Explanatory Statement
Recognition of Representative Aboriginal/Torres Strait Islander Body 2010 (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 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 2010, 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(3A) of the Act provides that the period of recognition specified in the instrument of recognition must be at least one year but no more than six years.
On the basis of the information provided, the Minister decided to recognise SWALSC for a period of three years from 1 July 2010.
The instrument provides that the recognition of the SWALSC as the representative body for the area commences on 1 July 2010 and will cease to have effect at the end of 30 June 2013. The instrument also revokes, with effect from its commencement, the Recognition of Representative Aboriginal/Torres Strait Islander Body 2008 (No. 1).
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 2010 (No. 1) was enacted to address the need for the recognition of a representative body for Aboriginal and Torres Strait Islander peoples in a specific area, as stipulated under subsection 203AD(1) of the Native Title Act 1993. This legislative instrument, made under the authority of the Commonwealth Minister for Families, Housing, Community Services and Indigenous Affairs, recognises the South West Aboriginal Land and Sea Council Aboriginal Corporation (SWALSC) as the representative body for a defined area, effective from 1 July 2010 until 30 June 2013. The instrument was formulated after SWALSC applied for recognition, and the Minister assessed its capacity to perform the necessary functions of a representative body satisfactorily. The policy objective is to ensure that the recognised body can effectively advocate for and represent the interests of Aboriginal and Torres Strait Islander peoples within the specified area.
Scope and Application
The Recognition of Representative Aboriginal/Torres Strait Islander Body 2010 (No. 1) is a legislative instrument made under subsection 203AD(1) of the Native Title Act 1993, which empowers the Commonwealth Minister for Families, Housing, Community Services and Indigenous Affairs to recognise a body as the representative body for an area if certain criteria are met. Specifically, the instrument recognises the South West Aboriginal Land and Sea Council Aboriginal Corporation (SWALSC) as the representative body for a designated area, effective from 1 July 2010 until 30 June 2013. The decision to recognise SWALSC was based on their satisfactory performance of existing functions and the Minister's assessment that they could perform the functions of a representative body. This legislative instrument is not regulatory and does not impose any business costs or competition impacts. It revokes a previous recognition instrument from 2008, thus updating the status of the recognised representative body for the specified area.
Key Provisions
The Native Title Act 1993 (the Act) under which this legislation is made, allows the Commonwealth Minister for Families, Housing, Community Services and Indigenous Affairs to recognise a body as the representative body for an area, provided certain criteria are met (subsection 203AD(1)). In this instance, the South West Aboriginal Land and Sea Council Aboriginal Corporation (SWALSC) applied to be recognised as the representative body for a specific area, as described in the Schedule to the instrument (section 203AB). The Minister is satisfied that SWALSC satisfactorily performs its existing functions and would be able to perform the functions of a representative body (subsection 203AD(1)(a) and (b)). The recognition period for SWALSC is set for three years, starting from 1 July 2010 and ending on 30 June 2013 (subsection 203AD(3A)). This recognition replaces the previous recognition granted in the Recognition of Representative Aboriginal/Torres Strait Islander Body 2008 (No. 1), which is revoked from the commencement of this instrument.
The obligations imposed on SWALSC by this legislation include the requirement to satisfactorily perform its existing functions and those of a representative body as specified by the Minister (subsection 203AD(1)(a) and (b)). SWALSC must also adhere to any criteria or conditions set by the Minister regarding the recognition period and the performance of its duties. The legislation provides an opportunity for SWALSC to provide comments or information about appropriate recognition terms, which will be taken into account by the Minister in making decisions (subsection 203AD(1)). Furthermore, the recognition period is explicitly stated to be between one and six years, and in this case, it is fixed at three years.
Failure to comply with the obligations and requirements of the Act may result in the cessation of recognition as the representative body for the area. The legislation does not specify particular offences or penalties for breach, but the consequences of failing to perform satisfactorily as a representative body could include the termination of recognition, which would have significant implications for SWALSC. Additionally, any failure to meet the performance criteria set by the Minister could result in the Minister not renewing the recognition period when it expires. The potential impact of such non-compliance could be severe, affecting the ability of SWALSC to represent the interests of the Aboriginal and Torres Strait Islander peoples in the designated area.