Chapter 2
National Native Title Tribunal Annual Report 1997-98
The 1997-98 Report: Presentation and Style
Presentation
2.1 The NNTT report comprises: a letter of transmission, a table of contents,
and the Tribunal vision, mission and values (pp.1-5); the President's
report (a discussion of native title issues and developments that arose
between July 1997 and June 1998, pp.6-8); Tribunal members (9); the Registrar's
report on the operations of the Tribunal for the year under review (corporate
overview, pp.10-15) the organisational structure and Tribunal executive
(pp.16,17); various sections describing the Tribunal's performance in
detail (pp.18-65); regional overviews (pp.66-133); 10 appendixes
containing information on the corporate directory, relevant legislation,
publications and presentations, staffing, consultants, freedom of information,
internal and external scrutiny, audit report and financial statements,
a glossary and a compliance index (pp.134-186); and a general index (pp.187-190).
Style
2.2 The Committee has devoted some attention to the question of style
of the Tribunal's past reports. The 1996-97 report was produced in two
volumes; the 1996-97 Addendum provided mediation summaries, information
included in the single volume for 1997-98. Importantly, the Tribunal's
1997-98 annual report remains well organised and accessible. The 1997-98
annual report appears to continue the Tribunal's commitment to improving
access to, and use of, its annual report.
Formal Requirements and Compliance
Requirements
2.3 While being a statutory authority, the Tribunal has chosen (as it
is entitled) to observe the annual reporting requirements for government
departments. Those requirements, updated in February 1996, can be itemised
as follows:
- Annual Report Requirements (compliance mandatory)
- Letter of Transmission
- Aids to Access
- Portfolio and Corporate Overview
- Program Performance Reporting
- Staffing Overview
- Financial Statements
-
- Attachment 1: Information on Specific Statutory
- Provisions Relating to Annual Reports
- (compliance mandatory)
- Industrial Democracy
- Occupational Health and Safety
- Freedom of Information
- Advertising and Market Research
-
- Attachment 2: Program Financial and Staffing
- Resources Summary and Appropriations
- to Programs Reconciliation - Proformas
- (guidance document only)
-
- Attachment 3: Information Available to Members
- of Parliament and Senators on Request
- (material to be available but inclusion in
- annual report not mandatory)
- Social Justice and Equity
- Staffing Matters
- Financial Matters
- Internal and External Scrutiny
- Privacy
- Environmental Matters
- Other Matters
Compliance
2.4 In its annual report for 1997-98 the Tribunal has fulfilled the reporting
requirements that are mandatory for government departments in the following
manner.
Letter of Transmission
2.5 The President's letter to the Attorney General was dated (Thursday)
15 October 1998. The report was tabled in the Senate on 10 November
and in the House of Representatives on 11 November 1998; this was within
15 sitting days of the day on which the Minister received it, and
satisfies the requirement.
Aids to Access
2.6 The NNTT report provides:
- Table of Contents (p.3);
- President's Report (pp.6-8);
- Glossary (to financial statements) (pp.183-185);
- Compliance Index (p.186);
- Index (p.187-190); and
- Contact Officer (p.ii).
(It is important to note the distinction between the Compliance Index
and the Index.)
2.7 Accordingly, the Tribunal has adequately set out aids which allow
proper access to the document. However, and despite its claim (p.153)
to have provided the name of the contact officer in response to
the Committee's Thirteenth Report, the officer is not named although the
position of Registrar is given.
Portfolio and Corporate Overview
2.8 A Portfolio Overview is not applicable.
2.9 The Registrar's Corporate Overview (pp.10-15) provides an account
of the following activities:
Increase in workload (p.10); agreement-making (p.11); differential
allocation of resources policy (p.11); additional resources (p.12);
individuals and the native title process (p.13); public information
and media (p.13); public sector reform (p.14); customer service (p.14);
workplace relations and workplace diversity (p.15); and conclusion (p.15).
Program Performance Reporting
2.10 In its annual report for 1995-96, the Tribunal indicated in the
Compliance Index (p.188) that the material comprising the Corporate Overview
chapters responded to the program performance reporting requirement. Such
a statement is not provided for the Compliance Index in the 1997-98 report.
Staffing Overview
2.11 The report sets out details of the Tribunal Members (p.9) and the
Tribunal Executive (pp.16,17). In pages 59 to 62 management of the Tribunal's
human resources is set out, including issues such as: the total number
of employees (p.61), executive review (pp.60,61), and professional development
(pp.61,62). The Tribunal has returned to its earlier practice of providing
an organisation chart in its 1997-98 report (p.16); a similar chart was
not provided for 1996-97. Notably, a useful list of Members is provided
(p.147).
Financial Statements
2.12 Appendix 8 provides the financial statements (pp.157-182); the statements
received an unqualified audit. The report, however, incorrectly advises
(p.153) that the audit certificate appears on page xx; the correct
reference should be pp.157,158. Appendix 9 provides the Glossary (pp.183-185).
Industrial Democracy/Participative Work Practices
2.13 The Tribunal's report is incorrect about the location of its references
to industrial democracy. The Index (p.188) indicates that industrial democracy
is dealt with at p.140 (which is in fact part of the Publications and
Presentations appendix). Rather, 'workplace diversity' and `participative
work practices' are covered at p.142 as is noted by the Compliance Index.
Further, the Index does not list 'workplace diversity', and the topic
`participative work practices' is listed incorrectly in both Indexes (p.60,
not p.59; in addition to p.142). The report is confusing, then, in regard
to the concepts being addressed here, the location of the references in
the report, and the consistency of the Indexes in regard to them.
Occupational Health and Safety
2.14 Occupational health and safety is referred to at page 142 (as indicated
by both Indexes).
Freedom of Information
2.15 This matter is mentioned at pp.150 to 152. The Index notes pp.150
and 151 and the Compliance Index indicates only p.150.
Advertising and Market Research
2.16 Neither advertising nor market research is mentioned in the Indexes.
Media liaison is covered at pages 13 and 14.
Summary
2.17 Together with the President's report (pp.6-8), the Tribunal has
covered the subjects required to be addressed by the compliance criteria.
The extent to which the report is satisfactory in addressing these matters
is assessed in the following section of this report.
The 1997-98 Report: Issues
Response to the Committee's Thirteenth Report
2.18 The role of the Parliamentary Committee, both in terms of scrutiny
and reporting, has been properly acknowledged (p.153) by the Tribunal
for 1997-98. In its Thirteenth Report there were three specific matters
to which the Committee drew attention about the Tribunal's 1996-97 annual
report. They concerned the way in which the Tribunal responded to the
Committee's Ninth Report, the issue of Tribunal impartiality and the Tribunal's
workload.
General Response
2.19 The Committee's Thirteenth Report (concerning the NNTT annual report
for 1996-97) was tabled on 24 June 1998. Accordingly, reference to it
was required in the Tribunal's report for the period July 1997 to June
1998; tabling of the Thirteenth Report is noted by the Tribunal at page
153 of its report for 1997-98. It has also noted the Committee's Tenth
Report which was tabled on 28 October 1997.
2.20 This Committee's Thirteenth Report reviewed the Tribunal's annual
report for 1996-97. 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 subsequent annual reports could be
improved. These suggestions related to an organisational chart, the name
of the contact officer for the annual report, and ensuring that budget
and running costs are correct.
2.21 As has already been noted, although a useful organisational chart
is provided (p.16), the name of the contact officer for the 1997-98 report
was not given. Nevertheless, the Committee is pleased to note that the
Tribunal has intended (p.153) to respond positively to the comments about
its report for 1996-97. The NNTT has produced its most accessible, accurate
and professional report to date.
Tribunal Impartiality
2.22 In response to a recommendation in the Committee's Fourth Report,
the Tribunal amended and recorded its conflict of interest policy in the
1996-97 annual report (p.94). The Committee had recommended that the Tribunal
make its conflict of interest policy consistent with its mission statement.
2.23 The question of Tribunal impartiality remained current for the reporting
period 1997-98. Notably, a Member of the Tribunal, Mr Sean Flood, stood
down from the Tribunal in June 1997. Mr Flood had made remarks concerning
the Government's 10 Point Wik Plan during a speech at the University of
NSW. On 12 June 1997, in the previous reporting period, the then Tribunal
President (Justice French) issued a media release advising that Mr Flood
had agreed to take leave for one week while he considered his position.
The President's press release was included as Appendix 1 to the Committee's
Thirteenth Report.
2.24 The Committee notes that Mr Flood remained a Member of the Tribunal
until his resignation on 13 October 1997 (see President's Report, p.8).
At the public hearing held on 30 March 1999 to consider the Tribunal's
1997-98 annual report, the President (Mr Neate) emphasised that it was
important for Tribunal Members to act, and be seen to be acting, in an
impartial manner for as long as they hold office. [1]
2.25 Impartiality is noted as an issue by the Tribunal for its 1997-98
annual report (p.153). It will remain an issue for review by the Committee.
For instance, as the Committee completes its duties pursuant to s.206(d)
of the Native Title Act 1993, the matter will be considered again.
Those duties include an inquiry into the effectiveness of the Tribunal.
Tribunal Workload
2.26 In its Thirteenth Report (pp.10,11), the Committee examined the
question of the Tribunal's workload. It advised that the Committee would
continue to monitor this issue closely.
2.27 As in previous Tribunal reports, the Registrar has made mention
of the NNTT workload for 1997-98 (pp.10,11). It is noted that at the end
of the reporting period there was a total of 804 native title claimant
applications lodged, with an active claimant application workload of 682
matters. Future act activity was also intense, with 3934 notifications
under s.29 of the Act. And the Tribunal convened some 5000 preliminary
conferences in relation to objections to the expedited procedure. The
workload of the Tribunal and its Members is recognised by the Committee
as a significant issue and is one which it will continue to monitor.
2.28 The Tribunal's response to its growing workload was reflected in
the previous reporting period by the strengthening of its regional presence
with the opening of a new office in Brisbane, the upgrading of the Adelaide
and Kalgoorlie offices and the development of substantial regional plans.
For 1997-98 this was supplemented by the establishment of an office in
Melbourne in November 1997.
2.29 At the public hearing on 30 March 1999 the President advised that
the terms of a number of Tribunal Members had expired. Mr Neate confirmed
that, as a consequence of the increased workload, he would be having discussions
with the Attorney General about the possibility of additional appointments.
[2]
2.30 Of course, one way in which the work of Members can be supported
is by the appointment of consultants. Mr Neate stated on 30 March that
there were two sets of circumstances in which consultants could be used:
first, to assist Members in the mediation process and, second, to carry
out the functions of Members. [3]
2.31 The Committee would be concerned were the Tribunal to adopt a policy
of appointing consultants to carry out the functions of Tribunal Members.
Importantly, the Committee understands from Mr Neate that it has not been
necessary to do so as yet. Where there is a shortage of Members to address
the Tribunal's workload, that should be the subject of advice from the
President to the Commonwealth Government, and an adequate number of Members
appointed. The Committee notes that, in principle, Mr Neate agrees with
this approach: Members should be engaged to do the work of Members. [4]
Again, this is a matter that the Committee will continue to monitor.
Budget and Running Costs
2.32 The budget allocation to the Tribunal increased from $20,041,000
in 1995-96 to $23,900,000 in 1996-97; in 1997-98 it was $23,700,000. The
Tribunal's annual report notes (p.59) that $2,168,212 of the running costs
budget was underspent and will be carried over into 1998-99.
Other Matters
Comment on Amendments to the Act
2.33 In the President's Report, the Tribunal's 1997-98 annual report
presents comment on the changes to the Native Title Act 1993 effected
pursuant to the Native Title Amendment Act 1998. Justice French
confirmed that:
So far as the processes of the Act are concerned, the amendments do
offer new tools for more flexible and, in some cases, more expeditious
resolution of native title claims. [5]
The point being made by the judge concerned the fact that applications
now become proceedings in the Federal Court. Justice French considered
that claims will now go forward in an environment of ultimate judicial
supervision which will result in a more disciplined approach by parties.
2.34 One aspect of the improved environment under which claims are now
made relates to overlapping claims and intra-indigenous conflict. At the
time of reporting (that is, by the end of June 1998), the then President
(Justice French) advised (p.7) that intra-indigenous conflict still dominated
the native title process. And in March 1999 the new President (Mr Neate)
confirmed that, before the amendments were made, the Tribunal had relatively
few statutory processes to deal with intra-indigenous disputes:
It was really for us to attempt to bring the disputing groups together
… and talk to them about, for example, the relative benefits of
working through to a mediated outcome between themselves and the other
parties to the application or having to go to court to have these issues
resolved - that is, issues as between Aboriginal people - before one
got to the issues between the applicants and other parties. [6]
2.35 In confirming the Tribunal's impression that the Amendment Act had
delivered desirable change, Mr Neate advised [7]
the Committee of four important developments:
- in order to pass the new registration test, applicants cannot be members
of groups with overlapping claims;
- the Federal Court is instructed that it can only make one determination
in relation to an area: overlapping claims should be dealt with in the
same set of proceedings;
- the Tribunal no longer has to hold a plenary conference for mediation:
certain issues may be isolated and referred to the Federal Court; and
- the Tribunal can report to the Federal Court about progress on an
intra-indigenous dispute and implicitly invite the Court to take steps.
The President concluded:
So the impressions that I think we are getting across the country are
now that people are coming to grips with the new statutory regime and
are actively engaging with it in a positive manner, and are reaching
agreements … [8]
2.36 The Committee is satisfied that, at this stage, the Amendment Act
appears to have produced these practical and desirable benefits for native
title claimants in the lodgement of applications; it has resulted in a
much more efficient process of mediation and determination to the advantage
of all parties to claims. Nevertheless, as this is a most significant
issue for the native title process, the Committee will continue to monitor
it carefully.
Public Information and Media
2.37 The Registrar devoted considerable attention to the issue of public
information in the 1997-98 report (pp.13,14). It was stated that the Tribunal
has been concerned about the scope of its charter to carry out community
education:
During the course of parliamentary debate on the Native Title Amendment
Bill 1997, specific amendments giving the Tribunal a broader role in
community education failed to obtain majority support. Yet the Tribunal
continues to encounter high levels of expectation from all sectors of
the community that it will be a principal provider of education and
information. [9]
Despite these expectations, the Tribunal's resources do not permit such
a broad role. Accordingly, the Tribunal has focussed its education and
information function towards influencing native title processes in certain
regions and industries.
2.38 In the reporting period the Tribunal worked with indigenous, local
government and pastoral groups to explain the fundamentals of native title
law and mediation. At the public hearing on 30 March 1999, the Committee
was advised by the Registrar that the Tribunal considered that it still
had a role to try to reach as many people as possible:
We spend a lot of time - even now, particularly with the registration
test, and as matters are beginning to move into court ordered mediation
- doing similar things to what we did in the period under review and
previously - that is, graduated, targeted approaches to communities,
sectors of industry and commerce to explain what the act is about. [10]
Further, the Tribunal President drew attention to the detail of the annual
report (pp.44-54) which sets out the Tribunal's involvement in industry
and community partnerships, research activity, seminars, workshops and
publications. In this regard the Committee examined the Tribunal's August
1998 publication Understanding the amended Native Title Act. The
Committee commends the Tribunal for this document.
2.39 In its extensive consultations around Australia the Committee has
noted the clear need for information to be disseminated about native title.
This is a matter of considerable concern; it affects the rights of indigenous
people as well as those who become parties to native title applications.
The Committee will continue to consult with those who may be affected
in this way with a view to ensuring that adequate and accurate public
information is available from authoritative sources.
Footnotes
[1] Evidence, p. NT 12.
[2] Evidence, p. NT 11.
[3] Evidence, p. NT 22.
[4] Evidence, p. NT 23.
[5] National Native Title Tribunal Annual
Report 1997-98, p.7.
[6] Evidence, p. NT 5.
[7] Evidence, pp. NT 5, 6.
[8] Evidence, p. NT 6.
[9] National Native Title Tribunal Annual
Report 1997-98, p.13.
[10] Evidence, p. NT 8.
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