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

by leave—I table a supplementary explanatory memorandum relating to the government amendments to be made to this bill. The memorandum was circulated to the chamber on 12 June 2007. I move government amendments (1) to (40) on sheet ZA211 together:

(1)   Subclause 2(1), page 2 (table items 2 to 4), omit the table items, substitute:

2.  Schedule 1, items 1 to 83	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.
3.  Schedule 1, items 83A to 83C	The day after this Act receives the Royal Assent.
4.  Schedule 1, items 84 to 89	At the same time as the provision(s) covered by table item 2.
4A.  Schedule 1, items 90 and 91	Immediately after the commencement of Schedule 2 to the Native Title Amendment Act 2007.
4B.  Schedule 1, items 91A to 91E	At the same time as the provision(s) covered by table item 3.
4C.  Schedule 1, items 91F to 139	At the same time as the provision(s) covered by table item 2.

(2)    Subclause 2(1), page 2 (table item 10), omit the table item, substitute:

10.  Schedule 3, items 8 to 10	At the same time as the provision(s) covered by table item 5.
10A.  Schedule 3, item 10A	Immediately after the commencement of Schedule 1 to the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006	1 July 2007
10B.  Schedule 3, items 11 and 12	At the same time as the provision(s) covered by table item 5.

(3)    Subclause 2(1), page 2 (at the end of the table), add:

12.  Schedule 5

At the same time as the provision(s) covered by table item 2.

(4)    Schedule 1, item 22, page 8 (lines 21 to 23), omit the item, substitute:

22  Subparagraph 24CL(2)(b)(ii)

Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.

22A  After subparagraph 24CL(2)(b)(ii)

Insert:

                (iia)    the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

(5)    Schedule 1, item 31, page 10 (lines 9 to 11), omit the item, substitute:

31  Subparagraph 24FE(b)(ii)

Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.

31A  After subparagraph 24FE(b)(ii)

Insert:

                (iia)    the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

(6)    Schedule 1, item 69, page 19 (cell at table item 5, 3rd column), omit the cell, substitute:

(a)   direct the ADI to pay the amount secured (the original amount) to the Registrar; and (b)  pay an amount equal to the amount determined to the ultimate beneficiary; and (c)   pay the remainder to the person who secured the original amount by bank guarantee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.

(7)    Schedule 1, item 69, pages 20 and 21 (cell at table item 8, 3rd column), omit the cell, substitute:

(a)   direct the ADI to pay the secured amount (the original amount) to the Registrar; and (b)  pay an amount to the ultimate beneficiary equal to the amount the court orders to be paid; and (c)   if the amount to be paid to the ultimate beneficiary is less than the original amount—pay the remainder to the person who secured the original amount by bank guarantee or, if that person no longer exists, the person to whom the Federal Court orders it to be paid.

(8)    Schedule 1, item 69, page 22 (line 4), omit “item 9”, substitute “items 5, 8 and 9”.

(9)    Schedule 1, item 78, page 24 (lines 6 and 7), omit paragraph 64(3)(b), substitute:

             (b)    the NNTT is, under section 190E, reconsidering the claim made in the application; or

(10)  Schedule 1, page 26 (after line 14), after item 83, insert:

83A  Paragraph 66C(1)(c)

Omit “and”.

83B  Paragraph 66C(1)(d)

Repeal the paragraph.

83C  Paragraph 66C(2)(b)

Omit “paragraph 94C(1)(d)”, substitute “paragraph 94C(1)(c)”.

(11)  Schedule 1, item 88, page 27 (line 22), omit paragraph 84D(2)(b), substitute:

             (b)    on the application of a party to the proceedings; or

(12)  Schedule 1, item 88, page 27 (lines 25 to 32), omit subsection 84D(3), substitute:

        (3)    Subsection (4) applies if:

             (a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

             (b)    a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

Note:   Section 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them.

(13)  Schedule 1, page 28 (after line 25), after item 91, insert:

91A  Paragraphs 94C(1)(b), (c) and (d)

Repeal the paragraphs, substitute:

             (b)    it is apparent from the timing of the application that it is made in response to a future act notice given in relation to land or waters wholly or partly within the area; and

             (c)    the future act requirements are satisfied in relation to each future act identified in the future act notice; and

91B  After subsection 94C(1)

Insert:

     (1A)    For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the current law applies if:

             (a)    the future act notice is given in relation to land or waters wholly or partly within the area; and

             (b)    the application is made during the period of 3 months after the notification day specified in the future act notice; and

             (c)    the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, before the end of 4 months after the notification day specified in the future act notice.

      (1B)    For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the pre-1998 law applies if:

             (a)    the future act notice is given in relation to land or waters wholly or partly within the area; and

             (b)    the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, within the period of 2 months starting when the notice is given.

      (1C)    The regulations may prescribe, for the purposes of paragraph (1)(b), other circumstances in which it is taken to be apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice, including circumstances in which it is taken to be apparent in relation to a future act notice given under alternative provisions.

     (1D)    For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the current law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:

             (a)    subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

             (b)    a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;

             (c)    native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);

             (d)    an agreement of the kind mentioned in paragraph 31(1)(b) is made;

             (e)    a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;

              (f)    a determination is made under section 36A or 38 that the act must not be done;

             (g)    a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42;

             (h)    a circumstance occurs in which, under the regulations, the future act requirements are satisfied.

      (1E)    For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the pre-1998 law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:

             (a)    subsection 32(2) of the pre-1998 law (which applies where no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

             (b)    a determination is made under subsection 32(4) of the pre-1998 law that the act is an act attracting the expedited procedure;

             (c)    a copy of an agreement that the act may be done, or may be done subject to conditions being complied with, is given to the arbitral body under section 34 of the pre-1998 law;

             (d)    a determination is made under section 38 of the pre-1998 law that the act may be done, or may be done subject to conditions being complied with;

             (e)    a determination is made under section 38 of the pre-1998 law that the act must not be done;

              (f)    a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42 of the pre-1998 law;

             (g)    a circumstance occurs in which, under the regulations, the future act requirements are satisfied.

      (1F)    The regulations may prescribe, for the purposes of paragraphs (1D)(h) and (1E)(g), other circumstances in which future act requirementsare satisfied.

      (1G)    The regulations may prescribe circumstances in which future act requirements are satisfied in relation to a future act notice given under alternative provisions.

91C  Subsection 94C(6)

Insert:

future act notice to which the current law applies means a future act notice to which the provisions in Subdivision P of Division 3 of Part 2 of this Act apply.

91D  Subsection 94C(6)

Insert:

future act notice to which the pre-1998 law applies means a future act notice to which the provisions in Subdivision B of Division 3 of Part 2 of the Native Title Act 1993 apply, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

91E  Subsection 94C(6)

Insert:

pre-1998 law means the Native Title Act 1993, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

(14)  Schedule 1, page 28, after proposed item 91E, insert:

91F  After section 96

Insert:

96A  Powers of Registrar—ILUAs and future act negotiations

                 The Registrar has the powers set out in Part 2.

(15)  Schedule 1, page 28 (after line 25), after item 91, insert:

91G  After subsection 108(1A)

Insert:

Reconsideration of claims

  (1AA)    The Tribunal has the functions in relation to applications for the reconsideration of claims made to the Tribunal under section 190E that are given to it under that section.

(16)  Schedule 1, page 28 (after line 25), after item 91, insert:

91H  After paragraph 123(1)(ca)

Insert:

           (cb)    the person who is to constitute the Tribunal for the purposes of reconsidering a decision of the Registrar not to accept a claim;

(17)  Schedule 1, page 29 (after line 27), after item 96, insert:

96A  Subparagraph 186(1)(g)(i)

After “the Registrar”, insert “or the NNTT”.

(18)  Schedule 1, item 97, page 29 (lines 28 to 30), omit the item, substitute:

97  Paragraph 190(1)(a)

After “under section 190A”, insert “or in response to notification by the NNTT under section 190E”.

(19)  Schedule 1, item 99, page 30 (lines 12 to 14), omit the item, substitute:

99  Paragraph 190(3)(b)

After “under section 190A”, insert “or in response to notification by the NNTT under section 190E”.

(20)  Schedule 1, item 102, page 32 (lines 15 to 38), omit paragraph 190A(6A)(d), substitute:

             (d)    the Registrar is satisfied that the only effect of the amendment is to do one or more of the following:

                   (i)    reduce the area of land or waters covered by the application, in circumstances where the information and map contained in the application, as amended, are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters;

                  (ii)    remove a right or interest from those claimed in the application;

                 (iii)    change the name in the application of the representative body, or one of the representative bodies, recognised for the area covered by the application, in circumstances where the body’s name has been changed or the body has been replaced with another representative body or a body to whom funding is made available under section 203FE;

                 (iv)    change the name in the application of the body to whom funding was made available under section 203FE in relation to all or part of the area covered by the application, in circumstances where the body’s name has been changed or the body has been replaced by another such body or a representative body;

                  (v)    alter the address for service of the person who is, or persons who are, the applicant.

(21)  Schedule 1, item 107, page 33 (line 27) to page 34 (line 17), omit section 190D, substitute:

190D  If the claim cannot be registered—notice of decision

        (1)    If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including:

             (a)    if the Registrar does not accept the claim because the Registrar is notified by the NNTT under section 190E that he or she should not do so—a copy of the NNTT’s statement of reasons for its decision; or

             (b)    otherwise—a statement of the Registrar’s reasons for his or her decision.

Content of notice where failure to satisfy physical connection test

        (2)    If the only reason why the claim is not accepted for registration is that the condition in subsection 190B(7) (which is about a physical connection with the claim area) is not satisfied, the notice must advise the applicant of the applicant’s right to make an application to the Federal Court under section 190F and of the power of the Court to make an order in accordance with that section in respect of the application.

Statements of reasons must specify whether section 190B satisfied

        (3)    If the Registrar’s decision not to accept the claim is not in response to notification by the NNTT under section 190E, the Registrar’s statement of reasons for the decision must include a statement on:

             (a)    whether, in the opinion of the Registrar, the claim for registration satisfies all of the conditions in section 190B; and

             (b)    whether, in the opinion of the Registrar, it is not possible to determine whether the claim for registration satisfies all of the conditions in section 190B because of a failure to satisfy section 190C.

(22)  Schedule 1, item 107, page 34 (line 18) to page 35 (line 2), omit section 190E, substitute:

190E  If the claim cannot be registered—reconsideration by the NNTT

Application to reconsider a claim

        (1)    If the Registrar gives the applicant a notice under subsection 190D(1), then, subject to subsections (3) and (4), the applicant may apply to the NNTT to reconsider the claim made in the application.

        (2)    The application must:

             (a)    be in writing; and

             (b)    be made within 42 days after the notice under subsection 190D(1) is given; and

             (c)    state the basis on which the reconsideration is sought.

        (3)    The applicant may not make an application to the NNTT for reconsideration of the claim if the applicant has already made an application to the Federal Court under subsection 190F(1) for review of the decision.

        (4)    The applicant may apply to the NNTT for reconsideration of the claim no more than once.

Constitution of NNTT for purposes of reconsidering the claim

        (5)    For the purposes of reconsidering the claim, the NNTT must be constituted by a single member.

        (6)    The member of the NNTT who reconsiders the claim may not take any part in the proceeding in relation to the claim (including any review or inquiry in relation to the claim), unless the parties to the proceeding otherwise agree.

NNTT’s reconsideration of the claim

        (7)    In reconsidering the claim:

             (a)    the NNTT must have regard to any information to which the Registrar was required to have regard under subsections 190A(3) to (5) in considering the claim; and

             (b)    the NNTT may have regard to any other information which the NNTT regards as appropriate in reconsidering the claim.

Effect of certain notices

        (8)    If, either before the NNTT begins to do so or while it is doing so, a notice is given in accordance with:

             (a)    paragraph 24MD(6B)(c); or

             (b)    section 29; or

             (c)    a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43; or

             (d)    a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43A;

in relation to an act affecting any of the land or waters in the area covered by the application, the member reconsidering the claim must use his or her best endeavours to finish reconsidering the claim by the end of:

             (e)    in a paragraph (a) case—2 months after the notice is given; or

              (f)    in a paragraph (b) case—4 months after the notification day specified in the notice; or

             (g)    in a paragraph (c) case—the period, in the law of the State or Territory, that corresponds to the period of 4 months mentioned in paragraph 30(1)(a); or

             (h)    in a paragraph (d) case—the period at the end of which any person who is a registered native title claimant or registered native title body corporate has a right to be consulted about the act, to object to the act or to participate in negotiations about the act.

Otherwise, claim to be reconsidered as soon as is practicable

        (9)    In any other case, the NNTT must finish reconsidering the claim as soon as is practicable.

Notifying the Registrar of the NNTT’s decision

      (10)    The NNTT must notify the Registrar that the Registrar should accept the claim for registration if the claim satisfies all of the conditions in:

             (a)    section 190B (which deals mainly with the merits of the claim); and

             (b)    section 190C (which deals with procedural and other matters).

      (11)    In any other case, the NNTT must notify the Registrar that the Registrar should not accept the claim, and include in that notice a statement of the NNTT’s reasons for its decision. The statement of reasons for the decision must include a statement on:

             (a)    whether, in the opinion of the member who reconsidered the claim, the claim for registration satisfies all of the conditions in section 190B; and

             (b)    whether, in the opinion of the member who reconsidered the claim, it is not possible to determine whether the claim for registration satisfies all of the conditions in section 190B because of a failure to satisfy section 190C.

      (12)    For the purposes of subsection (10), sections 190B and 190C apply as if a reference to the Registrar in those sections were a reference to the NNTT.

      (13)    The Registrar must comply with a notice given to the Registrar under subsection (10) or (11).

(23)  Schedule 1, item 107, page 35 (line 7), at the end of subsection 190F(1), add “, provided the NNTT is not reconsidering the claim under section 190E at the time the application is made”.

(24)  Schedule 1, item 107, page 36 (line 5), omit “, in the opinion of the Registrar”, substitute “, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the memb