Additional Comments by Liberal Senators
1.1
Liberal Party
Senators are aware of the historically low rate of finalisation for native
title claims, as illustrated by the average age of claims and the alarming
projection that the last claim will not be settled until 2035.[1] They therefore support the aims
and objectives of the Native Title Amendment Bill 2009, particularly the
encouragement of settlement by negotiation and building flexibility into the
system, thereby maximising the chances of resolution.
1.2
Liberal
Senators make the point however, that the Committee was not provided with any
solid evidence as to how the 2007 amendments have operated. One clear piece of
evidence that was presented is the welcome news that over the past two years
the number of proceedings going to trial has decreased and most proceedings are
being settled by consent. No doubt there are many reasons for this, but it
cannot be said that the 2007 amendments have operated in a counter-productive
fashion.
1.3
The reforms
in Schedule 1 have been developed without the benefit of broad consultation,
and, as stated in evidence, appear to simply reflect Labor Party policy.[2] While the basis for the
amendments has been made clear, the objective rationale for them has not. In
the absence of a compelling case for the reforms being proposed, Liberal
Senators have a range of concerns about the possible consequences of amendments
to the Act.
The role of the Federal
Court in managing native title claims
1.4
The stated
policy objective of the Bill is to implement institutional reforms to give the
Federal Court a central role in managing native title claims. The Registrar and
Chief Executive Officer of the Federal Court, Mr Soden, submitted that
empowering the Court to take a central role in managing all native title claims
and to control the direction of each case would enhance the prospects of
resolving matters without the end for protracted litigation processes. [3] He submitted that it was
desirable to have resort to a range of alternative dispute resolutions (ADR)
options, not just mediation. Liberal Senators note however that the Court
already has that role through the 1998 amendments to the Native Title Act
1993. Mr Soden acknowledged that the ADR options he outlined were already
available to the Federal Court, however his evidence was that 'we have not
focused on those kinds of options since 1 July 2007, where the main responsibility
has been with the [National Native Title Tribunal (NNTT)].' [4]
1.5
It is not
clear why the Court has not been focusing on these options, as the effect of
the 2007 amendments was merely to require compulsory referral of applications
to the Tribunal for mediation without simultaneous mediation by the Federal
Court. In addition, section 86C(1) provides that the Court may, of its own
motion, at any time in a proceeding, order that mediation by the Tribunal
cease. Parties to proceedings can, pursuant to section 86C(2), at any time from
3 months after the start of mediation by the Tribunal, seek an order ceasing
mediation.
1.6
The 2007
amendments did not diminish the central role of the Federal Court in managing
native title applications. The Court, post the 2007 amendments, has only been
required to send matters to the Tribunal when, and if, it thinks the parties
can reach agreement. The Court has discretion when to send a matter for
mediation, and when to cease mediation. It is not clear, then, how the 2007
amendments have impacted on the Court’s capacity to speed up the resolution of
claims, or conversely, how this Bill, actually facilitates that task. Mr Tony
McAvoy, the legal representative of the National Native Title Council, shares
this concern.[5]
1.7
While the
Committee has been presented with submissions suggesting that the reforms will
enable the Court to take a central role in managing native title claims, the
stark reality is that the Court already has that role and the amendments simply
increase the range of available mediators.
Possible implications of expanding the range of mediators
1.8
In its
submission to the Committee[6] the NNTT expressed concern that
the amendments in Schedule 1 could result in the resolution of native title
claims in a less systematic way and that the process could become ad hoc,
fragmented, less efficient and more expensive to the Commonwealth. While
Liberal Senators note the well established reputation of the Federal Court for
efficiently disposing of the cases before it, they are concerned that the
extent of the Court’s capacity to direct the Tribunal to do certain things,
including allocation of particular members to mediate, may result in confusion
and lack of clarity about the respective powers and functions of the Court and
the Tribunal.
1.9
Mr Soden gave
evidence that the Court will be issuing a Practice Note to provide some
guidance as to how the Court will be exercising its discretion.[7] This would be a welcome
development, as one of the well documented problems facing the native title
system is the inconsistency of approach by Judges of the Federal Court in the
native title jurisdiction. Given this experience, Liberal Senators consider
there is a likelihood of inconsistency since the Bill, in effect, de-regulates
mediation by allowing individual Judges considerable discretion by referring
matters to mediation by private mediation service providers. In the context of
a totally deregulated private mediation service market, vesting the Court with
an unlimited discretion and then allowing it to be exercised by individual
judges has the potential to result in a number of serious unintended
consequences.
The identification, payment and support of private mediators
1.10
The Bill
removes references to the NNTT mediating from the Act, and instead simply
refers to a person or body mediating. The only statutory guidance is contained
in proposed subsection 86B(5B) which provides that the Court may refer matters
to a Registrar, Deputy Registrar, District Registrar or Deputy District
Registrar of the Federal Court for mediation. The Bill therefore takes a
minimalist approach in terms of specifying qualifications of private mediators.
In contrast, Tribunal members are appointed by the Governor General,[8] a Presidential member must be a
Judge, or former Judge or have been enrolled as a legal practitioner for more
than five years. Ordinary members must have special knowledge in relation to Aboriginal
or Torres Strait Islander societies, or land management, or dispute resolution
or any other class of matters considered by the Governor-General to have
substantial relevance to the duties of a member.[9]
1.11
Without
appropriate clarification, Liberal Senators are concerned that private
mediators may not possess qualifications and experience of practices which
might actually be important in ensuring their honesty, their integrity and
their capacity to do the work required of them. Tribunal members are statutorily
required to have a range of skills, with dispute resolution being only one. In
an unregulated mediation market, it is not clear what particular skills a
mediator will bring to the process. Having regard to the range of interests
involved, including indigenous, mining, pastoral and infrastructure, the risk
of conflicts of interest are ever present. Deregulating mediation service
delivery in such proceedings without any regulatory standards to protect the
parties is unsatisfactory.[10]
1.12
The Bill is
also unclear as to whether a Judge could appoint an organisation to mediate,
resulting possibly in a person other than a Judge determining who would carry
out the mediation. Proposed subsection 86B(1) allows the Court to refer an
application to 'an appropriate person or body' for mediation. The Bill
provides no significant guidance on the appointment of private mediators. This
is inconsistent and inappropriate in a Bill which it is claimed will facilitate
greater Court case management.
1.13
Liberal
Senators note that all existing coercive powers vested in the Tribunal will be
vested in private mediators.[11] The powers given to these
private mediators include: to require parties to attend conferences, or to
exclude parties or their representatives from conferences (s. 94E), directing
parties to produce documents (s.94G), referring questions of fact or law to the
Court (s.94G), referring a question to the Court whether a party should be
dismissed (s.94J), prohibiting the disclosure of information given or disclosed
at a conference (s.94L), reporting breaches of the requirement to act in good
faith (s.94P) and granting to such private mediators the same protections and
immunities as a High Court Judge (s.94S).
1.14
To seek to
give to an individual Federal Court judge the untrammelled right to appoint a
person to mediate, when such a person is thereby vested with such broad powers
and given the protections of a High Court Judge, is both surprising and
concerning. Such extensive powers should only be exercised by persons acting
under strict statutory guidelines and appointed according to well defined
rules, and with such appointment having elements of both transparency and
accountability.
1.15
In summary,
the appointment of private persons (and organisations) inevitably raises questions
of accountability insofar as those persons and organisations operate outside
the framework of a government institution with all of the relevant regulatory
checks and balances.
Limiting the capacity
of the NNTT to provide information to the Court
1.16
The
proposed amendments remove the capacity of the NNTT to provide the Court with
voluntary regional mediation progress reports and regional work plans if the
President considers that such a report or work plan would assist the Court in
progressing proceedings. In its submission to the Committee, the NNTT noted
that 'if the Act is amended by proposed s 94N and the repeal of s 136G(3A),
the Tribunal will lose the capacity to volunteer such reports, and the Court
may be deprived of a valuable source of information for case management in
regions where most or all claims have been referred to the Tribunal for
mediation.' [12]
1.17
The
Explanatory Memorandum states[13] that it is unnecessary for the
Tribunal to provide such reports or work plans given the purpose of the amendments
is to give the Court the overall control of native title claims. Liberal
Senators were not persuaded by this argument, which appears to be part of a
pattern to try to justify all manner of changes on the basis that the Court
should be given basically unrestricted discretion to run its proceedings. The
NNTT pointed out[14] that the provision of such
reports in no way diminishes the Court’s control of its proceedings. The Court
can give such weight as it considers appropriate to the contents of such a report
or work plan.
1.18
Liberal
Senators see the force of the Tribunal’s view. The legislation currently
confers on the Tribunal the right to appear before the Federal Court at
a hearing in relation to any matter that has been referred for mediation. The
Bill inserts a provision (s.86BA) that only permits the Tribunal to
appear before the Court if 'the Court considers that the mediator might be
able to assist the Court in relation to a proceeding.' The Explanatory
Memorandum concludes by justifying the removal of the right of appearance on
the basis that this 'would be consistent with granting the Court control
over native title proceedings.'[15] Liberal Senators do not
understand the logic of removing the Tribunal’s right of appearance. It was
inserted in the 2007 amendments with the aim of facilitating better
communications between the Court and the Tribunal, and there is no evidence
before the Committee that this has not proved to be the case.
Schedule 2 – Powers of
the Court
1.19
Schedule 2
contains some provisions designed to facilitate consent determinations of
native title. One proposed reform would allow the Court to make orders that
cover matters beyond native title, while another would enable the Court to rely
on a statement of facts agreed between the parties. Liberal Senators see some
merit in this reform, recognising that a determination of native title is part
of a bundle of issues that parties want resolved as part of a broader
settlement. We consider however, that the application of this proposal will need
to be carefully monitored, and that any constitutional or serious procedural
issues are dealt with proactively and in consultation with the relevant States
and Territories.
Lack of prior consultation
and evidence to support the proposals
1.20
Finally,
Liberal Senators are concerned by evidence to the Committee suggesting an
absence of consultation in developing these reforms. The Government states it
used an evidence-based approach to policy development. While this is welcomed,
we are concerned that little attention has been paid to the view of the NNTT.
In his evidence to the Committee, Mr Neate, the President of the Tribunal,
stated that he 'was advised of the announcement of the proposed changes
immediately prior to them – the day before.'[16]...'But this was really advising me
of what was about to be announced.'[17] It is of concern to Liberal
Senators that the Attorney-General would develop and then announce substantive
changes to the Native Title Act 1993, impacting on the core mediation
function of the National Native Title Tribunal, without even consulting with
the President of that Tribunal.
Senator Guy Barnett
Deputy
Chair
Senator
Russell Trood
Senator Mary Jo Fisher
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