Chapter 4

NINTH REPORT OF THE PARLIAMENTARY JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
Table of Contents

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:

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:

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:

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:

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:

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:

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:

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: