Dissenting report by Senator Paul Scarr

Introduction

1.1There are two introductory matters which are worthy of comment.

1.2First, I would like to thank the Attorney-General’s Department (the AGD) for responding to my questions on notice so promptly in the limited time the committee had to consider the Attorney-General’s Portfolio Miscellaneous Measures Bill 2023 (theBill). The department’s answers were very helpful and positively contributed to the resolution of some questions I had with respect to the Bill.

1.3Second, it would be preferable in the context of an omnibus bill if subject matter which could reasonably be anticipated to be highly contested were separated out into a separate bill.

1.4The Billintroduced by the Attorney-General contains four schedules. Ofparticular concern in this bill is Part 2 of Schedule 4 which removes the legal framework and legislative basis for the Native Title Respondents Scheme (NTRS). It is the reason for the issue of this dissenting report, as opposed to the issue of additional comments.

1.5It would be preferable for the Bill to be divided so that Schedules 1 to 3 and Parts1 and 3 of Schedule 4 (i.e. the subject of the Bill other than the NTRS scheme) were dealt with separately from Part 2 of Schedule 4 (dealing with the NTRS).

1.6In my view, it is less than satisfactory to put senators in a position where they must vote against an entire omnibus bill which deals with different (entirely unconnected) subject matters to register disagreement with only part of a bill.

1.7It is recommended that the Bill be divided to allow the Senate to consider Part2 of Schedule 4 (dealing with the Native Title Respondents Scheme) in its own bill separate from Schedules 1 to 3 and Parts 1 and 3 of Schedule 4 in the Bill.

Schedule 1 – Federal Court Jurisdiction

1.8I agree with the commentary provided in paragraphs 2.63 to 2.69 of the majority report.

1.9I agree with Recommendation 1 contained in the majority report as detailed at paragraph 2.70.

1.10Having considered the answers to my questions on notice provided by the AGD, I believe there are a number of further matters which should be the subject of recommendations.

1.11The Law Council of Australia (the Law Council) recommended that the offence categories in proposed subsection 67G(4) be reconsidered and, if retained, their inclusion be clearly justified in the Bill’s Explanatory Memorandum.[1]

1.12In response, the AGD advised:

The Department refers the Committee to the Explanatory Memorandum, which sets out the rationale for the inclusion of offences against the Criminal Code in proposed subsection 67G(4) of the Judiciary Act 1903 (Judiciary Act):

[The Bill will] confer jurisdiction on the Federal Court to hear and determine a range of summary and indictable offences relating to entities and conduct against [certain] Acts, and the Criminal Code, within the regulatory remit of [the Australian Securities and Investments Commission, ASIC]. New subsection 67G(4) will confer jurisdiction on the Federal Court to hear and determine prosecutions for indictable offences against the Criminal Code which are likely to be relied upon in prosecutions arising from investigations undertaken by ASIC.

At the time that Schedule 1 of the Bill was released for public comment in October 2022 (then part of the Federal Court of Australia Amendment (Extending Criminal Jurisdiction and Other Measures) Bill), there was no limitation as to the institution of proceedings under the jurisdiction conferred by proposed subsection 67G(4) of the Judiciary Act. As then drafted, the provision would have allowed the prosecution of persons for the specified offences against the Criminal Code in circumstances other than corporate misconduct.

In response to feedback received, including from the [Law Council], 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 Treasurer (as the Minister responsible for administering the Australian Securities and Investments Commission Act 2001) or a person authorised in writing by the Treasurer to give such consents.[2]

1.14The Law Council recommended that the Bill and/or its explanatory materials include further matters that could guide the court’s consideration about whether a transfer of proceedings would be in the interests of justice.[3]

1.15In an answer to my question on notice and in response to this concern, the AGD advised:

The department refers the Committee to the Explanatory Memorandum, which sets out matters relevant to the transfer provision:

The purpose of [new section 32AE of the Federal Court Act] is to enable proceedings to be moved across the Australian court system to the most appropriate forum and venue, having regard to the interests of justice, to support the effective and efficient administration of justice.

The transfer scheme established by this provision is largely consistent with the transfer scheme established in relation to non-criminal proceedings by the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cross-vesting Act).

There is no defined set of criteria for assessing the interests of justice. Rather, the court should assess the interests of justice on a case-by-case basis, having regard to all relevant circumstances.

[The provisions] are largely consistent with the test to be applied by a court considering whether to transfer a proceeding, other than a criminal proceeding, to another court under section 5 of the Cross-Vesting Act.

Given that other transfer regimes in Commonwealth legislation, particularly the Cross-Vesting Act, do not specify the matters that should or must be considered by a court in assessing whether it would be in the interests of justice to transfer part or all of the proceedings, it would not be appropriate to include any exhaustive or non-exhaustive criteria in this Bill.[4]

1.16With respect to the AGD, the fact that other legislation does not specify matters to be considered by a court in assessing whether or not it would be in the interests of justice to transfer all or part of proceedings does not mean that there is no merit in providing a guide (on a non-exhaustive basis) in the explanatory material/the Bill of the matters a court may consider. Surely the fact that the LawCouncil considers it would be helpful is enough to suggest that there is merit in the proposal, at least in relation to the explanatory material.

1.17It is recommended the government considers amending the Bill and/or its explanatory materials to include further matters that could guide the court’s consideration about whether a transfer of proceedings would be in the interests of justice.

1.18The Law Council recommended that the accused be provided the right to make an application to transfer proceedings. Alternatively, justification should be included in the Bill’s Explanatory Memorandum for the accused not being provided this right.[5]

1.19In response to the concern raised by the Law Council, the AGD responded:

The department refers the Committee to the Statement of Compatibility with Human Rights in the Explanatory Memorandum, which sets out safeguards relating to the transfer provision:

Whether considering to transfer on application by the prosecutor or on its own initiative, the principles of procedural fairness will require the court to provide the defendant an opportunity to be heard before any decision to transfer or not transfer is made. Further, the court must also have regard to the interests of justice in determining to transfer part of all of the proceedings. These requirements will ensure that the accused will be afforded a reasonable opportunity to present their case under conditions that do not disadvantage them as against the prosecutor.

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.[6]

1.20With due respect to the department, and consistent with the view expressed in paragraph 2.67 of the majority report, I see no reason why the accused should not have a right to apply for a transfer of proceedings.

1.21It is recommended that the accused be provided the right to make an application to transfer proceedings as proposed by the Law Council.

1.22The Law Council proposed that prosecutors only be permitted to apply for a transfer of proceedings prior to committal for trial or sentence.

1.23In response to my question on notice referring to the Law Council’s proposal, the AGD advised:

As noted in the response to the previous recommendation (immediately above):

• the court must have regard to the interests of justice when considering whether to transfer proceedings; and

• superior courts have inherent powers to protect the administration of justice and prevent abuses of power.

The department considers these will ensure that transfers do not occur in circumstances, including at a particular point in the proceedings, which would unfairly prejudice the accused.[7]

1.24With respect to the Law Council, I believe that the AGD has satisfactorily answered the question.

1.25The Law Council recommended that guidance material be developed by relevant federal agencies, and made publicly available, about when a prosecutor should apply to transfer proceedings.

1.26In response to my question on notice referring to the Law Council’s concern, the AGD advised:

The management of prosecutions for the Commonwealth Government is the responsibility of the Commonwealth Director of Public Prosecutions (CDPP). The CDPP publishes and maintains the Prosecution Policy of the Commonwealth and other materials to guide decision-making in the prosecution process. As an independent entity, the appropriateness and development of any guidance relating to whether to transfer proceedings is a matter for the CDPP.[8]

1.27The observation of the AGD is of course correct. However, there is no reason why the matter should not be referred to the CDPP for its consideration as an independent entity.

1.28It is recommended that if the Bill is passed, the government refers to the CDPP for its consideration the request of the Law Council that guidance material be developed by relevant federal agencies, and be made publicly available, about when a prosecutor should apply to transfer proceedings.

Schedule 2 – Federal Court juries

1.29The Law Council recommended that the differences between the current jury preparation process in Subdivision D of Part III of the Federal Court of Australia Act 1976, and jury selection rules in each state and territory, be examined in greater detail by the AGD and canvassed in the Bill’s ExplanatoryMemorandum.[9]

1.30In response to my question on notice referring to the Law Council’s concern, theAGD advised:

The department refers the Committee to the Explanatory Memorandum, which explains how the Bill deals with differences in Commonwealth, State and Territory laws relating to jury panel preparation:

‘Subsection 23DU(4) will require a State/Territory jury official to apply all of the same processes they would apply when preparing a jury panel, and issuing summonses, for a trial on indictment of an offence in the Supreme Court of the relevant State or Territory. These processes may include establishing jury districts, preparing jury rolls, conducting enquiries in relation to potential jurors, and excusing jurors due to qualification or other matters. This provision provides certainty, validates procedures, and avoids the State/Territory jury official needing to apply different processes depending on the court for which they are preparing a jury panel…[Section 23DV] will apply relevant State or Territory laws concerning qualification to service as a jury for a trial on indictment for an offence in the Supreme Court of the relevant State or Territory to the preparation and provision of a jury panel by a State/Territory jury official to the Sheriff. These laws are taken to have been modified as necessary to allow for such application, including that references to a court are taken to be references to the Federal Court. Thisprovision will ensure the validity of potential jurors selected, and avoids the State/Territory jury official needing to apply different qualifications depending on the court for which they are preparing a jury panel…[Section 23DW] will clarify, for the avoidance of doubt, that relevant State or Territory laws apply, modified as necessary to be effective, from when the Sheriff requests…the State/Territory jury official to prepare and provide a jury panel until the State/Territory jury official has provided the jury panel’.

As set out in the Explanatory Memorandum extracted above, the Bill contemplates that there may be variations in relevant laws and procedures between the Federal Court Act and relevant State and Territory laws. Toaddress 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. Subdivisions DD and E of division 1A of part III of the Federal Court Act, which set out empanelment and other jury procedures, will then apply whether a jury panel is prepared by the Sheriff or provided by a State/Territory jury official. 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.[10]

1.31This is a helpful explanation which may enhance the ExplanatoryMemorandum.

1.32It is recommended that the government considers including an enhanced explanation of jury preparation and jury selection processes in the Explanatory Memorandum to the Bill as requested by the Law Council.

1.33In a similar vein, the Law Council requested that the Bill and/or its explanatory materials provide more detailed specification of the criteria to be applied by the Sherriff in utilising the discretionary, hybrid jury preparation procedure proposed in Schedule 2.

1.34In response to my question on notice referring to the Law Council’s concern, the AGD advised:

The department refers the Committee to the Explanatory Memorandum, which clarifies the Sheriff’s discretion:

‘The Sheriff will…determine which approach for preparing a jury panel is adopted on a case-by-case basis.’

The Sheriff is best placed to determine which approach for preparing a jury panel is appropriate in the circumstances. Specifying detailed criteria to which the Sheriff must have regard when making their election could impact the efficiency and effectiveness of this measure. Although the Sheriff will have discretion as to which approach is to be adopted, the Bill provides a number of safeguards:

The Sheriff must, in writing to the Chief Executive Officer of the Federal Court, elect which approach is to be adopted, pursuant to new section 23DD of the Federal Court Act. This ensures certainty for the Federal Court in managing the proceedings before it.

A request by the Sheriff to a State or Territory jury office to prepare and provide a jury panel may only be made with the consent of the relevant State or Territory. Therefore, it is not possible for the Sheriff to elect that a State or Territory jury official is to prepare and provide a jury panel for a particular jury trial unless the relevant State or Territory has consented to do so.[11]

1.35Again, this is a helpful explanation which may enhance the ExplanatoryMemorandum.

1.36It is recommended that the government considers including in the Explanatory Memorandum more detailed specification of the criteria to be applied by the Sherriff in utilising the discretionary, hybrid jury preparation procedure proposed in Schedule 2 of the Bill.

Schedule 3 – Amendments to the Marriage Act 1961

1.37I have reviewed and carefully considered the submission from the CelebrantInstitute, the Law Council and the AGD in relation to the proposed amendments to the Marriage Act 1961 (the Marriage Act).There are two proposed amendments which require specific comment.

1.38As summarised in paragraph 1.43 of the majority report, it is proposed that a statutory declaration can be used to provide identity details if it is impracticable to obtain an official record of birth and the person does not have a current passport.

1.39The Celebrant Institute requested clarification[12] regarding identification requirements where the person may be able to apply for a passport notwithstanding that it is impracticable to obtain a birth certificate (e.g. as is the case with some refugees or where civil society has broken down in a person’s country of origin).

1.40In reviewing subsection 42(1) of the Marriage Act, as it would be amended, there is no necessity for the person to apply for a passport. They can simply provide the statutory declaration with the relevant declaration. In my view, the drafting is clear, and no additional amendment is required.

1.41Another concern raised by the Celebrant Institute is that there is doubt as to what ‘certificate or official extract’ is referring to. For example, could it be referring to a change in name certificate or an entry in an international register of refugees?

1.42In its answer to my question on notice asking the AGD to respond to this issue, the department advised:

The amendments proposed by the Celebrant Institute require broader consultation and analysis, including to assess the potential impacts on First Nations People and refugees/other vulnerable groups, who may not have ready access to an official certificate of birth to evidence their identity.[13]

1.43I agree with the response of the AGD.

1.44It is recommended that the amendments in the Bill in relation to subsection 42(1) of the Marriage Act 1961 relating to identity requirements be passed.

1.45In making the above recommendation, I am comforted by the fact that in its response to the question on notice, the AGD advised:

The department will work through existing channels for ongoing engagement with Commonwealth-registered marriage celebrants to consider the Celebrant Institute’s proposals, including biannual meetings between the department and the Celebrant Associations and Networks.[14]

1.46It is recommended that the issues raised by the Celebrant Institute be considered through meetings held by the Attorney-General’s Department and the Celebrant Associations and Networks, including at biennial meetings. Ifthe results of such consultation indicate that any further clarifications or improvements should be made to the Marriage Act 1961 to address the concerns raised by the Celebrant Institute in its submission (or in relation to any other matter), then these should be the subject of a further amendment of the Marriage Act 1961 to be introduced into the Parliament as soon as reasonably practicable.

1.47The more vexed question relates to the proposed amendment to Part 6 of the Marriage Act which would prohibit an authorised celebrant from solemnising a marriage unless they have met separately with each party to the proposed marriage. The authorised celebrant and party must be physically present with each other at the meeting.

1.48The Celebrant Institute raised a number of concerns in relation to this proposed amendment, including:

(a)As a matter of practice, a party may not raise issues of duress or lack of true consent at such a meeting (e.g. due to fear of reprisals or the financial impact of calling off a wedding if the meeting is held on a wedding day);

(b)A party who was minded to raise a concern of duress or lack of consent at a separate meeting mandated under the Bill would be prepared to raise it in any event (i.e. the matter is likely to come to the attention of the celebrant in any event);

(c)In some religious or cultural settings, it is not appropriate or feasible to have such a meeting.[15]

1.49In response to my question on notice asking the AGD to respond to the concerns raised by the Celebrant Institute, the department advised:

The Explanatory Memorandum to the Bill sets out that meeting separately with each party to the marriage before the marriage is solemnised is intended to provide an additional safeguard where the Notice of Intended Marriage (NOIM) is remotely witnessed, or witnessed by an authorised person who is not an authorised celebrant, such as a Justice of the Peace.

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.

In regards to cultural considerations, the requirement is only for a celebrant to meet with each party to a marriage ‘separately’. There is no requirement to meet alone with a party. Accordingly, the proposed measure is achievable in a culturally appropriate context and in line with the preferences of the party. The need for separate conversations with each party (where necessary), to confirm that a party is consenting or capable of consenting to marriage has been a long-standing principle in the Guidelines on the Marriage Act 1961 for Authorised Celebrants (the Guidelines). The Bill incorporates this long-standing principle from the Guidelines on the face of the legislation.[16]

1.50I note that the existing Guidelines on the Marriage Act 1961 for AuthorisedCelebrants provides the following guidance to authorised celebrants where there is a concern relating to duress or consent:

8.6.1 Speak to the party in the absence of any other party

If a celebrant forms a view that any of the above grounds may be present when a couple approaches them to solemnise a marriage, they should discuss the matter with the party concerned in the absence of the other party to ensure that the consent is a real consent. This is particularly important if the celebrant is concerned that a party may be experiencing duress or is mentally incapable of understanding the nature and effect of the marriage ceremony.

The discussion with the other party should also occur in the absence of third parties such as parents.

A mistake as to the nature of the ceremony performed may arise, for example, where a person thought the ceremony was a betrothal ceremony and not a marriage ceremony. In cases where there is doubt about whether a party is incapable of understanding the nature and effect of the marriage ceremony, a simple or general understanding will be sufficient. A high level of understanding is not required.

The celebrant should ask questions of the person about whom they have concerns in order to gauge the level of their understanding of the marriage ceremony and what it involves. For example, why they want to marry the other person, what marriage is or where they will be living after the marriage.[17]

1.51Whilst the proposed amendment extends the obligation even to situations where the celebrant does not have a view that there is an issue around duress or lack of consent, it is consistent with the policy intention to provide an additional safeguard against forced marriages. Moreover, it could well be that the fact the celebrant is legally required to hold a separate meeting with each party to a marriage (and will no doubt communicate this to each party) may assist a party suffering under coercion (i.e. the other party will not be able to pressure the party suffering under coercion from meeting separately with the celebrant because it would be a legal requirement for solemnisation of a marriage). It is further noted that the amendment is supported by the Law Council.[18]

1.52With respect to the duration, timing and approach to the separate meeting, Iagree with the AGD that this should be within the discretion of the celebrant. It is reasonable to anticipate that the nature of the meeting may be different depending upon the circumstances (e.g. discrepancy in ages between the parties, indications coming to the attention of the celebrant prior to the meeting of duress or lack of consent etc.). It should be the subject of commentary in the guidance (just as commentary is provided in the existing guidance). In this regard, I agree with Recommendation 2 contained in the majority report.

1.53It is recommended that the issues raised by the Celebrant Institute be considered through meetings held by the AGD and the CelebrantAssociations and Networks, including at biennial meetings. If the results of such consultation indicate that any further clarifications or improvements should be made to the Marriage Act 1961 to address the concerns raised by the Celebrant Institute.

Schedule 4 of Part 2 — Abolition of the Native Title Respondents Scheme

1.54The NTRS, established as part of Australia's evolving native title landscape, has played a pivotal role in shaping the engagement between farmers, pastoralists, graziers, miners, fishers and other non-native title holders, and Indigenous claimants over land rights. The scheme was introduced to balance the legal and financial disparities between native title claimants and respondents.

1.55The scheme, albeit comparatively small, is of great significance to many who deal with native title claims. Long-term landholders such as farmers and pastoralists, who are often deeply impacted by native title claims, found in the scheme a vital support mechanism. It provided financial and legal assistance, enabling them to effectively participate in the native title process. This support not only ensures that their interests and concerns are adequately represented but also facilitates a more equitable negotiation process.

1.56The benefits of the NTRS extend beyond mere legal representation; it generates better understanding, communication, and often leads to mutually beneficial outcomes. For farmers and pastoralists, the scheme represents a critical tool in managing the complexities of native title claims, ensuring that their voices are heard and their livelihoods considered in the determination of land rights. Thescheme's contribution to promoting negotiated settlements over litigation has been particularly noteworthy, allowing for cooperative and fair resolutions in the sensitive arena of land rights and native title claims.

1.57Following the failures and subsequent repeal of the Cultural Heritage Act 2021 (WA) these issues are now even more pronounced in the public, especially in Western Australia.

1.58The National Farmers’ Federation (NFF), as the peak body representing farming and agriculture across Australia, strongly oppose Part 2 of Schedule 4 in the Bill and stated:

The decision sends a worrying signal to the community around a balanced and equitable approach. Every stakeholder deserves to be able to participate in good faith under the principle of natural justice. The scheme needs to be maintained and the decision not to fund it reversed.[19]

1.59An important point was also made in its submission regarding the historical success of the NTRS and the ease with which stakeholders are able to engage with Native Title Officers:

The grouping of Native Title respondents in this manner assists with the efficient and cost-effective resolution of claims as parties with similar interests are represented by one lawyer and supported by one Native Title Officer…The scheme also provides a single point of contact for Native Title claims affecting pastoral respondents (and there are often several in each claim), working with legal representation to ensure they receive relevant and timely information regarding native title processes and legal developments and can make informed decisions. 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.[20]

1.60There are (as at December 2023) at least 180 respondents involved in current native title claims who would benefit from the support of this scheme.[21]

1.61Local governments, particularly in Queensland, are also heavily impacted by native title claims and outcomes. The proposed defunding and abolition of the scheme would place financial strains on these bodies, particularly those affected in regional areas which are already facing challenges such as natural disasters and financing infrastructure. The scheme's absence would increase the cost burden on councils, adversely affecting their ability to participate in native title claims and land transfers. The Local Government Association of Queensland highlighted:

Local governments are substantially impacted by matters relating to, or arising out of, the resolution of native title claims…Local governments need to be involved, to some extent, in every land determination process to ensure community assets are identified and the continuity of council services.[22]

1.62Its submission also stressed the importance of retaining the NTRS and the harm its abolition would have on local councils:

Without the Native Title Respondents Funding Scheme, local governments cannot afford to be part of these processes, and there will be no avenue to address their interests or have access to specialist legal expertise. WithCommonwealth assistance still available to Native Title claimants for costs, this leaves an unequal footing to which councils are forced to be part of this process.[23]

1.63The Part 2 Schedule 4 provisions may also have unintended consequences for native title claimants who want to participate in the Native Title Process. Theabolition of the scheme may adversely affect New South Wales Aboriginal Land Councils (NSWALC) and Local Aboriginal Land Councils in NSW. These entities are obliged to respond to native title applications to manage their land effectively. The removal of the scheme imposes a significant financial burden, negatively impacting their ability to participate in and settle native title claims efficiently​​. In its submission to this inquiry, the Law Council made the following observations:

The Law Council has been made aware by the Law Society of New South Wales that the abolition of the Scheme may result in NSW Aboriginal Land Councils being faced with a significant financial impost, as they cannot access funding otherwise available to claimants in native title cases. As such, the abolition of the Scheme may negatively impact the ability of these entities to participate in, and settle, complex native title claims in a coordinated and efficient manner.[24]

1.64This is representative of the government’s lack of consultation with stakeholders affected by this change, and a failure to address the impacts of the abolition of this scheme.

1.65While the government has proposed the repeal of this scheme, the ExplanatoryMemorandum itself admits that other legal assistance is provided to native title claimants. There is inequity in this approach.

1.66The government has treated these industries with contempt in this regard, failing to materially respond to the concerns raised by the NFF in formal correspondence to the Attorney-General on two occasions. The NFF made the following point in a letter to the Attorney-General dated 14 June 2022:

The NFF urges the Government to continue to fund landholder and leaseholder native title respondents to ensure a fair and equitable system for all involved, and to ensure the process of hearing: claims can continue in good faith. This is a fundamental matter of equity across participants that have historically been a feature of this complex and contested area.[25]

1.67The government has shown little concern for businesses of all sizes operating in the affected industries, simply expecting them to absorb additional legal costs and navigate the complex Native Title processes on their own. The Attorney‑General’s view in his second reading speech to the House was made very clear:

…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.[26]

1.68The scheme's abolition creates an imbalance, allowing Native Title representative bodies (as claimants) to engage in processes with existing legal capacities, while respondents lack commensurate support. This disparity is inequitable and undermines the principle of fair and equitable justice​​.

1.69The NTRS is viewed as a critical component in ensuring that all parties, especially those with limited financial resources, can effectively engage in and resolve native title claims.It should continue.

1.70At outlined in Recommendation 1, it is my view that Part 2 of Schedule 4 should be separated out from the Bill. If that did occur, I would support the passage of the balance of the Bill, subject to the recommendations I have provided above.However, if Part 2 of Schedule 4 is not separated out from the Bill, I am unable to support passage of the Bill due to the material concerns made by key stakeholders with respect to the negative consequences of abolishing the NTRS.

1.71It is recommended that the Bill not be passed if it continues to contain Part 2 of Schedule 4 abolishing the Native Title Respondent Scheme.

Senator Paul Scarr

Deputy Chair

Liberal Senator for Queensland

Footnotes

[1]Law Council of Australia, Submission 6, p. 12.

[2]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), p. 3.

[3]Law Council of Australia, Submission 6, p. 14.

[4]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), p. 4.

[5]Law Council of Australia, Submission 6, p. 14.

[6]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), p. 4.

[7]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), p. 5.

[8]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), p. 5.

[9]Law Council of Australia, Submission 6, p. 15.

[10]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), pp. 5–6.

[11]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), pp. 6–7.

[12]The Celebrant Institute, Submission 5, p. 2.

[13]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), p. 7.

[14]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), p. 7.

[15]The Celebrant Institute, Submission 5, p. 3.

[16]Attorney-General’s Department, answers to written questions on notice from Senator Scarr, 16January 2024 (received 29 January 2024), pp. 7–8.

[17]Attorney-General’s Department, Guidelines on the Marriage Act 1961 for authorised celebrants, 1September 2021, p. 89.

[18]Law Council of Australia, Submission 6, p. 16.

[19]National Farmers’ Federation, Submission 2, p. 3.

[20]National Farmers’ Federation, Submission 2, p. 2.

[21]National Farmers’ Federation, Submission 2, p. 2.

[22]Local Government Association of Queensland, Submission 8, p. 1.

[23]Local Government Association of Queensland, Submission 8, p. 2.

[24]Law Council of Australia, Submission 6, p. 18.

[25]National Farmers’ Federation, Submission 2, p. 5.

[26]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 14.