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Native Title Amendment Act 2009

  • - C2009A00083
  • In force - Latest Version
Act No. 83 of 2009 as made
An Act to amend the Native Title Act 1993, and for other purposes
Administered by: Attorney-General's
Originating Bill: Native Title Amendment Bill 2009
Registered 25 Sep 2009
Date of Assent 17 Sep 2009
Table of contents.

 

 

 

 

 

 

Native Title Amendment Act 2009

 

No. 83, 2009

 

 

 

 

 

An Act to amend the Native Title Act 1993, and for other purposes

  

  


Contents

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

2............ Commencement.................................................................................. 1

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

Schedule 1—Amendments relating to mediation                                                  3

Part 1—Amendments                                                                                                      3

Native Title Act 1993                                                                                                  3

Part 2—Application provisions                                                                                  23

Schedule 2—Powers of the Court                                                                                25

Native Title Act 1993                                                                                                25

Schedule 3—Rules of evidence                                                                                     29

Native Title Act 1993                                                                                                29

Schedule 4—Assistance in relation to inquiries etc.                                         30

Native Title Act 1993                                                                                                30

Schedule 5—Amendments relating to representative bodies                      34

Part 1—Removal of transitional arrangements                                                     34

Native Title Act 1993                                                                                                34

Part 2—Recognition of representative bodies                                                      36

Native Title Act 1993                                                                                                36

Schedule 6—Other amendments                                                                                  47

Part 1—Amendments                                                                                                    47

Native Title Act 1993                                                                                                47

Part 2—Application etc. provisions                                                                         53

 


 

 

Native Title Amendment Act 2009

No. 83, 2009

 

 

 

An Act to amend the Native Title Act 1993, and for other purposes

[Assented to 17 September 2009]

The Parliament of Australia enacts:

1  Short title

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

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.

17 September 2009

2.  Schedules 1 to 4

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2009.

18 September 2009

3.  Schedule 5, Part 1

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2009.

18 September 2009

4.  Schedule 5, Part 2

Immediately after the commencement of the provision(s) covered by table item 3.

18 September 2009

5.  Schedule 6

The later of:

(a) the day after this Act receives the Royal Assent; and

(b) 1 July 2009.

18 September 2009

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

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

3  Schedule(s)

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


 

Schedule 1Amendments relating to mediation

Part 1Amendments

Native Title Act 1993

1  After paragraph 4(7)(a)

Insert:

                    (aa)  provides for the Federal Court to refer native title and compensation applications for mediation; and

                    (ab)  provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; and

2  Paragraph 79A(a)

Omit “to the NNTT”.

3  At the end of section 79A

Add:

                   ; (e)  mediation (see Division 4).

4  Division 1B of Part 4 (heading)

Repeal the heading, substitute:

Division 1BReference for mediation

5  Subsections 86A(1) and (2)

Omit “by the NNTT”.

6  Subsection 86B(1)

Repeal the subsection, substitute:

Federal Court must refer applications for mediation

             (1)  Unless an order is made under subsection (3) that there be no mediation under this Act, the Federal Court must refer each application made under section 61 to an appropriate person or body for mediation, including the ascertaining of agreed facts, as soon as practicable after the end of the period specified in the notice under section 66.

             (2)  In deciding whether to refer the application to a particular person or body, the Court may take into account the training, qualifications and experience of the person who is to be, or is likely to be, the person conducting the mediation.

          (2A)  Without limiting subsection (1), the application may be referred to the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court.

Note:       The heading to section 86B is altered by omitting “to NNTT”.

7  Subsection 86B(3)

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

8  Paragraph 86B(3)(a)

Omit “(whether or not by the NNTT)”.

9  Paragraph 86B(3)(b)

Omit “by the NNTT”, substitute “under this Act”.

10  Subsection 86B(4)

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

11  Paragraph 86B(4)(ea)

Repeal the paragraph.

12  Subsection 86B(5)

Repeal the subsection, substitute:

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

             (5)  In addition to referring a proceeding for mediation under subsection (1), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to an appropriate person or body for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2).

          (5A)  In deciding whether to refer the whole or part of the proceeding to a particular person or body, the Court may take into account the training, qualifications and experience of the person who is to be, or is likely to be, the person conducting the mediation.

          (5B)  Without limiting subsection (5), the whole or part of the proceeding may be referred to the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court.

Orders about how mediation is to be provided etc.

          (5C)  If the Court refers, under subsection (1) or (5), the whole or a part of a proceeding to a person or body for mediation, the Court may at any time after the referral make an order about the following matters:

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

                     (b)  whether the person who is to conduct the mediation may be assisted by another individual;

                     (c)  any other matter that the Court considers relevant.

Note:       The following heading to subsection 86B(6) is inserted “No other referral for mediation etc.”.

13  Section 86BA

Repeal the section, substitute:

86BA  Mediator may appear before the Court

             (1)  A mediator may appear before the Court at a hearing that relates to any matter that is currently before the mediator for mediation if the Court considers that the mediator may be able to assist the Court in relation to a proceeding.

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

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

                     (a)  the mediator from appearing before the Court under subsection (1); or

                     (b)  if the mediator may appear before the Court under subsection (1) and the person conducting the mediation is not the mediator—that person from representing the mediator before the Court.

             (4)  This section does not give the mediator, or the person conducting the mediation, the right to become a party to the proceeding.

14  Subsection 86C(1)

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

15  Paragraph 86C(1)(a)

Omit “(whether or not by the NNTT)”.

16  Paragraph 86C(1)(b)

Omit “the NNTT”, substitute “the mediator”.

17  At the end of subsection 86C(1)

Add:

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

18  Subsection 86C(2)

Omit “the NNTT”, substitute “a mediator”.

19  Subsections 86C(3) and (4)

Omit “the NNTT”, substitute “the mediator”.

20  Subsection 86C(5)

Omit “136G(2), (2A), (3), (3A) or (3B)”, substitute “94N(2), (3), (4) or (5)”.

Note:       The heading to subsection 86C(5) is altered by omitting “NNTT report” and substituting “reports etc.”.

21  At the end of section 86C

Add:

Court may make other orders

             (6)  If the Court makes an order under subsection (1), (3) or (4) in relation to a mediation, the Court may make any other orders that the Court considers are reasonably necessary or appropriate to deal with the cessation of the mediation.

Later referral for mediation

             (7)  The making of an order under subsection (1), (3) or (4) does not prevent a later referral for mediation under subsection 86B(5).

22  Subsection 86D(1)

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

23  Subsection 86D(1)

Omit “the NNTT” (second occurring), substitute “the mediator”.

24  Subsection 86D(1) (note)

Omit “Under subsection 136D(1), the presiding member of the NNTT”, substitute “Under subsection 94H(1), the person conducting the mediation”.

25  Subsection 86D(2)

Omit “the NNTT”, substitute “the mediator”.

26  Subsection 86D(3)

Omit “136G(3B)”, substitute “94N(5)”.

27  Subsection 86D(3) (note)

Omit “Under subsection 136G(3B), the presiding member at a mediation conference may make a report to the Court if the presiding member”, substitute “Under subsection 94N(5), the person conducting the mediation may provide a report to the Court if the person”.

28  Subsection 86E(1)

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

Note:       The heading to section 86E is altered by omitting “NNTT” and substituting “a mediator”.

29  Subsection 86E(1)

Omit “the NNTT” (second occurring), substitute “the mediator”.

30  Subsection 86E(2)

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

31  Paragraphs 86E(2)(a) and (b)

Omit “the NNTT”, substitute “that mediator or those mediators”.

32  Section 94B

Omit “to the NNTT”.

Note:       The heading to section 94B is altered by omitting “to NNTT”.

33  Paragraph 94B(a)

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

34  Paragraph 94B(b)

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

35  At the end of Part 4

Add:

Division 4Mediation

94D  Mediation conferences

Mediator may hold conferences

             (1)  If the Federal Court refers the whole or a part of a proceeding under section 86B for mediation, the mediator may hold such conferences of the parties or their representatives as the mediator considers will help in resolving the matter.

Note:          The person conducting the mediation may request the Federal Court to refer for review by the NNTT the issue of whether there are native title rights and interests: see subsections 136GC(2) and (3).

Who must conduct conferences

             (2)  A conference must be conducted by:

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

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

                     (c)  in any other case—an individual nominated by the mediator.

Assistance

             (3)  Subject to an order made under subsection 86B(5C) in relation to the mediation, the person conducting the mediation may be assisted:

                     (a)  if the person is a member of the NNTT—by another member of the NNTT or a member of the staff of the NNTT; and

                     (b)  in any other case—by such other individuals as the person considers appropriate.

Statements at conference are without prejudice

             (4)  In a proceeding before the Court, unless the parties otherwise agree, evidence may not be given, and statements may not be made, concerning any word spoken or act done at a conference.

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

             (5)  Unless the parties otherwise agree or the Court gives leave, the person conducting the mediation, or another person who assists that person, may not, in any other capacity, take any further part in the proceeding before the Court.

Participation by telephone etc.

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

                     (a)  telephone; or

                     (b)  closed‑circuit television; or

                     (c)  any other means of communication.

Division applies as if consultant were a member

             (7)  If:

                     (a)  the mediator is the NNTT; and

                     (b)  a consultant is engaged under subsection 131A(1) to conduct mediation in relation to a particular matter under this Division;

this Division applies in relation to that matter as if the consultant were a member of the NNTT.

94E  Parties at conferences

Requiring parties to attend conferences

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

Limiting parties at conferences

             (2)  The person conducting the mediation may direct that only one or some of the parties may attend, and be represented, at a conference.

Excluding parties from conferences

             (3)  If the person conducting the mediation considers that:

                     (a)  a party, or a party’s representative, at a conference is disrupting or hindering the conference; or

                     (b)  excluding a party, or a party’s representative, from a conference would help to resolve matters;

the person may direct that the party or representative not attend at that conference or at other conferences.

Parties may be represented

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

Mediation in good faith

             (5)  Each party, and each person representing a party, must act in good faith in relation to the conduct of the mediation.

94F  Other persons attending or participating in conferences

                   The person conducting the mediation may, with the consent of all of the parties present at a conference:

                     (a)  direct that other persons be permitted to attend as observers of the conference; or

                     (b)  if he or she considers it would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1) or (2)—direct that other persons be permitted to participate in the conference.

94G  Producing documents

                   The person conducting the mediation may, for the purposes of a conference, direct a party to produce a document to the person on or before a day specified in the direction, if the person considers that:

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

                     (b)  the production of the document may assist the parties to reach agreement on any matters mentioned in subsection 86A(1) or (2).

94H  Referral of questions of fact or law

Referral of questions to Federal Court

             (1)  Subject to subsections (2) and (3), if the person conducting the mediation considers that it would expedite the reaching of an agreement on any matter that is the subject of mediation, he or she may refer to the Federal Court a question of fact or law relating to a proceeding that arises during the mediation.

Note:          Under subsection 86D(1), the Federal Court may determine a question of fact or law that a mediator refers to it.

Person conducting the mediation not a consultant

             (2)  If the person conducting the mediation is not a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

                     (a)  on the initiative of the person; or

                     (b)  at the request of a party.

Person conducting the mediation a consultant

             (3)  If the person conducting the mediation is a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

                     (a)  on the initiative of the person, if a presidential member agrees; or

                     (b)  at the request of a party.

Mediation may continue

             (4)  If a question of fact or law arising during mediation has been referred to the Court under this section, the person conducting the mediation may continue mediation if he or she considers that it is appropriate.

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

Referral of questions to Federal Court

             (1)  Subject to subsections (3) and (4), if the person conducting the mediation considers that a party to a proceeding does not have a relevant interest in the proceeding, he or she may refer to the Federal Court the question of whether the party should cease to be a party to the proceeding.

             (2)  For the purposes of the determination by the Court of that question, subsection 94D(4) does not apply to the extent that words spoken or acts done at a conference under section 94D relate to that question.

Person conducting the mediation not a consultant

             (3)  If the person conducting the mediation is not a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

                     (a)  on the initiative of the person; or

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

Person conducting the mediation a consultant

             (4)  If the person conducting the mediation is a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

                     (a)  on the initiative of the person, if a presidential member agrees; or

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

Mediation may continue

             (5)  If a question has been referred to the Court under this section, the person conducting the mediation may continue mediation if he or she considers that it is appropriate.

Meaning of relevant interest

             (6)  In this section, a person has a relevant interest in a proceeding if the person’s interests may be affected by a determination in the proceeding.

94K  Conferences to be held in private

                   A conference must be held in private, unless the person conducting the mediation directs otherwise and no party objects.

94L  Person conducting the mediation may prohibit disclosure of information etc.

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

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

                     (b)  the contents of any document produced at a conference;

must not be disclosed, or must not be disclosed except in such manner, and to such other persons, as the person specifies.

Applications etc.

             (2)  The person conducting the mediation may make the direction on his or her own initiative or on an application by a party.

Person conducting the mediation may disclose information etc. if parties agree

             (3)  If the parties agree, the person conducting the mediation may, despite the direction, disclose things of the kind mentioned in paragraph (1)(a) or (b).

Offence

             (4)  A person commits an offence if:

                     (a)  the person discloses any material in contravention of a direction made under subsection (1); and

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

Penalty:  40 penalty units.

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

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

94M  Person conducting the mediation etc. must not be required to give evidence or produce documents to a court

             (1)  The person conducting the mediation, or another person who assists that person, is not competent, and must not be required, to give evidence to a court relating to a matter if:

                     (a)  the giving of the evidence would be contrary to a direction under subsection 94L(1); or

                     (b)  an application has been made for a direction under that subsection concerning the matter to which the evidence would relate and the person conducting the mediation has not determined that application.

             (2)  The person conducting the mediation, or another person who assists that person, must not be required to produce in a court a document given in connection with a mediation if:

                     (a)  the production of the document would be contrary to a direction under subsection 94L(1); or

                     (b)  an application has been made for a direction under that subsection in relation to the document and the person conducting the mediation has not determined that application.

             (3)  In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

94N  Report etc. to be given to Federal Court

Report after mediation concludes

             (1)  The person conducting the mediation must, as soon as practicable after mediation is successfully concluded, provide a written report to the Federal Court setting out the results of the mediation.

Report requested under subsection 86E(1)

             (2)  The person conducting the mediation must provide a written report to the Federal Court setting out the progress of the mediation if requested to do so under subsection 86E(1).

Report or plan requested under subsection 86E(2)

             (3)  If one or more mediators have been requested under subsection 86E(2) to provide a regional mediation progress report or a regional work plan, that mediator or those mediators must provide the report or plan to the Federal Court.

Progress report

             (4)  The person conducting the mediation may provide a written report to the Federal Court setting out the progress of the mediation if the person considers that it would assist the Court in progressing the proceeding in relation to which the mediation is being undertaken.

Report about failure to comply with a direction

             (5)  If a direction made under subsection 94E(1) or section 94G has not been complied with, the person conducting the mediation may provide a written report to the Federal Court setting out:

                     (a)  the details of the direction; and

                     (b)  the reasons for giving the direction.

Agreement on facts

             (6)  If the parties agree, a report provided under subsection (1), (2) or (4) must include any agreement on facts between the parties that was reached during the mediation concerned.

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

Reports to government

             (1)  If the person conducting the mediation considers that a party mentioned in column 1 of the following table in relation to an item, or a person representing such a party, did not act or is not acting in good faith in relation to the conduct of the mediation, the person may report that failure to the person mentioned in column 2 of the table in relation to the item:

 

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

 

Item

If the party is or a person represents ...

then, the person conducting the mediation may report the failure to act in good faith to ...

1

the Commonwealth

the Commonwealth Minister.

2

a State or Territory

the State Minister or the Territory Minister for the State or Territory.

3

a party that is provided with funds by the Attorney‑General under section 213A

the Attorney‑General.

4

a representative body that is provided with funds by the Secretary of the Department under section 203C

the Secretary of the Department.

5

a person or body performing functions of a representative body that is provided with funds by the Secretary of the Department under section 203FE

the Secretary of the Department.

Reports to legal professional bodies

             (2)  If the person conducting the mediation considers that a legal practitioner did not act or is not acting in good faith in relation to the conduct of the mediation, the person may report that failure to the relevant State or Territory legal professional body that issued the legal practitioner with a practising certificate.

             (3)  For the purposes of a report made under subsection (2), subsection 94D(4) does not apply to the extent that words spoken or acts done at a conference under section 94D relate to the failure mentioned under subsection (2) of this section.

Reports to the Federal Court

             (4)  If the person conducting the mediation considers that a party, or the party’s representative, did not act or is not acting in good faith in relation to the conduct of the mediation, the person may, despite subsection 94D(4), report that failure to the Federal Court (whether or not a report is also provided as mentioned in subsection (1) or (2) of this section).

What a report must include

             (5)  A report must include:

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

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

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

             (6)  At the time that a report is provided as mentioned in subsection (1), (2) or (4), a copy of the report must also be provided to the person to whom it relates.

Person conducting the mediation not a consultant

             (7)  If the person conducting the mediation is not a consultant engaged under subsection 131A(1), a report may only be provided under this section on the initiative of the person.

Person conducting the mediation a consultant

             (8)  If the person conducting the mediation is a consultant engaged under subsection 131A(1), a report may only be provided under this section on the initiative of the person if a presidential member agrees.

Mediation may continue

             (9)  If a report is provided under this section, the person conducting the mediation may continue mediation if he or she considers that it is appropriate.

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

Scope

             (1)  This section applies if the person conducting a mediation is a member of the NNTT.

Annual report may include particulars of failure to act in good faith etc.

             (2)  If the person considers that a Government party, or that party’s representative, did not act or is not acting in good faith in relation to the conduct of the mediation, the report prepared under section 133 may include particulars of that failure and the reasons why the person considers that the conduct was not in good faith.

             (3)  If it is proposed to make an inclusion in the report, the person must inform the Government party, or that party’s representative, before doing so.

94R  Protection of person conducting the mediation

                   A person conducting the mediation has, in the performance of his or her duties as a person conducting the mediation, the same protection and immunity as a Justice of the High Court.

94S  Regulations about mediation

             (1)  The regulations may make provision in relation to the way in which any mediation is provided under this Division.

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

36  Subsection 108(1A)

Omit “Division 4A or 4AA”, substitute “Division 4 of Part 4 and Division 4AA of this Part”.

37  Paragraph 123(1)(ca)

Omit “are to”, substitute “may”.

38  Subsection 133(2A)

Omit “136GB”, substitute “94Q”.

39  Division 4A of Part 6

Repeal the Division.

40  Subsections 136GC(1), (2) and (3)

Repeal the subsections, substitute:

Referral by the Federal Court on its own motion

             (1)  The Federal Court may, on its own motion, refer for review by the Tribunal the issue of whether a native title claim group who is a party in a proceeding holds native title rights and interests, as defined in subsection 223(1), in relation to land or waters within the area that is the subject of the proceeding.

Referral by the Federal Court on request

             (2)  The Federal Court may refer for review by the Tribunal the issue of whether a native title claim group who is a party in a proceeding holds native title rights and interests, as defined in subsection 223(1), in relation to land or waters within the area that is the subject of the proceeding if:

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

                     (b)  the person conducting the mediation requests the Court to refer the issue for review by the Tribunal.

             (3)  The person conducting the mediation may only make the request if the person considers, after consultation with the parties to the proceeding, that a review of the issue would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1).

41  Subsection 136GC(9)

Omit “presiding member”, substitute “person conducting the mediation”.

42  Paragraph 136GE(1)(a)

Repeal the paragraph, substitute:

                     (a)  the person conducting the mediation; and

43  Subsection 136GE(3)

Omit “presiding member in the mediation”, substitute “person conducting the mediation”.

44  Subsection 136H(2)

Omit “Division 4A, Division 4AA”, substitute “Division 4 of Part 4, Division 4AA of this Part”.

45  Paragraph 138A(a)

Omit “to the Tribunal”.

46  Subsection 138B(1)

Omit “President”, substitute “Federal Court”.

47  Paragraph 138B(1)(a)

Repeal the paragraph, substitute:

                     (a)  on its own motion; or

48  Paragraph 138B(1)(c)

Repeal the paragraph, substitute:

                     (c)  at the request of the person conducting the mediation;

49  Subsection 138B(2)

Omit “President”, substitute “Court”.

50  Paragraph 138B(2)(a)

Omit “he or she”, substitute “the Court”.

51  Subsection 138B(3)

Omit “to the Tribunal”.

52  Subsection 138C(1)

Omit “President”, substitute “Federal Court”.

53  Subsection 138D(1)

Omit “directing that an inquiry be held, the President”, substitute “beginning the inquiry, the Tribunal”.

54  Paragraph 138D(1)(c)

Repeal the paragraph.

55  Subsection 138E(1)

Omit “presiding member”, substitute “person conducting the mediation”.

56  Subsection 138E(2)

Omit “subsection 136GC(1)”, substitute “section 136GC”.

57  Subsection 138E(2) (note)

Omit “Subsection 136GC(1) allows the President”, substitute “Section 136GC allows the Federal Court”.

58  Subsection 176(1)

Omit “136F,”.

59  Paragraph 181(2)(a)

Omit “or to a direction of the presiding member under subsection 136F(1)”.

60  Paragraph 181(2)(b)

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

61  Paragraph 181(2)(b)

Omit “or the presiding member”.

62  Paragraph 181(3)(a)

Omit “or to a direction of the presiding member under subsection 136F(1)”.

63  Paragraph 181(3)(b)

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

64  Paragraph 181(3)(b)

Omit “or the presiding member”.

65  After subparagraph 207B(9)(a)(i)

Insert:

                            (ia)  the provisions of Division 4 of Part 4, other than subsection 94H(1);

66  Subparagraph 207B(9)(a)(iii)

Omit “subsection 136D(1) and”.

67  Section 253

Insert:

mediator means:

                     (a)  in relation to an application—the person or body to which the application has been referred under subsection 86B(1) for mediation; or

                     (b)  in relation to the whole or a part of a proceeding—the person or body to which the whole or the part of the proceeding has been referred under subsection 86B(5) for mediation.

68  Section 253

Insert:

person conducting the mediation means the person mentioned in subsection 94D(2) who conducts a conference under section 94D in relation to the mediation concerned.


 

Part 2Application provisions

69  Application—subsection 86B(1) of the Native Title Act

Subsection 86B(1) of the Native Title Act 1993, as inserted by this Schedule, applies in relation to an application under section 61 of that Act made before or after the commencement of this item.

70  Application—subsection 86B(5C) and Division 4 of Part 4 of the Native Title Act

(1)        The following provisions of the Native Title Act 1993, as inserted by this Schedule, apply in relation to a referral under subsection 86B(1) or (5) of that Act made before or after the commencement of this item:

                     (a)  subsection 86B(5C);

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

(2)        If:

                     (a)  a thing was done under, or for the purposes of, a provision of Division 4A of Part 6 of the Native Title Act 1993 in relation to a mediation; and

                     (b)  the mediation has not been completed before commencement of this item;

the thing has effect, after that commencement, as if it had been done under, or for the purposes of, the corresponding provision of Division 4 of Part 4 of that Act.

71  Application—section 86C and subsections 136GC(2) and 138B(1) of the Native Title Act

The following provisions of the Native Title Act 1993, as inserted or amended by this Schedule, apply in relation to a mediation that begins before or after the commencement of this item:

                     (a)  section 86C;

                     (b)  subsection 136GC(2);

                     (c)  subsection 138B(1).

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

If:

                     (a)  an issue was referred for review under subsection 136GC(1) of the Native Title Act 1993 as in force before the commencement of this item; and

                     (b)  the review has not been completed before that commencement;

then, despite the repeal of that subsection by this Schedule, the referral has effect, after that commencement, as if it were a referral under subsection 136GC(2) of that Act as inserted by this Schedule.

73  Direction to hold an inquiry under subsection 138B(1) of the Native Title Act

If:

                     (a)  the Tribunal was directed to hold an inquiry under subsection 138B(1) of the Native Title Act 1993 as in force before the commencement of this item; and

                     (b)  the inquiry has not been completed before that commencement;

then, despite the amendments of that subsection made by this Schedule, the direction has effect, after that commencement, as if it were a direction under subsection 138B(1) of that Act as amended by this Schedule.


 

Schedule 2Powers of the Court

  

Native Title Act 1993

1  Subsection 87(1)

Omit “If”, substitute “This section applies if”

Note:       The heading to subsection 87(1) is replaced by the heading “Application”.

2  Paragraph 87(1)(c)

Omit “Court; and”, substitute “Court.”.

3  Subsection 87(1)

Omit all the words after paragraph (c).

4  After subsection 87(1)(c)

Insert:

Power of Court

          (1A)  The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:

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

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

5  At the end of section 87

Add:

Orders about matters other than native title

             (4)  Without limiting subsection (2) or (3), if the order under that subsection does not involve the Court making a determination of native title, the order may give effect to terms of the agreement that involve matters other than native title.

             (5)  Without limiting subsection (2) or (3), if the order under that subsection involves the Court making a determination of native title, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title.

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

                     (a)  making an order under subsection (2) or (3) that gives effect to terms of the agreement that involve matters other than native title; and

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

             (7)  The regulations may specify the kinds of matters other than native title that an order under subsection (2), (3) or (5) may give effect to.

Agreed statement of facts

             (8)  If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

             (9)  Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Registrar of the Court must give notice to the other parties to the proceeding that the statement has been filed with the Court.

           (10)  In considering whether to make an order under subsection (2), (3) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

                     (a)  the applicant; and

                     (b)  the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

           (11)  In considering whether to accept under subsection (10) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (9).

6  Subsection 87A(4)

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

Note:       The heading to subsection 87A(4) is altered by omitting “Order” and substituting “Orders”.

7  Subsection 87A(5)

Repeal the subsection, substitute:

             (5)  Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

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

                     (b)  it would be appropriate to do so.

             (6)  The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

             (7)  The regulations may specify the kinds of matters other than native title that an order under subsection (5) may give effect to.

Objections

             (8)  In considering whether to make an order under subsection (4) or (5), the Court must take into account any objections made by the other parties to the proceedings.

Agreed statement of facts

             (9)  If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

           (10)  Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Registrar of the Court must give notice to the other parties to the proceeding that the statement has been filed with the Court.

           (11)  In considering whether to make an order under subsection (4) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

                     (a)  the applicant; and

                     (b)  the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

           (12)  In considering whether to accept under subsection (11) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (10).


 

Schedule 3Rules of evidence

  

Native Title Act 1993

1  Before section 215

Insert:

214  Application of amended rules of evidence in proceedings before the Federal Court

Scope

             (1)  This section applies to a proceeding before the Federal Court that relates to a matter arising under this Act if:

                     (a)  the hearing of the proceeding began before the commencement of Schedule 1 to the Evidence Amendment Act 2008; and

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

Application of amendments

             (2)  Despite item 95 of that Schedule, the amendments of the Evidence Act 1995 made by that Schedule apply in relation to the proceeding if:

                     (a)  the parties to the proceeding consent to the amendments applying in relation to the proceeding; or

                     (b)  the Court orders, after taking into account the views of the parties to the proceedings, that it is in the interests of justice that the amendments apply in relation to the proceedings.


 

Schedule 4Assistance in relation to inquiries etc.

  

Native Title Act 1993

1  Section 183

Repeal the section.

2  After section 213

Insert:

213A  Assistance from Attorney‑General

Assistance in relation to inquiries etc.

             (1)  A person who is a party, or who intends to apply to be a party, to an inquiry, mediation or proceeding related to native title may apply to the Attorney‑General for the provision of assistance under this section in relation to the inquiry, mediation or proceeding.

Assistance in relation to agreements and disputes

             (2)  A person who:

                     (a)  is or intends to become a party to an indigenous land use agreement or an agreement about rights conferred under subsection 44B(1); or

                     (b)  is in dispute with any other person about rights conferred under subsection 44B(1);

may apply to the Attorney‑General for the provision of assistance under this section in relation to:

                     (c)  negotiating the agreement; or

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

                     (e)  resolving the dispute.

             (3)  A person who is, or intends to become, a grantee party in relation to a future act to which Subdivision P of Division 3 of Part 2 applies may apply to the Attorney‑General for the provision of assistance under this section in relation to:

                     (a)  the development of a standard form of agreement to facilitate negotiation in good faith as mentioned in paragraph 31(1)(b); or

                     (b)  the development of a standard form of agreement which, if agreed by a grantee party in relation to a future act to which the Subdivision applies, would make it more likely that the Government party doing the act would consider it an act attracting the expedited procedure; or

                     (c)  a review of an existing standard form of agreement mentioned in paragraph (a) or (b), with a view to improving the standard form.

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

Attorney‑General may grant assistance

             (4)  If the Attorney‑General is satisfied that:

                     (a)  the applicant is not eligible to receive assistance in relation to the matter concerned from any other source (including from a representative Aboriginal/Torres Strait Islander body); and

                     (b)  the provision of assistance to the applicant in relation to the matter concerned is in accordance with the guidelines (if any) made under subsection (5); and

                     (c)  in all the circumstances, it is reasonable that the application be granted;

the Attorney‑General may authorise the provision by the Commonwealth to the applicant, either unconditionally or subject to such conditions as the Attorney‑General determines, of such legal or financial assistance as the Attorney‑General determines.

Attorney‑General may make guidelines

             (5)  The Attorney‑General may, in writing, make guidelines that are to be applied in authorising the provision of assistance under this section.

Assistance not to be provided to Ministers

             (6)  The Attorney‑General cannot authorise the provision of assistance under this section to the Commonwealth Minister, a State Minister or a Territory Minister.

Assistance not to be provided to native title claimants etc.

             (7)  The Attorney‑General must not authorise the provision of assistance under this section to a person in relation to:

                     (a)  any claim by the person, in an inquiry, mediation or proceeding, to hold native title or to be entitled to compensation in relation to native title; or

                     (b)  an indigenous land use agreement, if the person holds or claims to hold native title in relation to the area covered by the agreement; or

                     (c)  an agreement or dispute about rights conferred under subsection 44B(1), if the person is included in the native title claim group concerned.

Delegation by Attorney‑General

             (8)  The Attorney‑General may, in writing, delegate any or all of his or her powers under subsection (4) to:

                     (a)  the Secretary of the Department; or

                     (b)  a person engaged under the Public Service Act 1999 who occupies a specified position in the Department.

3  Transitional and saving provisions relating to section 183 of the Native Title Act

(1)        An application made under subsection 183(1) of the Native Title Act 1993 but not determined before the commencement of this item is taken to have been made under subsection 213A(1) of that Act as inserted by this Schedule.

(2)        An application made under subsection 183(2) of the Native Title Act 1993 but not determined before the commencement of this item is taken to have been made under subsection 213A(2) of that Act as inserted by this Schedule.

(3)        An application made under subsection 183(2A) of the Native Title Act 1993 but not determined before the commencement of this item is taken to have been made under subsection 213A(3) of that Act as inserted by this Schedule.

(4)        If:

                     (a)  the provision of assistance was authorised under subsection 183(3) of that Act before the commencement of this item; and

                     (b)  the assistance has not been provided before that commencement;

then, despite the repeal of that subsection by this Schedule, the authorisation has effect, after that commencement, as if it were an authorisation under subsection 213A(4) of that Act as inserted by this Schedule.

(5)        Guidelines determined under subsection 183(4) of that Act that were in force immediately before the commencement of this item continue to have effect after that commencement as if they were guidelines made under subsection 213A(5) of that Act as inserted by this Schedule.

(6)        A delegation in force under subsection 183(7) of that Act immediately before the commencement of this item continues to have effect after that commencement as if it were a delegation under subsection 213A(8) of that Act as inserted by this Schedule.


 

Schedule 5Amendments relating to representative bodies

Part 1Removal of transitional arrangements

Native Title Act 1993

1  Section 201A (definition of transitional commencing day)

Repeal the definition.

2  Section 201A (definition of transitionally affected area)

Repeal the definition.

3  Section 201A (definition of transition period)

Repeal the definition.

4  Section 201C

Repeal the section.

5  Subsection 203A(1)

Omit “Subject to section 203AA, the”, substitute “The”.

6  Section 203AA

Repeal the section.

7  Subsection 203AB(1)

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

8  Subsection 203AB(3)

Repeal the subsection.

9  Subsection 203AC(1A)

Repeal the subsection, substitute:

          (1A)  The Commonwealth Minister must determine applications under section 203AB as soon as practicable after whichever of the following periods ends last:

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

                     (b)  if a further period applies under subsection 203AB(2) in relation to one or more of those applications—the last such further period;

                     (c)  if the Commonwealth Minister has, in relation to one or more of those applications, given to a body a notice under subsection (1) of this section requiring the body to give further information within a specified period—the last such period.

10  Subsection 203AD(1)

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

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

Repeal the subsections, substitute:

Period of recognition

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

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

                     (b)  ceases to have effect at the end of the day specified in that instrument unless the body’s recognition is earlier withdrawn under section 203AH.

12  Saving provision—recognition under subsection 203AD(1A) of the Native Title Act 1993

(1)        This item applies if:

                     (a)  an eligible body was recognised under subsection 203AD(1A) of the Native Title Act 1993 before the commencement of this item; and

                     (b)  the recognition is in effect immediately before that commencement.

(2)        Despite the amendments made by this Part, the recognition continues to have effect after the commencement of this item as if those amendments had not been made.


 

Part 2Recognition of representative bodies

Native Title Act 1993

13  Paragraph 201B(1)(b)

Omit “at the commencement of this section”.

14  Subsection 203A(1)

After “Minister may”, insert “, in writing”.

15  Paragraph 203A(1)(a)

Omit “, in the way determined in writing by the Commonwealth Minister,”.

16  Paragraph 203A(1)(b)

Omit “, in writing,”.

17  After subsection 203A(1)

Insert:

Invitations may specify an area for which there is a representative body

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

Note:          An eligible body must not be recognised as the representative body for an area with effect from a particular day if the recognition of a body as the representative body for all or part of the area will be in effect on that day: see subsection 203AD(4).

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

Repeal the subsections, substitute:

Invitations to specify information that must be included in applications

             (4)  The invitation must specify the information that must be included in the application or applications that are given to the Commonwealth Minister.

Invitations to contain statement about revocation of invitations

             (5)  The invitation must contain a statement setting out the effect of section 203AA (which deals with the revocation of invitations).

Invitations to contain statement about notification requirement

             (6)  If the invitation is made under paragraph (1)(b), the invitation must contain a statement setting out the effect of section 203AAA (which requires an eligible body to notify the Commonwealth Minister if it decides not to apply for recognition etc.).

 Invitations may be general

             (7) For the purposes of paragraph (1)(a), the Commonwealth Minister may arrange for the publication of general invitations and need not make a separate invitation to each eligible body.

19  After section 203A

Insert:

203AA  Revocation of invitations

             (1)  The Commonwealth Minister may, in writing, revoke an invitation made under subsection 203A(1) if:

                     (a)  the Commonwealth Minister considers it appropriate to do so; and

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

             (2)  If:

                     (a)  an eligible body, to whom the invitation was made, has made an application under section 203AB; and

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

then the application is taken never to have been made.

             (3)  If the invitation was made under paragraph 203A(1)(a), the Commonwealth Minister may arrange for the publication of the revocation and need not give a separate document to each eligible body to whom the invitation was made.

203AAA  Eligible body must notify the Commonwealth Minister if it decides not to apply for recognition etc.

Scope

             (1)  This section applies if an eligible body is invited under paragraph 203A(1)(b) to apply for recognition.

Notification of decision not to apply for recognition

             (2)  If the eligible body decides not to apply for recognition, the eligible body must, in writing, notify the Commonwealth Minister of that decision before the end of the period specified in the invitation under subsection 203A(3).

Deemed notification

             (3)  If the eligible body does not:

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

                     (b)  make an application before the end of the period that applies under subsection 203AB(2);

the eligible body is taken to have given a notification under subsection (2) of this section at the end of that period.

20  Subsection 203AB(1)

Omit “, in the form approved by the Commonwealth Minister,”.

21  Subsection 203AD(1)

After “an area”, insert “or areas”.

22  Subsection 203AD(1)

After “the area”, insert “or areas”.

23  Paragraph 203AD(2)(b)

Before “ceases”, insert “subject to subsection (3),”.

24  Subsections 203AD(2D) and (2E)

Repeal the subsections, substitute:

             (3)  If an area for which a body is recognised as the representative body is varied under subsection 203AE(1) so as to reduce the area to zero, the recognition of the body ceases immediately after the variation takes effect.

          (3A)  The period of recognition specified in the instrument of recognition must be at least 1 year but not more than 6 years.

          (3B)  In deciding the period of recognition to specify in the instrument of recognition, the Commonwealth Minister must consider the following:

                     (a)  whether the body is under external administration;

                     (b)  whether a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body;

                     (c)  what period of recognition would, in the opinion of the Commonwealth Minister, promote the efficient performance of the functions mentioned in subsection 203B(1).

          (3C)  In deciding the period of recognition to specify in the instrument of recognition, the Commonwealth Minister may consider any information in the possession of the Minister or the Department that is relevant to that decision.

          (3D)  Subsections (3B) and (3C) do not limit any other matters that the Minister may take into account in deciding the period of recognition.

25  Subsection 203AD(5)

After “an area”, insert “or areas”.

26  Sections 203AE, 203AF and 203AG

Repeal the sections, substitute:

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

             (1)  Subject to this section, the Commonwealth Minister may, by legislative instrument, vary an area for which a body is the representative body if the Commonwealth Minister is satisfied that, after the variation, the body will satisfactorily perform its functions in relation to the varied area.

Variation to add the whole or a part of another area

             (2)  The Commonwealth Minister must not vary an area (the original area) under subsection (1) to add the whole or a part of another area (the additional area) unless the boundary of the original area adjoins the boundary of the additional area.

Reduction of area

             (3)  Without limiting subsection (1), the Commonwealth Minister may vary an area under that subsection so as to reduce the area, including reduce the area to zero.

             (4)  In deciding whether to vary an area so as to reduce it to zero, the Commonwealth Minister need not be satisfied of the matter mentioned in subsection (1).

Variation on application or on the Commonwealth Minister’s own initiative

             (5)  The Commonwealth Minister may vary an area under subsection (1) for which a body is the representative body:

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

                     (b)  subject to section 203AF, on the Commonwealth Minister’s own initiative.

             (6)  If an application is made under paragraph (5)(a) in relation to an area, the Commonwealth Minister may vary the area as the Commonwealth Minister considers appropriate.

Consideration of reports etc.

             (7)  In deciding whether to vary the area, the Commonwealth Minister may consider the following:

                     (a)  any reports under section 203DF of audits or investigations of the body;

                     (b)  any reports under section 193X of the Aboriginal and Torres Strait Islander Act 2005 in relation to funding provided to the body under section 203C or 203FE of this Act;

                     (c)  any notices that the Secretary of the Department has given to the Commonwealth Minister under section 203F in relation to the body;

                     (d)  any information in the possession of the Minister or Department that is relevant to the variation.

             (8)  Subsection (7) does not limit any other matters that the Commonwealth Minister may take into account in deciding whether to vary the area.

Consideration of submissions

             (9)  In deciding whether to vary the area, the Commonwealth Minister must consider any submissions made by a body or person within the period mentioned in subsection 203AF(6).

When the variation takes effect

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

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

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

203AF  Notification requirements for the variation of an area on the Commonwealth Minister’s own initiative

Notification requirements

             (1)  Subject to subsection (7), the Commonwealth Minister must not vary an area under subsection 203AE(1) on his or her own initiative unless the Minister complies with subsection (2) of this section.

             (2)  The Commonwealth Minister must:

                     (a)  notify, in writing, each of the following that the variation of the area (the initial area) is being considered:

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

                             (ii)  if there is a representative body for another area (the other area) that has a boundary that the Commonwealth Minister proposes to vary as result of varying the initial area—that body;

                            (iii)  the Aboriginal peoples or Torres Strait Islanders who live in the initial area and, if subparagraph (ii) applies, who live in the other area; and

                     (b)  arrange for the publication in a newspaper (if any) circulating generally in the initial area of a notice that states that the variation is being considered; and

                     (c)  if the newspaper mentioned in paragraph (b) does not also circulate generally in the other area—arrange for the publication of the notice mentioned in paragraph (b) in a newspaper (if any) circulating generally in the other area.

             (3)  For the purposes of subparagraph (2)(a)(iii), the Commonwealth Minister may arrange for the publication of a general notification and need not give a separate notification to the persons mentioned in that subparagraph.

Content of notice

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

                     (a)  identify the proposed variation; and

                     (b)  state the reasons why the Minister is considering varying the initial area; and

                     (c)  state that the body may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the initial area should be varied.

             (5)  The notice to a person mentioned in subparagraph (2)(a)(iii) must state that the person may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the initial area should be varied.

             (6)  The period specified in the notice under paragraph (4)(c) or subsection (5) must not begin before the day on which the notice is given to the body or person concerned and must be a period of at least 60 days.

Exception to notification requirements

             (7)  The Commonwealth Minister need not comply with subsection (2) in relation to the variation of the other area if:

                     (a)  the variation is to be made as a result of the variation of the initial area; and

                     (b)  notification under that subsection of the variation of the initial area has been previously given to the representative body for the other area.

203AG  Notice of decision on variation

             (1)  As soon as practicable after deciding whether to vary an area under subsection 203AE(1), the Commonwealth Minister must:

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

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

                             (ii)  the Aboriginal peoples or Torres Strait Islanders who live in the area to which the decision relates; and

                     (b)  arrange for the publication in a newspaper (if any) circulating generally in the area of a notice setting out the decision and the reasons for the decision.

             (2)  For the purposes of subparagraph (1)(a)(ii), the Commonwealth Minister may arrange for the publication of a general notification and need not give a separate notification to the persons mentioned in that subparagraph.

27  Subsection 203AH(1)

Omit all the words after paragraph (b).

28  After subsection 203AH(1)

Insert:

          (1A)  A request under paragraph (1)(b) must be accompanied by a signed statement that the request has been authorised by the members of the body in accordance with the body’s processes.

29  Subsection 203AH(3)

Omit “At least 60 days before deciding to withdraw the recognition under subsection (2), the Commonwealth Minister must notify”, substitute “The Commonwealth Minister must not decide to withdraw the recognition under subsection (2) unless the Minister notifies”.

30  Paragraph 203AH(3)(b)

Omit “invite the body to”, substitute “state that the body may”.

31  Subsection 203AH(3)

Omit “at least 60 days”, substitute “at least 30 days”.

32  After subsection 203AH(3)

Insert:

          (3A)  The Commonwealth Minister may, in writing, extend the period specified in the notice under subsection (3) if:

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

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

33  At the end of subsection 203AH(4)

Add:

                   ; (d)  any information in the possession of the Minister or Department that is relevant to the matter mentioned in paragraph (2)(a) or (b) of this section.

34  Subsection 203AH(6)

Omit all the words after “made by”, substitute:

                   the body:

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

                     (b)  if that period has been extended under subsection (3A)—within the extended period.

35  Subsection 203AI(1)

Omit all the words after “Minister’s opinion,”, substitute “the body will comply with, or is complying with, section 203BA (which deals with how functions of representative bodies are to be performed).”

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

36  Subsection 203AI(2)

Repeal the subsection.

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

37  Paragraph 203BA(2)(c)

Repeal the paragraph, substitute:

                     (c)  ensures that the structures and processes operate in a fair manner, having particular regard to:

                              (i)  the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and

                             (ii)  the extent to which its processes involve consultation with those Aboriginal peoples or Torres Strait Islanders; and

                            (iii)  its procedures for making decisions and for reviewing its decisions; and

                            (iv)  its rules or requirements relating to the conduct of its executive officers; and

                             (v)  the nature of its management structures and management processes; and

                            (vi)  its procedures for reporting back to persons who hold or may hold native title in the area, and to the Aboriginal peoples or Torres Strait Islanders living in the area.

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

After “the area”, insert “, or the part of an area,”.

39  Application—sections 203AE, 203AF and 203AG of the Native Title Act

(1)        Despite the repeal of section 203AE of the Native Title Act 1993 by this Part, that section (as in force immediately before the commencement of this item) continues to apply, in relation to the following, as if the repeal had not happened:

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

                     (b)  a notice of a proposed extension given under that section if a decision has not been made about the proposed extension before that commencement.

(2)        Despite the repeal of section 203AF of that Act by this Part, that section (as in force immediately before the commencement of this item) continues to apply, in relation to the following, as if the repeal had not happened:

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

                     (b)  a notice of a proposed variation given under that section if a decision has not been made about the proposed variation before that commencement.

(3)        Despite the repeal of section 203AG of that Act by this Part, that section (as in force immediately before the commencement of this item) continues to apply, in relation to a notice of a proposed reduction given under that section if a decision has not been made about the proposed reduction before that commencement, as if the repeal had not happened.


 

Schedule 6Other amendments

Part 1Amendments

Native Title Act 1993

1  Paragraphs 28(2)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  in a case where an amount is to be secured by bank guarantee in favour of the Registrar in compliance with a condition of a determination made under section 36A or 38 or a declaration made under section 42:

                              (i)  the Registrar is informed by the Government party as mentioned in item 2 of the table in subsection 52(2) that it no longer proposes to do the act; and

                             (ii)  the Government party does the act without again complying with the requirements of this Subdivision; or

                     (b)  in a case where a trustee is holding an amount in trust under this Subdivision in respect of the act until it is dealt with in accordance with section 52A:

                              (i)  the trustee is informed by the Government party as mentioned in paragraph 52A(1)(b) that it no longer proposes to do the act; and

                             (ii)  the Government party does the act without again complying with the requirements of this Subdivision.

2  After subsection 36C(5A)

Insert:

Trust condition

          (5B)  If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:

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

                     (b)  the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.

Note:          The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.

3  At the end of section 41

Add:

Trust condition

             (5)  If, in the case of a determination by the arbitral body, a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:

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

                     (b)  the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.

Note:          The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.

4  After subsection 42(5A)

Insert:

Trust condition

          (5B)  If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:

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

                     (b)  the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.

Note:          The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.

5  Paragraph 43(2)(j)

Repeal the paragraph, substitute:

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

                              (i)  bank guarantees on similar terms to those in subsections 36C(5), 41(3) and 42(5), and regulations made for the purposes of subsections 36C(5A), 41(4) and 42(5A); or

                             (ii)  for trusts on similar terms to those in subsections 36C(5B), 41(5) and 42(5B); and

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

Omit “the amount secured (the original amount)”, substitute “an amount equal to the amount determined”.

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

Omit “an amount equal to the amount determined”, substitute “that amount”.

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

Repeal the paragraph, substitute:

(c) direct the ADI to cancel the guarantee.

9  After section 52

Insert:

52A  Payment held in trust under right to negotiate procedures

When section applies

             (1)  This section applies if an amount (the trust amount) in respect of an act is being held in trust in accordance with paragraph 36C(5B)(b), subsection 41(5) or paragraph 42(5B)(b) and any of the following happens:

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

                     (b)  the Government party informs the trustee in writing that it is not going to do the act;

                     (c)  the following requirements are satisfied:

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

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

                            (iii)  the person who paid the trust amount advises the trustee that the person agrees to the registered native title body corporate accepting the trust amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act;

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

                              (i)  in accordance with this Division; or

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

                            that a person is entitled to compensation, or that no compensation is payable to any person;

                     (e)  none of paragraphs (a), (b), (c) and (d) applies and the Federal Court decides, on application by any person, that it would be just and equitable in all the circumstances to pay the trust amount to that person or another person.

Paragraph (1)(a) or (b) case

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

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

                     (b)  if that person no longer exists—apply to the Federal Court for a direction as to the payment of the trust amount.

Paragraph (1)(c) case

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

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

                     (b)  subject to section 53, there is no entitlement to compensation under Division 3 for the act.

Paragraph (1)(d) case where monetary compensation

             (4)  In a paragraph (1)(d) case where the determination is that a person is entitled to an amount of monetary compensation:

                     (a)  if the trust amount is the same as the amount determined—the trustee must pay the trust amount to the person; or

                     (b)  if the trust amount is less than the amount determined—the trustee must pay the trust amount to the person and the Government party must pay the shortfall to the person; or

                     (c)  if the trust amount is more than the amount determined—the trustee must:

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

                             (ii)  refund the excess to the person who paid the trust amount to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.

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

             (5)  In a paragraph (1)(d) case where the transfer of property or the provision of goods or services constitutes some or all of the compensation, the trustee must apply to the Federal Court for a direction as to the payment of the trust amount.

Paragraph (1)(d) case where no compensation

             (6)  In a paragraph (1)(d) case where the determination is that no compensation is payable or to be given to any person, the trustee must repay the trust amount to the person who paid it to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.

Paragraph (1)(e) case

             (7)  In a paragraph (1)(e) case, the trustee must pay the trust amount in accordance with the decision of the Federal Court mentioned in that paragraph.

10  Section 55

After “time as”, insert “, or as soon as practicable after,”.

11  Section 55

Omit “the determinations in”, substitute “such determinations as are required by”.

12  Section 55

Omit “or 57”, substitute “and 57”.

13  Paragraph 66C(1)(c)

Omit “in relation to the applicant”, substitute “for each future act identified in the future act notice referred to in that paragraph”.

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

Omit “Maximum Penalty”, substitute “Penalty”.

15  Section 173 (penalty)

Omit “Maximum Penalty”, substitute “Penalty”.

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

Omit “Maximum Penalty”, substitute “Penalty”.

17  Section 177 (penalty)

Omit “Maximum Penalty”, substitute “Penalty”.


 

Part 2Application etc. provisions

18  Application of amendment

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

                     (a)  the making of a determination under paragraph 43(1)(b) of the Native Title Act 1993 after the commencement of this item; and

                     (b)  the revocation after the commencement of this item of such a determination whether made before or after that commencement.

19  Validation etc. of pre‑commencement determinations

(1)        A determination made under paragraph 43(1)(b) of the Native Title Act 1993 before the commencement of this item is as valid, and is taken always to have been as valid, as it would have been if paragraph 43(2)(j) of that Act, as inserted by this Schedule, had been in force at the time the determination was made.

(2)        For the purposes of subsection 43(3) of that Act, paragraph 43(2)(j) of that Act, as inserted by this Schedule, is taken:

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

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

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 19 March 2009

Senate on 15 June 2009]

(50/09)