EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 27
Issued by the Authority of the Minister for Families, Community Services and Indigenous Affairs
Native Title Act 1993
Native Title (Prescribed Bodies Corporate) Amendment Regulation 2012 (No. 1)
Subsection 215(1) of the Native Title Act 1993 (the Act) provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Under sections 56 and 57 of the Act, when the Federal Court of Australia makes a determination that native title exists, it must also determine a prescribed body corporate (PBC) to hold or manage the native title rights and interests on behalf of the common law holders of the native title.
The Regulation makes an amendment that had been intended to be made by the Native Title (Prescribed Bodies Corporate) Amendment Regulations 2011 (the Amendment Regulations). This amendment was not made by the Amendment Regulations due to a drafting error that occurred during the editing process of the Amendment Regulations. The Regulation amends the definition of native title decision in subregulation 3(1) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (the Principal Regulations) by omitting the word “do” from after the words “agree to” in paragraph (b) of the definition.
This correction recognises the fact that acts of governments may affect native title rights and interests, as well as acts done by the common law holders.
The Act does not impose any conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation commences on the day after registration on the Federal Register of Legislative Instruments.
Consultation
In March 2010, the Department of Families, Housing, Community Services and Indigenous Affairs released a consultation draft of the Amendment Regulations. Submissions closed on 30 April 2010. The Amendment Regulations took into account the 17 submissions received. The Regulation makes an amendment that should have been given effect by the Amendment Regulations and had been consulted on previously. No further consultation was undertaken.
Statement of Compatibility
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
PBCs hold and manage native title rights and interests on behalf of common law holders. PBCs must follow certain consultation and consent processes under the Principal Regulations before making ‘native title decisions’.
The purpose of the Regulation is to amend the definition of ‘native title decision’ to clarify that it covers decisions to do, or agree to, acts that would affect the native title rights or interests of common law holders.
Human rights implications
The definition of ‘native title decisions’ and therefore the types of decisions that are subject to certain consultation and consent processes under the Principal Regulations are likely to engage the right to self-determination contained in article 1 of the International Covenant on Civil and Political Rights (ICCPR), article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 3 of the Declaration on the Rights of Indigenous Peoples. The amended definition is also likely to engage the rights of equality and non‑discrimination contained in articles 2, 16 and 26 of ICCPR as well as the right to enjoy and benefit from culture contained in article 27 of the ICCPR and article 16 of the ICESCR.
By clarifying the definition of ‘native title decision’ and therefore the types of decisions by PBCs that are subject to certain consultation and consent processes, the Regulation is clearly consistent with these rights.
Conclusion
The Regulation is compatible with human rights.
Overview
The Native Title (Prescribed Bodies Corporate) Amendment Regulation 2012 (No. 1) was enacted to correct a drafting error that had occurred in the Native Title (Prescribed Bodies Corporate) Amendment Regulations 2011, which failed to amend the definition of native title decision as intended. This regulation was issued under the authority of the Minister for Families, Community Services and Indigenous Affairs, in accordance with subsection 215(1) of the Native Title Act 1993. The amendment rectifies the oversight by modifying the definition of 'native title decision' in subregulation 3(1) of the Native Title (Prescribed Bodies Corporate) Regulations 1999. The policy objective of the amendment is to ensure that the definition of native title decision adequately encompasses acts of governments that may affect native title rights and interests, thereby recognising the broader implications on common law holders. The regulation was developed following consultation with stakeholders in 2010 and is compatible with human rights as it aligns with various international covenants and declarations, ensuring the right to self-determination and other associated rights are upheld.
Scope and Application
The Native Title (Prescribed Bodies Corporate) Amendment Regulation 2012 (No. 1) amends the definition of 'native title decision' under the Native Title (Prescribed Bodies Corporate) Regulations 1999. This amendment was made necessary due to a drafting error in the 2011 Amendment Regulations. The correction ensures that acts of governments that affect native title rights and interests, as well as acts done by common law holders, are covered by the definition of 'native title decision'. This change is intended to ensure that certain consultation and consent processes under the Principal Regulations apply to decisions that impact native title rights and interests. The Regulation applies to prescribed bodies corporate, which are entities established to hold or manage native title rights and interests on behalf of common law holders. The scope of the Regulation is confined to clarifying the types of decisions that must follow the prescribed consultation and consent processes, without imposing any new conditions or thresholds. The amendment is consistent with human rights, particularly the right to self-determination and equality, as it ensures that the processes governing decisions affecting native title rights and interests are clearly defined and inclusive. The Regulation is a legislative instrument under the Legislative Instruments Act 2003 and is compatible with the human rights and freedoms recognised in international instruments.
Key Provisions
The main operative sections of the Native Title (Prescribed Bodies Corporate) Amendment Regulation 2012 (No. 1) amend the definition of a 'native title decision' in subregulation 3(1) of the Native Title (Prescribed Bodies Corporate) Regulations 1999. Specifically, it removes the word 'do' from the phrase 'agree to do' in paragraph (b) of the definition. This change is intended to ensure that acts of governments that affect native title rights and interests, as well as acts done by common law holders, are included within the scope of decisions that require consultation and consent processes under the Principal Regulations (subreg. 3(1)). By clarifying this definition, the Regulation aims to ensure that prescribed bodies corporate (PBC) adequately consider the implications of their decisions on native title rights and interests.
Under the Act, PBCs are obligated to follow certain consultation and consent processes before making decisions that constitute a 'native title decision'. This includes decisions to do, or agree to, acts that would affect the native title rights or interests of common law holders. These processes are intended to ensure that PBCs appropriately engage with the native title holders and consider their views and interests in the decision-making process (subreg. 3(1)). This obligation is critical for maintaining the integrity of native title rights and interests and ensuring that PBCs act in a manner that is consistent with the rights and interests of the native title holders.
Failure to comply with the requirements of the Regulation may result in legal consequences for the PBCs. While the Regulation itself does not explicitly outline specific offences, penalties, or consequences for non-compliance, the Principal Regulations and the Act provide a framework for addressing breaches. Under the Act, non-compliance with the consultation and consent requirements could potentially lead to the invalidation of decisions made by the PBC, as well as other civil or criminal penalties as prescribed by the Act or other relevant legislation (s. 232). The specific penalties for such breaches would depend on the nature and severity of the non-compliance, as well as any applicable laws and regulations. It is important for PBCs to adhere to the consultation and consent processes to avoid potential legal repercussions.