EXPLANATORY STATEMENT
Legislative Instruments Act 2003 – Section 26
Native Title (Provision of Financial Assistance) Amendment Guidelines 2011 (No.1)
The Attorney-General has made the Native Title (Provision of Financial Assistance) Amendment Guidelines 2011 (No.1) (these Guidelines) under subsection 213A (5) of the Native Title Act 1993 (the Act).
The Act specifies no other conditions that need to be satisfied before the power to make the proposed Guidelines may be exercised.
These Guidelines are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
These Guidelines commence on the day after their registration on the Federal Register of Legislative Instruments (FRLI) and they amend the Guidelines on the Provision of Financial Assistance by the Attorney-General under the Native Title Act 1993 (the previous Guidelines).
Likely impact and effect of these Guidelines
These Guidelines on commencement will impose a flat hourly rate of $290 (GST inclusive) on a pro-rata basis to the nearest minute, for all professional costs under any grants approved under section 213A of the Act on or after the commencement of these Guidelines. The revised flat hourly rate replaces the rates specified in the Federal Court Rules 2011.
The revised flat hourly rate should reduce administration by costing work on an hourly basis rather than across all items under the Federal Court Rules and recognises the correlation between Commonwealth legal assistance and legal aid schemes.
Regulatory impact
The Office of Best Practice Regulation (OBPR) has considered the matter and formed the view that no regulatory impact analysis is required for the Guidelines. The OBPR reference number is ID 13018.
Description of the provisions of these Guidelines
Further details about the particular clauses of these Guidelines are set out below.
Clause 1 – Name of Guidelines
Sets out the name of the Instrument.
Clause 2 – Commencement
States that these Guidelines commence on the day after they are registered on the FRLI.
Clause 3 – Amendment of Guidelines on the Provision of Financial Assistance by the Attorney-General under the Native Title Act 1993
This clause provides that the previous Guidelines are amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1] Title
Item 1 substitutes the title of the previous Guidelines with ‘Native Title (Provision of Financial Assistance) Guidelines 2006’ to conform with the usual convention for titling of legislative instruments.
Item [2] Item 54
Item 2 amends paragraph 54 of the previous Guidelines to remove reference to the ‘scale of costs set out in Schedule 2 to the Federal Court Rules’. The amendment provides that the provision of assistance for solicitor’s fees may only be authorised for reasonable costs which are to be determined as follows:
- By reference to the document titled ‘Assessment of Costs in Native Title Matters’ published by the Department in September 2011 at the hourly rate of $290 (including GST) for a solicitor, worked out on a
pro-rata basis to the nearest minute; - Without any uplift for care, skill and responsibility;
- At a maximum rate of $27.50 per hour for administrative staff;
- At a maximum rate of $66 per hour for a paralegal or articled clerk who is not a legal practitioner.
Item [3] Item 85
Item 3 amends paragraph 85 of the previous Guidelines. The amendment provides that a legal practitioner’s invoice must contain sufficient information for assessment of reasonable costs before payment can be made. Any incomplete invoice will be returned unassessed.
Item [4] Item 85A
Item 4 inserts a new paragraph to provide that an invoice under a grant providing assistance must be submitted for each grant period and that the invoice periods must not overlap across consecutive grants. Item 4 also states that invoices must be submitted within 30 days of the expiration of the grant. Any remaining grant funds will be decommitted at that time.
Overview
The Native Title (Provision of Financial Assistance) Amendment Guidelines 2011 (No. 1) were made under the authority of the Native Title Act 1993 by the Attorney-General and are aimed at amending the financial assistance provisions provided for native title claimants. These guidelines were developed to streamline and simplify the administration of financial assistance by imposing a flat hourly rate for professional costs associated with native title grants, replacing the previous system based on the Federal Court Rules. This change is intended to reduce administrative burdens and align with legal aid schemes. The amendments introduced by these guidelines are effective from the day after their registration on the Federal Register of Legislative Instruments. The overarching policy objective is to facilitate more efficient and transparent financial assistance processes for native title claimants, while maintaining fairness in the reimbursement of professional costs.
Scope and Application
The Native Title (Provision of Financial Assistance) Amendment Guidelines 2011 (No.1) apply to legal practitioners, paralegals, and administrative staff involved in the provision of financial assistance under section 213A of the Native Title Act 1993, which primarily concerns the costs associated with legal services in native title matters. These Guidelines establish a new flat hourly rate of $290 (inclusive of GST) for all professional costs related to approved grants, calculated on a pro-rata basis to the nearest minute, replacing the previous rates outlined in the Federal Court Rules 2011. This amendment aims to streamline administrative processes and ensure consistency with Commonwealth legal assistance and legal aid schemes. The guidelines apply across Australia, given the nationwide jurisdiction of the Native Title Act 1993. These Guidelines do not explicitly exclude any specific entities or transactions but instead focus on standardising the rates and procedures for claiming costs. The application of these Guidelines can be further detailed through subordinate instruments, which may provide additional clarifications or specific conditions relevant to particular aspects of financial assistance in native title matters.
Key Provisions
The main operative sections of these Guidelines, as outlined in Clause 3, amend the previous Guidelines on the Provision of Financial Assistance by the Attorney-General under the Native Title Act 1993. The most significant change introduced by these Guidelines is the establishment of a flat hourly rate of $290 (GST inclusive) for all professional costs under grants approved under section 213A of the Act on or after the commencement of these Guidelines (Item 2). This rate is to be calculated on a pro-rata basis to the nearest minute and applies to solicitors, administrative staff, and paralegals or articled clerks. This replaces the previous scale of costs set out in the Federal Court Rules. Furthermore, invoices must now contain sufficient information for the assessment of reasonable costs and must be submitted within 30 days of the expiration of the grant period (Items 3 and 4).
These Guidelines impose several obligations and requirements on parties and entities governed by them. Legal practitioners and other professionals must now charge their costs at the specified flat hourly rates. The Guidelines require that invoices contain sufficient information for the assessment of reasonable costs, ensuring transparency and accuracy in cost reporting (Item 3). Additionally, invoices must be submitted for each grant period, with no overlapping of invoice periods across consecutive grants, and within 30 days of the expiration of the grant period (Item 4). Failure to comply with these requirements will result in the invoice being returned unassessed and any remaining grant funds being decommitted.
Breach of the requirements set out in these Guidelines may lead to civil or administrative consequences. For instance, any incomplete invoice will be returned unassessed, and remaining grant funds will be decommitted (Item 3). Additionally, failure to submit invoices within the specified timeframe or overlapping invoice periods may result in the non-assessment of costs and decommitment of remaining funds (Item 4). The Guidelines do not specify criminal penalties for non-compliance, but the implications of non-compliance can be significant for parties relying on financial assistance under the Act.