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

Consultation Draft Only

 

Select Legislative Instrument 2010 No.

I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Native Title Act 1993.

Dated

2010

By Her Excellency's Command

[DRAFT ONLY - NOT FOR SIGNATURE]
Minister for Families, Housing, Community Services and Indigenous Affairs

1. Name of Regulations
   
   These Regulations are the Native Title (Prescribed Bodies Corporate) Amendment Regulations 2010 (No. ).
   
   
2. Commencement
   
   These Regulations commence on the day after they are registered.
   
   
3. Amendment of Native Title (Prescribed Bodies Corporate) Regulations 1999
   
   Schedule 1 amends the Native Title (Prescribed Bodies Corporate) Regulations 1999.

Schedule 1 Amendments

(regulation 3)

[1] Before regulation 1

insert

Part 1 Preliminary

[2] Subregulation 3 (1), after definition of Act

insert

native title decision means a decision:

1. to surrender native title rights and interests in relation to land or waters; or
2. to do, or agree to, any other act that would affect the native title rights or interests of the common law holders.

[3] Subregulation 3 (1), definition of prescribed body corporate

substitute

prescribed body corporate means:

1. a body corporate prescribed by regulation 4; or
2. the Indigenous Land Corporation established by subsection 191A (1) of the Aboriginal and Torres Strait Islander Act 2005.

[4] After regulation 3

insert

Part 2 Prescribed bodies corporate

[5] Paragraphs 4 (2) (a) to (c)

substitute

1. the purpose of becoming a registered native title body corporate is set out in the objects of the corporation; and
2. all members of the corporation are:
   1. persons who, at the time of making of the section 56 or 57 determination, are included, or are proposed to be included, in the native title determination as native title holders; or
   2. persons to whom the persons mentioned in subparagraph (i) have consented; and
3. at all times after the section 56 or 57 determination is made, all members of the corporation are:
   1. persons who have native title rights and interests in relation to the land or waters to which the native title determination relates; or
   2. persons to whom the persons mentioned in subparagraph (i) have consented; and
4. the corporation meets the Indigeneity requirement mentioned in section 29-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

[6] After regulation 4

insert

4A Prescribed bodies corporate

For subsection 59A (3) of the Act, the consent of the common law holders may be obtained in the following way:

1. the prescribed body corporate must consult the common law holders for whom the prescribed body corporate holds native title rights and interest in trust or for whom it is an agent prescribed body corporate (the initial holders) and obtain their consent in the same way as set out in regulation 8 for a native title decision; and
2. the common law holders who were not the initial holders (the subsequent holders) must nominate the prescribed body corporate under section 56 or 57 of the Act in the same way as for the determination for the initial holders.

[7] Regulation 5

omit

be a trustee for, or act as agent or representative of, more than 1 group of common law holders

insert

hold native title rights and interests in trust for more than 1 group of common law holders or be an agent prescribed body corporate

[8] Paragraph 7 (1) (a)

substitute

1. to be the agent prescribed body corporate for those rights and interests;

[9] Subregulation 7 (2), note

substitute

Note An agent prescribed body corporate is also subject to regulations 8 to 10.

[10] Regulation 8

substitute

8 Consultation with, and consent of, common law holders

1. A prescribed body corporate that holds native title rights and interests in trust for the common law holders, or is an agent prescribed body corporate, must, before making a native title decision, consult with, and obtain the consent of, the common law holders in accordance with this regulation or regulation 8A.
2. The prescribed body corporate must ensure that the common law holders understand the purpose and nature of a proposed native title decision by:
   1. consulting, and considering the views of, a representative body for the area that includes the land or waters to which the proposed decision relates; and
   2. if the prescribed body corporate considers it to be appropriate and practicable - giving notice of those views to the common law holders.
3. If there is a particular process of decision-making that, under the Aboriginal or Torres Strait Islander traditional laws and customs of the common law holders, must be followed in relation to the giving of the consent mentioned in subregulation (1), the consent must be given in accordance with that process.
4. If subregulation (3) does not apply, the consent must be given by the common law holders in accordance with the process of decision-making agreed to, or adopted, by them for the proposed native title decision, or for decisions of the same kind as that decision.
5. If the prescribed body corporate holds native title rights and interests in trust for more than 1 group of common law holders, or is an agent prescribed body corporate, the body corporate must consult with, and obtain the consent of, only those groups of common law holders whose native title rights or interests would be affected by the proposed native title decision.
6. An agreement that gives effect to a native title decision of a prescribed body corporate has no effect to the extent that it applies to the decision, if the body corporate does not comply with this regulation.
7. Subregulation (6) does not apply in relation to an indigenous land use agreement of a kind described in section 24EB or 24EBA of the Act.

8A Alternative consultation processes

1. This regulation only applies to a prescribed body corporate that has in its constitution 1 or more consultation processes, to which the common law holders have consented, for the making of all native title decisions.
2. The prescribed body corporate must consult with, and obtain the consent of, the common law holders using the relevant consultation process in its constitution before making a native title decision.

[11] Regulation 9

substitute

9 Evidence of consultation and consent

1. Common law holders of native title rights and interests are taken to have been consulted on, and to have consented to, a proposed native title decision of a prescribed body corporate if a document, signed in accordance with subregulation (4) or (5), certifies:
   1. that the common law holders have been consulted about, and have consented to, the proposed decision, in accordance with regulation 8 or 8A; or
   2. that:
      1. the proposed decision is of a kind about which the common law holders have been consulted in accordance with regulation 8 or 8A; and
      2. the common law holders have decided that decisions of that kind can be made by the body corporate.
2. Paragraph (1) (b) applies only if the proposed native title decision is of the kind about which the common law holders have been consulted.
3. A document under subregulation (1):
   1. must include a description of the kind of native title decisions that the common law holders have agreed can be made by the body corporate; and
   2. may include conditions or circumstances in which a decision is taken to be covered by the document.
4. A document mentioned in subregulation (1) is signed in accordance with this subregulation if:
   1. the document is signed by at least 5 members of the prescribed body corporate; and
   2. each of the signatories is a common law holder (an affected common law holder) whose native title rights and interests would be affected by the proposed native title decision of the kind mentioned in paragraph (1) (b).
5. However, if there are fewer than 5 members of the prescribed body corporate who are affected common law holders, a document mentioned in subregulation (1) is signed in accordance with this subregulation if:
   1. the document is signed by at least 5 members of the body corporate; and
   2. each affected common law holder who is a member of the body corporate signs the document.
6. Subregulation 8 (2) is taken to have been complied with if:
   1. a document, signed by at least 5 members of the prescribed body corporate, certifies that:
      1. a representative body for the area that includes the land or waters to which the proposed native title decision relates has been consulted about the proposed decision; and
      2. the views of the body have been considered in accordance with this regulation; and
   2. a document is signed by an authorised member of the representative body and certifies that the body has been consulted about the proposed native title decision by the body corporate.

[12] Regulation 11

substitute

Part 3 Changes to holding of native title rights and interests

11 Determination of Indigenous Land Corporation as agent prescribed body corporate

1. The Federal Court may determine the Indigenous Land Corporation to be an agent prescribed body corporate under paragraph 56 (4) (e), 57 (2) (c) or 60 (b) of the Act.
   Note Subsection 59 (2) of the Act allows the regulations to prescribe the body corporate, or kinds of body corporate, that may be determined by the Federal Court under paragraph 57 (2) (c) of the Act.
2. The Registrar of the Federal Court is to give the Indigenous Land Corporation reasonable notice in writing before the Federal Court makes a determination under paragraph 57 (2) (c) of the Act that the Indigenous Land Corporation is to be the prescribed body corporate.
   Note For the requirements for notice before determinations under paragraph 56 (4) (c) or (e) or 60 (b) of the Act - see regulations 12, 13, 16 and 17.
3. If the Federal Court determines the Indigenous Land Corporation to be the agent prescribed body corporate, the determination must be for an initial period of 5 years.
4. Before the end of the initial period or of any extension of the determination, if the common law holders have not applied for a determination under regulation 15 or 16, the Federal Court must extend the determination for up to 1 year.
   Note For the ways the Indigenous Land Corporation can be replaced as the prescribed body corporate - see regulations 15 and 16.

12 Replacement of trustee prescribed body corporate

1. For paragraphs 56 (4) (b) and (c) of the Act, the common law holders:
   1. may apply to the Federal Court for a determination to replace an existing prescribed body corporate that is the trustee of the native title with another prescribed body corporate as trustee; and
   2. if they do - must comply with the notification requirements mentioned in regulation 18.
2. The Federal Court:
   1. must determine the application as soon as practicable after receiving the application; and
   2. may make orders about any matter necessary or appropriate to give effect to the common law holders' wishes, or to assist the transition to the replacement prescribed body corporate.

13 Replacement of trustee prescribed body corporate by agent prescribed body corporate

1. For subparagraph 56 (4) (d) (i) and paragraphs 56 (4) (e) and (f) of the Act, the common law holders:
   1. may apply to the Federal Court for a determination to terminate a trust, if native title rights and interests are held by a prescribed body corporate in trust; and
   2. if they do - must comply with the notification requirements mentioned in regulation 18; and
   3. may nominate an agent prescribed body corporate to replace the prescribed body corporate.
2. The Federal Court may:
   1. determine that:
      1. the trust is terminated; and
      2. a prescribed body corporate, whether or not it is the prescribed body corporate that held the rights and interests in trust, is to be the agent prescribed body corporate; and
   2. make orders about any matter relating to the termination of the trust, the performance of those functions and the transition from the trust arrangement to the new arrangement.
      Note An agent prescribed body corporate that becomes a registered native title body corporate has the functions listed in regulation 7.
3. If the trust is terminated, the native title rights and interests are held by the common law holders.

14 Replacement of trustee prescribed body corporate in liquidation

1. For subparagraph 56 (4) (d) (ii) and paragraph 56 (4) (f) of the Act, a liquidator who has been appointed for a prescribed body corporate that holds native title rights and interests in trust must, within 14 days after being appointed:
   1. apply to the Federal Court for the determination of a prescribed body corporate to perform the functions mentioned in subsection 57 (3) of the Act; and
   2. if the liquidator nominates the Indigenous Land Corporation as the prescribed body corporate - give the Indigenous Land Corporation written notice of the application.
2. The Federal Court:
   1. must determine the application as soon as practicable after receiving the application; and
   2. must determine that the trust is terminated; and
   3. may make orders about any matter relating to the termination of the trust or the transition to the replacement prescribed body corporate.
   4. If the trust is terminated, the native title rights and interests are held by the common law holders.

15 Replacement of agent prescribed body corporate by trustee prescribed body corporate

1. For paragraph 56 (7) (a) of the Act, the common law holders:
   1. may apply to the Federal Court for a determination that a prescribed body corporate hold the rights and interests from time to time comprising the native title in trust for the common law holders if:
      1. there is an agent prescribed body corporate; and
      2. the common law holders decide that they want the rights and interests held in trust; and
   2. if they do - must comply with the notification requirements mentioned in regulation 18.
2. The Federal Court may:
   1. determine that a prescribed body corporate, whether or not it is the agent body corporate, is to hold the rights and interests in trust for the common law holders; and
   2. make orders about any matter relating to the termination of the trust, the performance of those functions and the transition to the replacement prescribed body corporate.

16 Replacement of agent prescribed body corporate

1. For subparagraph 60 (a) (i) of the Act, the common law holders:
   1. may apply to the Federal Court for a determination to replace an agent prescribed body corporate with another agent prescribed body corporate; and
   2. if they do - must comply with the notification requirements mentioned in regulation 18.
2. The Federal Court:
   1. must determine the application as soon as practicable after receiving the application; and
   2. may make orders about any matter necessary or appropriate to give effect to the common law holders' wishes, or to assist the transition to the replacement agent prescribed body corporate.

17 Replacement of agent prescribed body corporate in liquidation

1. For subparagraph 60 (a) (ii) of the Act, a liquidator who has been appointed for an agent prescribed body corporate must, within 14 days after being appointed:
   1. apply to the Federal Court for the determination of another prescribed body corporate to perform the functions mentioned in subsection 57 (3) of the Act; and
   2. if the liquidator nominates the Indigenous Land Corporation as the prescribed body corporate - give the Indigenous Land Corporation written notice of the application.
2. The Federal Court:
   1. must determine the application as soon as practicable after receiving the application; and
   2. may make orders about any matter relating to the replacement or the transition to the replacement agent prescribed body corporate.

18 Notification requirements

1. This regulation applies to an application to the Federal Court under subregulation 12 (1), 13 (1), 15 (1) or 16 (1).
2. The applicant must, at least 14 days before applying to the Federal Court, notify the matters mentioned in subregulation (3) to:
   1. for an application under subregulation 12 (1) or 13 (1) - the prescribed body corporate that is the trustee of the native title; or
   2. for an application under subregulation 15 (1) or 16 (1) - the agent prescribed body corporate.
3. For subregulation (2), the matters are:
   1. the applicant's intention to apply to the Federal Court for the determination; and
   2. any alternative arrangements the applicant would prefer for the holding of the native title, such as a suggested alternative prescribed body corporate.
4. The application must include:
   1. the information mentioned in paragraph (3) (b); and
   2. the written consent of any nominated prescribed body corporate.

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

19 Definitions

In this Part:

applicant means the person or body making a request for an opinion under this Part.

body corporate means a registered native title body corporate.

Registrar has the meaning given by subsection 60AC (1) of the Act.

20 Fees for services

For subsection 60AB (2) of the Act, a body corporate may charge a person, other than a person mentioned in subsection 60AB (4) of the Act, a fee for costs it incurs in performing the following functions:

1. activities related to providing comments on proposed future acts under any of the following provisions of the Act:
   1. paragraph 24GB (9) (d);
   2. paragraph 24GD (6) (b);
   3. subparagraph 24GE (1) (f) (ii);
   4. paragraph 24HA (7) (b);
   5. paragraph 24ID (3) (b);
   6. paragraph 24JB (6) (b);
   7. paragraph 24JB (7) (b);
2. activities related to the exercise of procedural rights under subsection 24KA (7), 24MD (6A) or 24NA (8) of the Act;
3. activities related to consultations under paragraph 24MD (6B) (e) of the Act;
4. activities related to the exercise of procedural rights for acts or provisions mentioned in a determination under section 26A, 26B or 43A of the Act;
5. activities related to making submissions under paragraph 26C (5) (b) of the Act.
   Example of activities for paragraphs (a) and (e)
   Contacting affected common law holders.
   Examples of activities for paragraph (c)
   Arranging meetings or travel, or obtaining legal advice.
   Note Subsection 60AB (5) of the Act specifies functions for which a registered native title body corporate may not charge a fee.

21 Application for opinion of Registrar about fees charged for services

1. For paragraph 60AC (5) (b) of the Act, this regulation sets out the process by which a request to the Registrar is made by an applicant and considered by the Registrar.
2. The request must comply with all of the following requirements:
   1. it must be made within 21 days after the person is charged a fee by the body corporate;
   2. it must be in writing;
   3. if it is made by or on behalf of a body, it must be signed by:
      1. a director or secretary of the body; or
      2. if the body does not have a director or secretary - a person with authority to make the request for the body;
   4. if it is made by an individual, it must be signed by the individual and have the name of the individual printed next to the signature;
   5. it must include the following:
      1. the name and address of the applicant;
      2. the address, corporation name and Indigenous Corporation Number of the body corporate that charged the fee;
      3. any document provided by the body corporate that mentions the functions for which the fee has been charged;
      4. any document provided by the body corporate explaining the charge and its calculation;
      5. a description of the services provided, or claimed to be provided, by the body corporate;
      6. a statement about why the applicant considers that the fee charged is not one that the body corporate may charge the applicant under regulation 20 or subsection 60AB (1) of the Act.
         Note The functions for which fees for costs may be charged by a body corporate are mentioned in regulation 21 and subsection 60AB (1) of the Act. Subsection 60AB (4) of the Act lists the persons who may not be charged fees, and subsection 60AB (5) of the Act mentions other fees that may not be charged.
3. The applicant must give a copy of the request, within 7 days after lodging the request, to the body corporate that has charged the applicant the disputed fee.
4. The request may be withdrawn in writing at any time before the Registrar gives an opinion about the fee.
5. The Registrar may:
   1. ask an applicant, in writing and within 28 days after receipt of the request, for more information within a period specified by the Registrar; and
   2. if the applicant does not comply with the request within the period or any extended period:
      1. treat the application as being withdrawn; and
      2. notify the applicant in writing accordingly; and
   3. ask the body corporate that has charged the fee, in writing, for information, to be provided within a period mentioned in the request, about any of the following:
      1. the function performed or service provided to which the fee relates;
      2. ) the amount of the fee;
      3. how the amount of the fee, including any profit component, was fixed; and
   4. extend the periods mentioned in paragraphs (a) and (c) for receipt of the information.
6. A request under paragraph (5) (a) must state that, if the applicant does not comply with the request within the period or any extended period, the application will be treated as being withdrawn and the applicant will be notified accordingly.
7. For subparagraph (5) (b) (ii), the notice must be given within 14 days after the Registrar makes the decision to treat the application as being withdrawn.

22 Opinion of Registrar

1. For paragraph 60AC (5) (d) of the Act:
   1. an opinion under subsection 60AC (2) of the Act, if it is given, must be given:
      1. within 28 days after the day when the Registrar received the request for the opinion; and
      2. in writing; and
      3. to the applicant and to the body corporate that charged the fee; and
   2. the Registrar must give a copy of the opinion to the Secretary of the Department within the same 28 day period.
2. Subregulation (3) applies if the Registrar has asked:
   1. the applicant for more information under paragraph 21 (5) (a); or
   2. the body corporate for information about the matters in paragraph 21 (5) (c).
3. The period mentioned in subparagraph (1) (a) (i) is to be extended by the period beginning on the day the request for more information was made and ending at the end of the day the information requested is received.

23 Review of Registrar's decision

1. The Registrar may reconsider the matters mentioned in subregulation (2) as if they were reviewable decisions to which the following provisions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006, but not section 623-1, apply:
   1. subsections 620-1 (3) and (4);
   2. subsections 620-5 (4), (5) and (6).
2. Subregulation (1) applies to the following matters:
   1. an opinion of the Registrar under subsection 60AC (2) of the Act;
   2. the Registrar not giving an opinion under subsection 60AC (2) of the Act after receiving a request for an opinion.
3. The following persons may request the Registrar to reconsider the matters mentioned in subregulation (2):
   1. the applicant;
   2. the body corporate that charged the fee that is in dispute.
4. A request for reconsideration must be made by written notice given to the Registrar within 28 days, or a longer period allowed by the Registrar, after the day when the person is first given an opinion or is told that the Registrar will not give an opinion.
5. The notice must set out the reasons for making the request.
6. If the Registrar is satisfied that there is sufficient reason to reconsider a matter, the Registrar may reconsider the matter on his or her own initiative, despite any request for reconsideration of the matter made under subregulation (3).
7. The Registrar must, within 28 days after receiving a request for reconsideration, tell the applicant, and the body corporate that charged the fee, in writing, that the Registrar:
   1. has the opinion that:
      1. the fee charged is one that the body corporate may charge; or
      2. the fee charged is one that the body corporate must not charge; or
   2. will not give an opinion.
8. The Registrar must give a copy of the decision to the Secretary of the Department within the same 28 day period.
9. A person affected by a decision of the Registrar under this regulation may apply to the Administrative Appeals Tribunal for review of the decision.

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

1. Subregulations (2) and (3) apply if the Registrar:
   1. has given an opinion under subsection 60AC (2) of the Act; or
   2. does not intend to give an opinion under subsection 60AC (2) of the Act; or
   3. has reconsidered an opinion given under subsection 60AC (2) of the Act, or reconsidered not giving an opinion under that subsection, and the result of the reconsideration is that the applicant must pay the fee.
2. For paragraph 60AC (5) (c) of the Act, if a request for an opinion or a reconsideration has been made, the body corporate must not require the applicant to pay the fee, and no interest is payable on the amount of the fee, until the latest of the following events:
   1. the Registrar tells the applicant and the body corporate in writing that the Registrar:
      1. has the opinion that the fee charged is one that the body corporate may charge under section 60AB of the Act; or
      2. will not give an opinion;
   2. the time for making a request for reconsideration under subregulation 23 (4) has passed;
   3. if a request for reconsideration has been made - a review by the Registrar under regulation 23 has been finalised.
3. If a fee is to be paid, the applicant must pay the fee within the longer of the following periods:
   1. 28 days after the applicant is told of the result of the request for an opinion;
   2. 28 days after the applicant is told of the result of the reconsideration, if a request for reconsideration has been made;
   3. the number of days that the body corporate that charged the fee specifies in writing to the applicant.
4. For paragraph (3) (c), the body corporate may only specify a number of days that is more than 28 days after it is told of the outcome of the request for an opinion or, if a request for reconsideration has been made, the reconsideration.
   Note If the Registrar gives the opinion that the fee is not one that the body corporate may charge under section 60AB of the Act, the body corporate must withdraw the charge - see subsection 60AC (3) of the Act.

Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003.