Federal Register of Legislation - Australian Government

Primary content

Native Title Amendment (Technical Amendments) Act 2007

  • - C2007A00125
  • In force - Superseded Version
  • View Series
Act No. 125 of 2007 as made
An Act to amend legislation in relation to native title, and for related purposes
Administered by: Prime Minister and Cabinet
Originating Bill: Native Title Amendment (Technical Amendments) Bill 2007
Registered 25 Jul 2007
Date of Assent 20 Jul 2007
Table of contents.

 

 

 

 

 

 

Native Title Amendment (Technical Amendments) Act 2007

 

No. 125, 2007

 

 

 

 

 

An Act to amend legislation in relation to native title, and for related purposes

  

  


Contents

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

2............ Commencement.................................................................................. 2

3............ Schedule(s).......................................................................................... 3

Schedule 1—Amendment of the Native Title Act 1993                                     4

Part 1—Amendments                                                                                                      4

Native Title Act 1993                                                                                                  4

Native Title Amendment Act 2007                                                                          45

Part 2—Application and other provisions                                                              47

Schedule 2—Amendments relating to representative bodies                      53

Part 1—Amendments                                                                                                    53

Native Title Act 1993                                                                                                53

Part 2—Application provisions                                                                                  62

Schedule 3—Amendments relating to prescribed bodies corporate        63

Part 1—Amendments                                                                                                    63

Native Title Act 1993                                                                                                63

Part 2—Transitional and application provisions                                                  70

Schedule 4—Technical amendments relating to legislative instruments 71

Native Title Act 1993                                                                                                71

Native Title Amendment Act 1998                                                                          73

Schedule 5—Applications not considered or reconsidered under items 89 and 90 of Schedule 2 to the Native Title Amendment Act 2007                                                                              75

 


 

 

Native Title Amendment (Technical Amendments) Act 2007

No. 125, 2007

 

 

 

An Act to amend legislation in relation to native title, and for related purposes

[Assented to 20 July 2007]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Native Title Amendment (Technical Amendments) Act 2007.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

20 July 2007

2.  Schedule 1, items 1 to 83

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

1 September 2007
(see F2007L02416)

3.  Schedule 1, items 83A to 83C

The day after this Act receives the Royal Assent.

21 July 2007

4.  Schedule 1, items 84 to 89

At the same time as the provision(s) covered by table item 2.

1 September 2007

4A.  Schedule 1, items 90 and 91

Immediately after the commencement of Schedule 2 to the Native Title Amendment Act 2007.

15 April 2007

4B.  Schedule 1, items 91A to 91E

At the same time as the provision(s) covered by table item 3.

21 July 2007

4C.  Schedule 1, items 91F to 139

At the same time as the provision(s) covered by table item 2.

1 September 2007

5.  Schedule 2, items 1 to 3

The day after this Act receives the Royal Assent.

21 July 2007

6.  Schedule 2, item 4

1 July 2007.

1 July 2007

7.  Schedule 2, items 5 to 12

At the same time as the provision(s) covered by table item 5.

21 July 2007

8.  Schedule 3, items 1 to 6

At the same time as the provision(s) covered by table item 5.

21 July 2007

9.  Schedule 3, item 7

1 July 2008.

1 July 2008

10.  Schedule 3, items 8 to 10

At the same time as the provision(s) covered by table item 5.

21 July 2007

10A.  Schedule 3, item 10A

Immediately after the commencement of Schedule 1 to the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006.

1 July 2007

10B.  Schedule 3, items 11 and 12

At the same time as the provision(s) covered by table item 5.

21 July 2007

11.  Schedule 4

At the same time as the provision(s) covered by table item 2.

1 September 2007

12.  Schedule 5

At the same time as the provision(s) covered by table item 2.

1 September 2007

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendment of the Native Title Act 1993

Part 1Amendments

Native Title Act 1993

1  Subsection 13(2) (note)

Repeal the note, substitute:

Note:          In these circumstances, the compensation application must be accompanied by the affidavit, and contain the information, that would be required for a native title determination application for the area: see subsection 62(3).

2  Subsection 24AA(3)

Repeal the subsection, substitute:

             (3)  A future act will be valid if the parties to certain agreements (called indigenous land use agreements—see Subdivisions B, C and D) consent to it being done and, at the time it is done, details of the agreement are on the Register of Indigenous Land Use Agreements. An indigenous land use agreement, details of which are on the Register, may also validate a future act (other than an intermediate period act) that has already been invalidly done.

3  After paragraph 24BB(e)

Insert:

                  (eaa)  providing a framework for the making of other agreements about matters relating to native title rights and interests;

4  Section 24BF

Before “Persons”, insert “(1)”.

5  At the end of section 24BF

Add:

             (2)  The NNTT must not use or disclose information to which it has had access only because it has provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

6  At the end of section 24BG

Add:

Registrar may assist parties

             (3)  The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.

7  Subsection 24BH(1)

Repeal the subsection, substitute:

Notice to persons who are not parties to an agreement

             (1)  The Registrar must give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

                     (a)  the Commonwealth Minister;

                     (b)  if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

                     (c)  any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;

                     (d)  any local government body for the area covered by the agreement;

                     (e)  any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate.

8  Subsection 24BH(2)

Omit “paragraph (1)(a) or (b)”, substitute “subsection (1)”.

9  Paragraph 24BH(2)(a)

Repeal the paragraph, substitute:

                     (a)  identify the area covered by the agreement, whether by including a map or otherwise; and

10  Paragraph 24BH(2)(c)

Repeal the paragraph, substitute:

                     (c)  set out:

                              (i)  any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d) or 24EBA(1)(a); or

                             (ii)  a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained.

11  At the end of section 24BH

Add:

Notice to specify day

             (3)  The notice under subsection (1) must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day.

Which days may be specified

             (4)  That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under subsection (1) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under that subsection.

Notice to parties to the agreement

             (5)  The Registrar must give notice to the parties to the agreement of the notification day for the agreement that was specified in the notice under subsection (1).

12  Subsection 24BI(2)

Omit “after the Registrar gives notice under section 24BH”, substitute “after the notification day”.

13  Paragraph 24BI(3)(a)

Omit “after the Registrar gives notice under section 24BH”, substitute “after the notification day”.

14  After paragraph 24CB(e)

Insert:

                  (eaa)  providing a framework for the making of other agreements about matters relating to native title rights and interests;

15  Section 24CF

Before “Persons”, insert “(1)”.

16  At the end of section 24CF

Add:

             (2)  The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

17  At the end of section 24CG

Add:

Registrar may assist parties

             (4)  The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.

Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised

             (5)  To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect.

18  Paragraph 24CH(2)(a)

Repeal the paragraph, substitute:

                     (a)  identify the area covered by the agreement, whether by including a map or otherwise; and

19  Paragraph 24CH(2)(c)

Repeal the paragraph, substitute:

                     (c)  set out:

                              (i)  any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d) or 24EBA(1)(a); or

                             (ii)  a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained; and

20  At the end of section 24CI

Add:

Information obtained to provide assistance not to be used or disclosed in other contexts

             (3)  The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

21  Subsection 24CK(4)

After “any information given”, insert “to the Registrar”.

22  Subparagraph 24CL(2)(b)(ii)

Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.

22A  After subparagraph 24CL(2)(b)(ii)

Insert:

                           (iia)  the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

23  Subparagraph 24CL(2)(b)(iii)

Omit “section 190D”, substitute “section 190E or 190F”

24  Section 24DG

Before “Persons”, insert “(1)”.

25  At the end of section 24DG

Add:

Information obtained in providing assistance not to be used or disclosed in other contexts

             (2)  The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

26  At the end of section 24DH

Add:

Registrar may assist parties

             (3)  The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.

27  Paragraph 24DI(2)(a)

Repeal the paragraph, substitute:

                     (a)  identify the area covered by the agreement, whether by including a map or otherwise; and

28  Paragraph 24DI(2)(c)

Repeal the paragraph, substitute:

                     (c)  set out:

                              (i)  any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b) or (c) or 24EBA(1)(a); or

                             (ii)  a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained; and

29  At the end of subsection 24DJ(1)

Add:

Note:          Section 77A sets out the material and fees that must accompany the application, and includes a requirement to state reasons why it would not be fair and reasonable to register the agreement.

30  At the end of section 24DJ

Add:

Information obtained in providing assistance not to be used or disclosed in other contexts

             (3)  The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

31  Subparagraph 24FE(b)(ii)

Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.

31A  After subparagraph 24FE(b)(ii)

Insert:

                           (iia)  the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

32  Subparagraph 24FE(b)(iii)

Omit “section 190D”, substitute “section 190E or 190F”.

33  After subsection 24IC(2)

Insert:

Replacing 2 or more leases etc. with a single lease etc.

          (2A)  If a single lease, licence, permit or authority is granted in place of, respectively, 2 or more leases, licences, permits or authorities (the original leases etc.), then:

                     (a)  for the purpose of subsection (1), the single grant is taken to be a renewal of the original leases etc.; and

                     (b)  paragraphs (1)(b) to (e) apply as if a reference in those paragraphs to the original lease etc. were a reference to the original leases etc.

34  After paragraph 24KA(2)(l)

Insert:

                     (la)  an automatic weather station;

35  Paragraph 24KA(8)(b)

Repeal the paragraph, substitute:

                     (b)  there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

36  Paragraph 24KA(8)(c)

Omit “for the area concerned”, substitute “for that part of the area concerned for which there is no registered native title body corporate”.

37  Paragraph 24KA(8)(d)

Omit “in the area concerned”, substitute “in that part of the area concerned for which there is no registered native title body corporate”.

38  Paragraph 24KA(9)(b)

Repeal the paragraph, substitute:

                     (b)  there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

39  Paragraph 24KA(9)(c)

Omit “in the area concerned”, substitute “in that part of the area concerned for which there is no registered native title body corporate”.

40  Paragraph 24KA(9)(d)

Omit “for the area concerned”, substitute “for that part of the area concerned for which there is no registered native title body corporate”.

41  Paragraph 24MD(6B)(b)(note)

Repeal the note.

42  After subparagraph 24MD(6B)(c)(iii)

Insert:

                      and (iv)  the Registrar;

43  Paragraph 24MD(7)(b)

Repeal the paragraph, substitute:

                     (b)  there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

44  Paragraph 24MD(7)(c)

Omit “for the area concerned”, substitute “for that part of the area concerned for which there is no registered native title body corporate”.

45  Paragraph 24MD(7)(d)

Omit “in the area concerned”, substitute “in that part of the area concerned for which there is no registered native title body corporate”.

46  Paragraph 24MD(8)(b)

Repeal the paragraph, substitute:

                     (b)  there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

47  Paragraph 24MD(8)(c)

Omit “in the area concerned”, substitute “in that part of the area concerned for which there is no registered native title body corporate”.

48  Paragraph 24MD(8)(d)

Omit “for the area concerned”, substitute “for that part of the area concerned for which there is no registered native title body corporate”.

49  Paragraph 24NA(9)(b)

Repeal the paragraph, substitute:

                     (b)  there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

50  Paragraph 24NA(9)(c)

Omit “for the area concerned”, substitute “for that part of the area concerned for which there is no registered native title body corporate”.

51  Paragraph 24NA(9)(d)

Omit “in the area concerned”, substitute “in that part of the area concerned for which there is no registered native title body corporate”.

52  Paragraph 24NA(10)(b)

Repeal the paragraph, substitute:

                     (b)  there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

53  Paragraph 24NA(10)(c)

Omit “in the area concerned”, substitute “in that part of the area concerned for which there is no registered native title body corporate”.

54  Paragraph 24NA(10)(d)

Omit “for the area concerned”, substitute “for that part of the area concerned for which there is no registered native title body corporate”.

55  Paragraph 28(2)(a)

Repeal the paragraph, substitute:

                     (a)  in a case where an amount is to be secured by bank guarantee in favour of the Registrar in compliance with a condition of a determination made under section 36A or 38 or a declaration made under section 42—the Registrar is informed by the Government party as mentioned in item 2 of the table in subsection 52(2) that it no longer proposes to do the act; and

56  Subsection 29(8)

Repeal the subsection, substitute:

Multiple acts

             (8)  The Commonwealth Minister may, by legislative instrument, determine the circumstances and manner in which notice to a person under subsection (2) of 2 or more acts to which this Subdivision applies may be given in the same notice.

          (8A)  Notice to the public under subsection (3) of 2 or more acts to which this Subdivision applies may be given in the same notice.

57  At the end of section 31

Add:

Information obtained in providing assistance not to be used or disclosed in other contexts

             (4)  If the NNTT is the arbitral body, it must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than:

                     (a)  providing that assistance; or

                     (b)  establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b);

without the prior consent of the person who provided the NNTT with the information.

58  Subsection 36C(5)

Repeal the subsection, substitute:

Bank guarantee condition

             (5)  If a condition to be complied with is that an amount is to be secured by bank guarantee:

                     (a)  the arbitral body must:

                              (i)  determine the amount; and

                             (ii)  specify the person who must secure the amount in that way; and

                     (b)  the condition is not complied with unless:

                              (i)  the guarantee is given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959; and

                             (ii)  the guarantee is secured in favour of the Registrar; and

                            (iii)  regulations made under subsection (5A) are complied with.

          (5A)  The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee.

59  Subsection 41(3)

Repeal the subsection, substitute:

Bank guarantee condition

             (3)  If, in the case of a determination by an arbitral body, a condition to be complied with is that an amount is to be secured by bank guarantee:

                     (a)  the arbitral body must:

                              (i)  determine the amount; and

                             (ii)  specify the person who must secure the amount in that way; and

                     (b)  the condition is not complied with unless:

                              (i)  the guarantee is given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959; and

                             (ii)  the guarantee is secured in favour of the Registrar; and

                            (iii)  regulations made under subsection (4) are complied with.

             (4)  The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee.

60  Subsection 42(5)

Repeal the subsection, substitute:

Bank guarantee condition

             (5)  If a condition to be complied with is that an amount is to be secured by bank guarantee:

                     (a)  the arbitral body must:

                              (i)  determine the amount; and

                             (ii)  specify the person who must secure the amount in that way; and

                     (b)  the condition is not complied with unless:

                              (i)  the guarantee is given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959; and

                             (ii)  the guarantee is secured in favour of the Registrar; and

                            (iii)  regulations made under subsection (5A) are complied with.

          (5A)  The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee.

61  Paragraph 43(2)(j)

Repeal the paragraph, substitute:

                      (j)  make appropriate provision for compensation for the act, including provision for bank guarantees on similar terms to those in subsections 36C(5), 41(3) and 42(5), and regulations made for the purposes of subsections 36C(5A), 41(4) and 42(5A); and

62  After subsection 43(2)

Insert:

Effect of including conjunctive agreement/determination provisions and expedited procedure provisions

          (2A)  If the only reason for the Commonwealth Minister not being of the opinion that the alternative provisions comply with subsection (2) is that they include conjunctive agreement/determination provisions or expedited procedure provisions (see subsection (5)), the alternative provisions nevertheless comply with subsection (2).

63  At the end of section 43

Add:

Meaning of certain expressions

             (5)  In this section:

conjunctive agreement/determination provisions means provisions that:

                     (a)  are included in alternative provisions; and

                     (b)  in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that subsection 26D(2) of this Act has in combination with the other provisions of this Subdivision.

expedited procedure provisions means provisions that:

                     (a)  are included in alternative provisions; and

                     (b)  in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that section 32 of this Act has in combination with the other provisions of this Subdivision.

64  After subsection 43(3)

Insert:

          (3A)  If, at any time, the alternative provisions cease to have ongoing effect, the Commonwealth Minister must, by legislative instrument, revoke the determination made under paragraph (1)(b).

65  After subsection 43A(9)

Insert:

          (9A)  If, at any time, the alternative provisions cease to have ongoing effect, the Commonwealth Minister must, by legislative instrument, revoke the determination made under paragraph (1)(b).

66  After subsection 44B(4)

Insert:

Information obtained in providing assistance not to be used or disclosed in other contexts

          (4A)  The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

67  Section 44F

Before “If”, insert “(1)”.

68  At the end of section 44F (after the note)

Add:

             (2)  The NNTT must not use or disclose information to which it has had access only because it mediated in the dispute for any purpose other than mediating the dispute without the prior consent of the person who provided the NNTT with the information.

69  Section 52

Repeal the section, substitute:

52  Bank guarantee required under right to negotiate procedures

             (1)  This section applies if a condition to be complied with under:

                     (a)  a determination made under section 36A; or

                     (b)  a determination made under section 38; or

                     (c)  a declaration made under section 42;

in respect of an act is that an amount is to be secured by bank guarantee given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959 (an ADI) in favour of the Registrar.

Directions to ADI and payments to ultimate beneficiaries

             (2)  The Registrar must take the action set out in column 3 of the following table in the circumstances set out in column 2 of the table:

 

Directions to ADI and payments to ultimate beneficiaries

Item

If:

the Registrar must:

1

an approved determination of native title is made to the effect that there is no native title in relation to the area concerned immediately before the act takes place

direct the ADI to cancel the bank guarantee.

2

the Government party informs the Registrar in writing that it is not going to do the act

direct the ADI to cancel the bank guarantee.

3

(a) an approved determination of native title is made to the effect that the native title parties concerned are (disregarding any holding of the native title in trust under Division 6) the native title holders in relation to the area affected by the act; and

(b) the registered native title body corporate advises the Registrar that it wishes to accept the amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act; and

(c) the person who secured the amount by bank guarantee advises the Registrar that the person agrees to the registered native title body corporate accepting the amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act

(a)  direct the ADI to pay the amount secured to the Registrar; and

(b) pay that amount to the registered native title body corporate in relation to the area concerned.

4

(a) a determination is made, on a claim for compensation in respect of the act, that a person (the ultimate beneficiary) is entitled to compensation:

(i)   in accordance with this Division; or

(ii)  on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; and

(b) the amount secured is less than or equal to the amount determined

(a)  direct the ADI to pay the amount secured to the Registrar; and

(b) pay that amount to the ultimate beneficiary.

5

(a) a determination is made, on a claim for compensation in respect of the act, that a person (the ultimate beneficiary) is entitled to compensation:

(i)   in accordance with this Division; or

(ii)  on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; and

(b) the amount secured by bank guarantee is more than the amount determined

(a)  direct the ADI to pay the amount secured (the original amount) to the Registrar; and

(b) pay an amount equal to the amount determined to the ultimate beneficiary; and

(c)  pay the remainder to the person who secured the original amount by bank guarantee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.

6

a determination is made, on a claim for compensation in respect of the act:

(a)  in accordance with this Division; or

(b) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed;

that no person is entitled to compensation

direct the ADI to cancel the guarantee.

7

(a) the person who secured the amount by bank guarantee obtains an alternative bank guarantee from an ADI in favour of the Registrar; and

(b) the alternative bank guarantee complies with regulations made for the purposes of subsection 36C(5A), 41(4) or 42(5A) (as the case requires)

direct the ADI to cancel the guarantee.

8

(a) the Registrar applies to the Federal Court in accordance with subsection (3) for an order in relation to the amount secured; and

(b) the court orders that an amount be paid to a person (the ultimate beneficiary)

 

(a)  direct the ADI to pay the secured amount (the original amount) to the Registrar; and

(b) pay an amount to the ultimate beneficiary equal to the amount the court orders to be paid; and

(c)  if the amount to be paid to the ultimate beneficiary is less than the original amount—pay the remainder to the person who secured the original amount by bank guarantee or, if that person no longer exists, the person to whom the Federal Court orders it to be paid.

9

(a) none of the other items apply; and

(b) the Federal Court decides, on application by any person, that it would be just and equitable in all the circumstances to pay the amount secured by bank guarantee to a person (the ultimate beneficiary)

(a)  direct the ADI to pay the amount secured to the Registrar; and

(b) pay that amount to the ultimate beneficiary.

Application to the Federal Court where compensation includes transfer of property or provision of goods or services

             (3)  If:

                     (a)  a determination is made, on a claim for compensation in respect of the act:

                              (i)  in accordance with this Division; or

                             (ii)  on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed;

                            that a person is entitled to compensation; and

                     (b)  some or all of the compensation is constituted by the transfer of property or the provision of goods or services;

the Registrar must apply to the Federal Court for a direction as to the payment of the amount secured.

Federal Court jurisdiction

             (4)  The Federal Court has jurisdiction in relation to the matters mentioned in:

                     (a)  items 5, 8 and 9 of the table in subsection (2); and

                     (b)  subsection (3).

Compensation payable is greater amount than that secured

             (5)  If:

                     (a)  a determination is made, on a claim for compensation in respect of the act:

                              (i)  in accordance with this Division; or

                             (ii)  on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed;

                            that a person is entitled to compensation; and

                     (b)  the amount secured by the bank guarantee is less than the amount determined;

the Government party must pay the shortfall to the person.

No compensation if already paid under bank guarantee

             (6)  Subject to section 53, if the Registrar pays an amount to a registered native title body corporate in accordance with item 3 of the table in subsection (2), there is no entitlement to compensation under Division 3 for the act.

70  Paragraph 57(2)(a)

Repeal the paragraph, substitute:

                     (a)  first, it must request a representative of the common law holders to:

                              (i)  nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose; and

                             (ii)  include with the nomination the written consent of the body corporate;

71  Subparagraph 62(1)(a)(ii)

Omit “an entry in the National Native Title Register”, substitute “an approved determination of native title”.

72  Subparagraph 62(1)(a)(v)

Repeal the subparagraph, substitute:

                             (v)  setting out details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

73  Paragraph 62(2)(c)

After “carried out”, insert “by or on behalf of the native title claim group”.

74  After paragraph 62(2)(g)

Insert:

                    (ga)  details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;

75  Subsection 62(2) (note)

After “Notices under”, insert “paragraph 24MD(6B)(c) and”.

76  Subparagraph 62(3)(a)(iv)

Repeal the subparagraph, substitute:

                            (iv)  setting out details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

77  At the end of section 62A

Add:

Note:          This section deals only with claimant applications and compensation applications. For provisions dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2.

78  Subsection 64(3)

Repeal the subsection, substitute:

Application may be amended despite current action by Registrar or Federal Court

             (3)  In the case of a claimant application, the fact that:

                     (a)  the Registrar is, under section 190A, considering the claim made in the application; or

                     (b)  the NNTT is, under section 190E, reconsidering the claim made in the application; or

                     (c)  the Federal Court is, on the application of the applicant under subsection 190F(1), reviewing the decision of the Registrar in relation to the claim;

does not prevent amendment of the application.

79  Subsection 64(5)

Repeal the subsection.

80  Subparagraph 66(3)(a)(iv)

Omit “, when the application was filed in the Federal Court, held”, substitute “when the notice is given, holds”.

81  After subsection 66A(1)

Insert:

Amending claims to re‑include area

          (1A)  If:

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

                     (b)  the amendment concerned is to re‑include in the area covered by the application an area of land or waters that was covered by the original application;

the Registrar must:

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

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

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

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

                     (e)  give notice of the amended application to each person whom the Registrar would, under subsections 66(3) and 66(5), be obliged to give notice if the application as amended were a new application, but to whom notice is not already required to be given under paragraph (c) or (d).

          (1B)  A notice under paragraph (1A)(e) must specify a day as the notification day for the amendment.

          (1C)  Each such notice in relation to the amendment must:

                     (a)  specify the same day; and

                     (b)  state that a person who wants to be a party in relation to the amended application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day, or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.

82  Subsection 66B(1)

Repeal the subsection, substitute:

Application to replace applicant in claimant application

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

                     (a)  one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

                              (i)  the person consents to his or her replacement or removal;

                             (ii)  the person has died or become incapacitated;

                            (iii)  the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

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

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

83  At the end of subsection 66B(1)

Add:

Note:          Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

83A  Paragraph 66C(1)(c)

Omit “and”.

83B  Paragraph 66C(1)(d)

Repeal the paragraph.

83C  Paragraph 66C(2)(b)

Omit “paragraph 94C(1)(d)”, substitute “paragraph 94C(1)(c)”.

84  Subsection 69(1) (table item dealing with claim registration application)

Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.

85  At the end of section 82

Add:

Maximising use of video links, audio links and other appropriate means of giving testimony, appearing and making submissions

             (3)  The Court or a Judge must exercise the discretion under section 47B of the Federal Court of Australia Act 1976 to allow a person to appear before the Court or Judge, or make a submission to the Court or Judge, by way of video link, audio link or other appropriate means if the Court or the Judge is satisfied that:

                     (a)  the conditions set out in section 47C in relation to the video link, audio link or other appropriate means are met; and

                     (b)  it is not contrary to the interests of justice to do so.

86  Paragraph 84(3)(b)

Repeal the paragraph, substitute:

                     (b)  the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

                              (i)  within the period specified in the notice under section 66; or

                             (ii)  if notice of an amended application is given under paragraph 66A(1A)(e)—within the period specified in the notice under that paragraph.

87  After subsection 84(6)

Insert:

          (6A)  In determining, for the purposes of subsection (6), when the first hearing of the proceedings starts, disregard directions hearings.

88  After section 84C

Insert:

84D  Proceedings affected by possible defect in authorisation

             (1)  The Federal Court may make an order requiring:

                     (a)  a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the court that he or she was authorised to do so; or

                     (b)  a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so.

             (2)  An order under subsection (1) may be made:

                     (a)  on the Federal Court’s own motion; or

                     (b)  on the application of a party to the proceedings; or

                     (c)  on the application of a member of the native title claim group or compensation claim group in relation to the application.

             (3)  Subsection (4) applies if:

                     (a)  an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

                     (b)  a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

Note:          Section 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them.

             (4)  The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

                     (a)  hear and determine the application, despite the defect in authorisation; or

                     (b)  make such other orders as the court considers appropriate.

89  After subsection 86F(2)

Insert:

Information obtained in providing assistance not to be used or disclosed in other contexts

          (2A)  The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement except for the following purposes:

                     (a)  providing assistance in negotiating the agreement;

                     (b)  mediating in relation to the whole or any part of the proceeding;

without the prior consent of the person who provided the NNTT with the information.

90  Paragraph 87(1)(d)

Repeal the paragraph.

91  Subparagraph 87A(1)(c)(v)

Repeal the subparagraph, substitute:

                             (v)  each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made;

91A  Paragraphs 94C(1)(b), (c) and (d)

Repeal the paragraphs, substitute:

                     (b)  it is apparent from the timing of the application that it is made in response to a future act notice given in relation to land or waters wholly or partly within the area; and

                     (c)  the future act requirements are satisfied in relation to each future act identified in the future act notice; and

91B  After subsection 94C(1)

Insert:

          (1A)  For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the current law applies if:

                     (a)  the future act notice is given in relation to land or waters wholly or partly within the area; and

                     (b)  the application is made during the period of 3 months after the notification day specified in the future act notice; and

                     (c)  the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, before the end of 4 months after the notification day specified in the future act notice.

          (1B)  For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the pre‑1998 law applies if:

                     (a)  the future act notice is given in relation to land or waters wholly or partly within the area; and

                     (b)  the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, within the period of 2 months starting when the notice is given.

          (1C)  The regulations may prescribe, for the purposes of paragraph (1)(b), other circumstances in which it is taken to be apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice, including circumstances in which it is taken to be apparent in relation to a future act notice given under alternative provisions.

          (1D)  For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the current law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:

                     (a)  subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

                     (b)  a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;

                     (c)  native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);

                     (d)  an agreement of the kind mentioned in paragraph 31(1)(b) is made;

                     (e)  a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;

                      (f)  a determination is made under section 36A or 38 that the act must not be done;

                     (g)  a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42;

                     (h)  a circumstance occurs in which, under the regulations, the future act requirements are satisfied.

           (1E)  For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the pre‑1998 law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:

                     (a)  subsection 32(2) of the pre‑1998 law (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

                     (b)  a determination is made under subsection 32(4) of the pre‑1998 law that the act is an act attracting the expedited procedure;

                     (c)  a copy of an agreement that the act may be done, or may be done subject to conditions being complied with, is given to the arbitral body under section 34 of the pre‑1998 law;

                     (d)  a determination is made under section 38 of the pre‑1998 law that the act may be done, or may be done subject to conditions being complied with;

                     (e)  a determination is made under section 38 of the pre‑1998 law that the act must not be done;

                      (f)  a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42 of the pre‑1998 law;

                     (g)  a circumstance occurs in which, under the regulations, the future act requirements are satisfied.

           (1F)  The regulations may prescribe, for the purposes of paragraphs (1D)(h) and (1E)(g), other circumstances in which future act requirements are satisfied.

          (1G)  The regulations may prescribe circumstances in which future act requirements are satisfied in relation to a future act notice given under alternative provisions.

91C  Subsection 94C(6)

Insert:

future act notice to which the current law applies means a future act notice to which the provisions in Subdivision P of Division 3 of Part 2 of this Act apply.

91D  Subsection 94C(6)

Insert:

future act notice to which the pre‑1998 law applies means a future act notice to which the provisions in Subdivision B of Division 3 of Part 2 of the Native Title Act 1993 apply, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

91E  Subsection 94C(6)

Insert:

pre‑1998 law means the Native Title Act 1993, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

91F  After section 96

Insert:

96A  Powers of Registrar—ILUAs and future act negotiations

                   The Registrar has the powers set out in Part 2.

91G  After subsection 108(1A)

Insert:

Reconsideration of claims

       (1AA)  The Tribunal has the functions in relation to applications for the reconsideration of claims made to the Tribunal under section 190E that are given to it under that section.

91H  After paragraph 123(1)(ca)

Insert:

                    (cb)  the person who is to constitute the Tribunal for the purposes of reconsidering a decision of the Registrar not to accept a claim;

92  At the end of section 124

Add:

Constitution—inquiry into objection to registration of indigenous land use agreement

             (3)  The Tribunal must not be constituted by, or include, for the purposes of an inquiry in relation to a subsection 24DJ(1) objection application, a member who has assisted a party to the agreement to which the application relates in negotiations as mentioned in subsection 24DJ(2), unless the parties otherwise agree.

93  Paragraph 139(d)

After “indigenous land use agreement”, insert “(a subsection 24DJ(1) objection application)”.

94  Subsection 141(4)

Omit “into whether a person satisfies the Tribunal that it would not be fair and reasonable to register an indigenous land use agreement”, substitute “in relation to a subsection 24DJ(1) objection application”.

Note:       The heading to subsection 141(4) is replaced by the heading “Subsection 24DJ(1) objection applications”.

95  After section 163

Insert:

163AA  Reports after inquiries into subsection 24DJ(1) objection applications

Tribunal to make report

             (1)  After holding an inquiry in relation to a subsection 24DJ(1) objection application, the Tribunal must make a report about the matters covered by the inquiry.

Tribunal must state findings of fact

             (2)  The Tribunal must state in the report any findings of fact upon which it is based.

96  Subsection 169(2)

Omit “relating to registration of an indigenous land use agreement”, substitute “in relation to a subsection 24DJ(1) objection application”.

Note:       The heading to subsection 169(2) is replaced by the heading “Subsection 24DJ(1) objection applications”.

96A  Subparagraph 186(1)(g)(i)

After “the Registrar”, insert “or the NNTT”.

97  Paragraph 190(1)(a)

After “under section 190A”, insert “or in response to notification by the NNTT under section 190E”.

98  Paragraph 190(3)(a)

Repeal the paragraph, substitute:

                     (a)  amend the Register to reflect the amendment if:

                              (i)  the claim is accepted for registration under section 190A; or

                             (ii)  the claim is accepted for registration on reconsideration under section 190E; or

                            (iii)  the claim is accepted for registration under section 190A but, because subsection 190A(1A) applies, the Registrar need not consider the claim made in an amended application; or

99  Paragraph 190(3)(b)

After “under section 190A”, insert “or in response to notification by the NNTT under section 190E”.

100  After paragraph 190(4)(d)

Insert:

                    (da)  if an approved determination of native title is made to the effect that native title exists in relation to an area:

                              (i)  but no determination has yet been made under section 56; or

                             (ii)  a determination has been made under section 56 that the native title rights and interests are to be held by the common law holders, but no determination has yet been made under subsection 57(2) of which prescribed body corporate is to perform the functions mentioned in subsection 57(3);

                            amend the entry on the Register that relates to the claim so that it reflects that fact; or

101  Subsection 190A(2)

Repeal the subsection, substitute:

Effect of certain notices

             (2)  If, either before the Registrar begins to do so or while he or she is doing so, a notice is given in accordance with:

                     (a)  paragraph 24MD(6B)(c); or

                     (b)  section 29; or

                     (c)  a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43; or

                     (d)  a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43A;

in relation to an act affecting any of the land or waters in the area covered by the application, the Registrar must use his or her best endeavours to finish considering the claim by the end of:

                     (e)  in a paragraph (a) case—2 months after the notice is given; or

                      (f)  in a paragraph (b) case—4 months after the notification day specified in the notice; or

                     (g)  in a paragraph (c) case—the period, in the law of the State or Territory, that corresponds to the period of 4 months mentioned in paragraph 30(1)(a); or

                     (h)  in a paragraph (d) case—the period at the end of which any person who is a registered native title claimant or registered native title body corporate has a right to be consulted about the act, to object to the act or to participate in negotiations about the act.

Otherwise, claim to be considered as soon as is practicable

          (2A)  In any other case, the Registrar must finish considering the claim as soon as is practicable.

102  Subsection 190A(6)

Repeal the subsection, substitute:

Test for registration

             (6)  The Registrar must accept the claim for registration if:

                     (a)  either:

                              (i)  the claim was made in an application given to the Registrar under section 63; or

                             (ii)  the claim was made in an amended application given to the Registrar under subsection 64(4) and subsection (6A) of this section does not apply; and

                     (b)  the claim satisfies all of the conditions in:

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

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

          (6A)  The Registrar must accept the claim (the later claim) for registration if:

                     (a)  a claim (the earlier claim) was made in an application given to the Registrar under section 63 or subsection 64(4) (the earlier application); and

                     (b)  the Registrar accepted the earlier claim for registration under subsection (6) of this section; and

                     (c)  the later claim was made in an application given to the Registrar under subsection 64(4) that amends the earlier application; and

                     (d)  the Registrar is satisfied that the only effect of the amendment is to do one or more of the following:

                              (i)  reduce the area of land or waters covered by the application, in circumstances where the information and map contained in the application, as amended, are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters;

                             (ii)  remove a right or interest from those claimed in the application;

                            (iii)  change the name in the application of the representative body, or one of the representative bodies, recognised for the area covered by the application, in circumstances where the body’s name has been changed or the body has been replaced with another representative body or a body to whom funding is made available under section 203FE;

                            (iv)  change the name in the application of the body to whom funding was made available under section 203FE in relation to all or part of the area covered by the application, in circumstances where the body’s name has been changed or the body has been replaced by another such body or a representative body;

                             (v)  alter the address for service of the person who is, or persons who are, the applicant.

          (6B)  If neither subsection (6) nor (6A) applies, the Registrar must not accept the claim for registration.

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

103  Subsection 190B(1)

Omit “paragraph 190A(6)(a)”, substitute “subparagraph 190A(6)(b)(i)”.

104  Subsection 190C(1)

Omit “paragraph 190A(6)(b)”, substitute “subparagraph 190A(6)(b)(ii)”.

105  Paragraph 190C(4)(a) (at the end of the note)

Add “A representative Aboriginal/Torres Strait Islander body may certify the application, even if it is only the representative body for part of the area claimed.”.

106  After subsection 190C(4)

Insert:

Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised

          (4A)  To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect.

107  Section 190D

Repeal the section, substitute:

190D  If the claim cannot be registered—notice of decision

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

                     (a)  if the Registrar does not accept the claim because the Registrar is notified by the NNTT under section 190E that he or she should not do so—a copy of the NNTT’s statement of reasons for its decision; or

                     (b)  otherwise—a statement of the Registrar’s reasons for his or her decision.

Content of notice where failure to satisfy physical connection test

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

Statements of reasons must specify whether section 190B satisfied

             (3)  If the Registrar’s decision not to accept the claim is not in response to notification by the NNTT under section 190E, the Registrar’s statement of reasons for the decision must include a statement on:

                     (a)  whether, in the opinion of the Registrar, the claim for registration satisfies all of the conditions in section 190B; and

                     (b)  whether, in the opinion of the Registrar, it is not possible to determine whether the claim for registration satisfies all of the conditions in section 190B because of a failure to satisfy section 190C.

190E  If the claim cannot be registered—reconsideration by the NNTT

Application to reconsider a claim

             (1)  If the Registrar gives the applicant a notice under subsection 190D(1), then, subject to subsections (3) and (4), the applicant may apply to the NNTT to reconsider the claim made in the application.

             (2)  The application must:

                     (a)  be in writing; and

                     (b)  be made within 42 days after the notice under subsection 190D(1) is given; and

                     (c)  state the basis on which the reconsideration is sought.

             (3)  The applicant may not make an application to the NNTT for reconsideration of the claim if the applicant has already made an application to the Federal Court under subsection 190F(1) for review of the decision.

             (4)  The applicant may apply to the NNTT for reconsideration of the claim no more than once.

Constitution of NNTT for purposes of reconsidering the claim

             (5)  For the purposes of reconsidering the claim, the NNTT must be constituted by a single member.

             (6)  The member of the NNTT who reconsiders the claim may not take any part in the proceeding in relation to the claim (including any review or inquiry in relation to the claim), unless the parties to the proceeding otherwise agree.

NNTT’s reconsideration of the claim

             (7)  In reconsidering the claim:

                     (a)  the NNTT must have regard to any information to which the Registrar was required to have regard under subsections 190A(3) to (5) in considering the claim; and

                     (b)  the NNTT may have regard to any other information which the NNTT regards as appropriate in reconsidering the claim.

Effect of certain notices

             (8)  If, either before the NNTT begins to do so or while it is doing so, a notice is given in accordance with:

                     (a)  paragraph 24MD(6B)(c); or

                     (b)  section 29; or

                     (c)  a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43; or

                     (d)  a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43A;

in relation to an act affecting any of the land or waters in the area covered by the application, the member reconsidering the claim must use his or her best endeavours to finish reconsidering the claim by the end of:

                     (e)  in a paragraph (a) case—2 months after the notice is given; or

                      (f)  in a paragraph (b) case—4 months after the notification day specified in the notice; or

                     (g)  in a paragraph (c) case—the period, in the law of the State or Territory, that corresponds to the period of 4 months mentioned in paragraph 30(1)(a); or

                     (h)  in a paragraph (d) case—the period at the end of which any person who is a registered native title claimant or registered native title body corporate has a right to be consulted about the act, to object to the act or to participate in negotiations about the act.

Otherwise, claim to be reconsidered as soon as is practicable

             (9)  In any other case, the NNTT must finish reconsidering the claim as soon as is practicable.

Notifying the Registrar of the NNTT’s decision

           (10)  The NNTT must notify the Registrar that the Registrar should accept the claim for registration if the claim satisfies all of the conditions in:

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

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

           (11)  In any other case, the NNTT must notify the Registrar that the Registrar should not accept the claim, and include in that notice a statement of the NNTT’s reasons for its decision. The statement of reasons for the decision must include a statement on:

                     (a)  whether, in the opinion of the member who reconsidered the claim, the claim for registration satisfies all of the conditions in section 190B; and

                     (b)  whether, in the opinion of the member who reconsidered the claim, it is not possible to determine whether the claim for registration satisfies all of the conditions in section 190B because of a failure to satisfy section 190C.

           (12)  For the purposes of subsection (10), sections 190B and 190C apply as if a reference to the Registrar in those sections were a reference to the NNTT.

           (13)  The Registrar must comply with a notice given to the Registrar under subsection (10) or (11).

190F  If the claim cannot be registered—review by Federal Court

Applicant may apply to Federal Court for review

             (1)  If the Registrar gives the applicant a notice under subsection 190D(1), the applicant may apply to the Federal Court for a review of the Registrar’s decision not to accept the claim, provided the NNTT is not reconsidering the claim under section 190E at the time the application is made.

Federal Court has jurisdiction

             (2)  The Court has jurisdiction to hear and determine an application made to it under subsection (1).

Court order where physical connection test failed

             (3)  If, on an application under subsection (1) in a case to which subsection 190D(2) applies, the Court is satisfied that:

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

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

                              (i)  the Crown in any capacity; or

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

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

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

Opportunity to be heard

             (4)  Before making an order under subsection (3), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.

Where no application for review, or Court does not make order under subsection (4) on review

             (5)  Subsection (6) applies in a case where:

                     (a)  the Registrar does not accept the claim for registration either because, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the member of the NNTT reconsidering the claim:

                              (i)  it does not satisfy all of the conditions in section 190B; or

                             (ii)  it is not possible to determine whether all of the conditions in section 190B have been satisfied because of a failure to satisfy section 190C; and

                     (b)  the Court is satisfied that the avenues for:

                              (i)  the reconsideration under section 190E of the Registrar’s decision; and

                             (ii)  the review under this section of the Registrar’s decision; and

                            (iii)  the review of orders made in the determination of an application under this section; and

                            (iv)  the review of the Registrar’s decision under any other law;

                            have all been exhausted without the registration of the claim.

             (6)  The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made (the application in issue) if:

                     (a)  the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

                     (b)  in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.

108  Paragraph 193(1)(c)

Repeal the paragraph.

109  At the end of section 193

Add:

             (5)  The Registrar may also include in the Register details of other determinations of, or in relation to, native title decisions of courts or tribunals.

110  Subsection 199(2)

Repeal the subsection, substitute:

Definition

             (2)  In this section:

relevant land titles office means the body responsible for keeping a register of interests in real estate under the law of the State or Territory within whose jurisdictional limits the land or waters covered by the determination or decision are located.

111  Subsection 199B(3)

Omit “paragraph 24BH(1)(a),”, substitute “subsection 24BH(1) or paragraph”.

111A  At the end of section 199B

Add:

Updating parties’ contact details

             (4)  If a party to an agreement notifies the Registrar of a change in the address at which the party can be contacted, the Registrar must update the Register to reflect the change.

112  Subparagraph 199C(1)(c)(i)

Repeal the subparagraph, substitute:

                              (i)  a party advises the Registrar in writing that the agreement has expired, and the Registrar believes, on reasonable grounds, that the agreement has expired; or

113  At the end of section 203BK

Add:

Information obtained in providing assistance not to be used or disclosed in other contexts

             (4)  The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

114  Section 222 (after the table item dealing with subject to section 24FA protection)

Insert:

subsection 24DJ(1) objection application                       253

115  Subsection 223(3) (note)

Omit “permissible”, substitute “valid”.

116  Section 253 (definition of right to negotiate application)

Omit “139(1)(b)”, substitute “139(b)”.

117  Section 253

Insert:

subsection 24DJ(1) objection application has the meaning given by paragraph 139(d).

Native Title Amendment Act 2007

118  Subitem 89(3) of Schedule 2

Repeal the subitem, substitute:

(3)        If, either before the Registrar begins to reconsider, or consider, the claim in accordance with subitem (2), or while the Registrar is doing so, a notice is given in accordance with:

                     (a)  paragraph 24MD(6B)(c); or

                     (b)  section 29; or

                     (c)  a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43; or

                     (d)  a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43A;

in relation to an act affecting any of the land or waters in the area covered by the application, the Registrar must use his or her best endeavours to finish considering the claim under section 190A by the end of:

                     (e)  in a paragraph (a) case—2 months after the notice is given; or

                      (f)  in a paragraph (b) case—4 months after the notification day specified in the notice; or

                     (g)  in a paragraph (c) case—the period, in the law of the State or Territory, that corresponds to the period of 4 months after the notification day specified in a notice under section 29; or

                     (h)  in a paragraph (d) case—the period at the end of which any person who is a registered native title claimant or registered native title body corporate has a right to be consulted about the act, to object to the act or to participate in negotiations about the act.

119  Subitem 90(3) of Schedule 2

Repeal the subitem, substitute:

(3)        If, either before the Registrar begins to consider, or reconsider, the claim in accordance with subitem (2), or while the Registrar is doing so, a notice is given in accordance with:

                     (a)  paragraph 24MD(6B)(c); or

                     (b)  section 29; or

                     (c)  a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43; or

                     (d)  a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43A;

in relation to an act affecting any land or waters covered by the application, the Registrar must use his or her best endeavours to finish considering, or reconsidering, the claim under section 190A:

                     (e)  in a paragraph (a) case—2 months after the notice is given; or

                      (f)  in a paragraph (b) case—4 months after the notification day specified in the notice; or

                     (g)  in a paragraph (c) case—the period, in the law of the State or Territory, that corresponds to the period of 4 months after the notification day specified in a notice under section 29; or

                     (h)  in a paragraph (d) case—the period at the end of which any person who is a registered native title claimant or registered native title body corporate has a right to be consulted about the act, to object to the act or to participate in negotiations about the act.


 

Part 2Application and other provisions

120  Definitions

In this Part:

commencing day means the day on which item 1 of this Schedule commences.

Principal Act means the Native Title Act 1993.

121  Applications of items 7 to 14 and items 18, 19, 27, 28 and 111

The amendments made by items 7 to 14 and items 18, 19, 27, 28 and 111 apply in relation to notices given on or after the commencing day.

122  Application of items 4, 5, 15, 16, 20, 24, 25, 30, 57, 66, 67, 68, 89 and 113

The amendments made by items 4, 5, 15, 16, 20, 24, 25, 30, 57, 66, 67, 68, 89 and 113 apply in relation to the disclosure or use on or after the commencing day of information obtained in providing assistance or mediation, whether the information was obtained or the assistance or mediation provided before or after the commencing day.

123  Application of items 22, 22A, 23, 31, 31A, 32, 78, 84, 91G, 91H, 96A, 97, 98, 99, 101, 102, 103, 104 and 107

The amendments made by items 22, 22A, 23, 31, 31A, 32, 78, 84, 91G, 91H, 96A, 97, 98, 99, 101, 102, 103, 104 and 107 apply in relation to claims in a native title determination application made or amended on or after the commencing day.

124  Application of item 33

The amendment made by item 33 applies in relation to a single lease, licence, permit or authority granted on or after the commencing day.

125  Application of items 36, 37, 39, 40, 44, 45, 47, 48, 50, 51, 53 and 54

The amendments made by items 36, 37, 39, 40, 44, 45, 47, 48, 50, 51, 53 and 54 apply in relation to notices given or things done on or after the commencing day.

126  Application of item 42

The amendment made by item 42 applies in relation to notifications given under paragraph 24MD(6B)(c) of the Principal Act on or after the commencing day.

127  Applications of amendments made by items 62 and 63

The amendments made by items 62 and 63 apply to:

                     (a)  the making of determinations on or after the commencing day; and

                     (b)  the revocation on or after the commencing day of determinations made before, on or after the commencing day;

except where the determinations are those mentioned in item 138.

128  Application of items 71 to 74

The amendments made by items 71 to 74 apply in relation to a claimant application made on or after the commencing day.

129  Application of item 76

The amendment made by item 76 applies in relation to a compensation application made on or after the commencing day.

130  Application of item 80

The amendment made by item 80 applies in relation to notices given by the Registrar under paragraph 66(3)(a) of the Principal Act on or after the commencing day.

131  Application of item 81

The amendment made by item 81 applies in relation to amended applications of which the Registrar is given a copy under section 64 of the Principal Act on or after the commencing day.

132  Application of item 82

The amendments made by item 82 apply in relation to a claimant application, or a compensation application, whether made before or after the commencing day.

132A  Application of items 83A to 83C, and items 91A to 91E

The amendments made by items 83A to 83C, and by items 91A to 91E of this Schedule apply to an application under section 61 of the Native Title Act 1993, regardless of whether it is made before or after the commencing day.

133  Application of item 88

The amendment made by item 88 applies in relation to an application made under section 61 of the Principal Act, if the person or persons making the application were required under the Principal Act to be authorised when the application was made.

134  Application of item 91

The amendment made by item 91 applies in relation to an application under section 61 of the Principal Act, regardless of whether the application is made before or after the commencing day.

135  Application of item 92

The amendment made by item 92 applies in relation to inquiries begun on or after the commencing day.

136  Effect of amendments of sections 190A to 190D of the Principal Act on transitional arrangements in the Native Title Amendment Act 2007

To avoid doubt, the amendments made in relation to sections 190A to 190D of the Principal Act in items 22, 22A, 23, 31, 31A, 32, 78, 84, 91G, 91H, 96A, 97, 98, 99, 101, 102, 103, 104 and 107 of this Schedule (including the insertion of sections 190E and 190F) are to be disregarded for the purposes of items 89 and 90 of Schedule 2 to the Native Title Amendment Act 2007.

137  Application of amendments made by items 118 and 119

The amendments made by items 118 and 119 of the Schedule apply where a notice is given on or after the commencing day in accordance with:

                     (a)  paragraph 24MD(6B)(c) of the Principal Act; or

                     (b)  section 29 of the Principal Act; or

                     (c)  a provision of a law of a State or Territory that corresponds to section 29 of the Principal Act and is covered by a determination in force under section 43 of that Act; or

                     (d)  a provision of a law of a State or Territory that corresponds to section 29 of the Principal Act and is covered by a determination in force under section 43A of that Act.

138  Validation of certain pre‑commencement determinations in relation to South Australian alternative provisions etc.

Validation

(1)        To avoid doubt, the following determinations made by the Commonwealth Minister under paragraph 43(1)(b) of the Principal Act are, and are taken always to have been, valid:

                     (a)  the determination made on 18 October 1995 in relation to alternative provisions consisting of section 58 and Part 9B of the Mining Act 1971 of South Australia, as amended by the Mining (Native Title) Amendment Act 1995 of that State;

                     (b)  the determination made on 16 April 1997 in relation to alternative provisions consisting of Part 7 of the Opal Mining Act 1995 of South Australia.

How subsection 43(3) applies to Mining Act alternative provisions

(2)        For the purposes of applying subsection 43(3) of the Principal Act after the commencing day to the alternative provisions mentioned in paragraph (1)(a) of this item, it is to be assumed that:

                     (a)  subsection 43(2A) of that Act, as inserted by this Schedule, applied when the determination mentioned in paragraph (1)(a) of this item was made, and at all times afterwards; and

                     (b)  the reference in subsection 43(2A), as so applying, to conjunctive agreement/determination provisions or expedited procedure provisions included a reference to the Mining Act umbrella provisions.

Definition

(3)        In subitem (2):

Mining Act umbrella provisions means:

                     (a)  the provisions of Part 9B of the Mining Act 1971 of South Australia, as in force when the determination mentioned in paragraph (1)(a) of this item was made, so far as those provisions relate to umbrella authorisations within the meaning of section 63K of that Act as so in force; or

                     (b)  provisions that are of substantially the same effect.

How subsection 43(3) applies to Opal Mining Act alternative provisions

(4)        For the purposes of applying subsection 43(3) of the Principal Act after the commencing day to the alternative provisions mentioned in paragraph (1)(b) of this item, it is to be assumed that:

                     (a)  subsection 43(2A) of that Act, as inserted by this Schedule, applied when the determination mentioned in paragraph (1)(b) of this item was made, and at all times afterwards; and

                     (b)  the reference in subsection 43(2A), as so applying, to conjunctive agreement/determination provisions or expedited procedure provisions included a reference to the Opal Mining Act umbrella provisions.

Definition

(5)        In subitem (4):

Opal Mining Act umbrella provisions means:

                     (a)  the provisions of Part 7 of the Opal Mining Act 1995 of South Australia, as in force when the determination mentioned in paragraph (1)(b) of this item was made, so far as those provisions relate to umbrella authorisations within the meaning of section 53 of that Act as so in force; or

                     (b)  provisions that are of substantially the same effect.

139  Entitlement to “just terms” compensation

(1)        If, apart from this item, item 138 would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by the Principal Act, from the Commonwealth as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.

Federal Court’s jurisdiction

(2)        The Federal Court has jurisdiction with respect to matters arising under subitem (1) and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.


 

Schedule 2Amendments relating to representative bodies

Part 1Amendments

Native Title Act 1993

1  Section 201A (definition of exempt State body)

Repeal the definition.

2  Subsection 203AD(3)

Repeal the subsection.

3  Subsection 203CB(3)

Omit all the words after “investment of money”, substitute “under subsection (2), unless the provision expressly states that it applies to such a contract”.

4  Division 6 of Part 11

Repeal the Division, substitute:

Division 6Conduct of directors and other executive officers

203E  Application of Division

                   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.

203EA  Representative bodies that are not corporations

             (1)  This section applies to a representative body that is neither:

                     (a)  registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; nor

                     (b)  a company incorporated under the Corporations Act 2001.

             (2)  Division 4 (other than sections 27C, 27J and 27K) and Division 4A of Part 3 of the Commonwealth Authorities and Companies Act 1997, and Schedule 2 to that Act, apply in relation to the body as if:

                     (a)  each reference in that Division or Schedule to a Commonwealth authority were a reference to the representative body; and

                     (b)  each reference in that Division or Schedule 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 or Schedule to a director of a Commonwealth authority were a reference to a director of the representative body; and

                     (d)  each reference in that Division or Schedule to the Finance Minister were a reference to the Commonwealth Minister.

Note 1:       Provisions similar to Division 4 of Part 3 of the Commonwealth Authorities and Companies Act 1997 and Schedule 2 to that Act already apply to a representative body registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

Note 2:       Similar provisions already apply under the Corporations Act 2001 to representative bodies that are companies incorporated under that Act.

             (3)  A director of the representative body who has a material personal interest in a matter that is being considered by the body’s governing body:

                     (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.

However, a contravention of this provision does not affect the validity of any resolution.

203EB   Representative bodies registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006

             (1)  This section applies in relation to a representative body that is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

             (2)  Division 4A of Part 3 of the Commonwealth Authorities and Companies Act 1997 applies in relation to the body as if:

                     (a)  each reference in that Division 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 officer of the representative body; and

                     (c)  in paragraph 27M(3)(b), the words “a civil penalty order under clause 3 of Schedule 2 or a compensation order under clause 4 of Schedule 2” were replaced with “a civil penalty order under section 386‑10 or a compensation order under section 386‑15 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006, made in relation to a breach of subsection 265‑1(1), 265‑5(1) or (2), 265‑10(1) or (2) or 265‑15(1) or (2) of that Act”; and

                     (d)  in paragraph 27M(4)(c), the words “brought by the Finance Minister for a court order” were replaced with “brought by the Registrar of Aboriginal and Torres Strait Islander Corporations under section 386‑20 or subsection 386‑55(8) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 for a court order”; and

                     (e)  in paragraph 27M(4)(d), the words “this Act” were omitted, and replaced with “section 386‑60 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 against an application under section 386‑20 of that Act, or for relief to the person under section 576‑1 of that Act,”; and

                      (f)  the reference to the Finance Minister in the final sentence of subsection 27M(4) were a reference to the Registrar of Aboriginal and Torres Strait Islander Corporations, and the note after the subsection were omitted; and

                     (g)  the reference in paragraph 27N(2)(b) to sections 24 and 25 of the Commonwealth Authorities and Companies Act 1997 were a reference to sections 265‑10 and 265‑15 respectively of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

Note:          Provisions similar to Division 4 of Part 3 of the Commonwealth Authorities and Companies Act 1997 and Schedule 2 to that Act already apply in relation to companies incorporated under the Corporations Act 2001.

203EC  Sections 203EA to 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.

5  Section 203FB

Repeal the section, substitute:

203FB  Review of assistance decisions

Persons 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 the Secretary of the Department 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, the Secretary must:

                     (a)  review the representative body’s decision; or

                     (b)  appoint to conduct the review a person who, in the Secretary’s opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of the review.

203FBA  External review

This section applies to external review

             (1)  This section applies if the Secretary of the Department appoints a person under paragraph 203FB(2)(b) to conduct the review.

Review of decision

             (2)  Subject to subsection (4), the person appointed must review the representative body’s decision and report to the Secretary whether:

                     (a)  the decision should be affirmed; or

                     (b)  the Secretary should make funding available 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 representative body’s decision relates.

Matters to be taken into account when conducting review

             (3)  In reviewing the representative body’s decision, the person appointed must have regard to:

                     (a)  whether it would be consistent with priorities determined by the representative body under paragraph 203B(4)(a) to provide the assistance sought; and

                     (b)  whether, to provide the assistance sought, the representative body would need to allocate or re‑allocate resources in a way that interferes with the efficient performance of its functions; and

                     (c)  whether the representative body would breach a condition imposed under section 203CA if the representative body were to provide the assistance sought; and

                     (d)  if the assistance sought was in relation to an application under section 61:

                              (i)  whether the provision of that assistance would promote an orderly, efficient and cost‑effective process for making such applications; and

                             (ii)  in a case where one or more other applications have been made or are proposed to be made in relation to land or waters covered by the application—whether the provision of the assistance sought would be reasonable given the need to minimise the number of applications covering the land or waters; and

                     (e)  any other matter relevant to the merits of the decision.

Failure to use internal review procedures

             (4)  The person appointed must refuse to review the representative body’s 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 60 days

             (5)  The person appointed must give the report referred to in subsection (2) to the Secretary within 60 days after the day on which he or she was appointed, or within such other period as the Secretary allows (whether or not the 60 days have expired).

Inviting submissions

             (6)  Before reviewing the representative body’s decision, the person appointed must invite the representative body 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 the Secretary

             (7)  The Secretary must, within one month after the end of the period referred to in subsection (5):

                     (a)  affirm the representative body’s decision; or

                     (b)  make funding available under section 203FE as mentioned in paragraph (2)(b) of this section.

Notice of decision on review

             (8)  The Secretary must give the applicant and the representative body written notice of the Secretary’s decision under subsection (7). The notice must include the reasons for that decision.

203FBB  Review by Secretary of the Department

This section applies to review by Secretary

             (1)  This section applies if the Secretary of the Department conducts the review.

Review of decision

             (2)  Subject to subsection (4), the Secretary must review the representative body’s decision and decide whether:

                     (a)  the representative body’s decision should be affirmed; or

                     (b)  the Secretary should make funding available 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 representative body’s decision relates.

Matters to be taken into account when conducting review

             (3)  In reviewing the representative body’s decision, the Secretary must have regard to:

                     (a)  whether it would be consistent with priorities determined by the representative body under paragraph 203B(4)(a) to provide the assistance sought; and

                     (b)  whether, to provide the assistance sought, the representative body would need to allocate or re‑allocate resources in a way that interferes with the efficient performance of its functions; and

                     (c)  whether the representative body would breach a condition imposed under section 203CA if the representative body were to provide the assistance sought; and

                     (d)  if the assistance sought was in relation to an application under section 61:

                              (i)  whether the provision of that assistance would promote an orderly, efficient and cost‑effective process for making such applications; and

                             (ii)  in a case where one or more other applications have been made or are proposed to be made in relation to land or waters covered by the application—whether the provision of the assistance sought would be reasonable given the need to minimise the number of applications covering the land or waters; and

                     (e)  any other matter relevant to the merits of the decision.

Failure to use internal review procedures

             (4)  The Secretary must refuse to review the representative body’s 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.

Inviting submissions

             (5)  Before reviewing the representative body’s decision, the Secretary must invite the representative body 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.

Secretary to decide matter within 60 days

             (6)  The Secretary must make his or her decision under subsection (2) within 60 days after the day on which the application for review is made.

Notice of decision on review

             (7)  The Secretary must give the applicant and the representative body written notice of the Secretary’s decision under subsection (2). The notice must include the reasons for that decision.

6  Subsection 203FC(2)

Repeal the subsection, substitute:

Limit on directions

             (2)  Directions must not require the former representative body to:

                     (a)  allow the replacement body access to documents and records of any kind mentioned in paragraph (1)(b) that relate to a claim made in a claimant application or a compensation application; or

                     (b)  give the replacement body documents and records of any kind mentioned in paragraph (1)(b) that relate to a claim made in a claimant application or a compensation application, or give copies of such documents or records;

unless the replacement body gives the Commonwealth Minister notice, in writing, that the replacement body has been requested to perform a representative body function in relation to the claim.

          (2A)  Directions must not require the former representative body to:

                     (a)  allow the replacement body access to documents and records of any kind mentioned in paragraph (1)(b) that relate to native title rights and interests that are the subject of a determination of native title; or

                     (b)  give the replacement body documents and records of any kind mentioned in paragraph (1)(b) that relate to native title rights and interests that are the subject of a determination of native title, or give copies of such documents or records;

unless the replacement body gives the Commonwealth Minister notice, in writing, that the replacement body has been requested to perform a representative body function in relation to those native title rights and interests.

7  After subsection 203FC(4)

Insert:

Former representative body under external administration

          (4A)  To avoid doubt, the Commonwealth Minister may make a direction under subsection (1), and the former representative body to which the direction applies must comply with the direction, even if the former representative body is under external administration.

8  Subsection 203FE(2)

Omit “paragraph 203FB(7)(b)”, substitute “paragraph 203FBA(7)(b) or 203FBB(2)(b)”.

9  Section 203FI

After “203FB,”, insert “203FBA, 203FBB,”.


 

Part 2Application provisions

10  Application of item 4

The amendment made by item 4 applies in relation to conduct that occurs on or after the day on which the item commences.

11  Application of item 5

The amendment made by item 5 applies where the application for review is made on or after the day on which the item commences.

12  Application of item 6

The amendment made by item 6 applies to directions issued on or after the day on which the item commences.


 

Schedule 3Amendments relating to prescribed bodies corporate

Part 1Amendments

Native Title Act 1993

1  Subsection 56(4)

Repeal the subsection, substitute:

Other matters relating to the trust to be dealt with by regulation

             (4)  The regulations may also make provision in respect of:

                     (a)  the following matters relating to the holding in trust of the native title rights and interests:

                              (i)  the functions to be performed by the body corporate;

                             (ii)  the nature of any consultation with, or other role for, the common law holders;

                            (iii)  the circumstances in which the rights and interests may be surrendered, transferred or otherwise dealt with;

                            (iv)  the determination of any other matter by the Federal Court;

                             (v)  any other matter; and

                     (b)  the replacement of the trustee where the common law holders wish the trustee to be replaced; and

                     (c)  the determination by the Federal Court of a prescribed body corporate to replace the trustee, and any other matter in relation to the replacement of the trustee; and

                     (d)  the termination of the trust where:

                              (i)  the common law holders wish the trust to be terminated; or

                             (ii)  a liquidator is appointed for the body corporate; and

                     (e)  the determination by the Federal Court of a prescribed body corporate to perform the functions mentioned in subsection 57(3) once the trust is terminated; and

                      (f)  any matter in relation to the termination of the trust, the performance of those functions and the transition from the trust arrangement to the new arrangement, including the determination of those matters by the Federal Court.

2  At the end of section 56

Add:

Where common law holders later wish a trust be determined

             (7)  The regulations may make provision in respect of:

                     (a)  the determination by the Federal Court of a prescribed body corporate to hold the rights and interests from time to time comprising the native title in trust for the common law holders where:

                              (i)  a determination is made, either under this section or under regulations made for the purposes of this section, that the rights and interests are to be held by the common law holders; and

                             (ii)  the common law holders wish a prescribed body corporate to instead hold those rights and interests in trust; and

                     (b)  the functions to be performed by the prescribed body corporate, once determined; and

                     (c)  the nature of any consultation with, or other role for, the common law holders; and

                     (d)  the circumstances in which the rights and interests may be surrendered, transferred or otherwise dealt with; and

                     (e)  any other matter in relation to the holding in trust of the native title rights and interests, and the transition from the former to the new arrangement, including the determination of the matter by the Federal Court.

3  Paragraph 57(2)(c)

Omit “prescribed body is to perform the functions”, substitute “prescribed body corporate is to perform the functions”.

4  Paragraph 58(a)

After “section 56”, insert “, or regulations made for the purposes of that section”.

5  Section 59

Repeal the section, substitute:

59  Kinds of prescribed bodies corporate may be determined

             (1)  The regulations may prescribe the kinds of body corporate that may be determined under paragraph 56(2)(b) or 57(2)(b).

             (2)  The regulations may prescribe the body corporate, or the kinds of body corporate, that may be determined under paragraph 57(2)(c).

             (3)  The regulations may prescribe the body corporate, or the kinds of body corporate, that may be determined under paragraph 56(4)(c) or (e), 56(7)(a) or 60(b).

6  Section 60

Repeal the section, substitute:

60  Replacement of agent prescribed bodies corporate

                   The regulations may make provision for:

                     (a)  the replacement of an agent prescribed body corporate (the original PBC) with another prescribed body corporate (the replacement PBC) to perform the functions mentioned in subsection 57(3) where:

                              (i)  the common law holders wish the replacement to occur; or

                             (ii)  a liquidator is appointed for the original PBC; and

                     (b)  the determination by the Federal Court of the replacement PBC; and

                     (c)  any matter in relation to the transition from the original PBC to the replacement PBC, including the determination of that matter by the Federal Court; and

                     (d)  any other matters in relation to the replacement of the original PBC with the replacement PBC.

7  At the end of Part 2

Add:

Division 7Financial matters

60AB  Fees for services provided by registered native title bodies corporate in performing certain functions

             (1)  A registered native title body corporate may charge a person, other than a person mentioned in subsection (4), a fee for costs the registered native title body corporate incurs when performing one or more of the following functions:

                     (a)  negotiating an agreement under paragraph 31(1)(b);

                     (b)  negotiating an agreement under alternative provisions provided for by a law of a State or Territory in respect of which the Commonwealth Minister has made a determination under paragraph 43(1)(b);

                     (c)  negotiating indigenous land use agreements under Subdivisions B, C and D of Division 3 of this Part.

             (2)  The regulations may provide for a registered native title body corporate to charge a person, other than a person mentioned in subsection (4), a fee for costs the registered native title body corporate incurs when performing other functions specified in the regulations.

             (3)  A fee imposed under subsection (1), or under regulations made for the purposes of subsection (2), must not be such as to amount to taxation.

             (4)  For the purposes of this section, a registered native title body corporate may not charge the following persons a fee:

                     (a)  the common law holders for whom the registered native title body corporate holds native title rights and interests in trust;

                     (b)  the common law holders for whom the registered native title body corporate is an agent prescribed body corporate;

                     (c)  another registered native title body corporate;

                     (d)  a representative body;

                     (e)  a registered native title claimant or other person who claims to hold native title in relation to the land or waters in:

                              (i)  an area affected by an act to which negotiations mentioned in subsection (1) relate; or

                             (ii)  an area proposed to be covered by an indigenous land use agreement.

             (5)  A registered native title body corporate may not charge a person a fee for costs the registered native title body corporate incurs when performing functions:

                     (a)  as a party to a proceeding or an inquiry in which:

                              (i)  a determination that an act must not be done; or

                             (ii)  a determination that an act may be done; or

                            (iii)  a determination that an act may be done subject to conditions being complied with;

                            may be made in respect of an act to which negotiations mentioned in subsection (1) relate; and

                     (b)  as a party to any court proceedings; and

                     (c)  in any other circumstances prescribed by the regulations.

60AC  Opinion of the Registrar of Aboriginal and Torres Strait Islander Corporations

             (1)  If a registered native title body corporate charges a person a fee in reliance on section 60AB, the person may, in writing, request the Registrar of Aboriginal and Torres Strait Islander Corporations (the Registrar) to give an opinion on whether the fee is one that the body corporate may charge under that section.

             (2)  The Registrar may give an opinion, in writing, on whether the fee is one that the registered native title body corporate may charge under that section.

             (3)  If the Registrar gives the opinion that the fee is not one that the registered native title body corporate may charge under that section, the body corporate must withdraw the charge.

             (4)  An opinion given by the Registrar under subsection (2) is not a legislative instrument.

             (5)  The regulations may make provisions dealing with:

                     (b)  the process by which the request to the Registrar is made and considered; and

                     (c)  the withholding of payment of the fee in relation to which a request is made; and

                     (d)  any other matters in relation to the request, the consideration of the request, the giving of an opinion by the Registrar, and the consequences of the giving of that opinion.

8  At the end of section 193

Add:

Registrar to reflect changes to prescribed bodies corporate

             (4)  If:

                     (a)  a prescribed body corporate that holds the native title rights and interests on trust is replaced with another prescribed body corporate as trustee; or

                     (b)  the trust under which a prescribed body corporate holds native title rights and interests is terminated and an agent prescribed body corporate is determined; or

                     (c)  an agent prescribed body corporate in relation to native title rights and interests is replaced with another agent prescribed body corporate in relation to those interests; or

                     (d)  a prescribed body corporate ceases to be an agent prescribed body corporate in relation to native title rights and interests and a prescribed body corporate is determined to be trustee in relation to those rights and interests;

the Registrar must update the Register to reflect the change.

9  Section 197

Repeal the section, substitute:

197  Keeping the Register

             (1)  The Registrar must, as soon as is practicable:

                     (a)  include in the Register details of determinations or decisions covered by subsection 193(1); and

                     (b)  update the Register in accordance with subsection 193(4).

10  Section 253 (paragraph (b) of the definition of agent prescribed body corporate)

Omit “subsection 56(4)”, substitute “paragraph 56(4)(e)”.

10A  Section 253 (definition of registered native title body corporate)

Repeal the definition, substitute:

registered native title body corporate means:

                     (a)  a prescribed body corporate whose name and address are registered on the National Native Title Register under paragraph 193(2)(e) or subsection 193(4); or

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


 

Part 2Transitional and application provisions

11  Application of items 1, 5 and 6

(1)        To avoid doubt, nothing in the amendments made by items 1, 5 and 6 of this Schedule is intended to affect:

                     (a)  regulations made under section 56, 59 or 60 of the Native Title Act 1993 that were in force before, or are in force on or after, the commencement of this Schedule; or

                     (b)  anything done under those regulations.

(2)        Nothing in paragraph (1)(a) affects the power to amend or repeal regulations mentioned in that paragraph.

12  Application of item 7

The amendment made by item 7 of this Schedule applies in relation to functions performed on or after the day on which the item commences.


 

Schedule 4Technical amendments relating to legislative instruments

  

Native Title Act 1993

1  Paragraph 23HA(a)

Omit “in writing”, substitute “, by legislative instrument,”.

2  Paragraphs 24GB(9)(c) and 24GD(6)(a)

Omit “in writing”, substitute “, by legislative instrument,”.

3  Subparagraph 24GE(1)(f)(i)

Omit “in writing”, substitute “, by legislative instrument,”.

4  Paragraphs 24HA(7)(a), 24ID(3)(a) and 24JB(6)(a) and (7)(a)

Omit “in writing”, substitute “, by legislative instrument,”.

5  Subsections 24KA(8), 24MD(7) and 24NA(9)

Omit “in writing”, substitute “, by legislative instrument,”.

6  Subparagraph 26(1)(c)(iv)

Omit “in writing”, substitute “by legislative instrument”.

7  Paragraphs 26(2)(b) and (c)

Omit “in writing”, substitute “, by legislative instrument,”.

8  Subsection 26A(1)

Omit “may determine in writing”, substitute “may, by legislative instrument, determine”.

9  Subparagraph 26A(8)(a)(ii)

Omit “in writing”, substitute “by legislative instrument”.

10  Paragraph 26A(8)(b)

Omit “in writing”, substitute “by legislative instrument”.

11  Subsection 26B(1)

Omit “may determine in writing”, substitute “may, by legislative instrument, determine”.

12  Paragraph 26B(9)(b)

Omit “in writing”, substitute “by legislative instrument”.

13  Subsection 26C(2)

Omit “may determine in writing”, substitute “may, by legislative instrument, determine”.

14  Paragraph 26C(6)(b)

Omit “in writing”, substitute “by legislative instrument”.

15  Paragraph 43(1)(b)

Omit “in writing”, substitute “, by legislative instrument,”.

16  Paragraph 43(3)(b)

Omit “in writing”, substitute “by legislative instrument”.

17  Subparagraph 43(3)(c)(ii)

Omit “in writing”, substitute “, by legislative instrument,”.

18  Paragraph 43(3)(c)

Omit “in writing” (last occurring), substitute “by legislative instrument”.

19  Subsection 43(3) (note)

Repeal the note.

20  Paragraph 43A(1)(b)

Omit “in writing”, substitute “, by legislative instrument,”.

21  Paragraph 43A(9)(b)

Omit “in writing”, substitute “by legislative instrument”.

22  Subparagraph 43A(9)(c)(ii)

Omit “in writing”, substitute “, by legislative instrument,”.

23  Paragraph 43A(9)(c)

Omit “in writing” (last occurring), substitute “by legislative instrument”.

24  Subsection 43A(9) (note)

Repeal the note.

25  Subsection 207A(1)

Omit “in writing”, substitute “by legislative instrument”.

26  Paragraph 207A(4)(b)

Omit “in writing”, substitute “by legislative instrument”.

27  Subsection 207B(3)

Omit “in writing”, substitute “by legislative instrument”.

28  Paragraph 207B(7)(d)

Omit “in writing”, substitute “by legislative instrument”.

29  Section 214

Repeal the section.

30  Subsection 245(4)

Omit “in writing”, substitute “by legislative instrument”.

31  Subsections 251C(4) and (5)

Omit “makes a written determination to that effect”, substitute “, by legislative instrument, so determines”.

32  Subsection 252(1)

After “give notice in the way determined”, insert “, by legislative instrument,”.

33  Section 253 (paragraph (i) of the definition of infrastructure facility)

Omit “in writing”, substitute “, by legislative instrument,”.

Native Title Amendment Act 1998

34  Subclause 14(3) of Schedule 5

Omit “in writing”, substitute “, by legislative instrument,”.

35  Subclause 14(3) of Schedule 5 (second sentence)

Repeal the sentence.

36  Clause 26 of Schedule 5 (note)

Repeal the note, substitute:

Note:       Under section 214 of the Native Title Act 1993, as in force at the time the original determination was made, the original determination was a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901, as in force at that time, which meant that it was required under that Act, as then in force, to be tabled.


 

Schedule 5Applications not considered or reconsidered under items 89 and 90 of Schedule 2 to the Native Title Amendment Act 2007

  

1  Applications not considered or reconsidered under items 89 and 90 of Schedule 2 to the Native Title Amendment Act 2007

(1)        This item applies to a native title determination application amended before the day on which this item commences by a person or persons claiming to hold native title if:

                     (a)  the application as amended is not one to which item 89 or 90 of Schedule 2 to the Native Title Amendment Act 2007 applies; and

                     (b)  either:

                              (i)  the Registrar has decided not to accept the claim made in the application, as amended, for registration before the day on which this item commences; and

                             (ii)  the decision of the Registrar is one to which section 190D of the Native Title Act 1993, as in force immediately before the commencement of Schedule 2 to the Native Title Amendment Act 2007, applies;

                            or:

                            (iii)  the Registrar has not yet decided whether to accept the claim made in the application, as amended, for registration by the day on which this item commences; and

                            (iv)  section 190D of the Native Title Act 1993, as in force immediately before the commencement of Schedule 2 to the Native Title Amendment Act 2007, will apply if the Registrar decides not to accept the claim; and

                     (c)  the claim is not on the Register of Native Title Claims on the day on which this item commences.

(2)        The Registrar must:

                     (a)  reconsider the claim under section 190A, as in force immediately before the commencement of this item or, if the claim has not already been considered under that section, consider the claim under that section; and

                     (b)  use his or her best endeavours to finish doing so by the end of one year after the day on which this item commences.

If the Registrar does not do so by that time, the Registrar must reconsider or consider (as the case requires) the claim under that section as soon as reasonably practicable afterwards.

(3)        If, either before the Registrar begins to reconsider, or consider, the claim in accordance with subitem (2), or while the Registrar is doing so, a notice is given in accordance with:

                     (a)  paragraph 24MD(6B)(c), as in force immediately before the commencement of this item; or

                     (b)  section 29, as in force at that time; or

                     (c)  a provision of a law of a State or Territory that corresponds to section 29, as in force at that time, and is covered by a determination in force under section 43, as in force at that time; or

                     (d)  a provision of a law of a State or Territory that corresponds to section 29, as in force at that time, and is covered by a determination in force under section 43A, as in force at that time;

in relation to an act affecting any of the land or waters in the area covered by the application, the Registrar must use his or her best endeavours to finish considering the claim under section 190A, as in force at that time, by the end of:

                     (e)  in a paragraph (a) case—2 months after the notice is given; or

                      (f)  in a paragraph (b) case—4 months after the notification day specified in the notice; or

                     (g)  in a paragraph (c) case—the period, in the law of the State or Territory, that corresponds to the period of 4 months after the notification day specified in a notice under section 29, as in force at that time; or

                     (h)  in a paragraph (d) case—the period at the end of which any person who is a registered native title claimant or registered native title body corporate has a right to be consulted about the act, to object to the act or to participate in negotiations about the act.

(4)        In reconsidering, or considering, a claim in accordance with subitem (2) or (3), the Registrar must:

                     (a)  in addition to having regard to information in accordance with subsection 190A(3), as in force immediately before the commencement of this item, also have regard to any information provided by the applicant after the application was made; and

                     (b)  apply section 190A, as in force at that time, as if the conditions in sections 190B and 190C, as in force at that time, requiring that the application:

                              (i)  contain or be accompanied by certain information or other things; or

                             (ii)  be certified or have other things done in relation to it;

                            also allowed the information or other things to be provided, or the certification or other things to be done, by the applicant or another person after the application is made; and

                     (c)  for the purposes of paragraphs (a) and (b) of this subitem, advise the applicant that the Registrar is reconsidering, or considering, the claim, and allow the applicant a reasonable opportunity to provide any further information or other things, or to have any things done, in relation to the application.

(5)        If the claim does not satisfy all of the conditions in sections 190B and 190C, as in force immediately before the commencement of this item:

                     (a)  the Registrar must give written notice as required by subsection 190D(1), as in force at that time; and

                     (b)  the other provisions of section 190A to 190D, as in force at that time, apply as if the notice given under paragraph (a) were given under subsection 190D(1), as in force at that time; and

                     (c)  after the Registrar has complied with subitems (2) to (4) and this subitem (in so far as they are applicable), the Registrar is taken to have complied with section 190A.


 

 [Minister’s second reading speech made in—

House of Representatives on 29 March 2007

Senate on 12 June 2007]

(49/07)