Native Title (Prescribed Bodies Corporate) Regulations (Amendment) 1998 No. 120
EXPLANATORY STATEMENT
STATUTORY RULES 1998 No. 120
Issued by the Authority of the Minister for Aboriginal and Torres Strait Islander Affairs
Native Title Act 1993
Native Title (Prescribed Bodies Corporate) Regulations
The Native Title (Prescribed Bodies Corporate) Regulations ("the Regulations") are amended by the Native Title (Prescribed Bodies Corporate) Regulations (Amendment) ("the Amendment") under section 215 of the Native Title Act 1993 (the Act). Section 215 of that Act empowers the Governor-General to 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.
Regulation 5 requires the rules of a Prescribed Body Corporate ("a PBC") to provide that the consent of the common law holders of native title must be obtained in relation to the changing of the PBC's rules and, generally, in relation to the performance of the PBC's functions. The Regulations provide that other than in relation to:
* the surrender of native title: or
* an agreement to acts affecting native title the Rules can prescribe circumstances where the consent of the common law holders would not be required for the performance of the PBC's functions.
Subsection 45(2) of the Aboriginal Councils and Associations Act 1976 requires that the Registrar of Aboriginal Corporations refuse to incorporate an association if the Registrar is satisfied that the rules of the association do not make sufficient provision to give the members effective control over the running of the association.
It is arguable that Regulation 5 of the Regulations and subsection 45(2) of the Aboriginal Councils and Associations Act 1976 are inconsistent because the Regulations require the Rules of a PBC to restrict the effective control of the members over the running of that PBC.
The purpose of the Amendment is to remove any inconsistency that might exist between the Regulations and the Aboriginal Councils and Associations Act 1976.
Also, the Regulations refer to particular sections of the Act. As it is likely that the Act will be amended and the section numbers changed, the Amendment removes references to particular sections of the Act.
Details of the Amendment are as follows:
Item 3 defines 'a group of common law holders'.
Item 4 requires that the membership of a PBC must only include persons who have native title rights and interests in the land for which the PBC is the agent or trustee.
Item 4.4 provides that if several groups are included in one native title determination, there need only be one PBC for all the groups.
Item 5.1 removes references to the Act.
Item 5.2 removes sub-subregulation 4(3), which requires a PBC to carry out its functions in accordance with its Rules. It is already required to do that under subsection 47(2) of the Aboriginal Councils and Associations Act 1976.
Item 6 (a) removes the requirement that the Rules of a PBC contain provisions for the obtaining of the consent of the common law holders before making any decision in relation to native title and provides that a PBC must act in accordance with decisions of the common law holders; and
(b) adds a new subregulation 5(4) which provides, where the persons with common law interests in a particular area form a subgroup of the common law holders for a PBC, then the PBC must act in accordance with decisions of that subgroup in relation to that particular area.
Item 7 (a) amends the Regulation 7 provisions, for the proof of consultation and consent consequent on the removal of the consultation and consent requirements from the Rules to the Regulations; and
(b) enables a PBC to obtain the consent of the common law holders to a class of actions.
The Amendment commenced on Gazettal.
Overview
The Native Title (Prescribed Bodies Corporate) Regulations (Amendment) 1998 No. 120 was enacted to amend the Native Title (Prescribed Bodies Corporate) Regulations, made under the Native Title Act 1993. The purpose of this amendment is to address inconsistencies between the Regulations and the Aboriginal Councils and Associations Act 1976, particularly concerning the control of prescribed bodies corporate (PBC) by their members. The Act was passed by the Australian Parliament to provide for the recognition and protection of native title and to establish a framework for the operation of prescribed bodies corporate that manage native title. The policy objective of this amendment is to ensure that PBCs can effectively manage native title while aligning their governance with the requirements of the Aboriginal Councils and Associations Act 1976. The amendment removes certain restrictions on PBCs, allowing for more streamlined operations and clearer governance structures.
Scope and Application
The Native Title (Prescribed Bodies Corporate) Regulations (Amendment) 1998 No. 120 applies to prescribed bodies corporate under the Native Title Act 1993, which are established to manage native title rights and interests. These regulations are designed to ensure that the management of native title aligns with the statutory requirements and the interests of the common law holders of native title. The amendment to these regulations aims to resolve inconsistencies with the Aboriginal Councils and Associations Act 1976, particularly concerning the control of the prescribed bodies corporate by their members. The amendment removes certain provisions that may have restricted the effective control of members over their prescribed bodies corporate and instead, requires these entities to act in accordance with decisions of the common law holders or specific subgroups where applicable. The scope of this amendment extends to all prescribed bodies corporate within the Commonwealth of Australia, and it commenced upon gazette. The amendment also removes references to specific sections of the Native Title Act to accommodate potential future amendments to the Act itself.
Key Provisions
The main operative sections of the Native Title (Prescribed Bodies Corporate) Regulations (Amendment) 1998 No. 120 involve several key changes to the existing regulations governing Prescribed Bodies Corporate (PBC) under the Native Title Act 1993 (the Act). Regulation 5 is amended to provide that the rules of a PBC must generally obtain the consent of the common law holders of native title before changing the PBC's rules or performing its functions. However, exceptions are made for certain actions such as the surrender of native title or agreements to acts affecting native title. Additionally, the amendment removes specific references to sections of the Act, likely due to anticipated changes in the Act's section numbers. Other amendments include defining a "group of common law holders," stipulating that only persons with native title rights and interests can be members of a PBC, and allowing a single PBC to represent multiple groups in a native title determination. These changes aim to ensure consistency between the regulations and the Aboriginal Councils and Associations Act 1976.
The amendments impose several obligations on PBCs and their members. First, PBCs must ensure that their membership comprises only those individuals who hold native title rights and interests in the land for which the PBC acts as an agent or trustee. This requirement ensures that the PBC represents the interests of the actual native title holders. Second, PBCs must obtain the consent of the common law holders for significant decisions, unless the decision falls under the exceptions mentioned. This consent requirement is intended to protect the interests of native title holders and ensure their involvement in PBC activities. Third, the amendment allows PBCs to act in accordance with decisions made by subgroups of common law holders concerning specific areas, thereby allowing for more localised decision-making.
The Amendment also outlines several potential consequences for non-compliance with the regulations. Although specific offences and penalties are not detailed in the explanatory statement, non-compliance with the regulatory requirements could lead to civil or administrative penalties under the Native Title Act 1993 or the Aboriginal Councils and Associations Act 1976. For instance, failure to obtain necessary consents or to properly represent the interests of native title holders could result in the Registrar of Aboriginal Corporations refusing to incorporate or continuing to recognise the PBC as a valid entity. Furthermore, ongoing non-compliance might lead to legal challenges or intervention by the courts to ensure the PBC operates in accordance with the law. The precise penalties would depend on the nature and severity of the breach, as well as the specific provisions of the applicable acts.