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

I would like to thank senators for their contribution to the consideration of the Native Title Amendment (Technical Amendments) Bill 2007. I also thank the Senate Legal and Constitutional Affairs Committee for its detailed consideration of this bill. The government has carefully considered the recommendations made by the Senate committee and has accepted a number of them. The government will accept recommendations 2, 3 and 5 of the Senate committee report. The government will also accept part of additional recommendation 2 from the minority report. I will discuss these recommendations further when I move government amendments to implement these recommendations. The government does not accept recommendations 1 and 4 of the Senate committee. I will deal with both these recommendations here to record the government’s response to the Senate committee’s report for the record.

With respect to recommendation 1, which was to amend proposed section 87A, the Senate committee recommended proposed subparagraph 87A(i)(c)(v) to:

... require consent from a party, with an interest in relation to land and waters in the determination area, where the Federal Court is satisfied that the interest is likely to be affected by the proposed determination.

The government does not accept this recommendation. Proposed section 87A is intended to streamline processes where there is an agreement amongst those who have an interest in the determination area and prevent those with an interest in other areas of the claim from blocking a consent determination over part of the claim.

The amendment to proposed section 87A in this bill directly implements recommendation 9 of the Senate committee’s report on the previous native title amendment bill. I note that, in its current inquiry, the committee received conflicting evidence from stakeholders. Some thought the amendment should go further; others felt the amendment was not necessary. The provision as drafted strikes an appropriate balance between the need to effectively resolve native title matters and the need to protect those with substantive interests within the claim area. Implementing this recommendation would create uncertainty as parties would not know prior to the determination being considered by the court which parties with an ‘interest’ are required to consent. This proposal would also encourage time-consuming debate about which parties should be required to consent.

With respect to recommendation 4 on the replacement of applicants, the Senate committee recommended amending the bill to provide a separate simplified process for the removal of an applicant who consents to removal or who is deceased or incapacitated where there is no requirement to replace that applicant. Whilst the Senate committee did not specify what that simplified process could be, a submission to the Senate committee suggested that the court could remove the person on receipt of affidavit evidence that the person is in fact deceased or incapacitated or consents to his or her removal. The government does not accept this recommendation. Changes to the applicant can raise complex issues, particularly in relation to authorisation of the claim. There is a risk that claims may not be properly authorised if the bill provided for a streamlined process of the kind proposed by the Senate committee. The bill already provides that applications can be amended to replace the applicant, including where one of the persons who is an applicant dies, becomes incapacitated or consents to his or her replacement or removal without undergoing a registration test again. However, the amendments in the bill will not negate the need for the court to be satisfied that the replacement applicant is authorised to be the applicant. Whilst a change to the applicant to remove a deceased or incapacitated person may seem uncontroversial, the effect of such a change may in fact be quite significant, particularly with large claimant groups. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.