Navigation: Previous Page | Contents | Next Page
Native Title (Assistance from
Attorney-General) Amendment Guideline 2013
Tabled: Scheduled for House of
Representatives and Senate, 11 February 2014
Summary of committee concerns
The committee seeks clarification as to the possible impact of the
changes on the ability of native title claimants to have their claims resolved.
The Native Title Act 1993 allows for the provision of assistance
by the Attorney-General to a person who is a party to an inquiry, mediation or
proceeding related to native title.
The instrument amends the Native Title (Assistance from Attorney-General)
Guideline 2012 to broaden the eligibility test for assistance for native
title respondents' legal representation costs. According to the explanatory
statement, native title respondents are organisations with an interest that may
be impacted on by a claim of native title over a particular area and typically
include pastoralists, local governments, commercial fishers and small mining
As a result of the instrument, legal representation costs may be
available where a respondent's interest is likely to be adversely affected in a
significant way if a native title claim is recognised or a respondent would
likely derive a significant benefit from negotiating an agreement or resolving
a dispute. According to the explanatory statement, the instrument re-instates
the broader eligibility test for legal representation costs for respondents
that was operative prior to 1 January 2013 and will enable more native title
respondents to be eligible for assistance.
Compatibility with human
Statement of compatibility
The instrument is accompanied by a statement of compatibility which
states that the instrument promotes native title respondents' access to courts
and tribunals by contributing to the cost of legal representation. The
statement concludes that the instrument does not negatively engage any human rights.
Committee view on compatibility
The committee notes that our predecessor committee considered the
instrument which previously narrowed the availability of financial assistance
for native title respondents' legal representation costs so that such
assistance would only be available in exceptional circumstances (the 2012
Such circumstances were limited to where new or novel questions of law directly
related to a respondent's interests are considered or where a court requires a
respondent's participation beyond participation in standard procedural
The committee sought further information from the former
Attorney-General as to the possible impact of the 2012 instrument on fair trial
and fair hearing rights. The Attorney-General's response stated that, in the
past, the broader criteria led to the provision of financial assistance for
legal representation to respondents in the majority of native title matters. According
to the response:
free availability of funding in the past has led to respondents becoming a
party to matters where their interests may already have been protected. The
current interests of native title respondents are in most cases protected by
either the common law or the Native Title Act, largely because much of the law
in respect of co-existing interests has been settled.
The response also stated that:
vast majority of native title respondents are commercial entities or local
councils. As such the native title activities should form part of respondents'
ordinary business costs. Such costs are likely to be tax deductable.
The response noted that the 2012 instrument, in particular the narrower
eligibility test, was developed following an independent review of the native
title respondent funding scheme by Mr Anthony Neal SC. The review noted that in
relation to other schemes of financial legal assistance, legal representation
costs are generally only paid in exceptional circumstances. Accordingly, the
purpose of the instrument was to bring the native title respondent scheme in
line with other such schemes and to 'ensure that funding for such assistance is
consistent with the principles of access to justice by ensuring that assistance
is provided to those most in need'.
The committee concluded that in light of this information it had no further
comment on that instrument.
The committee understands that the effect of the current instrument will
be to increase the number of native title respondents who will be eligible for
assistance and therefore able to participate in proceedings. It is not clear to
the committee what the impact of this change will be on native title claimants
and their ability to have native title claims resolved.
The right to culture includes the right of all persons to take part in
cultural life and protects the cultural rights of individuals belonging to
This right includes the need to ensure that Indigenous peoples' cultural values
and rights associated with their land are respected and protected. These rights
are also central to the right of self-determination.
Further, the right to a fair hearing guarantees equality of access to
courts and tribunals. This requires recognition of the interests of all
parties to a proceeding and respect for the principle of 'equality of arms' –
that is, all parties to a proceeding must have a reasonable opportunity to
present their case under conditions that do not disadvantage them as against other
parties to the proceedings.
According to the statement of compatibility accompanying the instrument,
the government 'continues to provide assistance for native title claimants
through a separate scheme administered by the Department of the Prime Minister
However, the committee is concerned that the broader eligibility criteria may
result in the participation of more parties (in cases where their participation
may not always be necessary) and lead to additional length and complexity in proceedings,
thus presenting additional barriers to native title claimants in resolving
The committee intends to write to the Attorney-General to seek
further information on the impact of re-instating the broadened eligibility
criteria for the provision of support to native title respondents on the
ability of native title claimants to have their claims heard and
Navigation: Previous Page | Contents | Next Page