David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I thank Senator Ludwig for his work on these amendments. Let me clarify what these amendments seek to do. I will start with opposition amendment (17) and work through all of them to (29), touching on the substance of (29) in light of Senator Ludwig addressing them across two segregated groups. Opposition amendment (17) removes the provisions consequent to dismissal of future act claims. Speaking generally, these amendments overall appear to overlook the fact that native title claims are matters within the jurisdiction of the Federal Court and are under the constant supervision of the Federal Court throughout the carriage of the action.

After carrying out consultations across Australia, the consultants who carried out the claims resolution review were firmly of the view that these additional powers and functions, as attacked in these amendments, were required to enable the National Native Title Tribunal to mediate more effectively. I underline that and say we are seeking more expeditious and efficient outcomes with respect to native title. The tribunal is the primary native title mediation body, but different claims may require different processes to advance them in different parts of Australia, which might immediately include mediation by the tribunal or the court, the taking of evidence by the court to inform a tribunal mediation, the referral of a question of law to the court, or proceeding directly to trial where issues are not susceptible to a mediated outcome. All of those variations of the mediation process can certainly occur. These reforms will allow the court to be better informed by the tribunal and parties as to the needs of a particular client when making orders for that claim to be progressed and they provide additional options that parties may choose to avail themselves of in seeking a resolution. So what we are seeking to do is provide maximum flexibility and maximum options for the tribunal and for the court to seek to obtain a negotiated as opposed to a litigated outcome. The reforms will ensure that the court and the tribunal can work together in guiding parties to the more expeditious resolution, as I say, of native title claims.

I will examine each of these amendments. Opposition amendment (17) seeks, as I say, to remove provisions consequent to dismissal of future act claims. Amendment (18) seeks to remove prohibition on the court mediating while a matter is in the tribunal for mediation. Amendment (19) seeks to remove the ability of the court to enforce tribunal directions. Amendment (20) deletes provisions enabling dismissal of future act claims and deletes provisions requiring the court to take into account mediation reports, regional mediation reports and work plans. Amendment (21) removes the tribunal power to direct parties to produce documents. Amendment (22) removes the ability of the tribunal to report to court about parties’ failure to comply with directions. Amendment (23) removes the ability of the tribunal to report breaches of good faith.

Opposition amendment (24) requires that the report after connection review be provided to other parties only if parties to the review agree. Amendment (25) removes the ability for parties and courts to request a native title application inquiry before the matter is in the tribunal mediation process. Amendment (27) provides that the tribunal would only report to the court after native title application inquiry if parties consent. Amendment (28) removes the provisions enabling the court to dismiss unregistered claims. Amendment (29) allows the prescribed bodies corporate to apply to the secretary of FaCSIA for funding. Obviously amendment (29) will be different to the one that has been circulated, and we await the circulation of that, but I understand that the amendment is a matter of remedial wording.

Turning to amendment (17), in any civil proceedings applicants are required to prosecute their claim and the court is at liberty to dismiss a claim where the applicant fails to do so. Native title claimants should be no different. These amendments will not result in the automatic dismissal of claims made in response to a future act notice; rather they will require the court to dismiss a future act claim where the claimant has failed to produce evidence in support of the claim and where the claimant has failed to take other steps to resolve the claim where the court directs them to do so. Where the court otherwise considers the claimant has failed within a reasonable time to take steps to have the claim resolved, the court will have the power to seek dismissal. It is very clear in the nature of these proceedings that that is a reasonable and appropriate power in the nature of what occurs with respect to a claim.

Opposition amendment (18) would remove the prohibition on the court mediating a matter whilst it is in tribunal mediation. The claims resolution review found that the existing duplication in mediation of functions between the court and the tribunal creates confusion and has significant resource implications, as one might logically expect when two mediations of the same matter occur at the same time or one after the other. A key recommendation of the review is to ensure that matters are not mediated by more than one body at once. The government has accepted this recommendation upon the basis that it is inefficient to require parties to participate in two separate alternative dispute resolution processes before two different institutions at the same time.

With amendments (19) and (21), the opposition seeks to delete provisions enabling the tribunal to direct parties to produce certain documents. The claims resolution review found that mediation of native title claims is being hampered by the lack of statutory powers in the tribunal. The new powers of compulsion for the tribunal are aimed at equipping it with the necessary tools to facilitate the negotiated resolution of claims. The opposition’s amendments would remove the ability of the court to enforce tribunal directions. The tribunal is an administrative body and it is necessary that it be subject to judicial oversight to enable its directions to be enforced.

Opposition amendment (20) would remove the requirement for the court to take into account mediation reports, regional mediation reports and regional work plans, provided to the court by the tribunal. We think that the court should have access to and should be able to take into account those important reports from the tribunal.

Opposition amendment (22) would remove the ability of the tribunal to report to the court where a party fails to comply with a direction from the tribunal to attend a mediation conference or to produce documents. The government has accepted the recommendation of the resolution review committee which found that mediation of native title claims is being hampered by the lack of statutory powers. The new powers of compulsion for the tribunal are aimed at equipping it where necessary with further tools to negotiate resolution of these claims.

With amendment (23), the opposition seek to remove the ability of the tribunal to report to various entities about breaches of obligations to mediate in good faith. In the government’s opinion, the key to securing enduring outcomes in native title is in the behaviour of the parties themselves. The obligation to act in good faith will make clear that a basic standard of behaviour is required in mediation conferences. In other words, people need to understand that the mediation is directed to achieving a much more expeditious outcome than weeks and months of hearings in the Federal Court. The reporting mechanisms will complement the good faith obligations by ensuring that appropriate funding bodies, disciplinary bodies and the court, which retains oversight of all native title matters, are aware of the behaviour of the parties.

With amendment (24), the opposition proposed that the tribunal only provide a report following a connection review to other parties if the parties to the review agree. The purpose of a connection review is to facilitate parties to reach agreement on issues where possible, or to narrow the issues in dispute. The utility of a connection review is likely to be significantly restrained if the opposition amendment is accepted. It is difficult to see how the review could be used to narrow or resolve issues in dispute if relevant parties are not privy to the findings. That speaks for itself and is fundamentally obvious.

With amendment (25), the opposition makes a number of amendments in relation to the new native title application inquiry function. The government does not see any merit in opposition amendments (25) and (27). One opposition amendment would remove the ability of the court or a party to the proceedings to request that a native title application be held before a matter is in the Native Title Tribunal mediation. Enabling the request to be made before a matter is in mediation may allow issues to be identified and prioritised at an early point. Another opposition amendment would require the consent of parties before a report about the inquiry could be provided to the court. Where parties do not follow the recommendation made by the tribunal following a native title application inquiry, the provision of a report to the court will enable the court to consider whether to accept the transcript of evidence from inquiry.

Opposition amendments (28) and (30) would also remove all provisions relating to the dismissal of unregistered claims. These amendments implement one of the recommendations of the claims resolution review, namely, that the court will only be able to dismiss claims where the claim has failed to meet a basic standard of merit. The government’s amendments should ultimately result in stronger claims which have a better chance of resolution. Moreover, the final decision as to whether a claim is dismissed rests of course with the court.

Old opposition amendment (29) will be subject to my commentary now, notwithstanding that there are some changes which I understand are rather cursory. With this amendment, the opposition wants the prescribed bodies corporate to be able to apply for funding directly from the department. There may be some circumstances where this is appropriate, although usually we would expect that support be provided through national native title representative bodies. In accordance with the recommendation by the Senate Standing Committee on Legal and Constitutional Affairs, the government is implementing proposed funding arrangements for prescribed bodies corporate as a high priority. This can be done without legislative changes.