Gary Nairn (Eden-Monaro, Liberal Party, Special Minister of State) Share this | Hansard source

On behalf of the Attorney-General, I would like to thank the members for their contributions to the debate on the Native Title Amendment (Technical Amendments) Bill 2007. I also thank the Senate Standing Committee on Legal and Constitutional Affairs for its detailed consideration of the bill. I note that the committee has made several recommendations in its report, which was tabled last night. The government will be carefully considering these recommendations, and any government amendments resulting from the committee’s recommendations will be made in the Senate.

Since the Attorney-General first announced a package of reforms to the native title system in September 2005, a substantial number of measures have been developed and are now being implemented. These include the Native Title Amendment Act 2007, which commenced in April this year and implements changes to the institutional framework of the native title system, along with changes to native title representation bodies and prescribed bodies corporate. This second piece of legislation will complement those changes by making a large number of minor and technical amendments to the Native Title Act to improve the workability of the act as a whole. The measures in the bill cover a broad spectrum of processes in the act, including Indigenous land use agreements, future acts, processes for making and resolving native title claims and the obligations of the registrar in relation to the registration of claims. As I said, the government will deal with the recommendations from the Senate committee as part of the Senate deliberations on this bill.

I would like to make a few comments on those and also on the amendment moved by the member for Jagajaga. The bill allows prescribed body corporates, PBCs, to charge for negotiating agreements and Indigenous land use agreements, ILUAs. There will be no schedule of fees and no prescription of things that can be charged for. The bill therefore allows maximum flexibility for parties to negotiate fees between themselves. The only limit on fees is that they must not be such as to amount to taxation. For a fee to avoid being a tax, it must be imposed in respect of a service to be delivered to the persons required to pay the fee. In practical terms, this is similar to requiring that a fee be reasonable for services provided.

The bill amends provisions dealing with replacement of PBCs, including where this occurs in accordance with the native title holder’s wishes. The new provisions are similar in scope to existing provisions, which do not specify that replacement of PBCs must be effected via a Federal Court determination. However, as a practical matter, it is likely that the regulations would give the Federal Court this role. The bill does not alter the existing situation whereby only the Federal Court can determine a PBC in connection with the making of a native title determination or where the native title holders fail to nominate a PBC in connection with the making of a native title determination. There will be further consultation on relevant regulations.

The Australian government has foreshadowed changes to the PBC regulations to allow non-native-title holders to be members of a PBC. This will enable PBCs to better represent the interests of wider Indigenous communities if this is what the native title holders want. It will also allow PBCs to include non-Indigenous people—for example, family members—in PBC decision making if this is what the native title holders want. It will be up to the native title holders to decide these matters. If the native title holders only want native title holders or other Indigenous people to be members, they will be perfectly free to impose these requirements. The Australian government has also clearly indicated that, regardless of a PBC’s membership, only native title holders would have a right to be involved in making native title decisions. There will be further consultation on relevant regulations.

The amendments in this bill are designed to put beyond doubt the validity of the current South Australian section 43 determinations in relation to mining and opal mining, which had the effect of replacing the Native Title Act right to negotiate provisions with a right to negotiate regime under South Australian legislation. I understand the South Australian regimes have been operating effectively for over 11 years.

The Senate Standing Committee on Legal and Constitutional Affairs has noted its support for the enactment of these provisions given that the amendments simply seek to place on a firm footing the understanding that parties have been operating under to date. It is in the interests of all parties that there is certainty about the way the provisions operate, and this is what the amendments in this bill will achieve.

In conclusion, it is important to note that the technical amendments have been the subject of extensive consultation and that the majority of measures in this bill reflect issues raised by stakeholders themselves following a consultation process spanning more than a year. As the measures in this bill reflect the practical knowledge of those who are involved in the native title system on a day-to-day basis, the Attorney-General expects that the amendments before the parliament will enable workable improvements to native title processes. I commend the bill to the House.

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