This Bills Digest replaces a preliminary Bills Digest published on 23 November to assist in early consideration of the Bill.
Purpose of the Bill
The purpose of the Attorney-General’s Portfolio Miscellaneous Measures Bill 2023 (the Bill) is to make a range of amendments to update and clarify the intended operation of legislation administered by the Attorney-General.
Structure of the Bill
The Bill consists of 4 Schedules:
- Schedule 1 amends a number of Acts in order to confer jurisdiction on the Federal Court of Australia (Federal Court) to hear and determine a range of indictable and summary corporate crime offences within the regulatory remit of the Australian Securities and Investments Commission (ASIC).
- Schedule 2 amends the Federal Court of Australia Act 1976 (Federal Court Act) to allow the Federal Court to enter into a formal arrangement with a state or territory to use its established jury preparation processes. This will provide an additional option for preparing a jury panel.
- Schedule 3 contains minor and technical amendments to the Marriage Act 1961 to improve accessibility for marrying couples and provide greater clarity of meaning. These include amendments to permanently allow a Notice of Intended Marriage to be witnessed remotely via videoconferencing, rather than in person.
- Schedule 4 includes an amendment to the Native Title Act 1993 that repeals section 213A. The effect is to abolish the Native Title Respondents Funding Scheme and Native Title Officer Funding Scheme. Schedule 4 also includes minor and technical amendments to other legislation in the Attorney-General’s portfolio relating to arbitrators in family law.
Structure of this Bills Digest
As the matters covered by each of the Schedules are independent of each other, the relevant background, stakeholder comments (where available) and analysis of the provisions are set out under each Schedule number.
Committee consideration
Senate Legal and Constitutional Affairs Legislation Committee
The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee (Senate Committee) for inquiry and report by 1 February 2024. Details of the inquiry are at the inquiry webpage.
The Committee, in its report made 3 recommendations:
- Recommendation 1:
- That the Attorney-General’s Department (AGD) update the Explanatory Memorandum to the Bill to include further guidance and information to clarify how the proposed reforms to the Federal Court Act in Schedule 1 and 2 of the Bill will result in more efficient prosecution of corporate crimes and increased procedural fairness.
- Recommendation 2:
- That subject to the passage of the Bill, the AGD amend the Guidelines on the Marriage Act 1961 for authorised celebrants to reflect the requirements for a celebrant to hold a separate meeting with each party to the marriage before it is solemnised. The amendments should provide information as to how the meetings might operate in practice and how consent can be determined.
- Recommendation 3:
Deputy Chair, Liberal Senator Scarr submitted a dissenting report containing 11 recommendations, including that the Bill not be passed unless parts of the Bill relating to the Native Title Respondents Scheme were removed to a separate Bill.
Senate Standing Committee for the Scrutiny of Bills
The Committee had no comment in relation to the Bill.[1]
Policy position of non-government parties/independents
In his speech on the Bill, Manager of Opposition Business Paul Fletcher stated that the Coalition was opposed to Schedule 4’s repeal and abolition of the Native Title Respondents Scheme, and would move amendments to oppose the repeal.[2] Mr Fletcher stated:
The Native Title Respondents Scheme is a program which provides financial support to pastoralists and other landowners to respond to native title claims. This was an important scheme established by the Howard government. What the scheme did was to ensure that both the claimant and the respondent to a native title claim had fair and equal access to assistance and legal representation.[3]
He highlighted the assistance provided to respondents of native title claims by the Native Title Respondents Scheme (and Native Title Officer Funding Scheme):
The grouping of native title respondents in claim areas assisted with efficient and cost-effective resolutions of claims, as parties with similar interests were represented by one lawyer and supported by a native title officer. The operation of the scheme has provided a single point of contact for native title claims affecting pastoral respondents. Those respondents were able to work with legal representation to ensure they received relevant and timely information regarding native title processes. Ultimately this gave parties to native title claims timely and relevant access to information on those claims and allowed for informed decisions to be made. The single point of contact and coordination of legal support meant that legal costs could be substantially reduced and proceedings could be significantly streamlined, rather than having many different lawyers and other parties involved.[4]
Liberal MP for Bowman Henry Pike has also objected to the scheme’s abolition, on the grounds that completely abolishing funding for native title respondents while continuing to provide funding for native title claimants was against fairness and the public interest. He stated:
…cutting it altogether, as this current government has done, of course continues to be completely at odds with the public interest. Unfortunately, what we have here is an ideological objection to respondent funding from the Attorney-General. There is a clear sense within the Labor government that stacking the deck in favour of native title claimants is a compassionate and progressive thing to do... But this shouldn't be about ideology. It should be about fairness, and the government's role should be about ensuring that all stakeholders can meet their obligations under the federal act. [5]
Mr Fletcher also referred to the resource implications of measures relating to arbitrators in family law matters in Part 1 of Schedule 4 in the Bill. This Part makes technical amendments to the arbitration framework in the Family Law Act 1975, to allow parties and arbitrators to make applications for review of an arbitral award, or to determine a question of law, to both divisions of the Federal Circuit and Family Court of Australia (FCFCOA). Mr Fletcher stated:
In effect, these provisions will allow arbitrators to prioritise the former Family Court of Australia when referring questions of law that arise in the context of a family law arbitration. The Coalition has questions about the impact this will have on the court's workload and the cost and time implications for parties. We believe the effects of this measure should be examined through a committee process.[6]
At the time of writing, other parties and independents had not commented on the Bill.
Position of major interest groups
The Senate Committee received 8 submissions on the Bill. The views expressed by submitters are referred to in the Key issues and provisions section below.
Financial implications
The Explanatory Memorandum states the Federal Court was provided in the 2019–20 Budget $35.5 million over the forward estimates (and ongoing) in relation to the ‘conferral of jurisdiction’.[7] This funding ‘supported the appointment of two additional judges in the Federal Court’s Federal Crime and Related Proceedings National Practice Area, and the construction of two new jury courtrooms in the Sydney Commonwealth Law Courts’. In terms of savings, the Explanatory Memorandum notes the abolition of the Native Title Respondents Scheme will save $6.4 million over four years from the 2022–23 financial year.[8]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[9]
Parliamentary Joint Committee on Human Rights
The Committee had no comment on the Bill.[10]
Key issues and provisions
Schedule 1: Federal Court criminal jurisdiction
One of the Morrison Government’s responses to the findings of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry in 2019 was an additional measure to expand ‘the Federal Court’s jurisdiction in relation to criminal corporate crime’.[11] When introducing the Bill in the Parliament, the Attorney-General stated the amendments ‘will enhance the overall capacity of Australia's court system and support the Australian Securities and Investments Commission to more efficiently prosecute corporate criminal conduct’.[12]
Currently, the Federal Court is able to hear most civil matters arising under Australian federal law, but is limited in the types of criminal matters it can hear. The Bill will amend a number of Acts to confer jurisdiction on the Federal Court to hear and determine a range of indictable offences relating to entities and conduct against those Acts and the Criminal Code Act 1995 within the responsibility of ASIC. In particular, Schedule 1 amends:
In addition, proposed section 67G of the Judiciary Act (item 8) confers jurisdiction on the Federal Court to hear and determine summary offences which arise from substantially the same facts as primary indictable offences being heard in the court. This is intended to avoid the possibility of prosecutors having to commence new proceedings in a state or territory court in relation to the related summary offence.[13]
The Australian Securities and Investment Commission (ASIC), in its submission to the Senate Committee, strongly supported Schedule 1 and the extension of the Federal Court’s jurisdiction.[14] It noted that over the last four financial years ASIC has commenced 154 proceedings in the Federal Court demonstrating the significant expertise of the Court in the legislation ASIC administers. However, the contravention of civil provisions heard by the Court also often attract criminal penalties which ASIC must pursue through the state and territory courts. In relation to state and territory courts, ASIC’s experience is that there can be considerable delays in financial crime prosecutions. Delay may be a relevant factor in sentencing and ASIC argues ‘[e]ven a modest reduction in sentences imposed by courts as a result of delays in the criminal justice system, risks diluting the impact of general deterrence, one of the primary purposes for bringing criminal proceedings …’.[15]
The Law Council of Australia submission to the Senate Committee was less supportive. While it welcomed efforts to increase resourcing for Commonwealth criminal trials, it considered that Schedule 1 of the Bill represented a substantial change to the federal, state and territory court systems which necessitates detailed justification. It was concerned this had not sufficiently occurred and noted a lack of clarity concerning a response by the Attorney-General’s Department to previous submissions made to an Exposure Draft consultation process in 2022.[16]
The Attorney-General’s Department submission stated that the conferral of criminal jurisdiction would ‘enhance the capacity of Australia’s court system and support ASIC to more efficiently prosecute corporate criminal conduct’.[17] However the Law Council questioned some of the reasoning behind the amendments in Schedule 1 arguing that ‘there appears to be no basis for suggesting that delays in the prosecution of Commonwealth corporate crime briefs are attributable to the jurisdiction in which they are being tried’.[18] It suggested 'delays are not dependent on jurisdiction’ but rather arise from a variety of reasons including:
- high complexity and extensive documentary evidence is generally involved in matters
- limited resourcing of the federal agencies involved in investigating and prosecuting Commonwealth crime and
- issues concerning eligibility for legal assistance for accused persons in large Commonwealth prosecutions.[19]
The Attorney-General’s Department responded to some of the Law Council’s criticism stating:
The department notes, consistent with the Attorney-General’s Second Reading Speech, that the primary objective of this measure is to ensure that responsibility for dealing with corporate criminal conduct can be shared across the Australian court system to support the Australian Securities and Investments Commission’s (ASIC) prosecution of criminal misconduct, rather than address any specific litigation delays. (pp 1–2)
The Law Council also expressed concern that there may be insufficient numbers of Federal Court judges with experience running complex criminal jury trials in every superior court registry, particularly in Adelaide, Brisbane and Perth. This challenge may be amplified in the context of Federal Court appeals.[20]
Other issues with specific provisions in Schedule 1 included:
- proposed subsection 67G(4) of the Judiciary Act, (item 8) which lists the offences within the Criminal Code to be brought within the remit of the Federal Court jurisdiction. The Law Council argued that the broad range of offences brought into the scheme via this definition should either be amended, or alternatively, further justification be provided for their inclusion.
AGD has noted that in response to feedback received, including from the LCA, proposed subsection 67G(5) of the Judiciary Act was inserted in the Bill. This provision provides that proceedings in the Federal Court for the specified indictable offences against the Criminal Code may only be instituted:
- by ASIC or a person authorised in writing by ASIC or
- with the consent in writing of the Minister (in this case the Treasurer) or a person authorised in writing by the Treasurer to give such consent. (p.3)
- proposed section 32AE of the Federal Court Act, (item 19) which provides for the transfer of proceedings relating to corporate crime offences between courts. Under the proposed amendments a transfer may be done on application from a prosecutor or on the court’s own initiative but a defendant cannot apply to transfer proceedings. The Law Council argued the provision needs further amendment or at least clarification to avoid a bias against the defendant and to mitigate the risk of ‘forum shopping’ by prosecutors.[21]
The Attorney-General’s Department in response stated:
The department notes that, depending on the relevant rules of court, the accused may also have a right to make an interlocutory application requesting the court to exercise its powers to transfer proceedings on its own motion. As such, it is not necessary to provide for an express right of the accused to make an application to transfer part or all of the proceedings.
Further, superior courts have inherent powers to protect the administration of justice and prevent abuses of power. These powers would ensure that transfers do not occur in circumstances which would unfairly prejudice the accused. (p. 4)
Schedule 2: Federal Court juries
Schedule 2 contains amendments to the Federal Court Act to allow the Federal Court to enter into an arrangement with a state or territory to use its established jury preparation processes. Central to these amendments are proposed sections 23DB-23DD which provide that when the Court directs the Sherrif to convene a jury panel for indictable primary proceedings, the Sheriff may elect to:
- prepare a jury panel as stipulated in the Federal Court Act, or
- request a state/territory jury official, with the consent of the relevant state or territory, to provide a panel prepared under state or territory laws.
The Sheriff will maintain their existing power to directly prepare a jury panel and has the discretion to determine which approach for preparing a jury panel is adopted on a case-by-case basis.[22]
The Law Council viewed this proposed discretionary, hybrid jury preparation mechanism as problematic in light of the important differences between existing state and territory jury selection provisions and those in the Federal Court Act. It recommended that should this hybrid procedure of jury selection be retained then:
- the differences between the current Federal Court Act jury preparation process and the jury selection rules in each state and territory, be examined in greater detail by the Attorney‑General’s Department and canvassed in the Bill’s Explanatory Memorandum, and
- the Bill and/or its explanatory materials should provide more detailed specification of the criteria to be applied by the Sherriff in utilising the discretionary, hybrid jury preparation procedure.[23]
The Attorney-General’s Department responded stating:
... the Bill contemplates that there may be variations in relevant laws and procedures between the Federal Court Act and relevant State and Territory laws. To address this, the Bill makes it clear that State and Territory laws and procedures will apply when a jury is being prepared and provided by a State/Territory jury official. This avoids officials needing to apply different rules and procedures…
As the Bill provides clarity as to the application of Commonwealth, State and Territory laws, the department is of the view that no further consideration of the differences is warranted. (p. 6)
Schedule 3: Marriage Act amendments
Under section 42 of the Marriage Act, marrying couples are required to give a minimum of one month’s notice to their celebrant before the marriage can be solemnised. That Notice of Intended Marriage (NOIM) must be completed and signed in the presence of an authorised witness (which includes the celebrant) before it is given to the marriage celebrant. Items 35 and 39 in Schedule 3 will amend section 42 to allow a NOIM to be witnessed remotely via videoconferencing, rather than in person.
The remote witnessing option was in place as a temporary measure from December 2021 in response to COVID-19 and expired on 31 December 2023.[24] The amendments in Schedule 3 will make remote witnessing permanent. Marrying couples will be able to continue to sign and witness the NOIM in person, through the traditional, paper-based method, if they choose. The Attorney‑General has said that remote witnessing ‘… will provide greater access and convenience for marrying couples, especially those in rural, remote or regional parts of Australia’.[25]
To ensure that safeguards for real consent to a marriage are maintained, a complementary amendment (proposed section 42B) requires authorised celebrants to meet independently and in person with each party to a marriage before they solemnise a marriage. The amendments will also confirm the requirement for the physical presence of all parties, including the authorised celebrant and two official witnesses, on the day of the marriage (Part 4 of Schedule 3).
The Celebrant Institute, in a submission to the Senate Committee inquiry, supported most of the Bill’s amendments to the Marriage Act.[26] However, the Celebrant Institute did not support the proposed changes which would provide that authorised celebrants must meet with each party to an intended marriage separately. It highlighted the limited guidance regarding these meetings and argued there were ‘better ways of achieving a higher rate of real consent.’ It stated:
While this meeting may appear as though it would give parties who are under duress or not truly consenting the opportunity to raise any issues with the celebrant, we think it unlikely, in practice, that such parties will do so. This could be for a myriad of reasons, including fear of reprisals from their partner or family members, or concern about the emotional and financial toll of calling a wedding [sic], particularly if the meeting were held on the same day as the wedding. We believe that any party who would be willing to raise a concern during such a meeting would raise it anyway, and we question the practical benefit of such a requirement.
In some religious or cultural settings, it would not be appropriate or feasible for an authorised celebrant to meet alone with each party to the marriage, making this an impossible task to complete.[27]
In response the Attorney-General’s Department stated:
The purpose of the meeting is to ensure that each party is freely and voluntarily consenting to the marriage – reinforcing that real consent is a cornerstone of the Marriage Act. The proposed measure recognises that a celebrant may be meeting the parties for the first time on the day of the marriage. This additional measure is considered warranted in light of the increase in remote witnessing of NOIMs since this has been permitted, which the Bill seeks to extend.
The duration, timing and approach to a separate meeting with each party to a marriage is at the discretion of the marriage celebrant, and while there will not be a mandatory approach, the department will work with celebrants to develop guidance on options for inclusion in the Guidelines to support celebrants to comply with this obligation. (p.8)
The Law Council also supported the amendments but recommended that ‘updated guidance material be provided to authorised marriage celebrants to assist them to comply with their new obligations’.[28] In response the Attorney-General’s Department stated:
The department, in consultation with celebrant associations, has been progressing a review of the Guidelines. If the Bill is passed, the Guidelines will be updated to provide further guidance to authorised celebrants to assist them to comply with these obligations. (p. 8).
Schedule 4: Family law arbitration and native title financial assistance
Part 1: Family law arbitration
Part 1 of Schedule 4 in the Bill makes amendments to the arbitration framework in the Family Law Act, allowing parties and arbitrators to make applications for review of an arbitral award, or to determine a question of law, to both Division 1 and Division 2 of the FCFCOA. The Attorney‑General’s Department submission to the Senate inquiry stated:
Currently, the court transfers these applications from Division 2 to Division 1 for determination, when they relate to substantive proceedings that are pending in Division 1. The amendments will remove the administrative burden on the court in processing these transfers and address delays for parties and arbitrators arising from these transfers.[29]
The Law Council welcomed the intent of this amendment to remove the existing administrative burden on the FCFCOA, arising from the need to transfer these applications from Division 2 to Division 1 for determination. However, the Law Council also pointed to an urgent need for ‘increased and sustained resourcing of both divisions of the FCFCOA so that it can meet its substantial ongoing demands’.[30]
The Family Law Council in its submission also supports this amendment. It stated ‘the proposed amendment gives appropriate flexibility for all issues relating to the challenge to the arbitral award to be dealt with in the one Court and avoids the situation where an applicant may be forced to abandon elements of an asserted error on the basis of lack of jurisdiction’.[31]
Part 2: Native title related financial assistance from Attorney General
Part 2 of Schedule 4 of the Bill repeals section 213A of the Native Title Act 1993. This section, ‘Assistance from Attorney General’, provides the statutory basis for the Native Title Respondents Scheme (NTRS) (also referred to as the Native Title Respondents Funding Scheme) and the associated Native Title Officer Funding Scheme (NTOFS) (‘the schemes’). Repealing this section (and the accompanying repeal of subsection94P(1) (table item3), dealing with reports about breaches of the requirement to act in good faith by recipients of NTRS funds) has the effect of abolishing the schemes.
The NTRS’s purpose was to ‘provide assistance for individuals or groups, including pastoralists, graziers and fishers, to have equitable access to legal representation in the resolution of native title proceedings where their interests are likely to be affected.’ An ANAO review of the scheme in 2007 confirmed that these groups, and local government, were the majority of funding recipients between 1993 (when the Native Title Act 1993 was passed) and 2007 (p. 69):[32]
Table 1: Numbers of Respondents Scheme grants by client applicant type
The NTOFS’s purpose was to:
fund the position of a person, known as a native title officer, to:
(a) educate peak industry bodies or organisations about native title issues; and
(b) facilitate grouping of respondents in claim areas; and
(c) coordinate instructions to legal representatives in legal action;
so as to facilitate efficient and effective resolution of native title claims.[33]
These native title officers were usually employed by industry peak bodies to coordinate and facilitate respondents to native title claims. The National Farmers’ Federation’s submission to the Senate Committee inquiry gave an example of a claim where a native title officer coordinated respondents, and highlighted the resulting increased efficiency and cost effectiveness of this process.[34] However, it should be noted that native title officers do not have any unique statutory role or powers, so the proposed repeal of section 213A does not prevent an industry peak body from continuing to employ a native title officer to perform the same function without the Commonwealth subsidy.
Abolishing the schemes was an election commitment by the ALP, and has been ALP policy for some time, having previously been a 2019 election commitment. After the 2022 election, their abolition was announced in the October 2022 budget as a budget saving (Budget October 2022–23 - Budget Paper 2, p. 48). The projected saving is $6.4 million over 4 years ($1.6 million/year) and $1.8 million a year ongoing.
As rationale for abolition, the Attorney-General’s Second Reading Speech states: ‘Many significant questions of native title law have now been settled and the government considers that many current native title respondents, which are generally commercially viable or sound entities, would have the capacity to deal with native title matters as part of their ordinary business costs.’[35] As discussed below, this essentially repeats previous rationales for the scheme’s restriction by both Coalition and ALP governments.
Historically, the statutory basis for the schemes was established by section 183 of the original Native Title Act 1993. Applications were subject to a ‘hardship’ test under former paragraph 183(2)(b). The Howard Government removed this hardship test in 1998, which made NTRS funds more accessible to respondents, and added provisions explicitly forbidding native title claimants from accessing NTRS funds.[36] However, the Howard Government was aware that removing the hardship provisions carried the potential for cost blowouts.[37]
By 2002, most fundamental legal issues relating to native title were regarded as settled and the government’s express preference was for native title claims to be resolved through negotiation using the Indigenous Land Use Agreement (ILUA) framework rather than litigation.[38] By 2005, government and stakeholders expressed concerns that the wide scope of NTRS funding was leading respondents to litigate often speculative claims rather than negotiate. In 2005, Attorney‑General Ruddock announced that the NTRS guidelines would be changed to encourage agreement-making rather than litigation:
… given that the fundamentals of native title are settled, it is not necessary for non-claimant parties to litigate all stages of a legal matter where the law is not in dispute or their interests are already protected under the Native Title Act.[39]
The Aboriginal and Torres Strait Islander Social Justice Commissioner’s 2007 Native title report commented (pp. 84–85):
… they [the NTRS guidelines] did not effectively limit the range of parties that could receive assistance. Consequently there were reports of native title proceedings being unnecessarily and substantially protracted and complicated by the participation of parties who had no real or substantive interest in the proceedings, or whose interest was already being represented by a government party … a wide variety of parties were being assisted to participate in native title proceedings – even those without a legal interest in the land being considered. The North Queensland Land Council gave an example where a person who walked their dog on the beach acted as a respondent party to a native title proceeding. Similarly, they referred to an Australian Court that stated that, even if fisherman were illegally fishing in the affected area, the fact that they had been doing so for a number of years would be sufficient to enable them to participate as respondent parties.
The ANAO review of the scheme in 2006 (p. 133) also cast doubt on whether the NTRS was achieving its purpose, finding:
[The Attorney-General’s Department] is unable to evaluate either the effectiveness of the Respondents Scheme at either the individual grant level or the contribution the programme is making to the larger Native Title System outcome.
Revised scheme guidelines issued by the Howard Government took effect in 2007. These significantly restricted access to, and the scope of, the schemes by reintroducing consideration of the respondent’s own resources, requiring respondents to have an interest likely to be adversely affected in a ‘real and significant way’, and that litigation, as opposed to mediation, would only be funded if there was ‘a new and significant question of law’ or ‘the proceedings will affect the applicant’s interest in a real and significant way and mediation has failed for reasons beyond the applicant’s control’.[40]
In 2011–2, the schemes were reviewed by Mr AC Neal SC. Mr Neal noted that the schemes were in contrast to the other special legal assistance schemes administered by the Attorney-General, which ‘usually involve natural persons standing in grave jeopardy of deprivation of life, liberty or the custody of a child… [in contrast] one might be tempted to say that native title cases would struggle ever to be seen as involving “exceptional circumstances”… the present funding scheme (often involving litigation/negotiation over private commercial/property interests) is difficult to reconcile with the access to justice principles and Commonwealth legal assistance more generally’.[41]
Mr Neal further stated that although ‘native title involves unique circumstances’ and ‘a legal system which processes native title claims will often be pushed to the limits of experience and capacity’, nevertheless ‘it is probably fair to suggest that what native title is, and how it needs to be proved, is reasonably settled as a matter of law’ and ‘there is an evident, nationwide trend towards resolution of native title cases by agreement’.[42] Mr Neal also argued that there was no reason to think that industry peak bodies and respondents would not choose to continue to coordinate respondents, or to employ native title officers, if it was in their legal and commercial interests to do so. [43]
The Gillard Government then further restricted NTRS funding. Under 2013 guidelines issued by Attorney-General Roxon, NTRS funding was to be means-tested and largely limited to ‘disbursement’ funding,[44] with funding for legal representation only available in exceptional circumstances, including novel questions of law or unusual requirements imposed by the courts. Echoing Mr Ruddock’s earlier remarks, the Attorney-General’s Department informed native title stakeholders that:
it considers it an opportune time to reassess the funding of native title respondents, given that many legal issues are now settled, the effect on existing rights is more certain and the resolution of claims has shifted away from adversarial litigation towards negotiation and mediation.
However, the schemes were then re-expanded by the incoming Abbott Government, which expanded the budget (p.64) by $5.8 million over four years. The Abbott Government introduced new guidelines which largely replicated the Howard Government guidelines, including the preference for agreements and that legal representation would only be funded if there were new and significant questions of law or a failure of mediation. These guidelines were then further tightened by Attorney-General Brandis in 2016 to include economic considerations, such as the capacity of the respondent to fund themselves, value for money, and whether NTRS funds were available, and also to further restrict the range of native title related legal matters for which funding would be made available. The 2016 guidelines remained in effect until early 2023.[45]
Stakeholder views
Of the relevant non-government submissions received by the Senate Committee inquiry, two were opposed to abolition of the schemes, one was supportive, and one raised some concerns.
Central Desert Native Title Services, representing a number of native title bodies corporate in Central Australia, supported abolishing the schemes, stating:
The repeal of section 213A will decrease occurrences of parties unnecessarily becoming respondents in matters simply due to them having been eligible for funding to do so… Many questions of law surrounding native title have now been settled so the necessity of litigation has instead shifted to a framework of negotiation and mediation. This paradigm shift has reduced the need for funded litigation.[46]
The Law Council did not object to abolishing the schemes but raised concerns that NSW Aboriginal Land Councils (NSWALCs), who often act as respondents to native title claims in NSW, would no longer be able to access support via the schemes. The Law Council stated that NSWALCs are usually small community organisations rather than the ‘commercially viable entities’ referred to by the Attorney-General and recommended that the government ‘take proactive steps’ to reduce the impact of the abolition on NSWALCs and other Aboriginal Land Councils.[47]
The Local Government Association of Queensland (LGAQ) opposed abolition and outlined that local governments in Queensland are extensively involved in responding to native title claims and in resolving their interaction with other Aboriginal land issues, such as the ongoing transition of Deeds of Grant in Trust (DOGIT) lands from local Aboriginal councils to native title holders. The LGAQ stated that Queensland local governments had received $133,000 in support from the schemes in 2021 and that in a context of cost-shifting from Commonwealth and state governments, ‘the cost of being part of Native Title claims and land transfers is something [Queensland local councils] cannot afford.’ The LGAQ also noted that the Commonwealth continues to provide financial assistance to native title claimants.[48]
The National Farmers’ Federation (NFF) ‘strongly opposed’ abolition, particularly of the Native Title Officer Funding Scheme:
For the Government to take the inequitable approach of allowing (by deed if not by design) the Native Title representative bodies (as claimants) to utilise their existing legal capacities to engage in these processes without commensurate support for respondents is inequitable…. The scheme supports access to fair and equitable justice by facilitating efficient and effective resolution of Native Title claims... Through coordinating legal support in this manner, the scheme aims to substantially reduce legal costs and streamline proceedings which would otherwise involve hundreds of solicitors and other parties, with all the complexity and potential delay that that entails. The current system has contributed to more effective and consistent determinations of disputed matters in a way that benefits all parties and, importantly, the claimants themselves.[49]
Discussion
The schemes may be regarded as (originally) industry support and transition schemes, designed to assist pastoralists, local government and other land users to adjust to the new legal and land use environment of native title. As such, whether industry assistance, particularly federal funding of legal assistance for commercial parties, is still justified more than 30 years after passage of the Native Title Act 1993 is open to question. Other far-ranging law reforms of the turn of the century, such as the Environmental Protection and Biodiversity Conservation Act 1999 and the Water Act 2007, had similarly wide-ranging effects on primary land use but were not accompanied by special industry legal assistance schemes, let alone assistance persisting to this day.
Submissions from the NFF and others highlight that the NTOFS has performed, and continues to perform, a useful role, as has the NTRS in encouraging respondents to provide efficient ‘grouped’ responses represented by a single native title lawyer. However, if the native title officer role, or NTRS-funded legal representation, is commercially valuable it is not clear why industry should not fund it, and if it is not commercially valuable then it is not clear why government should fund it. The Neal review of the NTRS concluded:
Many of the submissions on behalf of organisations who are presently the recipients of financial assistance under the Scheme argue persuasively for their industry/organisation to take an active part in proceedings / negotiations and the general utility of their doing so. Accepting this at face value one wonders why parties having valuable commercial/property interests to protect, parties whose very livelihood is at stake, would fail to do everything within their power to protect themselves, including appointing a lawyer where prudence dictates. In civil litigation generally parties are required to make such choices and do so… I do not see it as appropriate that such persons are not required to financially contribute where they have the financial means to do so. In principle I do not see why persons assessed as having sufficient means would decline to protect their property/livelihood where, on a sensible analysis, it was at risk… even if the new scheme allowed for no funding in a given case, the incentive for those with kindred interests to group together under an industry body well versed in native title, and to employ a good native title lawyer, still exists.[50]
Similarly, on the NTOFS, Neal concluded:
What might occur if native title officers were no longer funded is equally a matter of informed speculation. Again I suspect those particular peak bodies that receive subsidies for an employee dedicated to native title work would be economically rational and determine for themselves the cost /benefit of retaining them. Where they were sufficiently important to the efficient functioning of the organisation I doubt they would be disposed of. Where not then their absence would likely not greatly detrimentally affect the positive outcomes the scheme, as presently operating, is capable of delivering.[51]
Stakeholder submissions have also highlighted that abolishing the schemes, while providing ongoing funding to Native Title Representative Bodies and Service Providers to provide legal services to native title claimants, may be seen as inequitable. However, native title respondents are usually (but not always) viable commercial entities, while claimants are usually (but not always) among Australia’s most disadvantaged peoples. Submissions from the Law Council of Australia and the LGAQ highlighted that respondents may also be small Indigenous community organisations, or rural/remote local councils with limited resources, which may need alternative forms of support to engage with native title matters if the schemes are abolished.