Commonwealth Numbered Regulations - Explanatory Statements Commonwealth Numbered Regulations - Explanatory Statements[Index] [Search] [Download] [Related Items] [Help]
NATIONAL NATIVE TITLE TRIBUNAL REGULATIONS 1993 NO. 380
EXPLANATORY STATEMENTStatutory Rules 1993 No. 380
Issued by the authority of the Attorney-General
Native Title Act 1993
National Native Title Tribunal Regulations
Regulation 1 states that the proposed regulations will be called the National Native Title Tribunal Regulations.
Regulation 2 provides that the regulations commence on 1 January 1994.
Regulation 3 is interpretative. Subregulation 3(1) provides that in the regulations, unless the contrary intention appears:
(a) "Act" means the Native Title Act 1993;
(b) "lodge an address for service", in relation to a person, means give to the Registrar notice in writing of an address to which documents for the person may be sent.
Subregulation 3(2) indicates that where the regulations refer to a form by number, this is a reference to the form in Schedule 1 which has that number.
Regulation 4 provides for the forms to be used in making certain applications. Subregulation 4(1) provides for the forms to be used when making the following applications under subsection 61 (1):
• a native title determination application - Form 1;
• a revised native title determination application - Form 2;
• a compensation application - Form 3.
Subregulation 4(2) provides for the forms to be used when making the following applications under subsection 75(1):
• an objection to inclusion in an expedited procedure application - Form 4;
• a future act determination application - Form 5.
All forms are contained in Schedule 1.
Regulation 5 provides for the information to be included when lodging applications. Subregulation 5(1) provides that the following information is prescribed for the purposes of subsection 61(2) when making the following applications:
• a native title determination application - the information specified in Form 1;
• a revised native title determination application - the information specified in Form 2;
• a compensation application - the information specified in Form 3.
Subregulation 5(2) provides that the following information is prescribed for the purposes of subsection 75(2) when making the following applications:
• an objection to inclusion in an expedited procedure application - the information specified in Form 4;
• a future act determination application - the information specified in Form 5.
Regulation 6 provides for the documents which must accompany applications. Subregulation 6(1) provides that, for the purposes of subsection 62(2), the following documents must accompany the following applications made under subsection 61 (1):
• a native title determination application - the documents specified in Form 1;
• a revised native title determination application - the documents specified in Form 2;
• a compensation application - the documents specified in Form 3.
Subregulation 6(2) provides that, for the purposes of section 76, the following documents must accompany the following applications made under subsection 75(1):
• an objection to inclusion in an expedited procedure application - the documents specified in Form 4;
• a future act determination application - the documents specified in Form 5.
Regulation 7 sets out the fee which must generally be paid when an application is lodged. The level of the fee is the same as that prescribed for lodging an application with the Administrative Appeals Tribunal. A fee of $300 is payable for the purposes of -
• subsection 62(2), which relates to applications under subsection 61 (1) for a native title determination, a revised native title determination or compensation; and
• section 76, which relates to applications under subsection 75(1) for an objection to inclusion in an expedited procedure and a future act determination.
Regulation 8 exempts an application from payment of the $300 fee if the person who would otherwise be liable to pay the fee:
(a) is granted legal aid under a legal aid scheme or service established under Commonwealth, State or Territory law or approved by the AttorneyGeneral;
(b) is the holder of a pensioner health benefit card, a health benefit card, a pharmaceutical benefits concession card or a health care card; or
(c) is an inmate of a prison or is otherwise lawfully detained in a public institution.
Regulation 9 provides for the refund of the $300 fee:
• where the fee was not payable, or
• where a determination is made under section 160 or 162 of the Act in relation to an application made under section 61 or 75 of the Act and the Tribunal certifies that the proceedings to which the fee relates terminated in a manner favourable to the applicant.
It also provides for the refund of the fee where:
• the application to which the fee relates has not been accepted by the Registrar under section 63, 64 or 77 of the Act; and
• after the application is made, a body is determined as a recognised State/Territory body under section 251 of the Act; and
• the applicant has requested the Registrar to treat the application as withdrawn so that an application may be lodged with the recognised State/Territory body; and
• the application is treated as Withdrawn by the Registrar; and
• evidence is produced that an application has been lodged with the recognised State/Territory body.
Regulation 10 provides that the form set out in Schedule l as Form 6 may be used by a person who wishes to become a party to a matter before the Tribunal and is required under paragraph 68(2)(b) or subsection 141(3) to notify the Registrar of that wish. That form is provided simply as a guide. The Act does not require that the notice be in a particular form although it must be in writing.
Regulation 11 provides that where a person is summoned to appear before the Tribunal or to produce documents, the summons must be in the form set out in Form 7 of Schedule 1.
Regulation 12 provides for lodging of addresses for service. Subregulation 12(1) provides that a person may lodge an address for service, and at any time after lodging an address for service, lodge a new address for service. Subregulation 12(2) provides that if a person lodges a new address for service, that address becomes the person's address for service.
Regulation 13 provides the manner in which a summons to appear before the Tribunal to give evidence or to produce documents must be served before a person can be prosecuted under section 171 for a failure to attend to give evidence or under section 174 for a failure to produce documents. Subregulation 13(2) provides that a document may be served on a person by personal service in accordance with subregulation 13(3), (4), (5) or (6) as the case requires or by post in accordance with subregulation 13(7).
Subregulation 13(3) provides that a document may be served on an individual by both
• handing a copy of the document to the individual; or
• by putting the document down in his or her presence,
and telling him or her of its general nature.
Subregulation 13(4) provides that where a person has lodged an address for service, that person may be served with a document by handing a copy of the document to any person at that address who apparently lives or works there, and is apparently at least 16 years old.
Subregulation 13(5) provides that where a person has not lodged an address for service for his or her last known residential or business address, a document may be served on that person by handing a copy of the document to a person who apparently lives or works there, and is apparently at least 16 years old.
Subregulation 13(6) provides that a document may be served on a corporation, that has not lodged an address for service, at its registered office by handing a copy of the document to a person who apparently lives or works there, and is apparently at least 16 years old.
Subregulation 13(7) provides that a document may be served on a person by post as a letter addressed to the person at the address that is the person's address for service or, if the person has not lodged an address for service:
• in the case of an individual - at his or her residential or business address last known to the person serving the document; or
• in the case of a corporation - at its registered office.
Subregulation 13(8) provides that where a document is served by post in accordance with subregulation 13(7), the document is taken to be served on the day on which it is posted.
Regulation 14 provides for the fees, and allowances for expenses, which must be paid to a person, other than a party, who is summoned to appear before the Tribunal to give evidence. Regulation 14 provides that the person must be paid the fee and allowances set out in Schedule 2.
Regulation 15 provides for the fee payable to inspect the Registers. Subregulation 15(1) provides that the fee for inspecting the Register of Native Title Claims and the National Native Title Register is $20 for each search. This level of fee is broadly similar to that payable for searching a title register. Subregulation 15(2) provides that a fee is not payable if the Registrar, having regard to the income, day to day living expenses, liabilities and assets of the person who is otherwise liable to pay the fee, waives the fee on the ground that payment of the fee would impose financial hardship on the person.
Schedule 1 contains the forms for the purposes of the Act and regulations.
Schedule 2 contains the witness fees and allowances for the purpose of regulation 14. Clause 1 provides that where a person is summoned to appear as a witness before the Tribunal because of his or her professional, scientific or other special skill or knowledge, the person must be paid:
• if the person is remunerated in his or her occupation by wages, salary or fees - an amount equal to the amount of wages, salary or fees not paid to the person because of his or her attendance in accordance with the summons; and
• if the above does not apply to the person - $320 for each day on which he or she attends.
The $320 fee is within the range payable to a similar witness appearing before the Administrative Appeals Tribunal.
Clause 2 provides that where a person is summoned to appear as a witness, except a witness referred to in clause 1, before the Tribunal, the person must be paid:
• if the person is remunerated in his or her occupation by wages, salary or fees - an amount equal to the amount of wages, salary or fees not paid to the person because of his or her attendance in accordance with the summons; and
• if the above does not apply to the person - $80 for each day on which he or she attends.
The $80 fee is within the range payable in similar circumstances to a witness before the Administrative Appeals Tribunal. The level of fees payable will be reviewed to determine their appropriateness after some experience has been gained in the operation of the Act.
Clause 3 provides that where a person is summoned to appear as a witness before the Tribunal, the person must be paid an amount equal to the amount spent by the person for:
• the transportation of the person directly between his or her usual place of residence and the place that he or she attends in accordance with the summons; and
• if, in accordance with the summons, the person is required to be absent overnight from his or her usual place of residence - his or her meals and accommodation during the absence.