EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 244
Issued by the authority of the Attorney‑General
Native Title Act 1993
Native Title (Tribunal) Amendment
Regulations 2006 (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. Subparagraph 215(2)(b)(ia) of the Act provides that regulations may make provision prescribing fees to be paid in relation to applications to the Registrar of the National Native Title Tribunal (NNTT).
Section 76 of the Act requires that right to negotiate applications (defined in section 75 of the Act), which are made to the NNTT comply with certain requirements, including being accompanied by any prescribed fee. The Native Title (Tribunal) Regulations 1993 (the Principal Regulations) currently prescribe the fee payable and further provide grounds when the fee is not payable.
These Regulations extend the grounds for when a fee is not payable for right to negotiate applications made to the NNTT to persons or bodies who are assisted by bodies recognised as representative Aboriginal/Torres Strait Islander bodies (known as Native Title Representative Bodies (NTRBs)) or by bodies performing NTRB functions.
Prior to the amendment, persons who were assisted by NTRBs in making right to negotiate applications to the NNTT were exempt from paying the prescribed fee by an instrument made by the Attorney-General under paragraph 8(a) of the Principal Regulations, designating individual NTRBs as ‘legal aid services’. The Regulations provide a standing fee exemption to persons who are assisted by a body recognised as an NTRB or performing NTRB functions. The Regulations increase transparency and ensure more flexible application of the fee exemption in such instances by avoiding the need to remake an instrument to cover any variations to bodies recognised as NTRBs. Application of the fee exemption is considered appropriate as the assistance these representative bodies provide is funded by the Australian Government.
In addition, these Regulations make a minor amendment to paragraph 8(a) is and make clear that a body, in addition to a person, may be eligible for a fee exemption where that provision applies.
The Attorney-General revoked the instrument approving certain NTRBs as legal aid services which took effect from the date of the commencement of these Regulations.
The NNTT and the Office of Indigenous Policy Coordination in the Department of Families, Community Services and Indigenous Affairs were consulted about these Regulations.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence the day after they are registered in the Federal Register of Legislative Instruments.
Overview
The Native Title (Tribunal) Amendment Regulations 2006 (No. 1) were introduced to amend the Native Title (Tribunal) Regulations 1993 by extending the grounds for fee exemptions on right to negotiate applications made to the National Native Title Tribunal (NNTT). Enacted by the authority of the Attorney-General, these regulations aim to enhance the efficiency and flexibility of the application process by ensuring that individuals or bodies assisted by recognised Native Title Representative Bodies (NTRBs) or those performing NTRB functions are exempt from paying the prescribed application fee. This amendment aims to increase transparency and avoid the need for continual updates to the list of NTRBs designated as legal aid services. Additionally, these regulations clarify that both individuals and bodies can be eligible for fee exemptions under certain provisions. The Attorney-General revoked the instrument that previously approved specific NTRBs as legal aid services, with the changes taking effect from the date these regulations commenced.
Scope and Application
The Native Title (Tribunal) Amendment Regulations 2006 (No. 1) amends the Native Title (Tribunal) Regulations 1993, primarily by extending the grounds for a fee exemption for right to negotiate applications made to the Registrar of the National Native Title Tribunal (NNTT). These Regulations apply to persons or bodies, including those recognised as Native Title Representative Bodies (NTRBs) or performing NTRB functions, who assist in making right to negotiate applications. The scope of these Regulations is limited to the Commonwealth jurisdiction, as they are subordinate instruments under the Native Title Act 1993. They aim to provide a more transparent and flexible application of the fee exemption by removing the need for the Attorney-General to individually designate NTRBs as 'legal aid services'. This change ensures that any entity recognised as an NTRB or performing NTRB functions can qualify for the fee exemption. The Regulations also clarify that both individuals and bodies may be eligible for the fee exemption under certain provisions. These Regulations commenced the day after their registration in the Federal Register of Legislative Instruments.
Key Provisions
The Native Title (Tribunal) Amendment Regulations 2006 (No. 1) make specific amendments to the Native Title (Tribunal) Regulations 1993. These amendments are focused on the payment of fees for right to negotiate applications submitted to the Registrar of the National Native Title Tribunal (NNTT). Under the Native Title Act 1993, such applications must comply with certain requirements, including the payment of a prescribed fee, unless exempted (section 76). The primary change introduced by these Regulations is the expansion of the grounds for fee exemption to include applicants who are assisted by bodies recognised as Native Title Representative Bodies (NTRBs) or by bodies performing NTRB functions. This means that individuals or entities who receive assistance from these bodies in making their applications are no longer required to pay the fee, provided the assistance is funded by the Australian Government.
These Regulations impose obligations on the NNTT and applicants to ensure compliance with the new fee exemption criteria. The NNTT is required to verify that applicants who claim fee exemption are indeed assisted by NTRBs or bodies performing NTRB functions. Applicants, on the other hand, must provide evidence of such assistance when submitting their applications. This amendment aims to streamline the application process and enhance transparency by formalising the fee exemption criteria within the Regulations rather than through separate instruments made by the Attorney-General. Additionally, the Regulations clarify that both individuals and bodies can be eligible for the fee exemption, provided they meet the specified conditions.
Failure to comply with the provisions of these Regulations can result in various consequences. While the specific civil or criminal penalties are not detailed within the Regulations themselves, breaches of the Native Title Act 1993 or its associated regulations can generally lead to penalties under the Act. These may include fines or other sanctions as determined by a court. The exact penalties would depend on the nature and severity of the breach, and the Act provides for both civil and criminal enforcement mechanisms. The regulations serve to clarify and expand the conditions under which applicants can be exempt from fees, thereby reducing the administrative burden and ensuring fairness in the application process for native title claims.