Chapter 4
The 1995-96 Report: Issues
4.1 There are four matters to which the Committee draws attention about
the Tribunal's 1995-96 annual report. They concern the question of parliamentary
scrutiny, the way in which the Tribunal responded to the Committee's fourth
report, the Tribunal's workload and running costs.
Parliamentary Scrutiny
4.2 In the revised annual report requirements for Departments, it is
noted under the heading of Internal and External Scrutiny that:
This section should provide information on the most significant
developments in internal and external scrutiny, including...inquiries
by parliamentary committees...(emphasis in original)
4.3 The Parliamentary Joint Committee on Native Title and the Aboriginal
and Torres Strait Islander Land Fund is appointed pursuant to the Native
Title Act 1993. Its duties are specified at s. 206 and include:
extensive consultation about the implementation and operation
of the Act under s. 206(a);
under s. 206(c) to examine and report to the Parliament
on annual reports including those prepared by the President of the NNTT;
and
at the end of two years after the commencement of the Act, to
inquire into a range of matters including the effectiveness of the NNTT
pursuant to s. 206(d).
4.4 During the period on which the NNTT comments in its 1995-96 annual
report, the Native Title Committee carried out its statutory obligations
(although the Committee's activities were interrupted by the general election
held in March 1996 and the dissolution of the lower house in January of
that year). Amongst other public hearings, the Committee met with the
Tribunal Registrar on 24 June 1996. Further, the Committee met privately
with the Tribunal President on 25 June 1996. Both of these meetings were
held to consider matters arising out of the Tribunal's annual report for
1994-95.
4.5 Given this Committee's statutory duties and the fact that the Act
puts the Tribunal under the Committee's inquiry focus, it would have been
appropriate for the Tribunal to record these meetings in its annual report
for 1995-96. At the least it was not proper for the Tribunal to record
'n/a' against the item inquiries by parliamentary committees
in its compliance index at p.188. In the Committee's view, this does not
fulfil the Tribunal's reporting obligations under the annual report requirements,
the Registrar's comments at page NT44 of the transcript of evidence on
19 March 1997 notwithstanding. There the Registrar claimed:
...in the context of the guidelines for the preparation of the
annual report, it did not fall entirely within that.
Notably, at that public hearing Justice French assured the Committee
that he would ensure that the role of the Committee was properly acknowledged
(Evidence, p. NT45).
Response to the Committee's Fourth Report
Adoption of Suggestions
4.6 The Committee has been conscientious in pursuit of its statutory
duties. In fulfilling them, it should be emphasised that the Committee
reports to the Parliament, and it is for the Parliament ultimately to
take any action it considers appropriate. Nevertheless, from time to time
committees of this kind direct attention to issues, draw conclusions and
make recommendations to which it is both proper and sensible for executive
government and others to respond. The NNTT and other relevant authorities
are in this position.
4.7 This Committee's fourth report reviewed the Tribunal's annual report
for 1994-95. In addition to discussing some substantive issues concerning
the role of the Tribunal, the report made a number of suggestions as to
ways in which the Tribunal's annual reports could be improved. These suggestions
related to the report's length, the type of information published, presentation
(including the order of chapters) and proofreading.
4.8 The Committee is pleased to note that the Tribunal has responded
positively to the suggestions that it put forward. Indeed, in a letter
dated 18 March 1997 the Tribunal Registrar advised that the Committee's
fourth report comments were taken into account in the preparation of the
Tribunal's 1995-96 report. (That letter is reproduced in this report as
Appendix 1.) As a consequence, the annual report for 1995-96 is much more
accessible and is more professional in its presentation.
4.9 The Committee's fourth report was presented to the President of the
Senate on 8 July 1996 and tabled on 21 August 1996. Accordingly, it was
not required to be referred to in the Tribunal's report for the period
July 1995 to June 1996, even though its suggestions were accepted for
that report. It would be pleasing to see reference to the Committee's
reports, however, in the Tribunal's report for 1996-97.
Impartiality and Neutrality
4.10 In Chapter 2 of its fourth report, this Committee examined the role
of the Tribunal as decisionmaker and mediator. The Committee emphasises
that it is very aware of the difficulties confronting the Tribunal as
it seeks to fulfil its function pursuant to the Act. The Committee noted
in its fourth report (pp.14,15) that the Tribunal had recorded in its
1994-95 annual report the terms of Section 3 of the Native Title Act 1993
which set out the main objects of the Act. The Committee recommended that
the Tribunal make its conflict of interest policy consistent with its
mission statement. The Committee found that:
With its apparent role as a promoter of native title interests
... the Tribunal has found itself pressured by expectations and criticisms
which a more overtly neutral body may have avoided (p.17).
4.11 The Committee commends the Tribunal for taking up this matter in
its 1995-96 annual report. In the Registrar's corporate overview it is
noted (p. 3) that:
The Registrar has confirmed (p. 4) that the Tribunal must be seen
to be unbiased and that neutrality is emphasised to staff. In this regard
the Registrar has supported the Native Title Amendment Bill 1996 in that
it would broaden the extent of potential assistance to all parties to
a mediation. The Committee is reassured by the way in which the Tribunal
has responded to this most significant matter. While it would be unrealistic
to expect difficulties of this kind to evaporate completely, the Tribunal
has shown that it is addressing the problem. The Registrar has confirmed
in her letter of 18 March 1997 (Appendix 1 of this report) that the Committee's
recommendation concerning the Tribunal's conflict of interest policy has
been adopted. The Tribunal should refer to this fact in its next annual
report.
Workload
4.12 In evidence on 19 March 1997, Justice French confirmed that the
work of the Tribunal was very labour intensive. At that date the Tribunal
had 495 applications, 128 of which had been lodged since the end of the
reporting period, that is, 30 June 1996 (Evidence, p. NT46).
4.13 Justice French described the Tribunal's resources as 'pretty thinly
spread on the ground' (Evidence, p. NT46). He confirmed that, of
the 20 Tribunal members, three are effectively inactive because they are
serving judges. In order to address this problem the Tribunal is introducing
better planning and prioritisation:
We have created regions organisationally around the country and
we have devolved planning to those regions so that the members and the
regional coordinators will work out strategies. Perhaps in some cases
you might identify what you call a template or lead mediation, move
into that and see if you can get some common processes emerging. (Evidence,
p. NT46)
4.14 The Committee notes Justice French's advice at page iii
of the President's report in the NNTT annual report to the effect that
reviews of the administration and mediation processes were carried out
in the reporting period. The Committee has had the benefit of examining
the Tribunal's 1996 Mediation Review and Implementation of Recommendations
which was published in November 1996. The Tribunal is commended for
the approach that it has taken towards improving the most important process
of native title mediation pursuant to the Act.
4.15 While this approach seems to be having some benefits, particularly
on Deed of Grant in Trust (DOGIT) reserves in Queensland, the President
advised of the Tribunal's increasing role with intra-indigenous conflict:
We are now being asked by representative bodies, who previously
tended to regard it as very much their own turf, to come in and assist
in some cases where the argument might be between the rep body and particular
groups. (Evidence, pp. NT46,47)
The Tribunal is experiencing satisfactory management of this problem
in individual cases, although it must be imposing an even greater burden
on the Tribunal's resources; Justice French described intra-indigenous
issues as a significant part of the Tribunal's workload (Evidence, p. NT47).
4.16 With regard to the future act process, Justice French told the Committee
that about 8,000 Section 29 notices had been issued since April 1995:
We are facing a significant workload increase there, especially
in the area of requests for arbitration which is labour intensive and
requires hearing. (Evidence, p. NT48)
4.17 In the annual report the Judge commented on the significant increase
in staffing to respond to the increased workload. Notably, at page 63
the annual report records that while the staffing level for 1994-95 was
40, over the next year's reporting period it rose to 139. This is a significant
issue that the Committee will continue to monitor. It will also closely
follow the question of the workload on Tribunal Members.
Budget and Running Costs
4.18 The budget allocation to the Tribunal increased from $9,241,450
in 1994-95 to $20,041,000 in 1995-96 (1995-96 annual report, p.1). However,
the report notes (p. 74) that the running costs budget was underspent
by $5,341.035. The Tribunal commented:
This was due in part to the inability of the Tribunal to commit
to any significant level of expenditure in the early part of the financial
year pending the decision by Cabinet of 24 August 1995. Additionally
$800,000 identified for the establishment of a Brisbane Registry was
unspent as a decision on a long term presence in Brisbane was deferred
until after the Federal election in March 1996.
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