Jenny Macklin (Jagajaga, Australian Labor Party, Shadow Minister for Families and Community Services) Share this | Hansard source

I move:

That all words after “That” be omitted with a view to substituting the following words:“whilst not declining to give the bill a second reading, the House:

(1)

notes that the vast majority of the amendments contained in the bill are uncontroversial and supports the intent of the bill to streamline and improve elements of the Native Title Act and the native title application process;

(2)

calls on the government to:

(a)

withdraw proposals which would retrospectively overturn the rights of native title holders; and

(b)

hold consultations with native title holders about these matters;

(3)

believes that it is appropriate that—as Native Title concerns questions of indigenous laws and culture—corporations that include non-Indigenous members not be permitted to act as Prescribed Bodies Corporate whose primary purpose is the administration of native title rights;

(4)

believes that it is appropriate that the Federal Court be the only body that is entitled to appoint default Prescribed Bodies Corporate, and that the Act should reflect this; and

(5)

acknowledges the need to provide statutory authority for the charging of fees by Prescribed Bodies Corporate, but calls upon the government to develop a more appropriate fee regime in consultation with stakeholders”.

The Native Title Amendment (Technical Amendments) Bill 2007 makes a raft of changes to the Native Title Act 1993. I will touch very briefly on the provisions of the bill before I proceed to outline Labor’s general support for the bill. We do have some areas where we have some concerns, and I will go through those.

Schedule 1 will introduce the majority of the changes to this bill. These include amendments to the process for future Indigenous land use agreements and the making and resolving of native title claims, changes to the obligations of the registrar and a range of other changes. Schedule 2 simplifies a range of procedures relating to representative Aboriginal and Torres Strait Islander bodies, ensuring that legal obligations on those bodies are not duplicated, improving processes for reviewing decisions and clarifying the process for transferring documents from a superseded body to a replacement body. Schedule 3 introduces a range of amendments to the operation of prescribed bodies corporate. It will close a loophole relating to the replacement of these prescribed bodies corporate with other PBCs and prescribe a regime for the charging of fees by those prescribed bodies corporate. Schedule 4 is composed entirely of minor technical amendments, and I will not go into those.

As I said earlier, Labor support the vast majority of the changes in this bill and we will be voting for them as they are technical amendments designed to streamline and improve the operation of the Native Title Act rather than radically alter it. However, there are changes which we do not agree with or which, it would probably be more accurate to say, we believe could be clarified and improved in the best interests of all of those who will have to operate under the new scheme. I will start with a concern that was identified in the submissions to the Senate committee—that is, the new fee system that is proposed in schedule 3 of this bill. Labor can certainly understand the argument in favour of having a fee regime. The bodies are performing a statutory function, and as such it is certainly reasonable to expect at least some level of statutory prescription of fees.

According to the bill, the scheme would work in this way: a registered native title body corporate would be entitled to charge a fee for the costs it incurs for certain negotiations—including negotiations for a ‘right to negotiate’ agreement, or its equivalent under a state or territory scheme, or negotiations for an Indigenous land use agreement. A body corporate will be entitled to charge fees for costs it incurs in these negotiations. There are a limited number of persons whom it cannot charge a fee. They are set out in subsection 60AB(4). There are also certain types of negotiations for which a body corporate would not be entitled to charge a fee, and the ability to prescribe by regulation other circumstances for which a fee cannot be charged.

Concerns were raised in submissions to the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs on this bill that the proposed fee scheme represented a restriction rather than a facilitation of the ability for bodies corporate to charge fees. However, the Department of Families, Community Services and Indigenous Affairs has indicated otherwise. Evidence given by their representatives at the Senate inquiry persuasively argued that statutory bodies are, by law, required to either have explicit or implied authority to charge fees. Our problems with section 60AC revolve around the fact that it provides that a person who has been charged a fee may go to the registrar to obtain an opinion about whether or not the fee is payable. The registrar then gives an opinion which may agree or disagree that the fee is payable. If the registrar decides that the fee is not payable, that opinion is binding on the body corporate.

This section also provides that the regulations may set out the scheme in greater depth. In any event, it is our view that there are still quite a few unanswered questions about the fee system that, at this stage, preclude our ability to support it. These questions include: is there a right of merits review for a native title body that believes the registrar has made an incorrect decision; will the regulations set fee scales; what procedures will the registrar have in place to assess the matters that are brought before it; what assurances are there that it will make consistent decisions; will it be a practice of the registrar to give an opinion which includes what they think to be an appropriate fee; if so, will this eventually evolve into a situation where the registrar effectively acts as a de facto agency which sets fees? Other questions of this nature present themselves and they need to be answered before the scheme can be supported. I say again that we understand why such a scheme is necessary—but those interests have to be weighed against the competing interests of registered native title bodies corporate to sustain themselves and to be viable into the long term.

At the moment, the fee scheme does not seem to address these issues. It seems to be too vague and arbitrary and potentially shifts far too much power onto the registrar, leaving the registered native title bodies corporate without certainty. Labor will move amendments to this section in the Senate in order to give such bodies corporate more flexibility in setting fees—as long as such fees are reasonable. However, we will not be moving to strike either section from the bill. Section 60AB is necessary to allow the statutory authority to charge fees, but it is incumbent on the government to develop a workable system and to bring that before the parliament. It would be helpful if the government were to withdraw this item and devise a proper and more comprehensive process for the review of fees that sets out the rights of each participant and how they might exercise those rights. As I have previously said, we understand the need and the arguments for some level of regulation of fees, but there needs to be greater scope for a reasonable level of fees to be charged.

A second area of contention in the bill relates to the provisions in the act which deal with cases in which applicants are found not to be properly authorised. As members of the House may know, certain types of native title claims and applications must be made by a person who has been properly authorised. The problem under the current regime is that there is no clear indication of what would happen if it were to become clear during the proceedings that the applicant was not properly authorised. The proposed scheme, which we broadly support, would fix and clarify this situation. It would allow for the court to make an order that evidence must be produced by an applicant to show that they were authorised to make the application. If the court were to determine that the person was not authorised to make the application, they could make a range of orders. The court would also be entitled to continue to hear and determine the applications if it believed that such a course of action were in the interests of justice. Labor supports these provisions, and I note from submissions to the Senate inquiry that the provisions are supported and welcomed by the stakeholders. However, one suggestion that was made in submissions which we believe has merit and should be adopted is that a person who is making an application to the court for an order to produce evidence be required to show cause as to why it should be made. This would help to make sure that such applications are not open to abuse.

The third area of difficulty with this bill relates to the potential for non-Indigenous persons to be members of bodies corporate which oversee native title rights for native title holders. Native title is an area which is distinctly indigenous and is based on Indigenous customs and laws. It is appropriate that this section be clarified to make sure that only corporations with solely Indigenous members are entitled to become prescribed bodies corporate.

Labor will also move amendments in the Senate to alter the right of review which has been introduced in these amendments. The bill before us introduces a provision which allows for registration applications that have been rejected by the registrar to be reviewed by the registrar. Labor support the introduction of these registration provisions, but we believe that they could be improved. Specifically, we follow the submissions of the Native Title Tribunal, which argued that it would be more appropriate for a member of their body to review the rejected applications rather than the registrar who, after all, would have been responsible for the original rejection. Evidence given to the Senate committee by the North Queensland Land Council supported this proposal. In the Senate we will move amendments in line with these proposals. They are sensible and will improve the bill by giving failed applicants much greater confidence in the process. The review will not be carried out by the same body that rejected it, but by a fresh pair of eyes.

I will turn now to the proposed amendments that deal with and validate alternative state regimes. As the submission by the Human Rights and Equal Opportunities Commission pointed out, there are concerns that this section would act to retrospectively remove the rights of native title holders. As such, we believe that these items that relate to the validation of the alternative state regimes should be delayed pending consultation with native title holders.

Finally, I turn to the issue of the new provisions for default prescribed bodies corporate. The new provisions essentially allow for the appointment of prescribed bodies corporate in circumstances where no functioning body corporate has been nominated by the native title holders. This will mean that the functions that a prescribed body corporate normally undertakes will continue to operate in circumstances where, for a variety of reasons, they currently do not. However, there are some issues with this scheme. The main concern is that the regulations will allow not only the prescription of the types of bodies corporate that may be determined as a default PBC under this scheme but also the exact bodies corporate. The Human Rights and Equal Opportunities Commission has described this, in evidence to the Senate committee inquiry, as a radical shift from the current policy on two grounds: firstly, because it moves the power away from the courts and, through regulations, to the government and, secondly, because the legislation as it stands will provide scope for the government, in future, to actually prescribe the exact body corporate that will be the PBC.

I note that the response of the department was to indicate that they do not believe that these powers will ever be exercised by a body other than a court, so I foreshadow now that Labor intends to move amendments to the bill to make sure that this intention is in fact captured in the legislation. Labor will move amendments to restrict these provisions in the bill and make sure that the Federal Court remains the body that deals with the determination of prescribed bodies corporate.

Despite the concerns I have outlined, I indicate again that Labor support this bill. We believe that it can be only a positive development towards cutting down the time it takes for native title matters to be resolved. I think that is in everybody’s interests. I foreshadow that Labor will move amendments in the Senate in line with those I have outlined in my remarks. We do so because we believe it will improve the operation of the bill rather than radically alter it. When the amendments are moved in the Senate, I hope the government will recognise that they have been moved with that intention.

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