Explanatory Statement
Native Title Act 1993
Recognition under subsection 203AD(1A)
No. 1 of 2007
This instrument is made under subsection 203AD(1A) of the Native Title Act 1993
(the Act).
This subsection, which took effect on 15 April 2007, provides that the
Commonwealth Minister for Families, Community Services and Indigenous Affairs must, by legislative instrument, recognise as the representative body for a transitionally affected area, a body that:
a) on the day the transition period commenced, was the representative body for the area as it stood on that day; and
b) during the transition period, applied under section 203AB to be the representative body for that area as it stood on the day the application was made.
Paragraph 203AD(2A)(a) of the Act provides that the prior recognition of a representative body ceases to have effect at the end of 30 June 2007.
As the representative body for the area described in Schedule 1 on the day the transition period commenced, the Aboriginal Legal Rights Movement Incorporated was invited by the Minister under section 203A to apply for recognition as the representative body for the area for a period of one year from 1 July 2007. During the transition period, and within the period specified in the invitation, the Aboriginal Legal Rights Movement Incorporated applied for recognition as the representative body for that area.
Paragraph 203AD(2)(b) of the Act provides that recognition of a representative body under subsection 203AD(1A) takes effect on 1 July 2007. Paragraph 203AD(2A)(b) of the Act provides that recognition of a representative body under subsection 203AD(1A) ceases to have effect at the end of the day specified in the instrument of recognition.
Subsection 203AD(1A) requires the Minister to recognise certain bodies as representative bodies (see above). Paragraph 203AD(2D)(a) requires the period for which these bodies are recognised to be the same as the period for which they were invited to apply. As the Minister has no discretion in relation to these matters, consultation about the making of the instrument was not undertaken. However, bodies that will be recognised under subsection 203AD(1A) were advised of criteria to which the Minister would have regard in making decisions about recognition periods. They were also advised that it was open to them to provide comments or information about appropriate recognition terms, and that any relevant information would be taken into account.
The instrument is not regulatory in nature, will not impact on business activity and will have no compliance costs for business or competition impact.
The instrument provides that the recognition of the Aboriginal Legal Rights Movement Incorporated as the representative body for the area commences on 1 July 2007 and will cease at the end of 30 June 2008.
Authority: Subsection 203AD(1A) of the Native Title Act 1993
Overview
The Native Title Act 1993 was enacted to address the legal recognition of native title rights in Australia, providing a framework for the determination and recognition of native title claims. The Act was introduced by the Australian Parliament to address the gap in the recognition and protection of the traditional rights and interests of Aboriginal and Torres Strait Islander peoples in land and waters. The 2007 legislative instrument under subsection 203AD(1A) of the Act serves to recognise the Aboriginal Legal Rights Movement Incorporated as the representative body for a transitionally affected area for a specified period, following their application during the transition period. This legislative instrument was made without the need for consultation due to the non-discretionary nature of the recognition process, although affected bodies were informed of the criteria and invited to provide comments. The policy objective of this recognition is to ensure continuity and stability in the representation of native title interests during the transition period, with the recognition period aligned to that specified in the invitation to apply.
Scope and Application
The instrument made under subsection 203AD(1A) of the Native Title Act 1993 recognises the Aboriginal Legal Rights Movement Incorporated as the representative body for a transitionally affected area, effective from 1 July 2007, and ceasing on 30 June 2008. This recognition applies to the specific area detailed in Schedule 1 of the instrument, and is contingent upon the body being the representative body for the area on the day the transition period commenced and having applied to be recognised during the transition period. The Act mandates that the Minister for Families, Community Services and Indigenous Affairs must recognise the body under these conditions without exercising discretion, though the bodies were invited to provide comments or information regarding appropriate recognition terms. Notably, the instrument does not have regulatory implications, does not affect business activities, and does not incur compliance costs for businesses or competition impacts.
Key Provisions
The primary operative sections of the legislative instrument (subsection 203AD(1A)) mandate that the Commonwealth Minister for Families, Community Services and Indigenous Affairs must recognise a specific body as the representative body for a transitionally affected area. This requirement applies to any body that was the representative body for the area as it stood on the day the transition period commenced and applied to be recognised as such during the transition period (subsection 203AD(1A)(a) and (b)). The recognition of a representative body under this subsection takes effect on 1 July 2007 and ceases to have effect at the end of the day specified in the instrument of recognition (subsection 203AD(2) and (2A)(b)). Notably, the prior recognition of a representative body ceases to have effect at the end of 30 June 2007 (subsection 203AD(2A)(a)).
The Act imposes certain obligations on the parties involved. The Minister is required to recognise the body that meets the criteria outlined in the legislation as the representative body for the transitionally affected area. This obligation is non-discretionary and follows a specific application process during the transition period. The body that applies for recognition must have been the representative body for the area as it stood on the day the transition period commenced and must have submitted an application within the period specified in the Minister's invitation. The period for which the body is recognised is determined by the period for which they were invited to apply, and the Minister has no discretion in these matters.
There are no explicit offences, penalties, or consequences for breach mentioned in the legislative instrument. However, failure to meet the criteria for recognition or to apply within the specified period could result in the body not being recognised as the representative body for the transitionally affected area. The instrument does not outline any civil or criminal penalties for non-compliance, but it does specify that the recognition of the Aboriginal Legal Rights Movement Incorporated as the representative body for the area commences on 1 July 2007 and will cease at the end of 30 June 2008. The instrument is not regulatory in nature, will not impact on business activity and will have no compliance costs for business or competition impact.