Explanatory Statement (Consultation Draft) 

Select Legislative Instrument 2010 No.

Issued by the Authority of the Minister for Families, Housing, Community Services and Indigenous Affairs

Native Title Act 1993

Native Title (Prescribed Bodies Corporate) Amendment Regulations 2010 (No. )

Divisions 6 and 7 of Part 2 (sections 55-60AC) of the Native Title Act 1993 (the Act) contain provisions dealing with prescribed bodies corporate (PBCs), including various provisions enabling regulations to be made about their functions. The Native Title (Prescribed Bodies Corporate) Regulations 1999 (‘the Regulations’) have been made under these provisions.

The Native Title (Prescribed Bodies Corporate) Amendment Regulations 2010 (‘the Amendment Regulations) amend the Regulations to:

  • improve the flexibility of the PBC governance regime by:
    • enabling an existing PBC to be determined as a PBC for subsequent determinations of native title;
    • removing the requirement that all members of a PBC are also the native title holders (referred to in the Act and in this document as the “common law holders”); and
    • clarifying that standing authorisations in relation to particular activities of a PBC need only be issued once;
  • provide for the transfer of PBC functions in circumstances where there has been failure to nominate a PBC, where a liquidator is appointed, or where a PBC wishes this to occur; and
  • enable PBCs to charge a fee for costs incurred in providing certain services and set out a procedure for review by the Registrar of Indigenous Corporations of a decision by a PBC to charge such a fee.

Background

In September 2005, the then Attorney-General of the previous Government announced a major package of reforms to the native title system. One element of this package comprised an examination of the current structures and processes of PBCs. This examination was progressed by an Interdepartmental Steering Committee which produced a report entitled “Structures and Processes of Prescribed Bodies Corporate” (the PBC Report).

The previous Government accepted all of the PBC Report’s 15 recommendations in 2006. Nine of these (recommendations 1 to 4, 9 and 10, and 12 to 14) did not require any legislative action. The other six did require amendments to the PBC Regulations (recommendations 5, 6, 7, 8, 11 and 15) and four of them required amendments to the Act to enable them to be implemented. These amendments were made in the Native Title Amendment Act 2007 (for recommendations 5 and 7) and the Native Title Amendment (Technical Amendments) Act 2007 (for recommendations 11 and 15).

The current Government has decided in general to adopt the approach of the previous Government. However, it has decided not to fully implement recommendation 5 of the PBC Report, which provides:

“The PBC regime should be amended to make it clear that the statutory requirements for PBCs to consult with and obtain the consent of native title holders on ‘native title decisions’ are limited to decisions to surrender native title rights and interests in relation to land or waters.”

Adoption of this recommendation is considered to disadvantage the common law holders in their dealings with the PBC. Instead, the Government has decided that the requirement to consult with, and obtain the consent of, native title holders in relation to all native title decisions should generally be retained. However, the common law holders should be given the ability to ‘opt out’ of this requirement by inserting replacement provisions in the constitution of their PBC (see new regulation 8A inserted by Schedule 1 Item 10, below). Alternatively, the common law holders can decide to provide standing authorisations (see new regulation 9, Schedule 1 Item 11, below). These options will provide common law holders and their PBCs with appropriate flexibility to tailor their procedures to local circumstances.

Details of the Amendment Regulations, including the relevant recommendation from the Report where applicable, are outlined below.

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

The Amendment Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 and are required to be registered on the Federal Register of Legislative Instruments established and maintained under that Act.

The Amendment Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

Consultation

Comments on a consultation draft of the regulations were sought from the following:

  • State and Territory Governments; and
  • targeted stakeholders in the native title system including:
    • all native title representative bodies established and funded under
    • section 203C of the Act;
    • bodies funded by the Department under subsection 203FE(1) of the Act to perform similar native title functions;
    • native title-related institutions (eg. the Australian Institute of Aboriginal and Torres Strait Islanders Studies, the National Native Title Tribunal);
    • the Federal Court; and
    • key industry bodies (eg. the Australian Local Government Association and the Minerals Council of Australia).

[A summary of the consultation process to be added]

Details of the Native Title (Prescribed Bodies Corporate) Amendment Regulations 2010 (No. )

Regulation 1 – Name of Regulations

This regulation provides that the title of the amending Regulations is the Native Title (Prescribed Bodies Corporate) Amendment Regulations 2010 (No. ). For the purpose of this document they will be referred to as ‘the Amendment Regulations’.

Regulation 2 – Commencement

This regulation provides for the Amendment Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments (see also Note 1 immediately following subregulation 24(4)).

Regulation 3 – Amendment of Native Title (Prescribed Bodies Corporate) Regulations 1999

This regulation provides that Schedule 1 amends the Native Title (Prescribed Bodies Corporate) Regulations 1999 (‘the Regulations’).

Schedule 1

Schedule 1 – General

The Amendment Regulations have the effect of significantly increasing the size of the Regulations. For ease of reference, the Regulations have been divided into four new Parts, namely:

  • Part 1 Preliminary (regulations 1 to 3)
  • Part 2 Prescribed bodies corporate (regulations 4 to 10)
  • Part 3 Changes to the holding of native title rights and interests (regulations 11 to 18
  • Part 4 Fees for services charged by registered native title bodies corporate (regulations 19 to 24)

Schedule 1 – Items 1 and 4

Item 1 and 4 insert new headings before regulation 1 (“Part 1”) and after regulation 3 (“Part 2”) respectively, to reflect the new structure of the Regulations.

Schedule 1 – Item 2

This item inserts an amended definition of “native title decision” into subregulation 3(1) of the Regulations. It replaces the definition formerly contained in subregulation 8(1) by omitting the word “do” from after the words “agree to” in paragraph (b) of the definition. The effect of this new definition is to give recognition to the fact that acts of governments may affect native title rights and interests, as well as acts done by the common law holders. Moving it into the Interpretation clause of the Regulations has the effect of ensuring that the definition now applies throughout the Regulations. Further details of this amendment are set out under item 10, below (which contains the relevant amendments to regulation 8).

Schedule 1 – Item 3

This item inserts a revised definition of “prescribed body corporate” into subregulation 3(1) of the Regulations. While retaining the original definition as set out in the Regulations (ie. a body corporate prescribed by regulation 4), it adds the Indigenous Land Corporation (ILC) to the definition of a PBC. This will assist in giving effect to recommendation 15 of the PBC Report, which provides that:

“The Australian Government should note the need to develop a mechanism for the determination of a default PBC in appropriate circumstances. The [Department] should develop a comprehensive proposal for establishing ‘default’ bodies corporate to perform PBC functions where there is no functioning PBC nominated by the native title holders.”

The ILC is established under section 191A of the Aboriginal and Torres Strait Islander Act 2005 (‘the ATSI Act’). It has been decided that the ILC is a suitable body to be prescribed as the default PBC because it is a national statutory body with a regional presence and it has land management functions set out under section 191E of the ATSI Act. Section 191C empowers it to, amongst other things, perform such functions as are conferred on it by any other law of the Commonwealth. The provisions of paragraph 57(2)(c) and 59(2) of the NTA are sufficient to enable regulations to be made for this purpose and this is noted at pages 75-76 of the Explanatory Memorandum for the Amendment Act, which inserted these provisions.

It is expected that the ILC would generally only be used as an option of last resort and for a limited period of time. It would perform statutory PBC functions while allowing the common law holders time to establish a replacement PBC. See further under Regulation 11 in item 12, below.

Schedule 1 – Item 5

This item implements recommendation 8 from the PBC Report, which provides that:

“The PBC Regulations should be amended to remove the requirement that all members of a PBC be the native title holders and associated safeguards should be included to ensure the protection of native title rights and interests.”

Prior to its replacement by this item, the effect of the previous subregulation 4(2) was that only the common law holders could be members of a corporation to be prescribed as a PBC. The PBC Report found that enabling common law holders to include non-traditional owners and also non-Indigenous people may assist in making the existing governance structure more representative of the broader community in which they live and also increase the corporate skills base. This change would also allow common law holders to consider using existing corporations as their PBCs, thereby avoiding unnecessary proliferation of corporate structures and creating corporate efficiencies. Importantly, this does not alter the requirement for common law holders to consent to the terms of any broader membership (see further under items 10 and 11 below, which deal with matters relating to consent).

Item 5 inserts new paragraphs 4(2)(a) to (d) into the Regulations to give effect to recommendation 8, while also ensuring that the Indigeneity requirement in the Corporations (Aboriginal and Torres Strait Islander) Act 2006, (‘the CATSI Act’) under which PBCs are incorporated, is complied with. The CATSI Act requires that a specified proportion of members of an Indigenous corporation, depending on the size of the membership specified for the corporation, must be Indigenous people.

Schedule 1 – Item 6

This item inserts new regulation 4A to give effect to recommendation 7 of the PBC Report, which provides that:

“The PBC regime should be amended to enable an existing PBC to be determined as a PBC for subsequent determinations of native title in circumstances where the native title holders covered by all determinations agree to this.”

Subsection 59(1) of the Act provides that regulations may prescribe the kinds of bodies corporate that may be determined under section 56 (a trust PBC) or 57 (an agent PBC). When it makes a determination under the Act that native title exists, the Federal Court (the Court) must ask the common law native title holders (common law holders) whether they intend their native title to be held on trust and, if so, to nominate a PBC to be the trustee of the native title (section 55 and paragraph 56(2)(a) of the Act). If the common law holders nominate a PBC under these provisions, the Court must determine that the PBC is to hold the native title in trust for the common law holders (paragraph 56(2)(b)) (trustee PBC). A trustee PBC holds the native title in accordance with the regulations (subsections 56(3) and (4) of the Act, regulation 6).

If the common law holders do not nominate a PBC to be the trustee of the native title, the Court must determine that the native title will be held by the common law holders (paragraph 56(2)(c)). In that case, the Court must ask the common law holders to nominate a PBC, which is to perform the functions in subsection 57(3) (paragraph 57(2)(a) and regulation 7) on their behalf. In this instance it will act as an agent of the common law holders (agent PBC).

In practice, the current Regulations have prevented an existing PBC being determined under section 56 or section 57 in respect of a subsequent determination of native title, even where the common law holders agreed to this. This is because subregulation 4(2)(a) required all members of a PBC to be persons who, at the time of the making of a determination under section 56 or section 57, were included or proposed to be included in the determination of native title as native title holders. This could only occur where each member of the existing PBC was also the same native title holder in relation to the subsequent determination of native title.

Accordingly, a new section 59A was inserted into the Act by the Amendment Act that states that the regulations can provide for an existing PBC to be determined by the Federal Court (under section 56 of the Act) as a PBC for subsequent determinations of native title in circumstances where all the native title holders covered by all of the determinations agree to this.

For the purposes of subsection 59A(3), the provisions of new regulation 4A require the PBC to consult with the common law holders for whom the PBC was initially determined and to obtain their consent to the nomination of the PBC by subsequent common law holders: the existing PBC is required to consult with and obtain the consent of the first group of common law holders in the same way as it was required to fulfil these obligations before making a native title decision under new regulation 8 (see item 6, below).

However, the effect of subsections 59A(1) and (2) is that an existing trustee PBC can only be determined as a trustee PBC, and an existing agent PBC can only be determined as an agent PBC, for subsequent determinations: see new paragraph 4A(a).
The effect of this is that the PBC cannot change its nature with respect to a subsequent group of common law holders (so if the PBC is a trustee PBC, it cannot act as agent for a subsequent group; and, if it is an agent PBC, it cannot act as trustee for a subsequent group).

Schedule 1 – Items 7, 8 and 9

These items make minor technical amendments to regulations 5 and 7 so that the wording used in those provisions consistent with the wording used in the remainder of the regulations and the Act.

Schedule 1 – Item 10

This item repeals regulation 8 and inserts new regulations 8 and 8A. They specify how evidence of the relevant consultation and consent is to be documented in relation to a native title decision.

Regulation 8 currently provides that a PBC is required to consult with, and obtain the consent of, the common law holders before making a so-called ‘native title decision’. Such a decision was defined in subregulation 8(1) as being a decision that deals with the surrender of native title rights and interests in relation to land or waters; or to do, or agree to do, any other act that would affect the native title rights or interests of the common law holders. This included a requirement to consult with and obtain the consent of the common law holders (subregulations 8(2)) and also following any traditional decision making processes specified under the traditional laws and customs of the common law holders (subregulations 8(4) and 8(5)).

New regulation 8 removes the definition of ‘native title decision’ from regulation 8 (it is now in subregulation 3(2) – see discussion under item 2, above) while retaining most of the remainder of the operative provisions and adding references to new regulation 8A.

The background to the addition of regulation 8A is that the effect of current paragraph 9(2)(b) of the Regulations (see further under item 11, below) is to set out a regime of ‘standing authorisations’ to be issued by the relevant native title holders in relation to decisions affecting native title. In essence, the holders will be taken to have consented to a proposed native title decision if a document (complying with certain requirements) certifies that (i) the proposed decision is of a kind in respect of which the holders have been consulted and (ii) the holders have decided that decisions of that kind can be made by the PBC without the requirement for further consent.

The PBC Report noted that in practice this procedure appears to not have been adopted. While this may have been due to reluctance on the part of native title holders to delegate authority, the Report considered that the existing provisions were too complicated to implement and that they should be streamlined.

The previous process required that a certificate, signed by five members of the PBC who were affected holders of native title, needed to be provided for each decision that was the subject of a standing authorisation. In effect, this negated the benefit of delegating authority, as with the often remote location of PBCs and native title holders, it was often difficult and time consuming to obtain the required signatures.

To overcome this, new regulation 8A enables the common law holders to make a provision in the corporation’s rules to exclude the operation of regulation 8 and to consent to their own consultation process. This will allow them to decide on a consultation process that is appropriate for their circumstances.

Schedule 1 – Item 11

This item implements recommendation 6 of the PBC Report, which provides that:

“The PBC regulations should be amended to clarify the circumstances in which ‘standing authorisations’ may be issued to a PBC and, in particular, to provide that only one certificate needs to be issued with each authorisation.”

This item substitutes current regulation 9 with a new regulation 9. The effect of new subregulation 9(1) is to ensure that only one certificate needs to be signed in connection with each standing authorisation issued by the PBC. The remaining provisions of regulation 9 require that the certificate specifies that the native title holders have been consulted about how the relevant decisions are to be made. Those remaining provisions have not been substantially altered by these amendments except to allow for the provisions of new subregulation 9(1).

The desired result is that certificates that provide evidence of standing authorisations need to be only prepared once, at the time that the authorisation is made, rather than each time a PBC makes a decision in accordance with the authorisation.

Schedule 1 – Item 12

This item removes regulation 11 from the Regulations and inserts new regulations 11 to 18 inclusive into new Part 3 (changes to the holding of native title rights and interests) and new regulations 19 to 24 into new Part 4 (dealing with the charging by PBCs of fees for services).

Part 3 – Changes to the holding of native title rights and interests

New Part 3 deals with the replacement and going into liquidation of PBCs, and also the determination of a “default” PBC in cases where the common law holders are unable to nominate a PBC.

Regulation 11 – Determination of the Indigenous Land Corporation (ILC) as default agent PBC

New regulation 11 implements recommendation 15 of the PBC Report, which provides that:

“The Australian Government should note the need to develop a mechanism for the determination of a default PBC in appropriate circumstances. The [Department] should develop a comprehensive proposal for establishing ‘default’ bodies corporate to perform PBC functions where there is no functioning PBC nominated by the native title holders.”

Paragraph 57(2)(c) of the Act enables regulations to be made for the Federal Court to determine a PBC where a PBC has not been nominated by the common law holders. Subsection 59(2) of the Act provides that regulations may be made to prescribe the body corporate or kinds of body corporate that may be determined by the Court under paragraph 57(2)(c). New regulation 11 gives effect to these provisions.

Subregulation 11(1) allows the Federal Court to appoint the ILC to be an agent PBC under paragraph 56(4)(e), 57(2)(c) or 60(b) of the Act in circumstances where the common law holders have failed to nominate a PBC (see regulations 12, 13, 15 and 16) and where a liquidator has been appointed to wind up a PBC (see regulations 14 and 17). It also allows the ILC to be determined as an agent PBC where the ILC consents to a nomination by the common law holders. See also item 3, above.

Subregulation 11(2) requires the Registrar of the Federal Court to give reasonable written notice to the ILC prior to making a determination under paragraph 57(2)(c) of the Act. This will allow the ILC to prepare itself for any new role and, if necessary, to seek any orders relevant to the transfer to it of the PBC’s function.

Subregulation 11(3) provides that the ILC will operate as a PBC for at least five years. A set period provides the ILC with some certainty about the length of time it is likely to operate as a replacement agent PBC and recognises the time it can take to establish a new corporation. It is, however, open to the common law holders to use the processes established by regulations 15 or 16 to seek the return of these functions any time within this timeframe once the common law holders decide that they are in a position to nominate their own PBC.

Subregulation 11(4) requires the Court to determine an extension of up to one year for the ILC in its role as “default” PBC if the common law holders have not nominated a replacement PBC before the expiration of the initial five-year period or in the subsequent extended period.

Regulations providing for the Replacement of PBCs

Item 12 also inserts new regulations 12 to 18, which deal with situations where PBCs are replaced. In particular, they deal with the replacement of PBCs in the event of the native title holders deciding to do so or in the event of the PBC going into liquidation.

Regulation 12 – Replacement of trustee PBC with another trustee PBC

Paragraphs 56(4) (b) and (c) of the Act allow regulations to be made to provide for the replacement of the relevant trustee PBC by a new trustee PBC.

Subregulation 12(1) provides that the common law holders may apply to the Federal Court to make a determination replacing an existing trustee PBC with a new trustee PBC, subject to complying with the notification requirement in new regulation 18.

Paragraph 12(2)(a) requires the Federal Court to make a determination to this effect as soon as practicable after receiving the application. Paragraph 12(2)(b) allows the Court to make orders about any matter necessary or appropriate to give effect to the common law holders’ wishes, as well as transitional matters, such as dealing with transfers of assets and liabilities, including rights and obligations where a PBC is a party to an indigenous land use agreement (see subsection 56(7) of the Act).

Regulation 13 – Replacement of trustee PBC by agent PBC

Subparagraph 56(4)(d)(i) and paragraphs 56(4)(e) and (f) of the Act provide analogous provisions to paragraphs 56(4)(b) and (c) (discussed in relation to new regulation 12; see above) where the common law holders decide to allow a trustee PBC to be replaced by an agent PBC (including a default body).

Subregulation 13(1) provides that the common law holders may apply to the Federal Court for a determination to terminate the prescribed trustee PBC, subject to complying with the notification requirements in new regulation 18. The common law holders may nominate an agent PBC to replace the prescribed trustee PBC.

Subregulation 13(2) allows the Court to make orders about any matter necessary or appropriate to give effect to the common law holders’ wishes, as well as transitional matters, such as dealing with transfers of assets and liabilities, for example, rights and obligations where a PBC is a party to an indigenous land use agreement.

Subregulation 13(3) confirms that on termination of the trust, the native title reverts to the common law holders.

Regulation 14 – Replacement of a trustee PBC in liquidation

Subparagraph 56(4)(d)(ii) and paragraph 56(4)(f) of the Act allow regulations to make provision for the termination of a trustee PBC where a liquidator has been appointed for that PBC.

Subregulation 14(1) requires the liquidator to apply to the Federal Court for the determination of a replacement PBC within 14 days of appointment. If the ILC is nominated as the replacement, the liquidator is also required to notify the ILC in writing within the same 14-day timeframe. This will allow the ILC to prepare itself for any new role and, if necessary, to seek any orders in connection with its assuming the PBC function as default agent PBC.

Subregulation 14(2) requires the Court to determine the application as soon as practicable after receiving the application. This subregulation also provides that the Court may make orders about the termination of the trust or transitional matters.

Subregulation 14(3) confirms that on termination of the trust, the native title reverts to the common law holders.

Regulation 15 – Replacement of agent PBC by trustee PBC

Paragraph 56(7)(a) of the Act enables regulations to be made to enable an agent PBC to be replaced with a trustee PBC where the common law holders wish for this to occur.

Subregulation 15(1) provides that the common law holders may apply to the Federal Court for such an arrangement, subject to them complying with the notification requirements in regulation 18.

Subregulation 15(2) enables the Court to make a determination to this effect, and may make orders in relation to the termination of the trust, the performance of the PBC’s functions and any transitional matters.

Regulation 16 – Replacement of agent PBC by another agent PBC

Paragraph 60(a)(i) of the Act enables regulations to be made for the common law native title holders to apply to the Federal Court for the replacement of their current agent PBC with another agent PBC.

Regulation 16(1) enables the common law holders to apply to the Federal Court for a determination to replace their current agent PBC with another agent PBC, subject to complying with the notification requirements in regulation 18.

Subregulation 16(2) requires the Court to make a determination to this effect as soon as practicable after receiving the application and enables the Court to make orders to give effect to the common law holder’s wishes and any transitional matters .

Regulation 17 – Replacement of an agent PBC in liquidation

Subparagraph 60(a)(ii) of the Act allows regulations to be made for the termination of an agent PBC where a liquidator has been appointed for that PBC.

Subregulation 17(1) requires the liquidator to apply to the Federal Court for the determination of a replacement agent PBC within 14 days of appointment. If the ILC is nominated as the replacement, the liquidator is also required to notify the ILC in writing within the same 14-day timeframe. This will allow the ILC to prepare itself for any new role and, if necessary, to seek any orders in connection with its assuming the PBC function as default agent PBC.

Subregulation 17(2) requires the Court to determine the application as soon as practicable after receiving the application. This subregulation also provides that the Court may make orders about the termination of the trust or transitional matters.

Regulation 18 – Notification requirements

Subregulation 18(1) specifies that regulation 18 applies to applications to the Federal Court made under subregulations 12(1), 13(1), 15(1) and 16(1).

Subregulation 18(2) requires the applicant for the replacement PBC to provide the existing PBC with at least 14 days written notice of the intention to make an application to the Federal Court for that PBC to be replaced and any alternative arrangements that the applicant has decided to put in place, including an alternative structure for the replacement PBC (see subregulation 13(3)). Subregulation 18(4) requires the applicant to advise the Court of the proposed alternative arrangements and provide the written consent of the relevant nominated replacement PBC.

Part 4 – Fees for services charged by registered native title bodies corporate

New Part 4 implements Recommendation 11 of the PBC Report, which provides that:

“The Native Title Act should be amended to authorise PBCs to charge a third party for costs and disbursements reasonably incurred in performing it statutory functions under the NTA or the PBC Regulations at the request of the third party. The amendments should also provide for an appropriate authority to investigate such arrangements on request, to ensure the costs were reasonably incurred.”

The PBC Report proposed that registered native title bodies corporate (RNTBCs) be allowed to charge for reasonable costs incurred or to be incurred in performing particular activities associated with the performance of particular functions and the exercise of particular powers under the future act regime. Part 4 applies to ‘registered native title bodies corporate’ rather than ‘prescribed bodies corporate’. This is because, whilst PBCs may hold native title before becoming RNTBCs, under the Act and regulations, it is in fact RNTBCs that perform statutory functions and exercise statutory powers; see further under regulation 19 (definition of ‘body corporate’), below.

The intention of new Part 4 is to enable RNTBCs to charge for activities they perform (eg. consulting with common law holders) as well as for services they procure that are performed by others (eg. providing legal advice).

Item 7 of Schedule 3 in the Native Title Amendments (Technical Amendments)Act 2007 inserted new Division 7 (sections 60AB and AC) into Part 2 of the Act; the regulations contained in Part 4 are made under this new Division.

Subsection 60AB(1) specifies the activities in respect of which RNTBCs may charge fees, with the remainder to be dealt with under regulations (subsection 60AB(2)). Section 60AC makes provision for review by the Registrar of Indigenous Corporations, who is appointed under the Corporations (Aboriginal and Torres Strait Islander) Act 2007 (‘the CATSI Act’), of any fees so charged by RNTBCs.

Regulation 19 – Definitions

Regulation 19 provides definitions of certain terms used in Part 4. An “applicant” is defined as being a person making an application to the Registrar for an opinion. A “body corporate” is defined as being a registered native title body corporate. The “Registrar” is the Registrar of Indigenous Corporations.

Regulation 20 – Fees for Services

Subsection 60AB(1) of the Act specifies that a RNTBC may charge a person (other than a person specified in subsection 60AB(4)), a fee for services, which includes any cost incurred or to be incurred in:

  • negotiating right to negotiate (RTN) agreements (under Subdivision P of Division 3 of Part 2 of the Act);
  • negotiating agreements under provisions of a State/Territory law which are the subject of a determination under paragraph 43(1)(b) of the Act; and
  • negotiating Indigenous Land Use Agreements (Subdivisions B, C or D or Division 3 of Part 2).

Subsection 60AB(3) provides that the fees imposed must not amount to a tax. Whether or not a fee will amount to a tax will depend on the cost of providing the service and ensuring that any fee reflects the value of the service provided, and is not so high as to amount to something that goes beyond reasonable recovery of expenses incurred in, and reasonably incidental to, providing the service.

Subsection 60AB(4) does not allow fees to be levied on:

  • the common law holders for whom the RNTBC holds native title in trust or as an agent, or
  • any other RNTBC, or any native title representative bodies established under the Act or funded under the Act to perform native title functions, or
  • registered native title claimants or others claiming native title in relevant native title claim or ILUA areas under the Act.

Subsection 60AB(5) ensures that RNTBCs cannot recover costs for participating in arbitral or court proceedings related to the negotiations referred to above.

Regulation 20 provides that costs may be recovered in relation to the following activities:

  • activities related to providing comments on proposed future acts under paragraphs 24GB(9)(d), 24GD(6)(b), 24GE(1)(f)(ii), 24HA(7)(b), 24ID(3)(b), 24JB(6)(b), 24JB(7)(b) such as contacting affected common law holders;
  • activities related to consultations with proponents under paragraph 24MD(6B)(e) such as meeting and travel costs and obtaining legal advice;
  • activities related to making submissions under paragraph 26C(5)(b) such as contacting affected common law holders;
  • activities related to the exercise of procedural rights that are conferred by or referred to in the future act regimes under subsections 24KA(7), 24MD(6A) and 24NA(8) of the Act; and
  • activities related to the exercise of procedural rights in relation to acts or provisions mentioned in a determination made under sections 26A (approved exploration acts), 26B (approved gold or tin mining acts) or 43A (which deals with State or Territory provisions that may provide for an exception to the right to negotiate provisions that are set out in Part 2, Division 3, Subdivision P) of the Act.

It is intended that this regulation will allow reasonable cost recovery for all statutory activities other than those activities precluded from cost recovery by the Act; the test for a valid fee is that it does not breach the provisions of subsections 60AB(3) to 60AB(5) of the Act.

Regulations 21 and 22 – Application for opinion of Registrar about fees charged for services and Opinion of the Registrar

Subsections 60AC(1)-(4) of the Act provide the Registrar of Indigenous Corporations with powers to assist with the resolution of disputes between RNTBCs and third parties about the fees proposed to be charged by a RNTBC. Recognising that RNTBCs need to incorporate under the CATSI Act and that the Registrar has the necessary experience and access to resources, it was decided to confer this function on this statutory office.

Subsections 60AC(2) and (3) provide that the Registrar may give an opinion in writing to the effect that the charge is one that the RNTBC may charge. If it is the Registrar’s opinion that it is not one that the RNTBC may charge, then the RNTBC must withdraw that charge.

Subsection 60AC(4) provides that the opinion of the Registrar is not a legislative instrument and therefore does not need to be registered on the Federal Register of Legislative Instruments under the Legislative Instruments Act 1997.

Subsection 60AC(5) allows regulations to be made dealing with:

  • the process by which a request to the Registrar is made and considered (paragraph (b);
  • the withholding of payment of the fee in relation to which a request is made (paragraph (c); and
  • any other matters in relation to the request, the consideration of the request, the giving of an opinion by the Registrar and the consequences of the giving of that opinion (paragraph (d)).

Regulation 21 sets out the process by which a request for an opinion is made to the Registrar by an applicant and is considered by the Registrar for the purposes of paragraph 60AC(5)(b) of the Act

Subregulation 21(2) provides that any request made under this paragraph must be made in writing to the Registrar and must be made within 21 days of the charging of the fee. The request must include:

  • the applicant’s name and address;
  • if the applicant is a corporate body, the signatures of the director or secretary or, absent these, an authorised person of that body;
  • if the applicant is an individual, the signature and printed name of that person;
  • the name, address and Indigenous Corporation Number (ICN) of the RNTBC which charged the fee;
  • the amount of the fee charged;
  • a description of the function performed (or purportedly performed) by the RNTBC for which the fee is charged;
  • a description of the services provided (or purportedly provided) by the RNTBC for which the fee is charged;
  • submissions or statement of reasons why the fee is not one that the RNTBC may, under subsections 60AB(1), (3), (4) and/or (5) or regulation 20, charge the applicant;
  • the documentation provided by the RNTBC to the applicant in which the fee is charged; and
  • any documentation provided by the RNTBC to the applicant explaining the charge and its calculation.

Subregulation 21(3) requires the applicant to provide the RNTBC that charged the disputed fee with a copy of the request within seven days of lodging it.

Subregulation (4) allows such a request to be withdrawn in writing at any time before the Registrar provides the requested opinion.

Subregulation 21(5) enables the Registrar to seek further information in writing from the applicant within 28 days of the receipt of the request, including specifying a time limit (as decided by the Registrar) within which the applicant must supply that information. If the applicant does not comply with this request within the time limit (including any extension of the time limit granted by the Registrar), the Registrar is entitled to treat the application as having been withdrawn. If the Registrar does so, he or she will be required to give the applicant written notice within 14 days of making the decision to treat the application has having been withdrawn (see also subregulation 21(7)).

Under subregulation 21(6), if the Registrar seeks further information under subregulation 21(5), the Registrar is obliged to inform the applicant of the consequences of not complying with the initial or extended time limit specified.

Regulation 22 makes provision for the consideration of a request for an opinion and the giving of an opinion by the Registrar for the purposes of paragraph 60AC(5)(d) of the Act.

Subregulation 22(1) specifies that if the Registrar provides an opinion on whether the fee is one that the RNTBC may charge, the opinion must be provided in writing within 28 days of the request for an opinion being received by the Registrar and that the opinion must be provided to the person or corporate body that made the application, the RNTBC that charged the fee and also to the Secretary of the Department with responsibility for administering the Act .

The effect of subregulations 22(2) and (3) is that if the Registrar asks for further information from the applicant or the RNTBC under regulation 21, the time limit for giving of the opinion in regulation 22 is extended from the day that the request was made to the day on which the requested information is received.

Regulation 23 – Review of Registrar’s decision

Regulation 23 provides for a reconsideration by the Registrar of a) an opinion given under subsection 60AC(2) (regarding whether the fee charged is one that a PBC may charge), or b) a decision not to give an opinion under that subsection. The enabling provision in the Act is paragraph 60AC(5)(c).

Regulation 23 details the process of review of the Registrar’s opinion or the process if the Registrar does not give an opinion. These are reviewable decisions under the CATSI Act, which allows for a right of internal review.

The relevant provisions that apply to the review are set out in subsections 620-1(3) and (4) and 620-5 (4), (5) and (6) of the CATSI Act (note section 623-1 does not apply). These provisions in the CATSI Act deal with the reconsideration by the Registrar of a reviewable decision on his or her own initiative or on the request of a person affected by the decision.

Subregulations 23(4) to (8) provide for a comprehensive regime of review. These include that a request for reconsideration of the opinion of the Registrar or of the decision of the Registrar to not give an opinion must be made in writing and given to the Registrar within 28 days (unless extended by the Registrar) after the day on which the applicant first received the opinion or was told that the Registrar would not provide one, and that the notice of request must set out the reasons for the request. The Registrar is also empowered to reconsider the matter on his or her own initiative, even after receipt of an external request for reconsideration.

The Registrar is required to tell the applicant and the relevant RNTBC in writing within 28 days of receiving the request to reconsider that, in his or her opinion, the fee charged was allowable, or that it was not, or that he or she is not intending to give an opinion. The Registrar must also give a copy of this decision to the Secretary of the Department in the same 28-day period. If the applicant and relevant RNTBC have not received the relevant notice within 28 days, the Registrar will be deemed to have affirmed the opinion or to have decided to not give an opinion, as the case may be.

Provision is made in subregulation 23(9) for a person affected by a decision of the Registrar to make an application to the Administrative Appeals Tribunal (AAT) for a review of that decision if that person is not satisfied with a decision of the Register under this regulation.

Regulation 24 Time for payment of fee after Registrar’s decision or after review

Regulation 24 makes provision for the withholding of payment of the fee in relation to which a request is made following the Registrar’s decision or after a review of that decision for the purposes of paragraph 60AC(5)(c) of the Act.

The effect of this Regulation is that the requirement for the payment of fees is suspended (with no interest payable) while the request for an opinion or reconsideration is current and until such time as the matter is resolved.

If the Registrar is of the opinion that the proposed fees are consistent with Division 7 of the Act, they become due and payable within 28 days of that decision having been notified to the relevant person or any other period specified in writing by the RNTBC, provided that it is not less than the standard 28-day period. Should the Registrar be of the opinion that the fees are inconsistent with Division 7 or do not relate to the services to be provided, any obligation to pay them is removed as of the date that the Registrar has given the relevant opinion in accordance with Part 4. The RNTBC is then required to withdraw the charge.

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