EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 166
Issued by the authority of the Attorney-General
Native Title Act 1993
Native Title (Tribunal) Amendment Regulations 2005 (No. 1)
Subsection 215(1) of the Native Title Act 1993 (NTA) provides that the Governor‑General may make regulations prescribing matters required or permitted by the NTA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the NTA.
Subsection 215(2) of the NTA further provides that the Governor‑General may make regulations prescribing fees for certain matters under the NTA, including fees to be paid for inspecting the public registers kept by the Native Title Registrar (the Registrar) within the National Native Title Tribunal (NNTT), and fees to be paid to obtain access to records or information kept pursuant to section 98A of the NTA. Regulations may also provide for the waiver or refund of such fees.
These Regulations amend the Native Title (Tribunal) Regulations 1993 (the Principal Regulations) by removing the prescribed fees for inspecting the registers kept by the Registrar and for accessing records or information kept pursuant to section 98A of the NTA.
The amendments follow on from amendments made to the NTA by the Law and Justice Legislation Amendment Act 2004 (LJLAA).
The three public registers kept by the Registrar are the Register of Native Title Claims, which contains information about native title claims, the National Native Title Register, which contains information about determinations as to whether or not native title exists, and the Register of Indigenous Land Use Agreements, which contains information about such agreements made pursuant to the NTA. Section 98A of the NTA also enables the Registrar to keep records and information as he or she considers appropriate, and to make them available to the public, having due regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.
Former subsections 187(2), 194(2) and 199D(2) of the NTA made the payment of a prescribed fee to inspect the registers mandatory. No similar provision applied to information or records kept pursuant to section 98A.
Payment of the fees is no longer considered appropriate, particularly given that the NNTT provides other extensive information services free of charge under other provisions of the NTA. The imposition of a specific fee was found to be difficult to administer and ran counter to the objective of increasing access to information on native title processes. Accordingly, subsections 187(2), 194(2) and 199D(2) of the NTA were repealed by the LJLAA making it no longer mandatory to pay a fee to inspect the registers. Since the repeal of these subsections, the NNTT has not imposed a fee for inspection of the registers.
The amendments to the Principal Regulations removing the prescribed fee is consistent with the LJLAA amendments.
As such, the amendments:
- repeal Regulation 15, which prescribed the fees to be paid under subsections 187(2), 194(2) and 199D(2) of the NTA, and for accessing information kept under section 98A
- remove references to Regulation 15 in Regulations 16 and 17. Regulation 16 provides for biennial increases in fees prescribed by the Principal Regulations. Regulation 17 provides for the method of calculation of the fee increases provided for by Regulation 16, and
- repeal Regulation 15A, which provided grounds upon which the Registrar could waive the fees that were prescribed by Regulation 15.
The NNTT was consulted about these amendments.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence the day after they are registered on the Federal Register of Legislative Instruments.
Overview
The Native Title (Tribunal) Amendment Regulations 2005 (No. 1) were enacted to align with amendments made to the Native Title Act 1993 by the Law and Justice Legislation Amendment Act 2004. The purpose of these regulations is to remove the fees previously prescribed for inspecting public registers and accessing certain records and information under the Native Title Act. The Native Title Act 1993, administered by the National Native Title Tribunal, includes provisions for the Register of Native Title Claims, the National Native Title Register, and the Register of Indigenous Land Use Agreements, along with other records and information. The former subsections of the Act mandated fees for inspecting these registers, but these were deemed unnecessary following the 2004 amendments, which removed the requirement for fee payment. Consequently, the regulations repeal the relevant sections prescribing these fees, ensuring consistency with the legislative changes and enhancing access to information on native title processes. These regulations were issued by the authority of the Attorney-General and are consistent with the policy objective of facilitating greater access to native title information.
Scope and Application
The Native Title (Tribunal) Amendment Regulations 2005 (No. 1) apply to the inspection of registers and access to records maintained by the Native Title Registrar within the National Native Title Tribunal, as specified under the Native Title Act 1993. These registers include the Register of Native Title Claims, the National Native Title Register, and the Register of Indigenous Land Use Agreements. The regulations primarily affect entities and individuals seeking to inspect these registers or access related records and information, ensuring they no longer face prescribed fees for such activities. The scope of these amendments extends nationally, impacting all jurisdictions under the Commonwealth of Australia. Notably, these regulations are a direct response to the Law and Justice Legislation Amendment Act 2004, which repealed the requirement to pay fees for inspecting the registers, aligning the regulations with this legislative change. The amendments also remove any references to the repealed fee structure and provisions for fee waivers, reflecting the updated legislative intent to enhance access to native title information without financial barriers.
Key Provisions
The key provisions of the Native Title (Tribunal) Amendment Regulations 2005 (No. 1) revolve around the repeal of prescribed fees for certain activities related to the Native Title Act 1993 (NTA). These provisions, primarily found in Regulations 15, 15A, 16, and 17 of the Principal Regulations, have been amended to align with changes introduced by the Law and Justice Legislation Amendment Act 2004 (LJLAA). Specifically, Regulation 15, which prescribed fees for inspecting the public registers kept by the Registrar and for accessing information held under section 98A of the NTA, has been repealed ((1)). Additionally, references to this regulation in Regulations 16 and 17 have been removed, effectively eliminating the requirement for biennial fee increases and the method of calculation for such increases ((1)). Regulation 15A, which outlined the grounds for fee waivers, has also been repealed ((1)). These amendments follow the repeal of subsections 187(2), 194(2), and 199D(2) of the NTA by the LJLAA, which made it no longer mandatory to pay fees for inspecting the registers ((1)).
Under the amended regulations, the entities governed by the NTA, particularly the National Native Title Tribunal (NNTT), are no longer required to charge fees for inspecting the public registers or for accessing information under section 98A. This change is intended to enhance access to information on native title processes, reflecting the NTA's objectives of promoting transparency and facilitating public engagement with native title matters ((1)). The NNTT is expected to continue providing other extensive information services free of charge as per other provisions of the NTA, ensuring that the public can access necessary information without financial barriers ((1)).
The Native Title (Tribunal) Amendment Regulations 2005 (No. 1) do not introduce any new offences, penalties, or civil/criminal consequences for breach. Instead, they simplify the regulatory framework by removing the requirement to pay fees for certain activities related to the NTA. The repeal of Regulations 15, 15A, 16, and 17 effectively eliminates the financial barriers to accessing public registers and information under the NTA, aligning with the broader objective of improving access to information on native title processes ((1)). The NNTT, as the entity primarily governed by these regulations, is expected to continue its role in providing information services under the NTA without imposing fees for the specified activities.