EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 186
Issued by the Authority of the Minister for Families, Community Services and Indigenous Affairs
Native Title Act 1993
Native Title (Prescribed Bodies Corporate) Amendment Regulations 2007 (No. 1)
Section 215 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 to hold or manage the native title rights and interests on behalf of the native title holders.
Section 59 of the Act provides that the regulations may prescribe the kinds of bodies corporate that may be determined under section 56 or 57.
Subregulation 4(1) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (the Principal Regulations) relevantly provides that an Aboriginal association is prescribed for section 59 of the Act if it is incorporated under the Aboriginal Councils and Associations Act 1976 (ACA Act) for the purpose of being the subject of a section 56 or 57 determination. Subregulation 4(2) also refers to Aboriginal associations. Regulation 3 provides that Aboriginal association has the same meaning as in the ACA Act.
The ACA Act will be repealed and replaced by the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) on 1 July 2007. Aboriginal associations presently incorporated under the ACA Act will be taken to be registered under the CATSI Act from that date.
The Regulations make consequential amendments to regulations 3 and 4 of the Principal Regulations to reflect this change. References to the ACA Act and Aboriginal associations incorporated under the ACA Act are replaced with references to the CATSI Act and corporations registered under the CATSI Act. Details of the Principal Regulations are included in the Attachment.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation was not undertaken as the Regulations are minor in nature. They do not amend the Principal Regulations beyond what is required to reflect the replacement of the ACA Act with the CATSI Act.
The Regulations will not impact on business activity and will have no compliance costs for business or competition impact.
The Regulations commence on 1 July 2007, to coincide with the commencement of the CATSI Act.
ATTACHMENT
Details of the Native Title (Prescribed Bodies Corporate) Amendment Regulations 2007 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Native Title (Prescribed Bodies Corporate) Amendment Regulations 2007 (No. 1).
Regulation 2 – Commencement
This regulation provides that the Regulations commence on 1 July 2007.
Regulation 3 – Amendment of Native Title (Prescribed Bodies Corporate) Regulations 1999
This Regulation notes that Schedule 1 amends the Native Title (Prescribed Bodies Corporate) Regulations 1999.
Schedule 1 – Amendments
Item [1] Subregulation 3(1), definition of Aboriginal association
This item repeals the definition of Aboriginal association which adopts the definition in the Aboriginal Councils and Associations Act 1976 (ACA Act). It substitutes a definition of Aboriginal and Torres Strait Islander corporation which adopts the definition in the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act), that is, a corporation registered under the CATSI Act (see sections 700‑1 and 16-5 of the CATSI Act).
Item [2] Regulation 4
This item would repeal and replace existing regulation 4.
Existing subregulation 4(1) relevantly provides that an Aboriginal association is prescribed for section 59 of the Native Title Act 1993 if it is incorporated under the ACA Act for the purpose of being the subject of a section 56 or 57 determination. Proposed new subregulation 4(1) will reflect the change from the ACA Act to the CATSI Act by instead referring to an Aboriginal and Torres Strait Islander corporation registered under the CATSI Act for this purpose.
Existing subregulation 4(2) provides that an Aboriginal association is taken to be incorporated for the purpose of being the subject of a section 56 or 57 determination if the association has certain features. Proposed new subregulation 4(2) would reflect the change from the ACA Act to the CATSI Act by: replacing references to ‘Aboriginal association’ with ‘Aboriginal and Torres Strait Islander corporation’; replacing references to ‘association’ with ‘corporation’; and replacing references to ‘incorporated’ with ‘registered’.
Overview
The Native Title (Prescribed Bodies Corporate) Amendment Regulations 2007 (No. 1) were introduced to ensure that the regulatory framework governing the management of native title rights and interests remains current and consistent with legislative changes. Enacted under the authority of the Minister for Families, Community Services and Indigenous Affairs, these regulations were necessary to address the gap arising from the repeal and replacement of the Aboriginal Councils and Associations Act 1976 with the Corporations (Aboriginal and Torres Strait Islander) Act 2006. The primary policy objective of these amendments is to maintain the effectiveness and continuity of the legal framework governing prescribed bodies corporate, ensuring that they can still be determined by the Federal Court to hold or manage native title rights and interests on behalf of native title holders. These consequential amendments reflect the transition to the new legislative environment, ensuring that references to the old Act and its associated entities are appropriately updated to the new Corporations (Aboriginal and Torres Strait Islander) Act 2006.
Scope and Application
The Native Title (Prescribed Bodies Corporate) Amendment Regulations 2007 (No. 1) apply to entities involved in the management and holding of native title rights and interests on behalf of native title holders as determined by the Federal Court of Australia. Specifically, these Regulations amend the Native Title (Prescribed Bodies Corporate) Regulations 1999 to reflect the transition from the Aboriginal Councils and Associations Act 1976 to the Corporations (Aboriginal and Torres Strait Islander) Act 2006. This change updates the legal framework to ensure that Aboriginal associations incorporated under the old Act are appropriately recognised as Aboriginal and Torres Strait Islander corporations under the new Act. The Regulations thus ensure continuity in the administration of native title by aligning the regulatory framework with the new legislative environment that commenced on 1 July 2007. The Regulations apply nationally across Australia, affecting any Aboriginal and Torres Strait Islander corporations that are subject to the provisions of the Native Title Act 1993. There are no stated exclusions or thresholds in these Regulations, which are designed to be straightforward amendments without additional business impacts or compliance costs.
Key Provisions
The Native Title (Prescribed Bodies Corporate) Amendment Regulations 2007 (No. 1) primarily aim to update the regulatory framework governing prescribed bodies corporate under the Native Title Act 1993 (the Act). These Regulations respond to the repeal of the Aboriginal Councils and Associations Act 1976 (ACA Act) and its replacement by the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) (regulation 3). They ensure that the definitions and references in the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Principal Regulations) align with the new legislative environment. Specifically, the Regulations redefine "Aboriginal association" to mean an "Aboriginal and Torres Strait Islander corporation" as defined in the CATSI Act (regulation 3, schedule 1, item [1]). Furthermore, they update subregulation 4(1) to specify that a body corporate may be prescribed if it is registered under the CATSI Act for the purpose of a native title determination (regulation 3, schedule 1, item [2]). These changes are necessary to reflect the new legal landscape and ensure continued compliance with the Act.
The obligations imposed by these Regulations on the parties and entities they govern are primarily administrative and definitional in nature. Prescribed bodies corporate must now ensure that their incorporation or registration aligns with the requirements of the CATSI Act, rather than the ACA Act. This involves updating their legal status to be recognised under the new legislative framework. Additionally, these entities must ensure that any references to their status within the Act and related regulations reflect their registration under the CATSI Act. This ensures continuity and compliance with the requirements for holding or managing native title rights and interests on behalf of native title holders.
The Regulations themselves do not introduce new offences, penalties, or consequences for breach; however, any failure to comply with the updated requirements for prescribed bodies corporate could lead to issues in the recognition and enforcement of their rights and obligations under the Act. Non-compliance with the CATSI Act's registration requirements could result in legal challenges to the validity of the prescribed body corporate's status, potentially impacting their ability to hold or manage native title rights and interests. While the Regulations do not specify penalties, any resulting legal disputes or actions under the Native Title Act or other relevant legislation could lead to various civil or administrative consequences.
In summary, these Regulations ensure the smooth transition of prescribed bodies corporate from the ACA Act to the CATSI Act, thereby maintaining the integrity and functionality of the native title system. They impose clear obligations on these entities to update their legal status and references within relevant regulations. While the Regulations themselves do not introduce new penalties, non-compliance with the CATSI Act's requirements could lead to significant legal and practical consequences for prescribed bodies corporate.