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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:
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 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.
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:
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.
Jennifer Norberry
26 August 1997
Bills Digest Service
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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.
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ISSN 1328-8091
Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library, 1997.
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Last updated: 28 August 1997