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Guides & Guidelines as made
These Guidelines provide the eligibility criteria, form and requirements for making an application for financial assistance and specify the scope, conditions and type of assistance the Attorney-General can authorise under section 183 of the Native Title Act 1993.
Administered by: Attorney-General's
General Comments: The provision of assistance authorised by the Attorney General before these Guidelines commenced is unaffected until completion of the stage or services for which the provision of assistance was authorised, with the exception of matters in which the provision of assistance authorised has not been used since 1 January 2006. In such a case, the applicant must submit a new application for the provision of assistance. Applications that were received, but not determined, before the commencement of these Guidelines will be decided under the guidelines applicable at the date the application was received by the Department
Registered 20 Dec 2006
Tabling HistoryDate
Tabled HR06-Feb-2007
Tabled Senate06-Feb-2007
Date of repeal 01 Jan 2013
Repealed by Native Title (Assistance from Attorney-General) Guidelines 2012

EXPLANATORY STATEMENT

 

Guidelines on the Provision of Financial Assistance by the Attorney‑General under the Native Title Act 1993

 

Summary

 

The Guidelines on the Provision of Financial Assistance by the Attorney-General under the Native Title Act 1993 (the Guidelines) are made under section 183 of the Native Title Act 1993 (the Act).  The Guidelines will replace the previous guidelines, which came into effect on 30 November 1998.

 

The Guidelines specify:

 

·          the scope of assistance that can be applied for under section 183

·          eligibility criteria

·          the form and requirements of making applications for assistance

·          the type of assistance that can be authorised under section 183

·          the conditions applicable to any assistance that is authorised, and

·          rights of review on decisions in relation to applications for assistance.

 

The Guidelines have been revised to encourage the resolution of native title matters through agreement making, rather than litigation, wherever possible.

 

Part 1 Introduction

 

Part 1 provides that subsection 183 (3) of the Act allows the Attorney‑General to authorise the provision of legal or financial assistance by the Commonwealth to an applicant in certain circumstances.  It also sets out the basis on which the Attorney‑General may authorise the provision of legal or financial assistance to an applicant, either unconditionally or subject to conditions (section 2).  The Attorney‑General has delegated decision‑making powers to officers in the Attorney‑General’s Department (section 3).  Section 4 notes that the Attorney‑General may determine guidelines that are to be applied in authorising the provision of assistance under section 183 of the Act.  The Attorney-General is prohibited from authorising the provision of assistance to a person who holds or claims to hold native title or to be entitled to compensation in relation to native title (section 5).

 

Part 2 Commencement

 

Part 2 provides for the Guidelines to commence on 1 January 2007 (section 6) and section 7 refers to transitional provisions set out in Part 11.

 

Part 3 Interpretation

 

Part 3 sets out definitions (sections 8, 9, 10).

 

Part 4 Scope of section 183 of the Act

Division 4.1 General

 

Part 4 provides that the activities for which an application for the provision of assistance may be made are the subject of subsections 183 (1) and (2) of the Act (section 11).

 

Division 4.2 What assistance can be applied for under subsection 183(1) of the Act

 

Section 12 identifies a person who may apply for assistance under subsection 183(1) of the Act as someone who is a party, or who intends to apply to be a party, to an inquiry, mediation or proceeding related to native title.  Section 13 identifies that assistance may be authorised for:

·          an inquiry, mediation or proceeding in relation to a native title determination

·          mediation under Division 1B of Part 4

·          special inquiries under section 137 or inquiries under section 139 of the Act

·          mediation by the arbitral body under subsection 31(3) of the Act

·          a proceeding before the arbitral body under section 35 of the Act.

 

Division 4.3 What assistance can be applied for under subsection 183(2) of the Act

 

Section 14 identifies a person who may apply for assistance under subsection 183(2) of the Act as someone who is a party, or who intends to become a party, to an indigenous land use agreement (ILUA) or an agreement about rights conferred under subsection 44B(1) of the Act, or a person who is in dispute with any other person about rights conferred under subsection 44B(1) of the Act.  The section provides that assistance may be authorised for:

·        negotiating an ILUA or an agreement about rights conferred under subsection 44B(1) or

·        an inquiry, mediation or proceeding in relation to an agreement, or

·        to resolve a dispute about rights conferred under subsection 44B(1).

 

Division 4.4 Matters of which the Attorney-General must be satisfied before assistance can be authorised under the Act

 

Section 15 provides that assistance may be authorised only if the Attorney‑General is satisfied that an applicant is not eligible to receive assistance from any other source, that the provision of assistance is in accordance with the Guidelines and in all the circumstances, it is reasonable to provide assistance.

 

Part 5 Eligibility for Assistance

Division 5.1 General

 

Section 16 provides that a person is eligible for assistance if the person:

·        is, or intends to become, a party to an inquiry, mediation or proceeding related to native title and the person does not claim to hold native title or to be entitled to compensation in relation to native title

·        is, or intends to become, a party to the negotiation of an ILUA and the person does not hold or claim to hold native title in relation to the area covered by the ILUA

·        is, or intends to become, a party to the negotiation of an agreement about rights conferred under subsection 44B(1) of the Act and the person is not included in the native title claim group concerned

·        is, or intends to become, a party to an inquiry, mediation or proceeding in relation to an ILUA and the person does not hold or claim to hold native title in relation to the area covered by the ILUA

·        is, or intends to become, a party to an inquiry, mediation or proceeding in relation to an agreement about rights conferred under subsection 44B(1) of the Act and the person is not included in the native title claim group concerned

·        is seeking to resolve a dispute about rights conferred under subsection 44B(1) of the Act and the person is not included in the native title claim group concerned.

 

Division 5.2 How reasonableness is determined for an application for assistance for an inquiry, mediation or proceeding under subsection 183(1) of the Act

 

Section 17 sets out the following considerations for determining whether it is reasonable to authorise assistance under subsection 183(1) of the Act:

(a) whether the applicant, not represented by a group representative, has sufficient financial resources

(b) the nature of the applicant’s interest and the nature of the native title rights being claimed

(c) whether the applicant’s interest is likely to be adversely affected in a real and significant way if the native title claim were to be recognised

(d) whether the applicant’s interest is protected or capable of being protected under the regime for future acts in the Act

(e) the number of claims that directly affect the applicant

(f) the likely benefit to the applicant of participating, relative to the likely cost of assistance

(g) whether a group representative is acting as the agent of another party

(h) whether the applicant’s interest is appropriately protected having regard to the identity and interests of other parties.

 

If assistance is sought for legal services to participate in a trial or preliminary or interlocutory proceeding, consideration will be given as to whether the applicant’s case has reasonable prospects of success or the applicant’s participation will enhance the prospect of a mediated outcome (17(i) (i)-(ii)).

 

The provision of assistance will not be considered reasonable if the applicant’s interest is a previous exclusive possession act, has been extinguished according to law, is a low impact future act or is a Scheduled interest (section 18).

 

An applicant who seeks assistance to participate in a trial or preliminary or interlocutory proceedings must demonstrate that the proceedings raise a new and significant question of law directly relevant to the applicant’s interest, or the court requires the applicant’s participation, or the proceedings will affect the applicant’s interest in a real and significant way and mediation has failed for reasons beyond the applicant’s control.  Otherwise, the provision of assistance will not be considered reasonable (section 19).

 

Division 5.3 How reasonableness is determined for an application for assistance under subsection 183(2) of the Act

 

Section 20 sets out the following considerations for determining whether it is reasonable to authorise assistance under subsection 183(2) of the Act:

(a) whether an applicant, not represented by a group representative, has sufficient financial resources

(b) the nature of the applicant’s interest and the nature of the native title rights being claimed

(c) whether the applicant’s interest is protected or capable of being protected under the regime for future acts in the Act

(d) whether the applicant’s interest is appropriately protected having regard to the identity and interests of other parties

(e) whether a group representative is acting as the agent of any party

(f) whether there is a significant benefit to the applicant, or likely to be a significant benefit to others, of an agreement being negotiated, having regard to a number of stated factors ((i)-(vii))

(g) the likely cost.

 

The provision of assistance will not be considered reasonable if the applicant’s interest is a previous exclusive possession act, has been extinguished according to law, is a low impact future act or is a Scheduled interest (section 21).

 

Division 5.4 Assessment of financial circumstances and of contribution

 

Determining whether an applicant has sufficient financial resources will require balancing the likely cost of the assistance sought against the income and assets of the applicant (section 22).

 

Where the applicant is a company, association or trustee, consideration must be given to what other financial resources may be available to the applicant (section 23).

 

A publicly listed company is regarded as having sufficient financial resources (section 24).

 

Section 25 provides that an applicant may be required to pay a contribution and

enables a maximum amount of contribution to be determined at each stage.

 

Division 5.5 When assistance will be provided through a group representative

 

It will generally not be reasonable to authorise assistance for the separate representation of an applicant if a group representative is receiving assistance to represent a person with a like interest (section 26).

 

The Department may invite a group to make an application for assistance on behalf of its members and other persons with like interests (section 27).

 

Part 6 Making an application for assistance

 

Guidelines and application forms are available from the Department (section 28) and applications must be lodged in accordance with the instructions on the application form (section 29).

 

Part 7 Making a decision on an application

Division 7.1 Deferral of decision

 

The Department will defer a decision on an application until it receives all necessary information (section 30).

 

Division 7.2 Effect of failure to provide information

 

The Attorney-General may refuse an application if the required information is not provided within the time nominated (section 31).

 

Division 7.3 Confidentiality of information

 

An applicant’s information will be treated in confidence unless disclosure is necessary to administer the scheme, or accords with the applicant’s express authority, or is necessary to correct an error in the public record, or is required by law (section 32).

 

Division 7.4 Advice from other agencies

 

The Department may seek advice from other government agencies or industry bodies

regarding an application for assistance, but may not disclose information regarding an applicant’s financial affairs or any legal advice obtained by an applicant (section 33).

 

Division 7.5 Assistance cannot be authorised retrospectively

 

Assistance cannot be authorised from a date before the Department receives an application (section 34).

 

Section 35 allows an exception for assistance urgently required, if the Department is put on notice and a complete application is received within 14 days of the notice.  If a complete application is not received within 14 days, assistance can only be authorised from the date of receipt of the complete application.

 

Division 7.6 Assistance will be authorised in stages

 

Section 36 defines a stage as the period for which the provision of assistance is authorised – a 6 to 12 month period or shorter period if appropriate.

 

If the services will not be completed in a stage, a fresh application must be made before the expiry of the stage (section 37).

 

Assistance will not necessarily be extended at the end of each stage.  A decision whether to extend assistance will be made having regard to sections 17 to 21 of the Guidelines (section 38).

 

Division 7.7 Limits must be imposed on assistance authorised

 

An applicant will be advised of the maximum amount of assistance authorised for a stage.  An extension can be approved only in exceptional circumstances, including changes to the mediation program beyond the applicant’s control, increased court attendances as a result of orders made by the court, a hearing initiated by another party at which the applicant’s attendance is necessary or other unforeseen events that have more than a minor financial impact on the amount of the assistance required (section 39).

 

There can be no retrospective increase in the maximum amount of assistance provided for a particular stage (section 40).

 

Division 7.8 Native Title Practitioners Panel

 

A practitioner who is to provide services under a grant of assistance must be a member of the Native Title Practitioners Panel (section 41).

 

Section 42 provides that a legal practitioner or other service provider who wishes to be included on the Panel must address the criteria determined by the Attorney‑General which is available from the Department.

 

Division 7.9 Assistance may be varied or terminated

 

Section 43 provides that the Attorney‑General may vary the provision of assistance at any time.

 

Section 44 provides that the Attorney-General may terminate the provision of assistance for good reason and provides examples of such reasons.

 

Under section 45 the applicant must be asked to show cause why the authorisation of the provision of assistance should not be varied or terminated.

 

Section 46 provides that a grant may be terminated retrospectively for good reasons, and money paid to the grant recipient or his or her legal practitioner becomes a debt owed to the Commonwealth.

 

Part 8 What assistance can be authorised

Division 8.1 Assistance to a group representative

 

Section 47 provides that assistance may be authorised for a group representative to act as an agent for a party in:

·          an inquiry, mediation or proceeding, or

·          in the negotiation of an ILUA, or

·          an agreement about rights conferred under subsection 44B(1) of the Act.

 

Section 48 provides that assistance may be authorised for a group representative to act as an agent for a party in an inquiry, mediation or proceeding in relation to:

·        an ILUA or an agreement about rights conferred under subsection 44B(1) of the Act, or

·        in resolving a dispute about rights conferred under subsection 44B(1) of the Act.

 

Section 49 provides that assistance may be authorised for a group representative in respect of the costs of obtaining instructions and providing advice on resolving native title matters that affect persons who are, or who intend to become, parties to an inquiry, mediation or proceeding related to native title, or an ILUA or an agreement about rights conferred under subsection 44B(1) of the Act.

 

A group representative may receive assistance, limited to the amount of the expense incurred, for photocopying at $0.275 per page, telephone, facsimiles at $2.20 per

page, search and postage expenses incurred (section 50).

 

Where assistance has been authorised for the remuneration of a native title officer, assistance may be authorised for executive or managerial staff of a group representative for work on native title matters at a maximum of $55 per hour to a maximum of $440 per day.  However, this assistance may not be available if the provision of assistance is authorised for the remuneration of a native title officer engaged by the group representative. (section 51).

 

Subject to conditions, section 52 provides that the Attorney-General can make advance lump sum or instalment payments to a group representative for approved legal costs and related expenses.  Where such payments are made, group representatives will have the responsibility to make payments directly to their chosen legal practitioner and to monitor such expenditure and the activity of the legal practitioner under the grant.

Part 8 What assistance can be authorised
Division 8.2 Native title Officer

Section 53 provides that where a group representative engages a native title officer, the Department may authorise assistance for the remuneration of the native title officer.  In such circumstances, the Attorney-General determines the duties and responsibilities associated with the position.

 

Division 8.3 Costs of legal services

Subdivision 8.3.1 Solicitor

Section 54 only allows assistance to be provided for reasonable solicitor’s fees as determined in the Assessment of Costs document (which is published by the Department).  Solicitor fees are paid either at the relevant rates detailed in the scale of costs set out in Schedule 2 to the Federal Court Rules or at 90% of the quarter hourly rate under item 31 of that scale.  No costs, however, are payable for the care, skill and responsibility involved in conducting any matter.  In addition to solicitor fees, the section allows payment for the costs of administrative staff at a maximum rate of $27.50 per hour and for paralegal or articled clerks at a maximum rate of $66 per hour.

 

Subdivision 8.3.2 Counsel

 

Section 55 provides that where the Attorney-General considers that the case warrants the engagement of counsel, the fees that will be allowed are:

·        junior counsel fees to be paid at the rate of $189.20 to $249.70 per hour for up to eight hours per day to a maximum of $1,513.60 to $1,997.60 per day

·        senior counsel fees to be paid at the rate of $249.70 to $466.40 per hour for up to eight hours per day to a maximum of $1,997.60 to $3,731.20 per day. 

 

Counsel fees may be paid as a lump sum or at agreed rates not exceeding the above limits where the hearing or preparation is of a lengthy duration.  The section directs that a solicitor must include counsel’s memorandum of fees when submitting a bill of costs.

 

Division 8.4 Travel costs

 

Section 56 sets out the circumstances where a legal practitioner can claim travel costs.

 

Section 57 provides that travel assistance for a group representative, native title officer or a witness will only be authorised where the Attorney‑General considers travel is necessary.

 

Section 58 sets out the various rates applicable for travel costs.  Air travel is payable at economy rates while other costs, such as meals and accommodation, differ according to the person travelling.  A legal practitioner or a native title officer is reimbursed up to the maximum rate applicable at the time of travel under the Department’s Senior Executive Service rate, while a group representative or a witness is reimbursed according to the non-Senior Executive Service rate.

 

Section 59 provides that assistance for the time spent travelling by a legal practitioner or a group representative will not be authorised if the attendance is less than 50 km from their respective offices.  Travel time is allowed at the rate of $165 per hour for a legal practitioner and $27.50 per hour for a group representative.  No assistance is available for a native title officer, as their salary is inclusive of travel time.

 

Section 60 specifies that a request for reimbursement of travel costs must be accompanied by tax invoices and receipts.

 

Division 8.5 Disbursements generally

 

Section 61 provides that no disbursements are paid in advance except where the Attorney‑General is satisfied that special circumstances require an advance payment.

 

Section 62 specifies that prior approval is required from the Department where any one disbursement exceeds $500.  The requirement cannot be avoided by having the service provider split the work over a number of invoices.

 

Section 63 provides that the maximum amount payable for an anthropologist or other expert is $110 per hour to a limit of $880 per day.

 

Section 64 specifies that tax invoices and receipts must be provided for all non travel related disbursements over $100.

 

Division 8.6 Costs of an unrepresented applicant

 

Section 65 provides that only reasonable disbursements can be authorised for an unrepresented applicant.  However, assistance cannot be extended for the cost of the applicant’s time or loss of earnings in preparing a case.

 

Division 8.7 Costs that cannot be paid

 

Section 66 excludes assistance for any costs associated with the making of an application for assistance or the review of a decision regarding assistance.

 

Section 67 excludes assistance for any legal or other costs incurred in the intervening period between when an application is made and when the Attorney‑General refuses assistance.

 

Section 68 excludes assistance for any cost incurred for attendances on, and correspondence with, the Legal Assistance Branch of the Department.

 

Section 69 excludes assistance for the cost of preparing an invoice.

 

Section 70 excludes assistance for the payment of any costs an applicant is ordered to pay to another party.

 

Part 9 Conditions of assistance

Division 9.1 General conditions

Subdivision 9.1.1 Consent to the obtaining and disclosure of information

 

Section 71 allows the Department to access information from the applicant’s legal practitioner or other government or industry bodies regarding the application or the provision of assistance, such as a legal opinion about the application subject matter.

 

Section 72 permits disclosure by the Department to another applicant that the consenting applicant has applied for assistance.  The action will only be taken to assist the Department to make a decision as to whether assistance should be granted to an applicant as an individual or as a member of a group.

 

Subdivision 9.1.2 Agreement to pay contribution

 

Section 73 specifies that an applicant may be assessed as having to pay a contribution determined by the Attorney‑General in accordance with the Guidelines.

 

Subdivision 9.1.3 Acceptance of instructions by the Attorney‑General

 

Section 74 provides that approval to provide the legal services determined by the Attorney‑General to the applicant involves acceptance by the applicant’s legal service provider that the Attorney-General directs the legal service provider as to what services they are to provide and the terms and conditions applicable to those services.

 

Section 75 provides that the Attorney-General will, in the grant of assistance, and over the period of the grant, specify the nature or ambit of the legal services the legal service provider is to provide to the applicant, along with the terms and conditions on which those services are to be provided.

 

Subdivision 9.1.4 Compliance with Guidelines and directions

 

Section 76 provides that the Attorney-General may issue a direction on any issue concerning the authorisation of assistance, consistent with the Act, regulations made under the Act and these Guidelines.

 

Section 77 specifies that an applicant must comply with these Guidelines and any direction issued by the Attorney-General.

 

Subdivision 9.1.5 Legal practitioners prohibited from demanding payment from an applicant

 

Section 78 provides that except with the prior written approval of the Attorney‑General, a legal practitioner must not demand or receive a supplementary payment from an applicant or any person on behalf of an applicant.  The only exception applies to the receipt of a contribution as determined in these Guidelines.

 

Division 9.2 Accountability requirements

Subdivision 9.2.1 Notice of changes

 

Section 79 provides that it is mandatory for an applicant to notify the Department, within 14 days, of any material change relating to the circumstances of an application or an approved grant.  Changed circumstances can include:

 

(a) a change in the applicant’s financial circumstances

(b) withdrawal or discontinuance by the applicant or any party

(c) a significant reduction or increase in the services required

(d) a change in the native title claim or a development in the law so that the applicant’s interests are no longer significantly affected

(e) a change in the strategy for resolving the claim

(f) a change in respect of any matters referred to in sections 17 and 20 of the Guidelines.

 

Section 80 provides that an applicant who is not represented by a group representative must also notify the Department of any change in their financial circumstances that might reasonably affect the grant of assistance.

 

Subdivision 9.2.2 Reporting

 

Section 81 requires an applicant to inform the Department of the terms of any settlement of the funded matter.

 

Section 82 provides that a report in the form required by the Department must be provided at the conclusion of a stage, or at settlement of the matter.

 

Section 83 stipulates that at the conclusion of a stage, a report must be provided to the Department which records the progress of the matter, including details as to what has occurred, the issues which remain unresolved, the proposed legal strategy to reach agreement and the likely outcome.

 

Subdivision 9.2.3 Invoicing requirements

 

Section 84 provides that a legal practitioner must not invoice the Department more frequently than at three monthly intervals, except where fees and disbursements exceed $1,000 or the matter or stage has concluded.

 

Section 85 specifies that a legal practitioner’s invoice cannot be approved if the detail on the invoice does not demonstrate the reasonableness of the fees.

 

Section 86 requires a copy of the tax invoice for any disbursement in excess of $100.

 

Section 87 stipulates that a where a legal practitioner is requested to have a bill of costs assessed by an independent costs assessor, the legal practitioner must pay the cost of the assessment.

 

Section 88 specifies that where an applicant is required to make a contribution, the Department will deduct the contribution amount from an invoice before payment.

 

Subdivision 9.2.4 Provision of a legal practitioner’s file

 

Section 89 provides that a legal practitioner must comply with a request by the Department to access a file related to a funded matter.

 

Subdivision 9.2.5 Payment in advance to a group representative

 

Section 90 sets out the conditions relating to the management of assistance paid in advance to a group representative under section 52.  The money must be deposited to an account with a financial institution, not combined with funds for any other purpose, and interest earned must be reported to the Department.  Where payment is made by instalment, the succeeding payment will not be made until the group representative satisfies their reporting obligations.  The Department will not provide any further assistance if a grant has not been acquitted to the satisfaction of the Department.  Any grant money not expended must be repaid to the Commonwealth.

 

Section 91 provides that a group representative cannot use any interest earned without the express approval of the Attorney-General and such approval will only be made for purposes consistent with the terms of the original grant of assistance.

 

Division 9.3 Repayment of assistance

Subdivision 9.3.1 Costs recovered must be paid to the Commonwealth

 

Section 92 provides that in cases where an applicant is paid costs in relation to a matter where assistance has been granted, the Commonwealth must be repaid the lesser of the amount received or assistance provided, no later than 28 days from receipt of the payment.

 

Section 93 specifies that where a legal practitioner recovers costs from another party, the Commonwealth must be paid before any other party.

 

Section 94 provides that the Department may reconsider an applicant’s grant in circumstances where the applicant fails to make a reasonable effort to recover and pay costs to the Commonwealth.

 

Subdivision 9.3.2 Settlement

 

Section 95 provides that in cases where the settlement of a matter results in a payment to the applicant in relation to a matter where assistance has been granted, the Commonwealth must be repaid the lesser of the amount received or assistance provided, no later than 28 days from receipt of the settlement amount.

 

Subdivision 9.3.3 Irrevocable licence to use intellectual property

 

Section 96 provides that by accepting the provision of assistance, the applicant and the applicant’s legal practitioner grant to the Commonwealth an irrevocable licence to use, adapt and exploit the intellectual property in any ILUA or agreement drafted or concluded with the assistance.

 

Section 97 provides that the Attorney-General retains the right to waive the requirement in section 96.

 

Section 98 provides that any licence granted to the Commonwealth does not extend to confidential material such as sensitive personal, cultural or financial information.

 

Division 9.4 Special conditions

 

Section 99 provides that the Attorney-General may impose special conditions on the provision of assistance, consistent with the Act, regulations made under the Act and these Guidelines.

 

Part 10 Right of review

Division 10.1 Internal review

 

Section 100 specifies that the Department must provide an applicant with the reasons as to why an application for assistance is refused, varied, terminated or made subject to special conditions, including a requirement for the applicant to pay a contribution.

 

Section 101 provides that an applicant may seek an internal review where there has been a decision to refuse to authorise assistance, vary assistance, terminate assistance, or impose special conditions on the assistance, including a requirement for the applicant to pay a contribution.

 

Section 102 provides that an applicant may only seek an internal review of a decision on the payment of an invoice in relation to the provision of assistance if the amount under dispute is at least equal to the greater of either 15% of the original invoice or $100.

 

Under Section 103 an internal review will not be undertaken unless the request for review is received by the Department within 28 days of the date of the letter notifying the applicant of the reasons why assistance was refused, varied, terminated or made subject to special conditions, including a requirement for the applicant to pay a contribution.

 

Section 104 provides that the review must be conducted by a decision maker other than the original decision maker.

 

Section 105 provides that a decision maker who conducts an internal review of a decision on the payment of an invoice in relation to the provision of assistance may only vary the decision if the amount approved on review is at least equal to the greater of either 15% of the original invoice or $100.

 

Division 10.2 Information regarding avenues for redress

 

Section 106 provides that information concerning the right to internal review under these Guidelines must be included in any letter from the Department regarding the outcome of an application.

 

Part 11 Transitional arrangements

 

Section 107 provides that assistance authorised before the commencement of these Guidelines is unaffected until completion of the stage or services for which the assistance was authorised.  Matters which have been inactive since 1 January 2006 are excluded from these transitional arrangements and in such cases, the applicant must submit a new application for assistance.

 

Section 108 provides that applications received, but not determined, before the commencement of these Guidelines, will be decided under the guidelines applicable at the date the Department received the application.

 

Part 12 Further information for applicants

 

Section 109 sets out information for telephone and written inquiries about the scheme.

 

Fee increases

 

The fees in relation to the costs of legal services and related services for the provision of assistance as specified in these Guidelines have increased in relation to the following categories of services (fees are GST inclusive):

 

·        Paralegals: up to $66/hr – the previous rate was $49.50/hr.

·        Solicitor travel time: increased to $165 per hour – the previous was $154. Future increases will be linked to percentage increases to item 31 in the scale of costs set out in Schedule 2 to the Federal Court rules.

·        Anthropologists: the hourly rate remains $110. The total hours allowable in a day has increased from six to eight hours.  As a result the daily limit has increased to $880. 

 

The fees have increased following consultations with stakeholders and in recognition of the fact that there have been no increases for these services since 1998.

 

Consultation

 

A consultation draft of the Guidelines was released for public comment on 23 November 2005.  Consultation was effected by posting the Guidelines on the Attorney‑General’s Department native title system reform website and by forwarding copies to relevant stakeholders.  Face to face consultations with stakeholders on the Guidelines was undertaken by officers from the Attorney‑General’s Department.  25 written submissions were received.

 

Regulation Impact Statement and Business Cost Calculator report

On 4 December 2006 the Office of Best Practice Regulation advised that a Regulation Impact Statement is not required as the proposal does not have a significant impact on business and individuals or the economy (OBPR ID 8852).

The Business Cost Calculator report is attached.