Commonwealth Numbered Acts Commonwealth Numbered Acts1 Paragraphs 28(2)(a) and (b)
Repeal the paragraphs, substitute:
(a) in a case where an amount is to be secured by bank guarantee in favour of the Registrar in compliance with a condition of a determination made under section 36A or 38 or a declaration made under section 42:
(i) the Registrar is informed by the Government party as mentioned in item 2 of the table in subsection 52(2) that it no longer proposes to do the act; and
(ii) the Government party does the act without again complying with the requirements of this Subdivision; or
(b) in a case where a trustee is holding an amount in trust under this Subdivision in respect of the act until it is dealt with in accordance with section 52A:
(i) the trustee is informed by the Government party as mentioned in paragraph 52A(1)(b) that it no longer proposes to do the act; and
(ii) the Government party does the act without again complying with the requirements of this Subdivision.
2 After subsection 36C(5A)
Insert:
Trust condition
(5B) If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:
(a) the arbitral body must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.
Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.
3 At the end of section 41
Add:
Trust condition
(5) If, in the case of a determination by the arbitral body, a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:
(a) the arbitral body must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.
Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.
4 After subsection 42(5A)
Insert:
Trust condition
(5B) If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:
(a) the arbitral body concerned must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.
Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.
5 Paragraph 43(2)(j)
Repeal the paragraph, substitute:
(j) make appropriate provision for compensation for the act, including provision for:
(i) bank guarantees on similar terms to those in subsections 36C(5), 41(3) and 42(5), and regulations made for the purposes of subsections 36C(5A), 41(4) and 42(5A); or
(ii) for trusts on similar terms to those in subsections 36C(5B), 41(5) and 42(5B); and
6 Subsection 52(2) (paragraph (a) in column 3 of table item 5)
Omit "the amount secured (the original amount )", substitute "an amount equal to the amount determined".
7 Subsection 52(2) (paragraph (b) in column 3 of table item 5)
Omit "an amount equal to the amount determined", substitute "that amount".
8 Subsection 52(2) (paragraph (c) in column 3 of table item 5)
Repeal the paragraph, substitute:
|
(c) direct the ADI to cancel the guarantee. |
9 After section 52
Insert:
52A Payment held in trust under right to negotiate procedures
When section applies
(1) This section applies if an amount (the trust amount ) in respect of an act is being held in trust in accordance with paragraph 36C(5B)(b), subsection 41(5) or paragraph 42(5B)(b) and any of the following happens:
(a) an approved determination of native title is made to the effect that there is no native title in relation to the area concerned immediately before the act takes place;
(b) the Government party informs the trustee in writing that it is not going to do the act;
(c) the following requirements are satisfied:
(i) an approved determination of native title is made to the effect that the native title parties concerned are (disregarding any holding of the native title in trust under Division 6) the native title holders in relation to the area affected by the act;
(ii) the registered native title body corporate advises the trustee that it wishes to accept the trust amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act;
(iii) the person who paid the trust amount advises the trustee that the person agrees to the registered native title body corporate accepting the trust amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act;
(d) a determination is made, on a claim for compensation in respect of the act:
(i) in accordance with this Division; or
(ii) on just terms under a compulsory acquisition law;
that a person is entitled to compensation, or that no compensation is payable to any person;
(e) none of paragraphs (a), (b), (c) and (d) applies and the Federal Court decides, on application by any person, that it would be just and equitable in all the circumstances to pay the trust amount to that person or another person.
Paragraph (1)(a) or (b) case
(2) In a paragraph (1)(a) or (b) case, the trustee must:
(a) repay the trust amount to the person who paid it to the trustee; or
(b) if that person no longer exists--apply to the Federal Court for a direction as to the payment of the trust amount.
Paragraph (1)(c) case
(3) In a paragraph (1)(c) case:
(a) the trustee must pay the trust amount to the body corporate; and
(b) subject to section 53, there is no entitlement to compensation under Division 3 for the act.
Paragraph (1)(d) case where monetary compensation
(4) In a paragraph (1)(d) case where the determination is that a person is entitled to an amount of monetary compensation:
(a) if the trust amount is the same as the amount determined--the trustee must pay the trust amount to the person; or
(b) if the trust amount is less than the amount determined--the trustee must pay the trust amount to the person and the Government party must pay the shortfall to the person; or
(c) if the trust amount is more than the amount determined--the trustee must:
(i) pay the person so much of the trust amount as equals the amount determined; and
(ii) refund the excess to the person who paid the trust amount to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.
Paragraph (1)(d) case where non‑monetary compensation
(5) In a paragraph (1)(d) case where the transfer of property or the provision of goods or services constitutes some or all of the compensation, the trustee must apply to the Federal Court for a direction as to the payment of the trust amount.
Paragraph (1)(d) case where no compensation
(6) In a paragraph (1)(d) case where the determination is that no compensation is payable or to be given to any person, the trustee must repay the trust amount to the person who paid it to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.
Paragraph (1)(e) case
(7) In a paragraph (1)(e) case, the trustee must pay the trust amount in accordance with the decision of the Federal Court mentioned in that paragraph.
10 Section 55
After "time as", insert ", or as soon as practicable after,".
11 Section 55
Omit "the determinations in", substitute "such determinations as are required by".
12 Section 55
Omit "or 57", substitute "and 57".
13 Paragraph 66C(1)(c)
Omit "in relation to the applicant", substitute "for each future act identified in the future act notice referred to in that paragraph".
14 Subsections 171(1) and 172(1) (penalty)
Omit "Maximum Penalty", substitute "Penalty".
15 Section 173 (penalty)
Omit "Maximum Penalty", substitute "Penalty".
16 Subsections 174(1) and 176(1) (penalty)
Omit "Maximum Penalty", substitute "Penalty".
17 Section 177 (penalty)
Omit "Maximum Penalty", substitute "Penalty".
Part 2 -- Application etc. provisions
18 Application of amendment
The amendment made by item 5 of this Schedule applies in relation to:
(a) the making of a determination under paragraph 43(1)(b) of the Native Title Act 1993 after the commencement of this item; and
(b) the revocation after the commencement of this item of such a determination whether made before or after that commencement.
19 Validation etc. of pre‑commencement determinations
(1) A determination made under paragraph 43(1)(b) of the Native Title Act 1993 before the commencement of this item is as valid, and is taken always to have been as valid, as it would have been if paragraph 43(2)(j) of that Act, as inserted by this Schedule, had been in force at the time the determination was made.
(2) For the purposes of subsection 43(3) of that Act, paragraph 43(2)(j) of that Act, as inserted by this Schedule, is taken:
(a) to have been in force when the determination was made; and
(b) to have remained in force until the commencement of this item.
[ Minister's second reading speech made in--
House of Representatives on 19 March 2009
Senate on 15 June 2009 ]
|
(50/09) |