Commonwealth Numbered Acts Commonwealth Numbered Acts1 After paragraph 4(7)(a)
Insert:
(aa) provides for the Federal Court to refer native title and compensation applications for mediation; and
(ab) provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; and
2 Paragraph 79A(a)
Omit "to the NNTT".
3 At the end of section 79A
Add:
; (e) mediation (see Division 4).
4 Division 1B of Part 4 (heading)
Repeal the heading, substitute:
Division 1B -- Reference for mediation
5 Subsections 86A(1) and (2)
Omit "by the NNTT".
6 Subsection 86B(1)
Repeal the subsection, substitute:
Federal Court must refer applications for mediation
(1) Unless an order is made under subsection (3) that there be no mediation under this Act, the Federal Court must refer each application made under section 61 to an appropriate person or body for mediation, including the ascertaining of agreed facts, as soon as practicable after the end of the period specified in the notice under section 66.
(2) In deciding whether to refer the application to a particular person or body, the Court may take into account the training, qualifications and experience of the person who is to be, or is likely to be, the person conducting the mediation.
(2A) Without limiting subsection (1), the application may be referred to the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court.
Note: The heading to section 86B is altered by omitting " to NNTT ".
7 Subsection 86B(3)
Omit "by the NNTT" (first occurring), substitute "under this Act".
8 Paragraph 86B(3)(a)
Omit "(whether or not by the NNTT)".
9 Paragraph 86B(3)(b)
Omit "by the NNTT", substitute "under this Act".
10 Subsection 86B(4)
Omit "by the NNTT" (first occurring), substitute "under this Act".
11 Paragraph 86B(4)(ea)
Repeal the paragraph.
12 Subsection 86B(5)
Repeal the subsection, substitute:
Whole or part of a proceeding may be referred at any time
(5) In addition to referring a proceeding for mediation under subsection (1), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to an appropriate person or body for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2).
(5A) In deciding whether to refer the whole or part of the proceeding to a particular person or body, the Court may take into account the training, qualifications and experience of the person who is to be, or is likely to be, the person conducting the mediation.
(5B) Without limiting subsection (5), the whole or part of the proceeding may be referred to the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court.
Orders about how mediation is to be provided etc.
(5C) If the Court refers, under subsection (1) or (5), the whole or a part of a proceeding to a person or body for mediation, the Court may at any time after the referral make an order about the following matters:
(a) the way in which the mediation is to be provided;
(b) whether the person who is to conduct the mediation may be assisted by another individual;
(c) any other matter that the Court considers relevant.
Note: The following heading to subsection 86B(6) is inserted " No other referral for mediation etc. ".
13 Section 86BA
Repeal the section, substitute:
86BA Mediator may appear before the Court
(1) A mediator may appear before the Court at a hearing that relates to any matter that is currently before the mediator for mediation if the Court considers that the mediator may be able to assist the Court in relation to a proceeding.
(2) To avoid doubt, subsection 94D(4) applies to the mediator when appearing before the Court.
(3) Subsection 94D(5) does not prevent:
(a) the mediator from appearing before the Court under subsection (1); or
(b) if the mediator may appear before the Court under subsection (1) and the person conducting the mediation is not the mediator--that person from representing the mediator before the Court.
(4) This section does not give the mediator, or the person conducting the mediation, the right to become a party to the proceeding.
14 Subsection 86C(1)
Omit "the NNTT" (first occurring), substitute "a mediator".
15 Paragraph 86C(1)(a)
Omit "(whether or not by the NNTT)".
16 Paragraph 86C(1)(b)
Omit "the NNTT", substitute "the mediator".
17 At the end of subsection 86C(1)
Add:
; or (c) it is appropriate to do so for any other reason.
18 Subsection 86C(2)
Omit "the NNTT", substitute "a mediator".
19 Subsections 86C(3) and (4)
Omit "the NNTT", substitute "the mediator".
20 Subsection 86C(5)
Omit "136G(2), (2A), (3), (3A) or (3B)", substitute "94N(2), (3), (4) or (5)".
Note: The heading to subsection 86C(5) is altered by omitting " NNTT report " and substituting " reports etc. ".
21 At the end of section 86C
Add:
Court may make other orders
(6) If the Court makes an order under subsection (1), (3) or (4) in relation to a mediation, the Court may make any other orders that the Court considers are reasonably necessary or appropriate to deal with the cessation of the mediation.
Later referral for mediation
(7) The making of an order under subsection (1), (3) or (4) does not prevent a later referral for mediation under subsection 86B(5).
22 Subsection 86D(1)
Omit "the NNTT" (first occurring), substitute "a mediator".
23 Subsection 86D(1)
Omit "the NNTT" (second occurring), substitute "the mediator".
24 Subsection 86D(1) (note)
Omit "Under subsection 136D(1), the presiding member of the NNTT", substitute "Under subsection 94H(1), the person conducting the mediation".
25 Subsection 86D(2)
Omit "the NNTT", substitute "the mediator".
26 Subsection 86D(3)
Omit "136G(3B)", substitute "94N(5)".
27 Subsection 86D(3) (note)
Omit "Under subsection 136G(3B), the presiding member at a mediation conference may make a report to the Court if the presiding member", substitute "Under subsection 94N(5), the person conducting the mediation may provide a report to the Court if the person".
28 Subsection 86E(1)
Omit "the NNTT" (first occurring), substitute "a mediator".
Note: The heading to section 86E is altered by omitting " NNTT " and substituting " a mediator ".
29 Subsection 86E(1)
Omit "the NNTT" (second occurring), substitute "the mediator".
30 Subsection 86E(2)
Omit "the NNTT" (first occurring), substitute "one or more mediators".
31 Paragraphs 86E(2)(a) and (b)
Omit "the NNTT", substitute "that mediator or those mediators".
32 Section 94B
Omit "to the NNTT".
Note: The heading to section 94B is altered by omitting " to NNTT ".
33 Paragraph 94B(a)
Omit "136G(1), (2) or (3)", substitute "94N(1), (2) or (4)".
34 Paragraph 94B(b)
Omit "136G(2A) or (3A)", substitute "94N(3)".
35 At the end of Part 4
Add:
Mediator may hold conferences
(1) If the Federal Court refers the whole or a part of a proceeding under section 86B for mediation, the mediator may hold such conferences of the parties or their representatives as the mediator considers will help in resolving the matter.
Note: The person conducting the mediation may request the Federal Court to refer for review by the NNTT the issue of whether there are native title rights and interests: see subsections 136GC(2) and (3).
Who must conduct conferences
(2) A conference must be conducted by:
(a) if the mediator is an individual--the mediator; or
(b) if the mediator is the NNTT--a member of the NNTT; or
(c) in any other case--an individual nominated by the mediator.
Assistance
(3) Subject to an order made under subsection 86B(5C) in relation to the mediation, the person conducting the mediation may be assisted:
(a) if the person is a member of the NNTT--by another member of the NNTT or a member of the staff of the NNTT; and
(b) in any other case--by such other individuals as the person considers appropriate.
Statements at conference are without prejudice
(4) In a proceeding before the Court, unless the parties otherwise agree, evidence may not be given, and statements may not be made, concerning any word spoken or act done at a conference.
Person conducting the mediation etc. not to take further part in relation to a proceeding
(5) Unless the parties otherwise agree or the Court gives leave, the person conducting the mediation, or another person who assists that person, may not, in any other capacity, take any further part in the proceeding before the Court.
Participation by telephone etc.
(6) The person conducting the mediation may allow a person to participate by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
Division applies as if consultant were a member
(7) If:
(a) the mediator is the NNTT; and
(b) a consultant is engaged under subsection 131A(1) to conduct mediation in relation to a particular matter under this Division;
this Division applies in relation to that matter as if the consultant were a member of the NNTT.
Requiring parties to attend conferences
(1) The person conducting the mediation may direct a party to attend at a conference.
Limiting parties at conferences
(2) The person conducting the mediation may direct that only one or some of the parties may attend, and be represented, at a conference.
Excluding parties from conferences
(3) If the person conducting the mediation considers that:
(a) a party, or a party's representative, at a conference is disrupting or hindering the conference; or
(b) excluding a party, or a party's representative, from a conference would help to resolve matters;
the person may direct that the party or representative not attend at that conference or at other conferences.
Parties may be represented
(4) A party may be represented by a barrister, a solicitor or another person.
Mediation in good faith
(5) Each party, and each person representing a party, must act in good faith in relation to the conduct of the mediation.
94F Other persons attending or participating in conferences
The person conducting the mediation may, with the consent of all of the parties present at a conference:
(a) direct that other persons be permitted to attend as observers of the conference; or
(b) if he or she considers it would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1) or (2)--direct that other persons be permitted to participate in the conference.
The person conducting the mediation may, for the purposes of a conference, direct a party to produce a document to the person on or before a day specified in the direction, if the person considers that:
(a) the document is in the possession, custody or control of the party; and
(b) the production of the document may assist the parties to reach agreement on any matters mentioned in subsection 86A(1) or (2).
94H Referral of questions of fact or law
Referral of questions to Federal Court
(1) Subject to subsections (2) and (3), if the person conducting the mediation considers that it would expedite the reaching of an agreement on any matter that is the subject of mediation, he or she may refer to the Federal Court a question of fact or law relating to a proceeding that arises during the mediation.
Note: Under subsection 86D(1), the Federal Court may determine a question of fact or law that a mediator refers to it.
Person conducting the mediation not a consultant
(2) If the person conducting the mediation is not a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:
(a) on the initiative of the person; or
(b) at the request of a party.
Person conducting the mediation a consultant
(3) If the person conducting the mediation is a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:
(a) on the initiative of the person, if a presidential member agrees; or
(b) at the request of a party.
Mediation may continue
(4) If a question of fact or law arising during mediation has been referred to the Court under this section, the person conducting the mediation may continue mediation if he or she considers that it is appropriate.
94J Referral of questions about whether a party should be dismissed
Referral of questions to Federal Court
(1) Subject to subsections (3) and (4), if the person conducting the mediation considers that a party to a proceeding does not have a relevant interest in the proceeding, he or she may refer to the Federal Court the question of whether the party should cease to be a party to the proceeding.
(2) For the purposes of the determination by the Court of that question, subsection 94D(4) does not apply to the extent that words spoken or acts done at a conference under section 94D relate to that question.
Person conducting the mediation not a consultant
(3) If the person conducting the mediation is not a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:
(a) on the initiative of the person; or
(b) at the request of a party, if the person agrees.
Person conducting the mediation a consultant
(4) If the person conducting the mediation is a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:
(a) on the initiative of the person, if a presidential member agrees; or
(b) at the request of a party, if both the person and a presidential member agree.
Mediation may continue
(5) If a question has been referred to the Court under this section, the person conducting the mediation may continue mediation if he or she considers that it is appropriate.
Meaning of relevant interest
(6) In this section, a person has a relevant interest in a proceeding if the person's interests may be affected by a determination in the proceeding.
94K Conferences to be held in private
A conference must be held in private, unless the person conducting the mediation directs otherwise and no party objects.
94L Person conducting the mediation may prohibit disclosure of information etc.
(1) The person conducting the mediation may direct that:
(a) any information given, or statements made, at a conference; or
(b) the contents of any document produced at a conference;
must not be disclosed, or must not be disclosed except in such manner, and to such other persons, as the person specifies.
Applications etc.
(2) The person conducting the mediation may make the direction on his or her own initiative or on an application by a party.
Person conducting the mediation may disclose information etc. if parties agree
(3) If the parties agree, the person conducting the mediation may, despite the direction, disclose things of the kind mentioned in paragraph (1)(a) or (b).
Offence
(4) A person commits an offence if:
(a) the person discloses any material in contravention of a direction made under subsection (1); and
(b) the disclosure is not permitted by subsection (3).
Penalty: 40 penalty units.
(5) Subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code .
(1) The person conducting the mediation, or another person who assists that person, is not competent, and must not be required, to give evidence to a court relating to a matter if:
(a) the giving of the evidence would be contrary to a direction under subsection 94L(1); or
(b) an application has been made for a direction under that subsection concerning the matter to which the evidence would relate and the person conducting the mediation has not determined that application.
(2) The person conducting the mediation, or another person who assists that person, must not be required to produce in a court a document given in connection with a mediation if:
(a) the production of the document would be contrary to a direction under subsection 94L(1); or
(b) an application has been made for a direction under that subsection in relation to the document and the person conducting the mediation has not determined that application.
(3) In this section:
"court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
"produce" includes permit access to.
94N Report etc. to be given to Federal Court
Report after mediation concludes
(1) The person conducting the mediation must, as soon as practicable after mediation is successfully concluded, provide a written report to the Federal Court setting out the results of the mediation.
Report requested under subsection 86E(1)
(2) The person conducting the mediation must provide a written report to the Federal Court setting out the progress of the mediation if requested to do so under subsection 86E(1).
Report or plan requested under subsection 86E(2)
(3) If one or more mediators have been requested under subsection 86E(2) to provide a regional mediation progress report or a regional work plan, that mediator or those mediators must provide the report or plan to the Federal Court.
Progress report
(4) The person conducting the mediation may provide a written report to the Federal Court setting out the progress of the mediation if the person considers that it would assist the Court in progressing the proceeding in relation to which the mediation is being undertaken.
Report about failure to comply with a direction
(5) If a direction made under subsection 94E(1) or section 94G has not been complied with, the person conducting the mediation may provide a written report to the Federal Court setting out:
(a) the details of the direction; and
(b) the reasons for giving the direction.
Agreement on facts
(6) If the parties agree, a report provided under subsection (1), (2) or (4) must include any agreement on facts between the parties that was reached during the mediation concerned.
94P Reports about breaches of the requirement to act in good faith
Reports to government
(1) If the person conducting the mediation considers that a party mentioned in column 1 of the following table in relation to an item, or a person representing such a party, did not act or is not acting in good faith in relation to the conduct of the mediation, the person may report that failure to the person mentioned in column 2 of the table in relation to the item:
|
Reports about persons who do or did not act in good faith |
|
||
|
Item |
If the party is or a person represents ... |
then, the person conducting the mediation may report the failure to act in good faith to ... |
|
|
1 |
the Commonwealth |
the Commonwealth Minister. |
|
|
2 |
a State or Territory |
the State Minister or the Territory Minister for the State or Territory. |
|
|
3 |
a party that is provided with funds by the Attorney‑General under section 213A |
the Attorney‑General. |
|
|
4 |
a representative body that is provided with funds by the Secretary of the Department under section 203C |
the Secretary of the Department. |
|
|
5 |
a person or body performing functions of a representative body that is provided with funds by the Secretary of the Department under section 203FE |
the Secretary of the Department. |
|
Reports to legal professional bodies
(2) If the person conducting the mediation considers that a legal practitioner did not act or is not acting in good faith in relation to the conduct of the mediation, the person may report that failure to the relevant State or Territory legal professional body that issued the legal practitioner with a practising certificate.
(3) For the purposes of a report made under subsection (2), subsection 94D(4) does not apply to the extent that words spoken or acts done at a conference under section 94D relate to the failure mentioned under subsection (2) of this section.
Reports to the Federal Court
(4) If the person conducting the mediation considers that a party, or the party's representative, did not act or is not acting in good faith in relation to the conduct of the mediation, the person may, despite subsection 94D(4), report that failure to the Federal Court (whether or not a report is also provided as mentioned in subsection (1) or (2) of this section).
What a report must include
(5) A report must include:
(a) the details of the failure to act in good faith; and
(b) the context in which the conduct took place.
Copy of report to be provided to the person to whom it relates
(6) At the time that a report is provided as mentioned in subsection (1), (2) or (4), a copy of the report must also be provided to the person to whom it relates.
Person conducting the mediation not a consultant
(7) If the person conducting the mediation is not a consultant engaged under subsection 131A(1), a report may only be provided under this section on the initiative of the person.
Person conducting the mediation a consultant
(8) If the person conducting the mediation is a consultant engaged under subsection 131A(1), a report may only be provided under this section on the initiative of the person if a presidential member agrees.
Mediation may continue
(9) If a report is provided under this section, the person conducting the mediation may continue mediation if he or she considers that it is appropriate.
94Q Public reporting about breaches of the requirement to act in good faith
Scope
(1) This section applies if the person conducting a mediation is a member of the NNTT.
Annual report may include particulars of failure to act in good faith etc.
(2) If the person considers that a Government party, or that party's representative, did not act or is not acting in good faith in relation to the conduct of the mediation, the report prepared under section 133 may include particulars of that failure and the reasons why the person considers that the conduct was not in good faith.
(3) If it is proposed to make an inclusion in the report, the person must inform the Government party, or that party's representative, before doing so.
94R Protection of person conducting the mediation
A person conducting the mediation has, in the performance of his or her duties as a person conducting the mediation, the same protection and immunity as a Justice of the High Court.
94S Regulations about mediation
(1) The regulations may make provision in relation to the way in which any mediation is provided under this Division.
(2) Such regulations must not be inconsistent with this Division.
36 Subsection 108(1A)
Omit "Division 4A or 4AA", substitute "Division 4 of Part 4 and Division 4AA of this Part".
37 Paragraph 123(1)(ca)
Omit "are to", substitute "may".
38 Subsection 133(2A)
Omit "136GB", substitute "94Q".
39 Division 4A of Part 6
Repeal the Division.
40 Subsections 136GC(1), (2) and (3)
Repeal the subsections, substitute:
Referral by the Federal Court on its own motion
(1) The Federal Court may, on its own motion, refer for review by the Tribunal the issue of whether a native title claim group who is a party in a proceeding holds native title rights and interests, as defined in subsection 223(1), in relation to land or waters within the area that is the subject of the proceeding.
Referral by the Federal Court on request
(2) The Federal Court may refer for review by the Tribunal the issue of whether a native title claim group who is a party in a proceeding holds native title rights and interests, as defined in subsection 223(1), in relation to land or waters within the area that is the subject of the proceeding if:
(a) the issue arises in the course of mediation in relation to the proceeding; and
(b) the person conducting the mediation requests the Court to refer the issue for review by the Tribunal.
(3) The person conducting the mediation may only make the request if the person considers, after consultation with the parties to the proceeding, that a review of the issue would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1).
41 Subsection 136GC(9)
Omit "presiding member", substitute "person conducting the mediation".
42 Paragraph 136GE(1)(a)
Repeal the paragraph, substitute:
(a) the person conducting the mediation; and
43 Subsection 136GE(3)
Omit "presiding member in the mediation", substitute "person conducting the mediation".
44 Subsection 136H(2)
Omit "Division 4A, Division 4AA", substitute "Division 4 of Part 4, Division 4AA of this Part".
45 Paragraph 138A(a)
Omit "to the Tribunal".
46 Subsection 138B(1)
Omit "President", substitute "Federal Court".
47 Paragraph 138B(1)(a)
Repeal the paragraph, substitute:
(a) on its own motion; or
48 Paragraph 138B(1)(c)
Repeal the paragraph, substitute:
(c) at the request of the person conducting the mediation;
49 Subsection 138B(2)
Omit "President", substitute "Court".
50 Paragraph 138B(2)(a)
Omit "he or she", substitute "the Court".
51 Subsection 138B(3)
Omit "to the Tribunal".
52 Subsection 138C(1)
Omit "President", substitute "Federal Court".
53 Subsection 138D(1)
Omit "directing that an inquiry be held, the President", substitute "beginning the inquiry, the Tribunal".
54 Paragraph 138D(1)(c)
Repeal the paragraph.
55 Subsection 138E(1)
Omit "presiding member", substitute "person conducting the mediation".
56 Subsection 138E(2)
Omit "subsection 136GC(1)", substitute "section 136GC".
57 Subsection 138E(2) (note)
Omit "Subsection 136GC(1) allows the President", substitute "Section 136GC allows the Federal Court".
58 Subsection 176(1)
Omit "136F,".
59 Paragraph 181(2)(a)
Omit "or to a direction of the presiding member under subsection 136F(1)".
60 Paragraph 181(2)(b)
Omit ", or to the presiding member for a direction under section 136F,".
61 Paragraph 181(2)(b)
Omit "or the presiding member".
62 Paragraph 181(3)(a)
Omit "or to a direction of the presiding member under subsection 136F(1)".
63 Paragraph 181(3)(b)
Omit ", or to the presiding member for a direction under section 136F,".
64 Paragraph 181(3)(b)
Omit "or the presiding member".
65 After subparagraph 207B(9)(a)(i)
Insert:
(ia) the provisions of Division 4 of Part 4, other than subsection 94H(1);
66 Subparagraph 207B(9)(a)(iii)
Omit "subsection 136D(1) and".
67 Section 253
Insert:
"mediator" means:
(a) in relation to an application--the person or body to which the application has been referred under subsection 86B(1) for mediation; or
(b) in relation to the whole or a part of a proceeding--the person or body to which the whole or the part of the proceeding has been referred under subsection 86B(5) for mediation.
68 Section 253
Insert:
"person conducting the mediation" means the person mentioned in subsection 94D(2) who conducts a conference under section 94D in relation to the mediation concerned.
Part 2 -- Application provisions
69 Application--subsection 86B(1) of the Native Title Act
Subsection 86B(1) of the Native Title Act 1993 , as inserted by this Schedule, applies in relation to an application under section 61 of that Act made before or after the commencement of this item.
70 Application--subsection 86B(5C) and Division 4 of Part 4 of the Native Title Act
(1) The following provisions of the Native Title Act 1993 , as inserted by this Schedule, apply in relation to a referral under subsection 86B(1) or (5) of that Act made before or after the commencement of this item:
(a) subsection 86B(5C);
(b) any provision of Division 4 of Part 4.
(2) If:
(a) a thing was done under, or for the purposes of, a provision of Division 4A of Part 6 of the Native Title Act 1993 in relation to a mediation; and
(b) the mediation has not been completed before commencement of this item;
the thing has effect, after that commencement, as if it had been done under, or for the purposes of, the corresponding provision of Division 4 of Part 4 of that Act.
71 Application--section 86C and subsections 136GC(2) and 138B(1) of the Native Title Act
The following provisions of the Native Title Act 1993 , as inserted or amended by this Schedule, apply in relation to a mediation that begins before or after the commencement of this item:
(a) section 86C;
(b) subsection 136GC(2);
(c) subsection 138B(1).
72 Referral for review under subsection 136GC(1) of the Native Title Act
If:
(a) an issue was referred for review under subsection 136GC(1) of the Native Title Act 1993 as in force before the commencement of this item; and
(b) the review has not been completed before that commencement;
then, despite the repeal of that subsection by this Schedule, the referral has effect, after that commencement, as if it were a referral under subsection 136GC(2) of that Act as inserted by this Schedule.
73 Direction to hold an inquiry under subsection 138B(1) of the Native Title Act
If:
(a) the Tribunal was directed to hold an inquiry under subsection 138B(1) of the Native Title Act 1993 as in force before the commencement of this item; and
(b) the inquiry has not been completed before that commencement;
then, despite the amendments of that subsection made by this Schedule, the direction has effect, after that commencement, as if it were a direction under subsection 138B(1) of that Act as amended by this Schedule.