House debates
Wednesday, 28 March 2007
Native Title Amendment Bill 2006
Consideration of Senate Message
Consideration resumed from 27 March.
Senate’s amendments—
(1) Schedule 1, page 4 (after line 24), after item 6, insert:
6A Subsection 203A(1)
Repeal the subsection, substitute:
(1) Subject to section 203AA, the Commonwealth Minister may:
(a) invite applications from eligible bodies, in the way determined in writing by the Commonwealth Minister, for recognition as the representative body for an area; or
(b) invite an eligible body, in writing, to make an application for recognition as the representative body for an area.
6B Subsection 203A(2)
After “for which”, insert “an application or”.
6C Subsection 203A(3)
After “within which”, insert “the application or”.
(2) Schedule 1, item 7, page 4 (lines 27 to 30), omit subsection 203A(3A), substitute:
(3A) The invitation may specify the period for which an eligible body would be recognised, if the body successfully applied for recognition. The period must be:
(a) unless subsection (3B) applies, of no less than 2 years; and
(b) of no more than 6 years.
(3B) The period specified may be of less than 2 years, but no less than 1 year, if:
(a) the body is under external administration; or
(b) a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body; or
(c) the Commonwealth Minister is of the opinion that specifying a period of that length would promote the efficient performance of the functions mentioned in subsection 203B(1).
(3) Schedule 1, page 4 (after line 30), after item 7, insert:
7A Subsection 203A(4)
Omit “under subsection (1) for inviting applications”, substitute “under paragraph (1)(a) for inviting applications from eligible bodies”.
(4) Schedule 1, item 8, page 5 (lines 27 to 29), omit subsection 203AA(3), substitute:
(3) The invitation must specify the period for which the body would be recognised, if an application were made. The period specified must be:
(a) unless subsection (3A) applies, of no less than 2 years; and
(b) of no more than 6 years.
(3A) The period specified may be of less than 2 years, but no less than 1 year, if:
(a) the body is under external administration; or
(b) a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body; or
(c) the Commonwealth Minister is of the opinion that specifying a period of that length would promote the efficient performance of the functions mentioned in subsection 203B(1).
(5) Schedule 1, page 6 (after line 8), after item 8, insert:
8A Subsection 203AB(1)
Repeal the subsection, substitute:
(1) Subject to subsection (3), an eligible body may apply to the Commonwealth Minister, in the form approved by the Commonwealth Minister, for recognition as the representative body for the area, or for one or more of the areas, in respect of which:
(a) the body has been invited under section 203A to make an application; or
(b) eligible bodies have been invited under section 203A to make applications.
(6) Schedule 1, item 14, page 7 (after line 12), after subsection 203AD(1A), insert:
Instrument recognising body not disallowable
(1B) Section 42 of the Legislative Instruments Act 2003 does not apply to a legislative instrument made under subsection (1A).
(7) Schedule 1, item 15, page 8 (lines 12 to 16), omit paragraph 203AD(2D)(b), substitute:
(b) if the body applied for recognition on the basis of an invitation in which no period of recognition was specified—the period of recognition specified in the instrument of recognition must be:
(i) unless subsection (2E) applies, of no less than 2 years; and
(ii) of no more than 6 years.
(2E) The period specified may be of less than 2 years, but no less than 1 year, if:
(a) the body is under external administration; or
(b) a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body; or
(c) the Commonwealth Minister is of the opinion that specifying a period of that length would promote the efficient performance of the functions mentioned in subsection 203B(1).
(8) Schedule 1, item 43, page 16 (lines 11 to 20), omit the item.
(9) Schedule 1, Part 1, page 22 (after line 6), at the end of the Part, add:
Legislative Instruments Act 2003
47A Subsection 54(2) (table item 26)
Omit “section 203AD, 203AE, 203AF or 203AG, subsection 203AH(1) or (2),”, substitute “subsection”.
(10) Schedule 2, item 35, page 31 (lines 4 to 6), omit subparagraph 87A(1)(c)(iii).
(11) Schedule 2, item 52, page 39 (table item 3), omit the table item, substitute:
3 | a party that is provided with funds by the Attorney-General under section 183 | the Attorney- General |
(12) Schedule 2, item 53, page 44 (after line 15), at the end of subsection 136GE(1), add:
However, the findings of the review are not binding on any of the participating parties.
(13) Schedule 2, item 62, page 49 (line 11), after “so”, insert “and the consent of the parties has been obtained”.
(14) Schedule 2, item 73, page 51 (lines 28 and 29), omit the heading to subsection 190D(6), substitute:
Where all avenues for review of Registrar’s decision exhausted
(15) Schedule 2, item 73, page 52 (lines 6 to 13), omit paragraph 190D(6)(b), substitute:
(b) the Court is satisfied that the avenues for:
(i) the review under this section of the Registrar’s decision; and
(ii) the review of orders made in the determination of an application under this section; and
(iii) the review of the Registrar’s decision under any other law;
have all been exhausted without the registration of the claim.
5:51 pm
Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source
I move:
That the amendments be agreed to.
I would just like to thank the members of the House as well as those in the Senate for their contributions. I make the point in particular in thanking them that the Senate amendments to the Native Title Amendment Bill 2006 were to implement one of the Senate Legal and Constitutional Affairs Committee reports and its detailed consideration. I do not wish to detain the House by outlining the detailed amendments. These amendments were as a result of very careful consideration. The native title system is inherently complex. While the existing regime provides a sound framework for resolution of native title issues, it needs to deliver outcomes more quickly, and the amendments made to the bill, along with other amendments in the package of native title reforms which we will be introducing shortly, are aimed at delivering better outcomes for all parties in the native title system. I commend the amended bill to the House.
5:53 pm
Jenny Macklin (Jagajaga, Australian Labor Party, Shadow Minister for Families and Community Services) Share this | Link to this | Hansard source
Obviously we are here noting and debating the government’s amendments to the Native Title Amendment Bill 2006 that have been introduced in the Senate and have come back here for our consideration. Unfortunately, from our point of view, these amendments do not even scrape the surface in fixing the problems with the bill, which I highlighted when the bill was last debated in the House.
Firstly, I just want to draw attention to the continuing problems with the bill as it still stands, particularly in relation to periodic recognition. We are opposed to periodic recognition of native title representative bodies. We understand—unfortunately the government does not seem to—that these bodies are representative institutions and we should be promoting their independence, not increasing their dependency on bureaucracy and the minister. I think the important thing to note is that these bodies already report against performance indicators in their funding agreements. They are already regulated by the Office of the Registrar of Aboriginal Corporations. The minister has the power to withdraw recognition if a body is poorly performing. So in our view the periodic recognition that the minister is proposing to impose is over the top and unnecessary. I know the minister is aware that an average native title claim takes about six years. So one of the most important things in this area is stability; not only for the native title system itself but for the social and economic development agendas of these institutions. We are certainly all for accountability but in my view this is not about accountability; it really is just going to make life more difficult for these native title representative bodies.
We made a number of constructive amendments to the bill when it was in the Senate, and these were based on various submissions to the Senate inquiry. Unfortunately, all but one of these amendments were rejected by the government. I am pleased that the government did support one amendment: that the parties’ consent was required for the tribunal to make a hearing public. There is no question that that was a positive amendment that we put forward and I am pleased that the government has agreed to it. This was a change that drew upon a recommendation from the Aboriginal and Torres Strait Islander Commissioner.
We had a number of other constructive amendments, which unfortunately have not been adopted. For example, we wanted to make sure that only corporations registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 would be eligible to apply for recognition as a representative body because as a result of the government’s bill all corporations—both mainstream and Indigenous—will be eligible to apply. We also had an amendment to make it possible for prescribed body corporates to apply for funding in much the same way that native title rep bodies do. The government’s rejection of this amendment is a major disappointment for the National Native Title Council, the Minerals Council and us on this side of the parliament.
The bulk of the amendments that we are still considering are unfortunately still focused on top-down control and more power to the minister and the bureaucracy. And there is nothing dealing with what everybody in this area really recognises as the major problems, which are the bottlenecks in the system and the fact that the native title rep bodies are not properly funded and that getting agreement is just taking too long, which is holding up development. I know the Attorney-General is aware of that, and we would certainly hope that he will be arguing for additional funding for native title rep bodies in this budget round. It is a shame that he has not looked at the evidence that has come from submissions on this bill. That, I think, would have further enhanced the operation of the native title system, but we still have major problems with the bill and with the amendments that are before us.
Question agreed to.