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CONTENTS
Native Title Amendment (Tribunal Appointments) Bill
1997
Date Introduced: 25 June 1997
House: House of Representatives
Portfolio: Attorney-General
Commencement: On Royal Assent
To amend the Native Title Act 1993 (Cwlth) in order
to:
- enable the President of the National Native Title Tribunal(1)
to appoint an acting Native Title Registrar; and
- add to the categories of person who can be appointed as
presidential members of the National Native Title Tribunal.
The Native Title Act 1993 provides a statutory regime '
... for the recognition and protection of native title claims, 'to
validate existing non-indigenous titles which might have been
invalid because of the effect on native title and to provide for
compensation arising out of that validation.'(2)
The National Native Title Tribunal is established under the
Native Title Act 1993. Under the Act the Tribunal is
empowered to inquire into and make determinations of native title
applications which are unopposed or which lead to an agreement for
a determination. There are also provisions enabling these
determinations to be registered in the Federal Court of Australia
and to have effect as court orders. However, the validity of these
provisions was called into question as a result of the High Court's
decision in Brandy v. Human Rights and Equal Opportunity
Commission.(3) The effect of the High Court's decision on the
activities and processes of the National Native Title Tribunal has
been described in the following way:
The procedure adopted by the Tribunal in response to the Brandy
decision takes mediation to the point of an agreed determination
and then refers the matter to the Federal Court for a consent
order.
In relation to the processing of claims, the Tribunal is left
with certain decision making functions relating to the acceptance
of applications, decisions as to who may be a party to them,
decisions about the timing of mediation conferences and the
termination of mediation.(4)
The Tribunal now acts principally as a mediation service to help
indigenous people 'make native title agreements with governments,
industry and other people whose rights or interests may co-exist
with native title rights and interests.' The Tribunal also acts as
an arbitrator and makes administrative decisions if there is no
negotiated agreement on a proposed 'future act' such as mining or
mineral exploration or the compulsory acquisition of land by a
Government for transfer to someone else. Indigenous people may also
apply to the Tribunal for compensation for loss or impairment of
native title which occurred between the commencement of the
Racial Discrimination Act 1975 (Cwlth) and 1 January 1994,
ie the date on which the Native Title Act 1993
commenced.(5)
As at 12 August 1997, a total of 1383 applications had been
lodged with the National Native Title Tribunal. Of these, 596 were
claimant applicants, 128 were non-claimant applications,(6) 471
were objection applications,(7) 179 were future act applications,
and 9 were compensation applications
The Native Title Registrar
The powers of the Native Title Registrar are set out in Part 5
of the Native Title Act 1993 (Cwlth). The Registrar
assists in the management of the administrative affairs of the
National Native Title Tribunal(8) and may act for the President of
the National Native Title Tribunal in relation to the
administration of the Tribunal.(9) Some of the other functions of
the Registrar are described below.
For example, when Indigenous people want to obtain recognition
of their native title under the Native Title Act 1993 they
must lodge what is called a claimant application with the National
Native Title Tribunal. The Native Title Registrar assesses claimant
applications and decides whether they should be accepted.(10)
The Native Title Registrar is appointed by the Governor-General
under subsection 95(2) of the Native Title Act 1993. The
Governor-General may also appoint an acting Native Title Registrar.
The Governor-General's power to make an acting appointment is, as a
result of section 33A of the Acts Interpretation Act 1901
(Cwlth), an incident of his power to appoint the Registrar.
Members of the National Native Title Tribunal
The National Native Title Tribunal consists of presidential and
non-presidential members. At present, a person who is a judge of
the Federal Court or a former judge can be appointed as a
presidential member of the Tribunal. A 'former judge' is defined in
the Native Title Act 1993 as 'a person who has been a
Justice of the High Court or a judge of another federal court or of
the Supreme Court of a State or Territory.'(11)
Non-presidential members of the Tribunal are people who in the
Attorney-General's opinion have special expertise in the fields
of:
- Aboriginal or Torres Strait Islander societies;
- land management;
- alternative dispute resolution; and
- any other field which the Governor-General considers to be
relevant to performing the duties of the office.(12)
Other people who can be appointed as non-presidential members
are assessors(13) and members of recognised State or Territory
arbitral bodies.(14)
The Tribunal has 19 members (including the President). Six are
full-time members. Of the part-time members, three are judges of
the Federal Court of Australia and thus there are limits on their
availability.
Under the Native Title Act 1993, Tribunal members have
statutory responsibilities—including responsibility for
mediation under subsection 72(2). Presidential members of the
Tribunal have some statutory responsibilities that cannot be
exercised by non-presidential members. For example, if the Native
Title Registrar considers that a claimant application which has met
the formal requirements of section 62 is frivolous or vexatious or
that prima facie the claim cannot be made out, then the
application must be referred to a presidential member of the
Tribunal. The presidential member, after following the statutory
requirements set down in subsections 63(3) and (4), then either
directs the Registrar to accept or refuse the claimant
application.
Item 1 of Schedule 1 of the Bill inserts
new section 106A into the Native Title Act
1993. New subsection 106A(1) enables the
President of the National Native Title Tribunal to appoint an
acting Native Title Registrar in certain circumstances—for
example, if the office of Registrar is vacant. Acting appointments
cannot continue for more than 12 months.
New subsection 106A(2) provides that a person
cannot be appointed as acting Registrar unless that person has been
admitted to legal practice for at least five years.
New subsection 106A(3) is a validation
provision which provides that if a person is appointed to act under
new section 106A their appointment is not invalid
merely because—for example, there was a defect or
irregularity in the appointment. It appears that this provision has
not been inserted to cure any past appointment. Rather, it appears
that it is a standard provision which may occur in other
Commonwealth legislation providing for acting appointments of
certain statutory office holders. An example of a similar provision
is found in section 24M of the Administrative Appeals Tribunal
Act 1975 which deals with the appointment of an acting
Registrar to the Administrative Appeals Tribunal. A more recent
example of such a provision is found in subclause 62(2) of the
Public Service Bill 1997.(15)
Item 2 of Schedule 1 inserts new
subsection 110(3) into the Native Title Act 1993.
It provides that a person who has been admitted to legal practice
for at least five years can be appointed as a presidential member
of the National Native Title Tribunal.
- The President is the administrative head of the National Native
Title Tribunal and is required to administer the Tribunal and give
procedural directions. The President must be a Judge of the Federal
Court of Australia or a former judge of a State or federal
court.
- National Native Title Tribunal, Annual Report 1995-96:
i.
- (1995) 183 CLR 245.
- National Native Title Tribunal, Implementing the Native
Title Act. The Next Step: Facilitating Negotiated Agreements,
Selected Discussion Papers of the National Native Title Tribunal
1996, ed. G D Meyers, National Native Title Tribunal, Perth,
1997: 26.
- National Native Title Tribunal, Questions and Answers,
http://www.nntt.gov.au.
- A non-claimant application is an application brought by a
person seeking a determination that native title does not
exist
- A Government may fast-track mining or exploration by publishing
a notice under section 29 of the Native Title Act 1993
stating that it believes that the proposed future act attracts the
expedited procedure set down in the Act. Indigenous people who hold
or have applied for recognition of native title may lodge an
objection application within two months of publication of the
Government notice.
- Subsections 96(1) and 129, Native Title Act 1993.
- Subsection 96(2), Native Title Act 1993.
- Acceptance of a claimant application is not a determination
that native title actually exists. It merely means that the
application can enter the mediation phase of the native title
determination process.
- Section 253.
- Section 110.
- An assessor is defined under the Native Title Act 1993
as 'an assessor appointed under Part VA of the Federal Court of
Australia Act 1976.'
- Section 110.
- Other examples of validation provisions can be found in section
18M of the Federal Court of Australia Act which gives the
Chief Judge of the Federal Court the power to appoint an acting
Registrar of the Federal Court and in section 38M of the Family
Law Act 1975 which gives the Chief Justice of the Family Court
the power to appoint an acting Chief Executive Officer of the
Family Court.
Jennifer Norberry
26 August 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
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ISSN 1328-8091
Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library,
1997.
This page was prepared by the Parliamentary Library,
Commonwealth of Australia
Last updated: 28 August 1997
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