A grant of money to a person or body under this section may be subject to such conditions as ATSIC thinks fit. However, ATSIC must impose conditions relating to:
(a) the purposes for which the money may be spent; and
(b) the period within which the money is to be spent; and
(c) the acquittal of money spent; and
(d) the giving of information relating to expenditure of the money; and
(e) the appointment of a person, in cases where ATSIC considers that grant money has not been spent in accordance with the conditions of the grant, with the power to prevent expenditure of further grant money otherwise than in accordance with the conditions of the grant; and
(f) the person's or body's continuing satisfactory performance of its functions referred to in subsection (1) or (2), as the case requires; and
(g) the giving of information relating to the performance of the functions referred to in subsection (1) or (2), as the case requires.
Grant period to be specified
(4) ATSIC must determine the period during which the person or body may spend the money.
Grant period may be extended
(5) If ATSIC considers it appropriate, ATSIC may determine that the period during which the person or body may spend the money is extended for a specified further period.
Persons or bodies must comply with conditions etc.
(6) The person or body must comply with the conditions of the grant, and with any determinations under subsection (4) or (5).
Application of ATSIC Act
(7) Sections 20, 21, 21A and 22 of the Aboriginal and Torres Strait Islander Commission Act 1989 apply to a grant under this section as if the grant had been made under section 14 of that Act.
Note: The effect of this subsection is to enable ATSIC to recover from a person or body amounts of grants if the person or body breaches conditions of those grants.
203FF Financial and accountability requirements imposed by other legislation
Obligations under other laws unaffected
(1) The obligations imposed on a representative body by Divisions 4 and 5 are in addition to, and not instead of, requirements imposed by any other law of the Commonwealth, a State or Territory.
Combined reports to the Commonwealth Minister
(2) A representative body that has an obligation under another law of the Commonwealth to give a report to the Commonwealth Minister may include as a part of that report a report that it is obliged to give to the Minister under Division 5. However, that part must be identified in the report as a report under Division 5.
A person is guilty of an offence if the person:
(a) makes a statement or presents a document in or in connection with an application to ATSIC for a grant under section 203C; and
(b) does so knowing that the statement is, or that the document contains information that is, false or misleading in a material particular.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
34 Paragraph 214(a)
Omit "202(1),".
35 At the end of paragraph 214(b)
Add ", 203AE, 203AF or 203AG or subsection 203AH(2)".
36 At the end of section 215
Add:
Transitional or saving provisions
(4) Without limiting subsection (1), the regulations may make such transitional or saving provisions as are necessary or convenient as a result of the recognition of representative Aboriginal/Torres Strait Islander bodies being withdrawn under section 203AH.
37 Section 253 (definition of representative Aboriginal/Torres Strait Islander body )
Omit "that is the subject of a determination under subsection 202(1) or".
Note: This amendment will have the effect that, when this Part commences, representative bodies under subsection 202(1) will no longer be representative bodies.