Explanatory Statement
Recognition of Representative Aboriginal/Torres Strait Islander Body 2008 (No. 1)
This instrument is made under subsection 203AD(1) of the Native Title Act 1993 (the Act).
This subsection, which took effect on 15 April 2007, provides that the Commonwealth Minister for Families, Housing, Community Services and Indigenous Affairs may, by legislative instrument, recognise as the representative body for an area, a body that has applied under section 203AB to be the representative body for the area if the Minister is satisfied under section 203AD that:
(a) if the body is already a representative body, that it satisfactorily performs its existing functions; and
(b) the body would be able to perform satisfactorily the functions of a representative body.
The South West Aboriginal Land and Sea Council Aboriginal Corporation (SWALSC), the existing representative body for the area described in the Schedule that was recognised as the representative body for the area until 30 June 2008, was invited by the Minister under section 203A to apply for recognition as the representative body for the area described in the Schedule. SWALSC subsequently applied for recognition as the representative body for that area.
SWALSC was advised of criteria to which the Minister would have regard in making decisions about the recognition period. 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.
Paragraph 203AD(2D)(b) of the Act also provides that recognition of a representative body that has applied for recognition on the basis of an invitation in which no period of recognition was specified, then the period of recognition in the instrument must be no less than two years and no more than six years.
On the basis of the information provided, the Minister decided to recognise SWALSC for a period of two years from 1 July 2008.
The instrument provides that the recognition of the SWALSC as the representative body for the area commences on 1 July 2008 and will cease to have effect at the end of 30 June 2010. The instrument also revokes, with effect from its commencement, the Recognition of Representative Aboriginal/Torres Strait Islander Body 2007 (No. 3).
The instrument is not regulatory in nature, will not impact on business activity and will have no compliance costs for business or competition impact.
Overview
The Recognition of Representative Aboriginal/Torres Strait Islander Body 2008 (No. 1) was enacted to address the need for recognising representative bodies for Aboriginal and Torres Strait Islander peoples in specific areas, as mandated by the Native Title Act 1993. This legislative instrument, made under subsection 203AD(1) of the Act, was introduced by the Commonwealth Minister for Families, Housing, Community Services and Indigenous Affairs. The policy objective was to ensure that the recognised body, in this case, the South West Aboriginal Land and Sea Council Aboriginal Corporation (SWALSC), satisfactorily performs its functions as the representative body for the prescribed area. The instrument acknowledges the application of SWALSC for recognition, which was made in response to an invitation by the Minister, and outlines the criteria and conditions for the recognition period, which was set for two years from 1 July 2008 to 30 June 2010. This legislative measure ensures continuity in the representation of Aboriginal and Torres Strait Islander interests in the specified area.
Scope and Application
The Explanatory Statement for the Recognition of Representative Aboriginal/Torres Strait Islander Body 2008 (No. 1) outlines the legislative framework under which the South West Aboriginal Land and Sea Council Aboriginal Corporation (SWALSC) has been recognised as the representative body for a specific area. This recognition is governed by subsection 203AD(1) of the Native Title Act 1993, which mandates that the Commonwealth Minister for Families, Housing, Community Services and Indigenous Affairs may recognise an Aboriginal or Torres Strait Islander body as the representative body for a particular area if certain criteria are met. Specifically, the Minister must be satisfied that the body, if already recognised, satisfactorily performs its existing functions and would be able to perform the functions of a representative body effectively. The recognition period for SWALSC, as determined by the Minister, is two years from 1 July 2008 to 30 June 2010, in accordance with the provisions of paragraph 203AD(2D)(b) of the Act. This instrument revokes a previous recognition made under the Recognition of Representative Aboriginal/Torres Strait Islander Body 2007 (No. 3) and is not intended to impact business activities, impose compliance costs, or affect competition.
The application of this Act is limited to the recognition of Aboriginal and Torres Strait Islander bodies as representative entities for specific areas, thereby governing the scope of their recognised functions and the duration of their recognition. This jurisdictional reach is federal, operating under the Native Title Act 1993, and does not extend to state or territory laws. The Act provides for the exclusion of any body that fails to meet the prescribed criteria for recognition, and any regulatory or operational impacts are confined to the specified recognition period of the recognised body.
Key Provisions
The main operative sections of this instrument are section 203AD(1), which outlines the criteria for recognising a representative body for an area, and section 203AD(2D)(b), which specifies the period of recognition when no period is initially specified in the invitation to apply. The instrument recognises the South West Aboriginal Land and Sea Council Aboriginal Corporation (SWALSC) as the representative body for a particular area for a period of two years from 1 July 2008 to 30 June 2010. The instrument also revokes the previous recognition of the same area, which was in effect until 30 June 2008.
The obligations imposed by this Act on SWALSC include meeting the criteria set out in section 203AD, which require the Minister to be satisfied that SWALSC satisfactorily performs its existing functions and is capable of performing the functions of a representative body. In addition to these requirements, the Minister must consider any comments or information provided by SWALSC about appropriate recognition terms. The Act also requires the Minister to ensure that the recognition period is no less than two years and no more than six years, in accordance with section 203AD(2D)(b).
Breach of the obligations imposed by this Act may result in the cessation of recognition as a representative body, which could have significant consequences for the parties involved. However, the Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for breach. It is likely that failure to meet the criteria for recognition or to perform the functions of a representative body could result in legal action being taken against SWALSC, potentially leading to fines or other penalties. Additionally, failure to meet the recognition period requirements could result in the revocation of recognition, which could have significant consequences for the affected parties.