Federal Register of Legislation - Australian Government

Primary content

SLI 2011 No. 257 Regulations as made
These Regulations amend the Native Title (Prescribed Bodies Corporate) Regulations 1999 to give effect to some recommendations arising from the ‘Structures and Processes of Prescribed Bodies Corporate’ report, produced by an Inter-Departmental Steering Committee formed as part of a package of reforms to the native title system, announced by the then Attorney-General in September 2005.
Administered by: Families, Housing, Community Services and Indigenous Affairs
Made 07 Dec 2011
Registered 14 Dec 2011
Tabled HR 07 Feb 2012
Tabled Senate 07 Feb 2012
Date of repeal 19 Mar 2014
Repealed by Spent and Redundant Instruments Repeal Regulation 2014

Native Title (Prescribed Bodies Corporate) Amendment Regulations 2011 (No. 1)1

Select Legislative Instrument 2011 No. 257

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Native Title Act 1993.

Dated 7 December 2011

QUENTIN BRYCE

Governor‑General

By Her Excellency’s Command

JENNY MACKLIN


1              Name of Regulations

                These Regulations are the Native Title (Prescribed Bodies Corporate) Amendment Regulations 2011 (No. 1).

2              Commencement

                These Regulations commence on the day after they are registered.

3              Amendment of Native Title (Prescribed Bodies Corporate) Regulations 1999

                Schedule 1 amends the Native Title (Prescribed Bodies Corporate) Regulations 1999.


Schedule 1        Amendments

(regulation 3)

 

[1]           Before regulation 1

insert

Part 1                 Preliminary

  

[2]           Subregulation 3 (1), after definition of Act

insert

native title decision means a decision:

                (a)    to surrender native title rights and interests in relation to land or waters; or

               (b)    to do, or agree to do, any other act that would affect the native title rights or interests of the common law holders.

[3]           Subregulation 3 (1), definition of prescribed body corporate

substitute

prescribed body corporate means:

                (a)    a body corporate prescribed by regulation 4; or

               (b)    the Indigenous Land Corporation established by subsection 191A (1) of the Aboriginal and Torres Strait Islander Act 2005.

[4]           After regulation 3

insert

Part 2                 Prescribed bodies corporate

  

[5]           Paragraphs 4 (2) (a) to (c)

substitute

                (a)    the purpose of becoming a registered native title body corporate is set out in the objects of the corporation; and

               (b)    all members of the corporation are:

                          (i)    persons who, at the time of making of the section 56 or 57 determination, are included, or are proposed to be included, in the native title determination as native title holders; or

                         (ii)    persons to whom the persons mentioned in subparagraph (i) have consented; and

                (c)    at all times after the section 56 or 57 determination is made, all members of the corporation are:

                          (i)    persons who have native title rights and interests in relation to the land or waters to which the native title determination relates; or

                         (ii)    persons, or a class of persons, to whom the persons mentioned in subparagraph (i) have consented; and

               (d)    the corporation meets the Indigeneity requirement mentioned in section 29­–5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

[6]           After regulation 4

insert

4A           Prescribed bodies corporate

                For subsection 59A (3) of the Act, the consent of the common law holders must be obtained in the following way:

                (a)    the prescribed body corporate must consult the common law holders for whom the prescribed body corporate holds native title rights and interests in trust or for whom it is an agent prescribed body corporate (the initial holders) and obtain their consent in the same way as set out in regulation 8 for a native title decision; and

               (b)    the common law holders who were not the initial holders (the subsequent holders) must nominate the prescribed body corporate under section 56 or 57 of the Act in the same way as for the determination for the initial holders.

[7]           Regulation 5

omit

be a trustee for, or act as an agent or representative of, more than 1 group of common law holders

insert

hold native title rights and interests in trust for more than one group of common law holders or be an agent prescribed body corporate

[8]           Subregulation 6 (2), note

substitute

Note   A prescribed body corporate acting as trustee for common law holders is also subject to regulations 8 to 10.

[9]           Paragraph 7 (1) (a)

substitute

                (a)    to be the agent prescribed body corporate for those rights and interests;

[10]         Subregulation 7 (2), note

substitute

Note   An agent prescribed body corporate is also subject to regulations 8 to 10.

[11]         Regulation 8

substitute

8              Consultation with, and consent of, common law holders

         (1)   A prescribed body corporate that holds native title rights and interests in trust for the common law holders, or is an agent prescribed body corporate, must:

                (a)    for a native title decision other than a decision mentioned in paragraph (b), (c) or (d) — consult with, and obtain the consent of, the common law holders in accordance with this regulation or regulation 8A before making a decision; or

               (b)    for a decision to enter an indigenous land use agreement under Subdivision B, C or D of Division 3 of Part 2 of the Act or an agreement under Subdivision P of Division 3 of Part 2 of the Act — consult with, and obtain the consent of, the common law holders in accordance with this regulation before making a decision to enter such agreement; or

                (c)    for a decision to allow a person who is not a common law holder, or a class of persons who are not common law holders, to become members of the prescribed body corporate — consult with, and obtain the consent of, the common law holders in accordance with this regulation before making a decision; or

               (d)    for a decision to consent to one or more consultation processes in the constitution of the prescribed body corporate — consult with, and obtain the consent of the common law holders in accordance with this regulation before making a decision.

         (2)   The prescribed body corporate must ensure that the common law holders understand the purpose and nature of a proposed native title decision by:

                (a)    consulting, and considering the views of, a representative body for the area that the native title rights and interest relate; and

               (b)    if the prescribed body corporate considers it to be appropriate and practicable — giving notice of those views to the common law holders.

         (3)   If there is a particular process of decision‑making that, under the Aboriginal or Torres Strait Islander traditional laws and customs of the common law holders, must be followed in relation to the giving of the consent mentioned in subregulation (1), the consent must be given in accordance with that process.

         (4)   If subregulation (3) does not apply, the consent must be given by the common law holders in accordance with the process of decision‑making agreed to, or adopted, by them for the proposed native title decision, or for decisions of the same kind as that decision.

         (5)   If the prescribed body corporate holds native title rights and interests in trust for more than one group of common law holders, or is an agent prescribed body corporate for more than one group of common law holders, the body corporate must consult with, and obtain the consent of, only those groups of common law holders whose native title rights or interests would be affected by the proposed native title decision.

         (6)   An agreement that gives effect to a native title decision of a prescribed body corporate has no effect to the extent that it applies to the decision, if the body corporate does not comply with this regulation.

         (7)   Subregulation (6) does not apply to an indigenous land use agreement of a kind described in section 24EB or 24EBA of the Act.

8A           Alternative consultation processes

         (1)   This regulation applies to the making of a native title decision mentioned in paragraph 8 (1) (a) if the prescribed body corporate has in its constitution one or more consultation processes to which the common law holders have consented.

         (2)   The prescribed body corporate must consult with, and obtain the consent of, the common law holders using the relevant consultation process in its constitution before making a native title decision.

[12]         Regulation 9

substitute

9              Evidence of consultation and consent

         (1)   Common law holders of native title rights and interests are taken to have been consulted on, and to have consented to, a proposed native title decision of a prescribed body corporate if a document, signed in accordance with subregulation (4) or (5), certifies:

                (a)    if the proposed decision is of the kind mentioned in paragraph 8 (1) (a) — that:

                          (i)    the common law holders have been consulted about, and have consented to, the proposed decision, in accordance with regulation 8 or 8A; or

                         (ii)    the proposed decision is of a kind about which the common law holders have been consulted in accordance with regulation 8 or 8A and the common law holders have decided that decisions of that kind can be made by the body corporate; or

               (b)    if the proposed decision is of the kind mentioned in paragraph 8 (1) (b), (c) or (d) — that the common law holders have been consulted about, and have consented to, the proposed decision, in accordance with regulation 8.

         (2)   Subparagraph (1) (a) (ii) applies only if the proposed native title decision is of the kind about which the common law holders have been consulted.

         (3)   A document under subregulation (1):

                (a)    must, if subparagraph (1) (a) (ii) applies, include evidence of the consultation with, and consent given by, the common law holders about the native title decision; and

               (b)    may include conditions or circumstances in which a decision is taken to be covered by the document.

         (4)   A document mentioned in subregulation (1) is signed in accordance with this subregulation if:

                (a)    the document is signed by at least 5 members of the prescribed body corporate; and

               (b)    each of the signatories is a common law holder (an affected common law holder) whose native title rights and interests would be affected by the proposed native title decision.

         (5)   However, if there are fewer than 5 members of the prescribed body corporate who are affected common law holders, a document mentioned in subregulation (1) is signed in accordance with this subregulation if:

                (a)    the document is signed by at least 5 members of the body corporate; and

               (b)    each affected common law holder who is a member of the body corporate signs the document.

         (6)   Subregulation 8 (2) is taken to have been complied with if:

                (a)    a document, signed by at least 5 members of the prescribed body corporate, certifies that:

                          (i)    a representative body for the area that includes the land or waters to which the proposed native title decision relates has been consulted about the proposed decision; and

                         (ii)    the views of the body have been considered in accordance with this regulation; and

               (b)    a document is signed by an authorised member of the representative body and certifies that the body has been consulted about the proposed native title decision by the body corporate.

[13]         Regulation 11

substitute

Part 3                 Changes to holding of native title rights and interests

  

11            Determination of Indigenous Land Corporation as agent prescribed body corporate

         (1)   The Federal Court may determine the Indigenous Land Corporation to be an agent prescribed body corporate under paragraph 56 (4) (e), 57 (2) (c) or 60 (b) of the Act.

Note   Subsection 59 (2) of the Act allows the regulations to prescribe the body corporate, or kinds of body corporate, that may be determined by the Federal Court under paragraph 57 (2) (c) of the Act.

         (2)   The Registrar of the Federal Court is to give the Indigenous Land Corporation reasonable notice in writing before the Federal Court makes a determination under paragraph 57 (2) (c) of the Act that the Indigenous Land Corporation is to be the prescribed body corporate.

Note   For the requirements for notice before determinations under paragraph 56 (4) (c) or (e) or 60 (b) of the Act — see regulations 12, 13, 16 and 17.

         (3)   If the Federal Court determines the Indigenous Land Corporation to be the agent prescribed body corporate, the determination must be for an initial period of 5 years.

         (4)   Before the end of the initial period or of any extension of the determination, if the common law holders have not applied for a determination under regulation 15 or 16, the Federal Court must extend the determination for up to one year.

Note   For the ways the Indigenous Land Corporation can be replaced as the prescribed body corporate — see regulations 15 and 16.

12            Replacement of trustee prescribed body corporate

         (1)   For paragraphs 56 (4) (b) and (c) of the Act, the common law holders:

                (a)    may apply to the Federal Court for a determination to replace an existing prescribed body corporate that is the trustee of the native title with another prescribed body corporate as trustee; and

               (b)    if they do — must comply with the notification requirements mentioned in regulation 18.

         (2)   The Federal Court:

                (a)    must determine the application as soon as practicable after receiving the application; and

               (b)    may make orders about any matter necessary or appropriate to give effect to the common law holders’ wishes, or to assist the transition to the replacement prescribed body corporate.

13            Replacement of trustee prescribed body corporate by agent prescribed body corporate

         (1)   For subparagraph 56 (4) (d) (i) and paragraphs 56 (4) (e) and (f) of the Act, the common law holders:

                (a)    may apply to the Federal Court for a determination to terminate a trust, if native title rights and interests are held by a prescribed body corporate in trust; and

               (b)    if they do — must comply with the notification requirements mentioned in regulation 18; and

                (c)    may nominate an agent prescribed body corporate to replace the prescribed body corporate.

         (2)   The Federal Court may:

                (a)    determine that:

                          (i)    the trust is terminated; and

                         (ii)    a prescribed body corporate, whether or not it is the prescribed body corporate that held the rights and interests in trust, is to be the agent prescribed body corporate; and

               (b)    make orders about any matter relating to the termination of the trust, the performance of those functions and the transition from the trust arrangement to the new arrangement.

Note   An agent prescribed body corporate that becomes a registered native title body corporate has the functions listed in regulation 7.

         (3)   When the trust is terminated, the native title rights and interests are held by the common law holders.

14            Replacement of trustee prescribed body corporate in liquidation

         (1)   For subparagraph 56 (4) (d) (ii) and paragraph 56 (4) (f) of the Act, a liquidator who has been appointed for a prescribed body corporate that holds native title rights and interests in trust must, within 14 days after being appointed:

                (a)    apply to the Federal Court for the determination of a prescribed body corporate to perform the functions mentioned in subsection 57 (3) of the Act; and

               (b)    if the liquidator nominates the Indigenous Land Corporation as the prescribed body corporate — give the Indigenous Land Corporation written notice of the application.

         (2)   The Federal Court:

                (a)    must determine the application as soon as practicable after receiving the application; and

               (b)    must determine that the trust is terminated; and

                (c)    may make orders about any matter relating to the termination of the trust or the transition to the replacement prescribed body corporate.

         (3)   When the trust is terminated, the native title rights and interests are held by the common law holders.

15            Replacement of agent prescribed body corporate by trustee prescribed body corporate

         (1)   For paragraph 56 (7) (a) of the Act, the common law holders:

                (a)    may apply to the Federal Court for a determination that a prescribed body corporate hold the rights and interests from time to time comprising the native title in trust for the common law holders if:

                          (i)    there is an agent prescribed body corporate; and

                         (ii)    the common law holders decide that they want the rights and interests held in trust; and

               (b)    if they do — must comply with the notification requirements mentioned in regulation 18.

         (2)   The Federal Court may:

                (a)    determine that a prescribed body corporate, whether or not it is the agent body corporate, is to hold the rights and interests in trust for the common law holders; and

               (b)    make orders about any matter relating to the termination of the trust, the performance of those functions and the transition to the replacement prescribed body corporate.

16            Replacement of agent prescribed body corporate

         (1)   For subparagraph 60 (a) (i) of the Act, the common law holders:

                (a)    may apply to the Federal Court for a determination to replace an agent prescribed body corporate with another agent prescribed body corporate; and

               (b)    if they do — must comply with the notification requirements mentioned in regulation 18.

         (2)   The Federal Court:

                (a)    must determine the application as soon as practicable after receiving the application; and

               (b)    may make orders about any matter necessary or appropriate to give effect to the common law holders’ wishes, or to assist the transition to the replacement agent prescribed body corporate.

17            Replacement of agent prescribed body corporate in liquidation

         (1)   For subparagraph 60 (a) (ii) of the Act, a liquidator who has been appointed for an agent prescribed body corporate must, within 14 days after being appointed:

                (a)    apply to the Federal Court for the determination of another prescribed body corporate to perform the functions mentioned in subsection 57 (3) of the Act; and

               (b)    if the liquidator nominates the Indigenous Land Corporation as the prescribed body corporate — give the Indigenous Land Corporation written notice of the application.

         (2)   The Federal Court:

                (a)    must determine the application as soon as practicable after receiving the application; and

               (b)    may make orders about any matter relating to the replacement or the transition to the replacement agent prescribed body corporate.

18            Notification requirements

         (1)   This regulation applies to an application to the Federal Court under subregulation 12 (1), 13 (1), 15 (1) or 16 (1).

         (2)   The applicant must, at least 14 days before applying to the Federal Court, notify the matters mentioned in subregulation (3) to:

                (a)    for an application under subregulation 12 (1) or 13 (1) — the prescribed body corporate that is the trustee of the native title; or

               (b)    for an application under subregulation 15 (1) or 16 (1) — the agent prescribed body corporate.

         (3)   For subregulation (2), the matters are:

                (a)    the applicant’s intention to apply to the Federal Court for the determination; and

               (b)    any alternative arrangements the applicant would prefer for the holding of the native title, such as a suggested alternative prescribed body corporate.

         (4)   The application must include:

                (a)    the information mentioned in paragraph (3) (b); and

               (b)    the written consent of any nominated prescribed body corporate.

Part 4                 Fees for services charged by registered native title bodies corporate

  

19            Definitions

                In this Part:

applicant means the person making a request for an opinion under subsection 60AC (1) of the Act.

body corporate means a registered native title body corporate.

Registrar has the meaning given by subsection 60AC (1) of the Act.

20            Fees for services

                For subsection 60AB (2) of the Act, a body corporate may charge a person, other than a person mentioned in subsection 60AB (4) of the Act, a fee for costs it incurs in performing the following functions:

                (a)    activities related to providing comments on proposed future acts under any of the following provisions of the Act:

                          (i)    paragraph 24GB (9) (d);

                         (ii)    paragraph 24GD (6) (b);

                        (iii)    subparagraph 24GE (1) (f) (ii);

                        (iv)    paragraph 24HA (7) (b);

                         (v)    paragraph 24ID (3) (b);

                        (vi)    paragraph 24JB (6) (b);

                       (vii)    paragraph 24JB (7) (b);

               (b)    activities related to the exercise of procedural rights under subsection 24KA (7), 24MD (6A) or 24NA (8) of the Act;

                (c)    activities related to consultations under section 24JAA or paragraph 24MD (6B) (e) of the Act;

               (d)    activities related to the exercise of procedural rights for acts or provisions mentioned in a determination under section 26A, 26B or 43A of the Act;

                (e)    activities related to making submissions under paragraph 26C (5) (b) of the Act.

Example of activities for paragraphs (a) and (e)

Contacting affected common law holders.

Examples of activities for paragraph (c)

Arranging meetings or travel, or obtaining legal advice.

Note   Subsection 60AB (5) of the Act specifies functions for which a registered native title body corporate may not charge a fee.

21            Application for opinion of Registrar about fees charged for services

         (1)   For paragraph 60AC (5) (b) of the Act, this regulation sets out the process by which a request to the Registrar is made by an applicant and considered by the Registrar.

         (2)   The request must comply with all of the following requirements:

                (a)    it must be made within 21 days after the person is charged a fee by the body corporate;

               (b)    it must be in writing;

                (c)    if it is made by or on behalf of a body, it must be signed by:

                          (i)    a director or secretary of the body; or

                         (ii)    if the body does not have a director or secretary — a person with authority to make the request for the body;

               (d)    if it is made by an individual, it must be signed by the individual and have the name of the individual printed next to the signature;

                (e)    it must include the following:

                          (i)    the name and address of the applicant;

                         (ii)    the address, corporation name and Indigenous Corporation Number of the body corporate that charged the fee;

                        (iii)    any document provided by the body corporate that mentions the functions for which the fee has been charged;

                        (iv)    any document provided by the body corporate explaining the charge and its calculation;

                         (v)    a description of the services provided, or claimed to be provided, by the body corporate;

                        (vi)    a statement about why the applicant considers that the fee charged is not one that the body corporate may charge the applicant under regulation 20 or subsection 60AB (1) of the Act.

Note   The functions for which fees for costs may be charged by a body corporate are mentioned in regulation 20 and subsection 60AB (1) of the Act. Subsection 60AB (4) of the Act lists the persons who may not be charged fees, and subsection 60AB (5) of the Act mentions functions for which fees cannot be charged.

         (3)   The applicant must give a copy of the request, within 7 days after lodging the request, to the body corporate that has charged the applicant the disputed fee.

         (4)   The request may be withdrawn in writing at any time before the Registrar gives an opinion about the fee.

         (5)   The Registrar may:

                (a)    ask the applicant, in writing, for more information within a period specified by the Registrar; and

               (b)    ask the body corporate that has charged the fee, in writing, to provide information or documents, within a period specified by the Registrar, about any of the following:

                          (i)    the function performed or service provided to which the fee relates;

                         (ii)    the amount of the fee;

                        (iii)    how the amount of the fee was calculated; and

                (c)    extend the periods mentioned in paragraphs (a) and (b) for receipt of the information or documents; and

               (d)    if the applicant does not comply with the request mentioned in paragraph (a) within the period or any extended period:

                          (i)    treat the application as being withdrawn; and

                         (ii)    notify the applicant in writing accordingly.

         (6)   A request under paragraph (5) (a) must state that, if the applicant does not comply with the request within the period or any extended period, the application will be treated as being withdrawn and the applicant will be notified accordingly.

         (7)   For subparagraph (5) (d) (ii), the notice must be given within 14 days after the Registrar makes the decision to treat the application as being withdrawn.

         (8)   If a request is made under paragraph (5) (b) or the period mentioned in paragraph (5) (b) is extended under paragraph (5) (c), the Registrar must tell the applicant, in writing, of the period that has been specified for the body corporate to provide the information or documents.

22            Opinion of Registrar about fees charged for services

         (1)   For paragraph 60AC (5) (d) of the Act, if the Registrar gives an opinion under subsection 60AC (2) of the Act, the Registrar must give the opinion and the reasons for the opinion:

                (a)    within 28 days after:

                          (i)    the day when the Registrar received the request for the opinion; or

                         (ii)    if a request was made under subparagraph 21 (5) (a) or (b) — the end of the period mentioned in the request or any extended period; or

                        (iii)    if a request was made under both paragraphs 21 (5) (a) and (b) — the latest of the following:

                                   (A)     the period mentioned in the request made under paragraph 21 (5) (a);

                                   (B)     the period mentioned in the request made under paragraph 21 (5) (b);

                                   (C)     any extended period; and

               (b)    in writing; and

                (c)    to the applicant and to the body corporate that charged the fee.

         (2)   The Registrar must give a copy of the opinion to the Secretary of the Department within the same 28 day period mentioned in paragraph (1) (a).

23            Reconsideration of Registrar’s opinion or decision not to give an opinion

         (1)   If an applicant requests an opinion under regulation 21, the applicant, or the body corporate that charged the fee in dispute, may ask the Registrar to reconsider:

                (a)    if the Registrar gave an opinion under subsection 60AC (2) of the Act — the opinion; or

               (b)    if the Registrar did not give an opinion under subsection 60AC (2) of the Act within the period mentioned in subregulation 22 (1) — the Registrar’s decision not to give an opinion.

         (2)   A request for reconsideration must be made by written notice given to the Registrar within the following period:

                (a)    if an opinion was given by the Registrar under subsection 60AC (2) of the Act — 28 days after the person is notified in writing of the Registrar’s opinion; or

               (b)    if no opinion has been given by the Registrar within the period mentioned in subregulation 22 (1) — 28 days after the period mentioned in subregulation 22 (1) has ended; or

                (c)    if the Registrar considers it appropriate — a longer period allowed by the Registrar.

         (3)   The notice must set out the reasons for making the request.

         (4)   If the Registrar is satisfied that there is sufficient reason to reconsider a matter mentioned in paragraph (1) (a) or (b), the Registrar may reconsider the matter on his or her own initiative.

24            Request for further information or documents

         (1)   This regulation applies if:

                (a)    an applicant or a body corporate asks the Registrar to reconsider a matter under subregulation 23 (1); or

               (b)    the Registrar decides to reconsider a matter mentioned in paragraph 23 (1) (a) or (b) on his or her own initiative under subsection 23 (4).

         (2)   The Registrar may ask the applicant or the body corporate that charged the fee in dispute for information or documents relating to the fee in dispute.

         (3)   A request made under subregulation (2) must:

                (a)    be in writing; and

               (b)    be made within 28 days after:

                          (i)    the Registrar received the notice mentioned in subregulation 23 (2); or

                         (ii)    if the Registrar decided to reconsider a matter mentioned in paragraph 23 (1) (a) or (b) on his or her own initiative — the day the Registrar decided to reconsider the matter; and

                (c)    specify the period when the requested information or document is required to be provided to the Registrar; and

               (d)    if the request is made to the person who sought reconsideration — state that if the request is not complied with within the period or any extended period allowed by the Registrar, the request for reconsideration will be treated as being withdrawn.

         (4)   The Registrar may extend the period mentioned in paragraph (3) (c).

         (5)   If a request mentioned in subregulation (2) is made to the person who sought reconsideration and the person fails to comply with the request, the Registrar may:

                (a)    treat the request for reconsideration as being withdrawn; and

               (b)    notify the applicant and body corporate in writing accordingly.

         (6)   For paragraph (5) (b), the notice must be given within 14 days after the Registrar makes the decision to treat the request for reconsideration as being withdrawn.

         (7)   If the Registrar makes a request under subregulation (2) or extends the period mentioned in the request under subregulation (4), the Registrar must tell the applicant and the body corporate, in writing, of the period that has been specified for the information or documents to be provided to the Registrar.

25            Registrar’s opinion following reconsideration

         (1)   If after reconsidering a matter mentioned in paragraph 23 (1) (a) or (b) the Registrar forms an opinion under subsection 60AC (2) of the Act, the Registrar must tell the applicant and the body corporate that charged the fee in dispute of the opinion and reasons for the opinion, in writing, within the following period:

                (a)    if the Registrar did not make a request under subregulation 24 (2) — within 28 days after:

                          (i)    receiving the notice mentioned in subregulation 23 (2); or

                         (ii)    if the Registrar decided to reconsider the matter on his or her own initiative under subregulation 23 (4) — the day the Registrar decided to reconsider the matter;

               (b)    if the Registrar made a request under subregulation 24 (2) to the applicant or the body corporate and the period mentioned in the request was not extended under subregulation 24 (4) — within 28 days after the end of the period mentioned in the request;

                (c)    if the Registrar made a request under subregulation 24 (2) to the applicant or the body corporate and the period mentioned in the request was extended under subregulation 24 (4) — within 28 days after the end of the extended period;

               (d)    if the Registrar made a request under subregulation 24 (2) to the applicant and the body corporate and the period mentioned in each request was not extended under subregulation 24 (4) — within 28 days after the end of the period mentioned in the requests that ends the latest;

                (e)    if the Registrar made a request under subregulation 24 (2) to the applicant and the body corporate and the period mentioned in one or more of the requests was extended under subregulation 24 (4) — within 28 days after the end of the extended period that ends the latest.

         (2)   The Registrar must give a copy of the opinion mentioned in subregulation (1) to the Secretary of the Department within the same period that the Registrar is required to tell the applicant and body corporate under subregulation (1).

         (3)   If the Registrar does not give an opinion within the period required under subregulation (1), the Registrar is taken to have:

                (a)    if the Registrar had given an opinion in accordance with regulation 22 — confirmed the opinion given; or

               (b)    in all other cases — decided not to give an opinion.

         (4)   A person may apply to the Administrative Appeals Tribunal for review of:

                (a)    an opinion of the Registrar given under subregulation (1); or

               (b)    an opinion of the Registrar confirmed by paragraph (3) (a); or

                (c)    a decision of the Registrar mentioned in paragraph (3) (b).

26            Time for payment of fee

         (1)   For paragraph 60AC (5) (c) of the Act, a body corporate must not require an applicant to pay a fee in dispute, and no interest is payable on the amount of the fee, until:

                (a)    if no request for reconsideration is made in accordance with subregulation 23 (2) — the time for making a request under subregulation 23 (2) has passed; or

               (b)    if a request for reconsideration is made in accordance with subregulation 23 (2) or the Registrar decided to reconsider a matter mentioned in paragraph 23 (1) (a) or (b) on his or her own initiative under subregulation 23 (4) — the time for making an application to the Administrative Appeals Tribunal for review of an opinion or decision mentioned in subregulation 25 (4) has ended.

         (2)   If a fee is to be paid under subregulation (1), the fee must be paid by the end of whichever of the following periods ends the latest:

                (a)    if no request for reconsideration was made in accordance with subregulation 23 (2) — 28 days after the time for making a request under subregulation 23 (2) has passed;

               (b)    if a request for reconsideration was made under subregulation 23 (2) or the Registrar decided to reconsider a matter mentioned in paragraph 23 (1) (a) or (b) on his or her own initiative under subregulation 23 (4) — 28 days after the time for making an application to the Administrative Appeals Tribunal for review of an opinion or decision mentioned in subregulation 25 (4) has ended;

                (c)    the period that the body corporate that charged the fee specifies in writing to the applicant.

Note   If the Registrar gives an opinion that the fee is not one that the body corporate may charge under section 60AB of the Act, the body corporate must withdraw the charge — see subsection 60AC (3) of the Act.


Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.