Native Title (Assistance from Attorney-General) Guideline 2012 [F2012L02564]-Concluded Matters [2013] AUSStaCSDLM 119 (21 March 2013)

• Native Title (Assistance from Attorney-General) Guideline 2012 [F2012L02564]
• Unclear term

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Native Title (Assistance from Attorney-General) Guideline 2012 [F2012L02564]

Purpose	To be applied in authorising the provision of financial assistance under section 213A of the Native Title Act 1993
Last day to disallow	15 May 2013
Authorising legislation	Native Title Act 1993
Department	Attorney-General's

ISSUE:

Unclear term

The guideline sets out how the Attorney-General is to make decisions about providing financial assistance to native title claimants. Section 4.2 of the guideline provides that a decision maker must not authorise the provision of financial assistance for costs incurred before a complete application for assistance has been received unless there are 'exceptional circumstances'. However, there is no guidance or examples as to what might constitute exceptional circumstances, and the committee considers that this could be a potentially uncertain criteria [the committee sought further information from the Attorney-General].

MINISTER'S RESPONSE:

The Minister for Emergency Management responded, advising that there would be limited circumstances where an applicant would be unable to complete an application before incurring costs. The term 'exceptional circumstances' had therefore been intentionally left undefined to avoid creating expectations that costs would be covered in certain circumstances, and to allow the decision maker to exercise his or her discretion in cases where a strict application of the policy would produce an unfair result. The minister further advised that section 4.2 of the guideline was consistent with the Commonwealth guidelines for legal financial assistance, which were applied in a number of comparable financial assistance schemes. In general, the minister expected that requests for assistance based on a claim of 'exceptional circumstances' would be assessed with reference to whether it would be unreasonable to refuse assistance due to severe time constraints, where an applicant experiences difficulty in being able to submit an application, or where procedural issues mean it would be unfair to refuse assistance with the payment of retrospective costs.

COMMITTEE RESPONSE:

The committee thanks the minister for his response and has concluded its interest in the matter.