Native Title Legislation Amendment Bill 2019 [2019] AUSStaCSBSD 135 (13 November 2019)

• Native Title Legislation Amendment Bill 2019
• Retrospective application 38

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Native Title Legislation Amendment Bill 2019

Purpose	This bill seeks to amend the Native Title Act 1993 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 to modify the native title claims resolution, agreement-making, Indigenous decision making and dispute resolution processes
Portfolio	Attorney-General
Introduced	House of Representatives on 17 October 2019

Retrospective application ^[38]

1.70 Schedule 9 to the bill deals with the validation of section 31 agreements made on or before the commencement of the Act. Section 31 agreements are agreements made under section 31 of the Native Title Act 1993, which deals with the normal negotiation procedure for agreements made under that Act.

1.71 In McGlade v Native Title Registrar^[39] (McGlade), the Full Federal Court held that it was necessary for all members of a 'registered native title claimant' to sign an Indigenous Land Use Agreement for that agreement to be validly registered by the Native Title Registrar. The statement of compatibility to this bill states:

The reasoning in McGlade could similarly affect section 31 agreements, which primarily relate to the grant of mining and exploration rights over land which may be subject to native title, and the compulsory acquisition of native title rights.^[40]

1.72 In Scrutiny Digest 3 of 2017, the committee commented on the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, which contained amendments to retrospectively validate Indigenous Land Use Agreements made prior to the decision in McGlade. The committee stated that the fact that a court overturns previous authority is not, in itself, a sufficient basis for Parliament to retrospectively reinstate the earlier understanding of the previous legal position. In saying this, the committee recognised that when precedent is overturned this itself necessarily has a retrospective effect and may overturn legitimate expectations about what the law requires. Nevertheless, the committee considered that where Parliament acts to validate decisions which are put at risk, in circumstances where previous authority has been overturned, it is necessary for Parliament to consider:

• whether affected persons will suffer any detriment by reason of the retrospective changes to the law and, if so, whether this would lead to unfairness; and

• that too frequent resort to retrospective legislation may work to sap confidence that the Parliament is respecting basic norms associated with the rule of law.

1.73 The committee considers that the same considerations would apply in relation to the proposed retrospective validations of section 31 agreements by this bill.

1.74 In justifying the retrospective application of the amendments, the statement of compatibility states:

Section 31 agreements underpin commercial operations and provide benefits for affected native title groups. The uncertainty created by their potential invalidity poses a significant risk to both those commercial operations and the benefits flowing to native title groups. Potential challenges to section 31 agreements may also divert resources away from finalising native title claims to litigate affected agreements and
re-negotiate agreements that are already significantly resource-intensive.^[41]

1.75 The committee notes this explanation and acknowledges the statement that the majority of stakeholders favoured the retrospective validation of agreements. However, no detail is provided about whether there will be any detrimental effect to any involved parties. The committee reiterates that it has long-standing scrutiny concerns about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has particular concerns if the legislation will, or might, have a detrimental effect on individuals. The committee considers that the explanatory materials have not adequately addressed this issue.

1.76 Noting the committee's scrutiny concerns regarding the retrospective validation of certain native title agreements, the committee requests the

Attorney-General's more detailed advice as to the necessity and appropriateness of retrospectively validating section 31 agreements, including more detailed information regarding whether there will be a detrimental effect to any involved parties.

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[38] Schedule 9, item 2. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[39] [2017] FCAFC 10.

[40] Statement of compatibility, p. 14.

[41] Statement of compatibility, p. 15.