Chapter 2 - Overview of the Bill

Chapter 2 - Overview of the Bill

2.1 This chapter discusses each of the four schedules of the Bill as follows:

Schedule 1: minor and technical amendments

2.2 Schedule 1 of the Bill would make a large number of minor and technical amendments to the Native Title Act. According to the Explanatory Memorandum, 'most of the amendments would clarify or improve existing provisions of the Native Title Act, although some would provide for new processes.'[1]

2.3 Aspects of these technical amendments have been subject to a public consultation process. The Attorney-General's Department released an initial discussion paper on the technical amendments for public comment in November 2005, followed by a second discussion paper in November 2006.[2]

2.4 These amendments are discussed below in the following broad categories:

Future act and ILUA processes

2.5 Schedule 1 includes amendments to:

Processes for making and resolving native title claims

2.6 Schedule 1 also includes provisions to:

Obligations of the Registrar in relation to the registration of claims

2.7 Schedule 1 also contains amendments which would:

Other amendments

2.8 Other amendments made by this Schedule would:

2.9 Finally, Schedule 1 would also make amendments to adjust or remove misleading or ambiguous notes; provide for other notes to be included to assist navigation of the Native Title Act; and amend drafting errors.[5]

Schedule 2: Native Title Representative Bodies


2.10 Section 203B of the Native Title Act sets out the functions of NTRBs. In summary, they include:

Proposed amendments

2.11 Schedule 2 of the Bill will amend provisions governing NTRBs. In particular, Schedule 2 of the Bill includes measures to:

2.12 One of the more substantive amendments in Schedule 2 is contained in item 5, which amends the process for reviewing decisions by NTRBs not to assist Aboriginal or Torres Strait Islander persons.[8] Currently, section 203FB allows an Aboriginal or Torres Strait Islander person affected by an NTRB's decision not to assist him or her to apply to the Secretary of the Department of Families, Community Services and Indigenous Affairs for a review of the decision. Under existing subsection 203FB(2), the Secretary must appoint an external expert to conduct the review.

2.13 Proposed paragraph 203FB(2)(a) would allow the Secretary to review assistance decisions. The Secretary will retain the ability to appoint an external expert where more complex issues arise.[9] The Explanatory Memorandum states that the proposed amendments will 'ensure that the process for reviewing assistance decisions is more transparent, efficient and timely.'[10]

Schedule 3: Prescribed Bodies Corporate

2.14 Schedule 3 of the Bill proposes amendments relating to the functioning of Prescribed Bodies Corporate (PBCs). In particular, Schedule 3 of the Bill includes measures designed to:


2.15 Under section 55 of the Native Title Act, where the Federal Court determines that native title exists, the native title holders must establish a body corporate to administer their native title rights and interests. The native title holders must elect to establish one of two alternative kinds of PBC. The alternatives are:

2.16 These alternatives have different legal consequences and, in particular, affect the sort of legal relationship that the native title holders have with the PBC. If the native title holders make no choice, the Court selects the second alternative.

2.17 When the Court approves the PBC, the PBC is placed on the National Native Title Register, which is maintained by the NNTT. Once registered, the PBC is the legal entity and contact for that group of native title holders. The PBC conducts business between the native title holders and other people with an interest in the area such as pastoralists, governments or developers.

2.18 In October 2006 the Attorney-General and the Minister for Families, Community Services and Indigenous Affairs released a report entitled Structures and Processes of Prescribed Bodies Corporate (the PBC Report).[13] The PBC Report was part of the six-part plan for native title reform announced in September 2005. The PBC Report noted that the primary roles of  PBCs are to:

2.19 The PBC report made 15 recommendations, many of which can be implemented administratively or through amendments to the Native Title (Prescribed Bodies Corporate) Regulations 1999 (the PBC Regulations). The Native Title Amendment Bill 2006 implemented two recommendations from the PBC Report. Schedule 3 of this Bill would implement two further recommendations: recommendations 11 and 15.

PBC amendments proposed by the Bill

Replacement of PBCs

2.20 The Native Title Act envisages that regulations may provide for the replacement of PBCs at the initiation of the common law holders. For example, existing subsection 56(4) would allow for the replacement of a trust PBC by another trust PBC, and section 60 would allow for the replacement of an agent PBC by another agent PBC. However, according to the Explanatory Memorandum, existing regulation-making powers may not allow an agent PBC to be replaced by a trust PBC, or a trust PBC to be replaced by an agent PBC. Further, they may not allow an agent PBC to become a trust PBC (that is, to change its functions from those of an agent PBC to those of a trust PBC), or a trust PBC to become an agent PBC. Items 1 – 6 will remedy these deficiencies.[15]

PBC Report recommendations

2.21 Recommendation 11 of the PBC Report proposed that the Native Title Act should be amended to authorise a PBC to charge a third party for costs and disbursements reasonably incurred in performing its statutory functions under the Native Title Act or PBC Regulations at the request of the third party. It also recommended that the amendments provide for an appropriate authority to investigate such arrangements on request, to ensure the costs were reasonably incurred. Item 7 of Schedule 3 inserts proposed sections 60AB and 60AC which deal with fees for services provided by PBCs, and the giving of opinions about those fees by the Registrar of Aboriginal Corporations.[16]

2.22 Recommendation 15 of the PBC Report related to the development of a mechanism for the determination of a 'default' PBC in appropriate circumstances, such as where there is no functioning PBC nominated by the native title holders. Schedule3 would permit regulations to be made under which a particular government funded body or bodies (a default PBC) could perform the functions of an agent PBC (but not those of a trust PBC) in relation to determined native title rights and interests in particular circumstances. These circumstances include:

Schedule 4: technical amendments relating to legislative instruments

2.23 Schedule 4 will make technical amendments to the Native Title Act to reflect changes made by the Legislative Instruments Act 2003. Currently, the Native Title Act provides that a number of determinations, instruments and approvals are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. However, section 46A of the Acts Interpretation Act was repealed in 2003. Section 6 of the Legislative Instruments Act now provides that instruments that were disallowable instruments for the purposes of section 46A of the Acts Interpretation Act are legislative instruments. Schedule 4 therefore amends various provisions of the Native Title Act to refer to legislative instruments, rather than disallowable instruments.[18]

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