203AInviting applications for recognition

203A  Inviting applications for recognition Commonwealth Minister may invite applications  (1) The Commonwealth Minister may, in writing:  (a) invite applications from eligible bodies for recognition as the representative body for an area; or  (b) invite an eligible body to make an application for recognition as the representative body for an area. Invitations may specify an area for which there is a representative body  (1A) The invitation may specify an area for which there is a representative body. Note: An eligible body must not be recognised as the representative body for an area with effect from a particular day if the recognition of a body as the representative body for all or part of the area will be in effect on that day: see subsection 203AD(4). Invitations may cover more than one area  (2) The invitation may specify more than one area for which an application or applications are invited. Invitations to specify application period  (3) The invitation must specify the period (of at least 28 days) within which the application or applications are to be given to the Commonwealth Minister. Invitations to specify information that must be included in applications  (4) The invitation must specify the information that must be included in the application or applications that are given to the Commonwealth Minister. Invitations to contain statement about revocation of invitations  (5) The invitation must contain a statement setting out the effect of section 203AA (which deals with the revocation of invitations). Invitations to contain statement about notification requirement  (6) If the invitation is made under paragraph (1)(b), the invitation must contain a statement setting out the effect of section 203AAA (which requires an eligible body to notify the Commonwealth Minister if it decides not to apply for recognition etc.). Invitations may be general  (7)  For the purposes of paragraph (1)(a), the Commonwealth Minister may arrange for the publication of general invitations and need not make a separate invitation to each eligible body. 203AA  Revocation of invitations  (1) The Commonwealth Minister may, in writing, revoke an invitation made under subsection 203A(1) if:  (a) the Commonwealth Minister considers it appropriate to do so; and  (b) the period that applies under subsection 203AB(2) has not expired.  (a) an eligible body, to whom the invitation was made, has made an application under section 203AB; and  (b) at the time of revocation, the application has not been determined; then the application is taken never to have been made.  (3) If the invitation was made under paragraph 203A(1)(a), the Commonwealth Minister may arrange for the publication of the revocation and need not give a separate document to each eligible body to whom the invitation was made. 203AAA  Eligible body must notify the Commonwealth Minister if it decides not to apply for recognition etc.  (1) This section applies if an eligible body is invited under paragraph 203A(1)(b) to apply for recognition. Notification of decision not to apply for recognition  (2) If the eligible body decides not to apply for recognition, the eligible body must, in writing, notify the Commonwealth Minister of that decision before the end of the period specified in the invitation under subsection 203A(3). Deemed notification  (3) If the eligible body does not:  (a) give a notification under subsection (2); or  (b) make an application before the end of the period that applies under subsection 203AB(2); the eligible body is taken to have given a notification under subsection (2) of this section at the end of that period. 203AB  Application for recognition Eligible bodies may apply  (1) An eligible body may apply to the Commonwealth Minister for recognition as the representative body for the area, or for one or more of the areas, in respect of which:  (a) the body has been invited under section 203A to make an application; or  (b) eligible bodies have been invited under section 203A to make applications. Application period  (2) The application must be given to the Commonwealth Minister within the period specified under subsection 203A(3), or within such further period as the Commonwealth Minister allows (whether or not the initial period has expired). 203AC  Dealing with applications  (1A) The Commonwealth Minister must determine applications under section 203AB as soon as practicable after whichever of the following periods ends last:  (a) the period specified under subsection 203A(3);  (b) if a further period applies under subsection 203AB(2) in relation to one or more of those applications—the last such further period;  (c) if the Commonwealth Minister has, in relation to one or more of those applications, given to a body a notice under subsection (1) of this section requiring the body to give further information within a specified period—the last such period.  (1) The Commonwealth Minister may give to a body that has made an application under section 203AB a notice requiring the body to give further information relating to the application within a period specified in the notice.  (2) The period specified:  (a) must not begin before the day on which the notice was given; and  (b) must be a period of at least 21 days.  (3) The fact that no further information has been given to the Commonwealth Minister as at the end of the period specified in the notice does not prevent the Commonwealth Minister from determining the application.  (4) The notice must contain a statement setting out the effect of subsection (3). 203AD  Recognition of representative bodies Commonwealth Minister may recognise representative bodies  (1) The Commonwealth Minister may, by legislative instrument, recognise, as the representative body for an area or areas, an eligible body that has applied under section 203AB to be the representative body for the area or areas if the Commonwealth Minister is satisfied that:  (c) if the body is already a representative body—the body satisfactorily performs its existing functions; and  (d) the body would be able to perform satisfactorily the functions of a representative body. Period of recognition  (2) The recognition of the body as a representative body:  (a) takes effect on the day specified in the instrument of recognition; and  (b) subject to subsection (3), ceases to have effect at the end of the day specified in that instrument unless the body’s recognition is earlier withdrawn under section 203AH.  (3) If an area for which a body is recognised as the representative body is varied under subsection 203AE(1) so as to reduce the area to zero, the recognition of the body ceases immediately after the variation takes effect.  (3A) The period of recognition specified in the instrument of recognition must be at least 1 year but not more than 6 years.  (3B) In deciding the period of recognition to specify in the instrument of recognition, the Commonwealth Minister must consider the following:  (a) whether the body is under external administration;  (b) whether a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body;  (c) what period of recognition would, in the opinion of the Commonwealth Minister, promote the efficient performance of the functions mentioned in subsection 203B(1).  (3C) In deciding the period of recognition to specify in the instrument of recognition, the Commonwealth Minister may consider any information in the possession of the Minister or the Department that is relevant to that decision.  (3D) Subsections (3B) and (3C) do not limit any other matters that the Minister may take into account in deciding the period of recognition. Commonwealth Minister not to recognise more than one body for an area  (4) The Commonwealth Minister must not, under this section, recognise a body as the representative body for an area, with effect from a particular day, if a body has already been recognised as the representative body for all or part of the area, and that recognition will still be in effect on that day. Notifying unsuccessful applicants  (5) If the Commonwealth Minister decides not to recognise as the representative body for an area or areas a body that applied for that recognition, the Commonwealth Minister must notify the body, in writing, of the decision and the reasons for the decision. 203AE  Commonwealth Minister may vary an area for which a body is the representative body  (1) Subject to this section, the Commonwealth Minister may, by legislative instrument, vary an area for which a body is the representative body if the Commonwealth Minister is satisfied that, after the variation, the body will satisfactorily perform its functions in relation to the varied area. Variation to add the whole or a part of another area  (2) The Commonwealth Minister must not vary an area (the original area) under subsection (1) to add the whole or a part of another area (the additional area) unless the boundary of the original area adjoins the boundary of the additional area. Reduction of area  (3) Without limiting subsection (1), the Commonwealth Minister may vary an area under that subsection so as to reduce the area, including reduce the area to zero.  (4) In deciding whether to vary an area so as to reduce it to zero, the Commonwealth Minister need not be satisfied of the matter mentioned in subsection (1). Variation on application or on the Commonwealth Minister’s own initiative  (5) The Commonwealth Minister may vary an area under subsection (1) for which a body is the representative body:  (a) on application, in writing, by the body; or  (b) subject to section 203AF, on the Commonwealth Minister’s own initiative.  (6) If an application is made under paragraph (5)(a) in relation to an area, the Commonwealth Minister may vary the area as the Commonwealth Minister considers appropriate. Consideration of reports etc.  (7) In deciding whether to vary the area, the Commonwealth Minister may consider the following:  (a) any reports under section 203DF of audits or investigations of the body;  (c) any notices that the Secretary of the Department has given to the Commonwealth Minister under section 203F in relation to the body;  (d) any information in the possession of the Minister or Department that is relevant to the variation.  (8) Subsection (7) does not limit any other matters that the Commonwealth Minister may take into account in deciding whether to vary the area. Consideration of submissions  (9) In deciding whether to vary the area, the Commonwealth Minister must consider any submissions made by a body or person within the period mentioned in subsection 203AF(6). When the variation takes effect  (10) The variation of the area takes effect on:  (a) the day on which the instrument varying the area is made; or  (b) if a later day is specified in that instrument—that day. 203AF  Notification requirements for the variation of an area on the Commonwealth Minister’s own initiative Notification requirements  (1) Subject to subsection (7), the Commonwealth Minister must not vary an area under subsection 203AE(1) on his or her own initiative unless the Minister complies with subsection (2) of this section.  (2) The Commonwealth Minister must:  (a) notify, in writing, each of the following that the variation of the area (the initial area) is being considered:  (i) the body that is the representative body for the initial area;  (ii) if there is a representative body for another area (the other area) that has a boundary that the Commonwealth Minister proposes to vary as result of varying the initial area—that body;  (iii) the Aboriginal peoples or Torres Strait Islanders who live in the initial area and, if subparagraph(ii) applies, who live in the other area; and  (b) arrange for the publication in a newspaper (if any) circulating generally in the initial area of a notice that states that the variation is being considered; and  (c) if the newspaper mentioned in paragraph (b) does not also circulate generally in the other area—arrange for the publication of the notice mentioned in paragraph (b) in a newspaper (if any) circulating generally in the other area.  (3) For the purposes of subparagraph (2)(a)(iii), the Commonwealth Minister may arrange for the publication of a general notification and need not give a separate notification to the persons mentioned in that subparagraph.  (4) The notice to a body mentioned in subparagraph (2)(a)(i) or (ii) must:  (a) identify the proposed variation; and  (b) state the reasons why the Minister is considering varying the initial area; and  (c) state that the body may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the initial area should be varied.  (5) The notice to a person mentioned in subparagraph (2)(a)(iii) must state that the person may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the initial area should be varied.  (6) The period specified in the notice under paragraph (4)(c) or subsection (5) must not begin before the day on which the notice is given to the body or person concerned and must be a period of at least 60 days. Exception to notification requirements  (7) The Commonwealth Minister need not comply with subsection (2) in relation to the variation of the other area if:  (a) the variation is to be made as a result of the variation of the initial area; and  (b) notification under that subsection of the variation of the initial area has been previously given to the representative body for the other area. 203AG  Notice of decision on variation  (1) As soon as practicable after deciding whether to vary an area under subsection 203AE(1), the Commonwealth Minister must:  (a) notify, in writing, each of the following of the decision and the reasons for the decision:  (i) the body that is the representative body for the area;  (ii) the Aboriginal peoples or Torres Strait Islanders who live in the area to which the decision relates; and  (b) arrange for the publication in a newspaper (if any) circulating generally in the area of a notice setting out the decision and the reasons for the decision.  (2) For the purposes of subparagraph (1)(a)(ii), the Commonwealth Minister may arrange for the publication of a general notification and need not give a separate notification to the persons mentioned in that subparagraph. 203AH  Withdrawal of recognition Mandatory grounds for withdrawing recognition  (1) The Commonwealth Minister must, by legislative instrument, withdraw the recognition of a body as the representative body for an area if:  (a) the body has ceased to exist; or  (b) the body makes a written request to the Commonwealth Minister for the recognition to be withdrawn.  (1A) A request under paragraph (1)(b) must be accompanied by a signed statement that the request has been authorised by the members of the body in accordance with the body’s processes. Discretionary grounds for withdrawing recognition  (2) The Commonwealth Minister may, by legislative instrument, withdraw the recognition of a body as the representative body for an area if satisfied that:  (a) the body is not satisfactorily performing its functions; or  (b) there are serious or repeated irregularities in the financial affairs of the body. Notice that withdrawal of recognition is being considered  (3) The Commonwealth Minister must not decide to withdraw the recognition under subsection (2) unless the Minister notifies the body that withdrawal of the recognition is being considered. The notice must be in writing and must:  (a) state the reasons why the Minister is considering withdrawal of the recognition; and  (b) state that the body may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the recognition should be withdrawn. The period specified must not begin before the day on which the notice was given, and must be a period of at least 30 days.  (3A) The Commonwealth Minister may, in writing, extend the period specified in the notice under subsection (3) if:  (a) the body applies, in writing, for an extension; and  (b) the application is made before that period ends. Consideration of reports etc.  (4) In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister may consider the following:  (a) any reports under section 203DF of audits or investigations of the body;  (c) any notices that the Secretary of the Department has given to the Minister under section 203F in relation to the body;  (d) any information in the possession of the Minister or Department that is relevant to the matter mentioned in paragraph (2)(a) or (b) of this section. Commonwealth Minister’s consideration of other matters unaffected  (5) Subsection (4) does not limit any other matters that the Commonwealth Minister may take into account in making a decision under subsection (2). Consideration of submissions  (6) In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must consider any submissions made by the body:  (a) within the period specified in the notice under subsection (3); or  (b) if that period has been extended under subsection (3A)—within the extended period. Notice of decision  (7) As soon as practicable after deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must notify the body, in writing, of:  (a) the decision; and  (b) if the decision is that the recognition be withdrawn—the reasons for the decision.  (8) The withdrawal of the recognition takes effect:  (a) on the day on which the instrument withdrawing recognition is made; or  (b) if a later day is specified in that instrument—that day. 203AI  Matters to which Commonwealth Minister must have regard  (1) In considering, for the purposes of making a decision under this Division in relation to a particular area, whether a body will satisfactorily perform, or is satisfactorily performing, its functions as a representative body, the Commonwealth Minister must take into account whether, in the Commonwealth Minister’s opinion, the body will comply with, or is complying with, section 203BA (which deals with how functions of representative bodies are to be performed).  (3) This section does not limit any other matters that the Commonwealth Minister may take into account in making a decision under this Division. Division 3—Functions and powers of representative bodies 203B  Functions of representative bodies  (1) A representative body has the following functions:  (a) the facilitation and assistance functions referred to in section 203BB;  (b) the certification functions referred to in section 203BE;  (c) the dispute resolution functions referred to in section 203BF;  (d) the notification functions referred to in section 203BG;  (e) the agreement making function referred to in section 203BH;  (f) the internal review functions referred to in section 203BI;  (g) the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act. Other laws may confer functions  (2) The functions conferred on a representative body by this Act are in addition to, and not instead of, any functions conferred on the representative body (whether in its capacity as a representative body or otherwise) by or under:  (a) any other law of the Commonwealth; or  (b) a law of a State or Territory. Representative bodies to perform functions  (3) Except as mentioned in section 203BB, 203BD or 203BK, a representative body must not enter into an arrangement with another person under which the person is to perform the functions of the representative body. Priorities of representative bodies  (4) A representative body:  (a) must from time to time determine the priorities it will give to performing its functions under this Part; and  (b) may allocate resources in the way it thinks fit so as to be able to perform its functions efficiently; but must give priority to the protection of the interests of native title holders. 203BA  How functions of representative bodies are to be performed Functions to be performed in a timely manner  (1) A representative body must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:  (a) the time limits under this Act; or  (b) time limits, under another law of the Commonwealth or a law of a State or Territory, that are relevant to the performance of its functions. Maintenance of organisational structures and processes  (2) A representative body must perform its functions in a manner that:  (a) maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body; and  (b) maintains organisational structures and administrative processes that promote effective consultation with Aboriginal peoples and Torres Strait Islanders living in the area for which it is the representative body; and  (c) ensures that the structures and processes operate in a fair manner, having particular regard to:  (i) the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and  (ii) the extent to which its processes involve consultation with those Aboriginal peoples or Torres Strait Islanders; and  (iii) its procedures for making decisions and for reviewing its decisions; and  (iv) its rules or requirements relating to the conduct of its executive officers; and  (v) the nature of its management structures and management processes; and  (vi) its procedures for reporting back to persons who hold or may hold native title in the area, and to the Aboriginal peoples or Torres Strait Islanders living in the area. 203BB  Facilitation and assistance functions  (1) The facilitation and assistance functions of a representative body are:  (a) to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and  (b) to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:  (i) native title applications;  (ii) future acts;  (iii) indigenous land use agreements or other agreements in relation to native title;  (iv) rights of access conferred under this Act or otherwise;  (v) any other matters relating to native title or to the operation of this Act. Facilitation and assistance functions only exercisable on request  (2) A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so. Facilitation and assistance functions only exercisable within a representative body’s area  (3) A representative body can only perform its facilitation and assistance functions in relation to a matter that relates to land or waters:  (a) that are wholly within the area for which the body is the representative body; or  (b) that are partly within that area. If paragraph (b) applies, the body must not perform the functions for the part of the land or waters that is outside that area except in accordance with section 203BD. Consent required if matters relate to same land or waters  (a) a registered native title body corporate or a person who holds or may hold native title requests that a representative body represent the body or the person (the new body or person) in relation to a particular matter that relates to particular land or waters; and  (b) the representative body is already representing another body or person (the original body or person) in relation to one or more other matters that relate wholly or partly to that land or those waters; the representative body must not represent the new body or person unless the representative body has obtained consent, from the original body or person, for the representative body also to represent the new body or person to the extent that the other matters relate to the land or waters. “Briefing out” matters that relate to the same land or waters  (5) Subsection (4) does not prevent a representative body from facilitating the representation of a body or person, in relation to a particular matter, by entering into an arrangement with another person under which the other person represents the body or person in relation to that matter.  (6) In this section and section 203BC: matter means a native title application, or a consultation, mediation, negotiation or proceeding of a kind referred to in paragraph (1)(b). 203BC  How facilitation and assistance functions are to be performed  (1) In performing its facilitation and assistance functions in relation to any matter, a representative body must:  (a) consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter; and  (b) if the matter involves the representative body representing such bodies corporate, native title holders or persons—be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter. Consent of native title holders etc.  (2) For the purposes of paragraph (1)(b), a native title holder or a person who may hold native title is taken to have consented to action if:  (a) where there is a process of decision‑making that, under the traditional laws and customs of the group to which he or she belongs, must be complied with in relation to giving consent of that kind—the consent was given in accordance with that process; or  (b) where there is no such process of decision‑making—the consent was given in accordance with a process of decision‑making agreed to and adopted by the members of the group to which he or she belongs in relation to giving the consent or giving consent of that kind. Streamlining of applications process  (3) In performing its facilitation and assistance functions in relation to an application under section 61 in relation to land or waters wholly or partly within the area for which the body is the representative body, the representative body must:  (a) act in a way that promotes an orderly, efficient and cost‑effective process for making such applications; and  (b) if the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware—make all reasonable efforts to minimise the number of applications covering the land or waters. 203BD  Matters that overlap different representative body areas   If:  (a) a native title application covers land or waters partly within the area for which a body is the representative body and partly within an adjoining area for which another body is the representative body; or  (b) a consultation, mediation, negotiation or proceeding relates to:  (i) a native title application; or  (ii) a future act; or  (iii) an indigenous land use agreement or other agreement in relation to native title; or  (iv) a right of access conferred under this Act or otherwise; or  (v) any other matter relating to native title or to the operation of this Act;   in respect of the areas referred to in paragraph (a); the first‑mentioned representative body may perform its facilitation and assistance functions, in relation to the application, consultation, mediation, negotiation or proceeding, for the part of the land or waters within the adjoining area, if it is acting in accordance with a written arrangement entered into with the other representative body. 203BE  Certification functions  (1) The certification functions of a representative body are:  (a) to certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area for which the body is the representative body; and  (b) to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body. Certification of applications for determinations of native title  (2) A representative body must not certify under paragraph (1)(a) an application for a determination of native title unless it is of the opinion that:  (a) all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and  (aa) any conditions under section 251BA on the authority that relate to the making of the application have been satisfied; and  (b) all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group. Note: Section 251B deals with authority to make the application. Overlapping applications for determinations of native title  (3) If the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware, the representative body must make all reasonable efforts to:  (a) achieve agreement, relating to native title over the land or waters, between the persons in respect of whom the applications are, or would be, made; and  (b) minimise the number of applications covering the land or waters. However, a failure by the representative body to comply with this subsection does not invalidate any certification of the application by the representative body. Statement to be included in certifications of applications for determinations of native title  (4) A certification of an application for a determination of native title by a representative body must:  (a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (2)(a), (aa) and (b) have been met; and  (b) briefly set out the body’s reasons for being of that opinion; and  (c) where applicable, briefly set out what the representative body has done to meet the requirements of subsection (3). Certification of applications for registration of indigenous land use agreements  (5) A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:  (a) all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and  (b) all the persons so identified have authorised the making of the agreement; and  (c) any conditions under section 251BA on the authority that relate to the making of the agreement have been satisfied. Note: Section 251A deals with authority to make the agreement. Statement to be included in certifications of applications for registration of indigenous land use agreements  (6) A certification of an application for registration of an indigenous land use agreement by a representative body must:  (a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a), (b) and (c) have been met; and  (b) briefly set out the body’s reasons for being of that opinion. 203BF  Dispute resolution functions Dispute resolution functions  (1) The dispute resolution functions of a representative body are:  (a) to assist in promoting agreement between its constituents about:  (i) the making of native title applications; or  (ii) the conduct of consultations, mediations, negotiations or proceedings about native title applications, future acts, indigenous land use agreements, rights of access conferred under this Act or otherwise or about any other matter relating to native title or the operation of this Act; and  (b) to mediate between its constituents about the making of such applications or the conduct of such consultations, mediations, negotiations or proceedings. Meaning of constituent constituent means:  (a) a person on whose behalf the representative body is acting or may act; or  (b) a registered native title body corporate in relation to native title in the area in respect of which the representative body is recognised; or  (c) a native title holder in relation to native title in that area; or  (d) a person who may hold native title in that area. 203BG  Notification functions   The notification functions of a representative body are:  (a) to ensure that, as far as reasonably practicable, notices:  (i) that are given to the representative body (whether under this Act or otherwise); and  (ii) that relate to land or waters wholly or partly within the area for which the body is a representative body;   are brought to the attention of any person who the representative body is aware holds or may hold native title in relation to the land or waters, where the representative body considers that the notices would be unlikely to come to the attention of the person by some other means; and  (b) as far as is reasonably practicable, to identify and notify other persons who hold or may hold native title in relation to the land or waters about notices of the kind mentioned in paragraph (a); and  (c) as far as is reasonably practicable, to advise the persons referred to in paragraphs (a) and (b) of relevant time limits under this Act or another law of the Commonwealth or a law of a State or a Territory, if the person would not otherwise be notified of those time limits. Note 1: Subsection 203BA(1) requires a representative body to make its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by time limits. Note 2: This Act also imposes notification obligations on other persons. 203BH  Agreement making function  (1) The agreement making function of a representative body is to be a party to indigenous land use agreements.  (2) In performing its agreement making function in respect of an area, a representative body must, as far as practicable, having regard to the matters proposed to be covered by the agreement, consult with, and have regard to the interests of, persons who hold or may hold native title in relation to land or waters in that area. 203BI  Internal review functions   The internal review functions of a representative body are:  (a) to provide a process for registered native title bodies corporate, native title holders and persons who may hold native title to seek review by the representative body of its decisions and actions, made or taken in the performance of its functions or the exercise of its powers, that affect them; and  (b) to publicise that process appropriately. 203BJ  Other functions   In addition to the functions referred to in sections 203BB to 203BI, a representative body must:  (a) as far as is reasonably practicable, enter into written arrangements with other representative bodies so that the representative body can exercise its facilitation and assistance functions in relation to a matter of a kind referred to in paragraph 203BD(a) or (b); and  (b) as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body; and  (c) as far as is reasonably practicable, take such action as the body considers appropriate to promote understanding, among Aboriginal people and Torres Strait Islanders living in the area, about matters relevant to the operation of this Act; and  (d) as far as is reasonably practicable, inform such of the following as the representative body knows are, in relation to the area:  (i) registered native title bodies corporate;  (ii) native title holders;  (iii) persons who may hold native title;   of any matter that the representative body considers may relate to, or may have an impact upon, native title in the area; and  (e) whenever the body considers it necessary in the performance of its functions—consult with Aboriginal or Torres Strait Islander communities that might be affected by the matters with which the body is dealing; and  (f) as far as is reasonably practicable, co‑operate with other representative bodies for the purpose of promoting the effective and efficient exercise of the functions and powers of representative bodies. 203BK  Powers of representative bodies  (1) A representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.  (2) Without limiting subsection (1), a representative body has power to enter into arrangements and contracts to obtain services to assist in the performance by the representative body of its functions. Assistance in performing dispute resolution functions  (3) Without limiting subsection (1), in performing its dispute resolution functions in a particular case, a representative body may be assisted by the NNTT, but only if the representative body and the NNTT have entered into an agreement under which the representative body is liable to pay the Commonwealth for the assistance.  (4) The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information. Division 4—Finance 203C  Funding of representative bodies Representative body may apply for funding  (1) A representative body may apply to the Secretary of the Department for funding under this section for the purpose of enabling the body to perform its functions or exercise its powers. Provision of funds  (2) The Secretary of the Department may, on behalf of the Commonwealth, provide funds to a representative body, by making a grant to the representative body or in any other way the Secretary considers appropriate, from money appropriated by the Parliament.  (3) The provision of funding may be:  (a) in respect of a financial year; or  (b) in respect of a part of a financial year; or  (c) in respect of any other period not exceeding 3 years. 203CA  Conditions of funding Conditions of funding  (1) Funds provided to a representative body under this Division, whether provided by grant or otherwise, may be so provided on whatever conditions the Secretary considers appropriate. However, the Secretary must impose conditions relating to:  (a) the purposes for which the money may be spent; and  (b) the period within which the money is to be spent; and  (c) the acquittal of money spent; and  (d) the giving of information relating to the expenditure of the money, including the production and publication of financial statements; and  (e) the appointment of a person, in cases where the Secretary considers that money from funds provided has not been spent in accordance with the conditions of the funding, with the power to prevent expenditure of further money from funds provided, otherwise than in accordance with the conditions of the funding; and  (f) the representative body’s continuing satisfactory performance of its functions and continuing compliance with this Act; and  (g) the giving of information relating to the performance of the body’s functions and its compliance with this Act. Repayment of part of funding provided on withdrawal of recognition  (1A) The provision of funding, however achieved, is also subject to a condition that if:  (a) the representative body’s recognition as a representative body is withdrawn under section 203AH; and  (b) the withdrawal takes effect during the period for which funding is provided; the representative body must repay to the Commonwealth an amount equal to so much (if any) of the funding provided as is uncommitted at the time the recognition is withdrawn. Uncommitted amount of funding provided  (1B) For the purposes of subsection (1A), the amount of funding provided that is uncommitted is the difference (if any) between:  (a) the portion (if any) of funding provided that has, at the time the recognition is withdrawn, been paid to the representative body by the Commonwealth; and  (b) the sum of:  (i) the portion (if any) of funding provided that has, at that time, been spent by the representative body in connection with the performance of its functions and the exercise of its powers; and  (ii) the portion (if any) of funding provided that the representative body is, at that time, liable to pay to other persons in connection with the performance of its functions and the exercise of its powers. Bodies must comply with conditions of funding  (3) The representative body must comply with the conditions of funding. Serious or repeated breaches of conditions  (5) If the Secretary of the Department considers that the representative body:  (a) has committed, or is committing, serious breaches of conditions to which the provision of funding has been made subject under this Division; or  (b) has repeatedly breached, or is repeatedly breaching, such conditions; the Secretary must give to the Commonwealth Minister a written notice informing the Minister of the breaches and stating what measures the Secretary is taking, or proposes to take, as a result of the breaches. Certain instruments not to be legislative instruments  (6) An instrument that:  (a) determines conditions of funding for the purposes of subsection (1); or  (b) informs the Minister of a breach under subsection (5); is not a legislative instrument. 203CB  Banking and investment Payment into bank account  (1) A representative body must pay all money received by it under this Division into an account maintained by it with a bank. Investment  (2) The representative body may invest money received by it under this Division if:  (a) the money is not immediately required for the purposes of the body; and  (b) the money is invested:  (i) on deposit with a bank, including a deposit evidenced by a certificate of deposit; or  (ii) in securities of, or securities guaranteed by, the Commonwealth, a State or a Territory; or  (iii) in any other manner approved by the Finance Minister in writing.  (2A) The Finance Minister may, by written instrument, delegate any of the Finance Minister’s powers or functions under this section to an official (within the meaning of the Public Governance, Performance and Accountability Act 2013) of a non‑corporate Commonwealth entity (within the meaning of that Act). In exercising powers or functions under a delegation, the official must comply with any directions of the Finance Minister. Restrictions on entering into contracts  (3) A provision of the law by or under which the representative body is incorporated to the effect that the body must not enter into a contract involving expenditure or payment of more than a specified amount of money without a specified person’s approval does not apply to a contract for the investment of money under subsection (2), unless the provision expressly states that it applies to such a contract.  (4) In this section: bank has the same meaning as in the Public Governance, Performance and Accountability Act 2013. Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013. Division 5—Accountability 203DA  Accounting records Proper accounts and records to be kept  (1) A representative body must keep accounting records that properly record and explain its transactions and financial position, to the extent that its transactions and financial position relate to the performance of its functions or the exercise of its powers. It must keep those records in a way that allows them to be conveniently and properly audited in accordance with this Division. Accounting records to be separate from others  (2) The body must keep accounts and records required to be kept by subsection (1) separate from any other accounts and records kept by the body. Retention of accounting records  (3) The body must retain those records for at least 7 years after completion of the transactions to which they relate. Availability of accounting records  (4) The body must make those records available at all reasonable times for inspection by any director of the body. 203DB  Payments to be properly made etc.   A representative body must do all things necessary to ensure that payments out of the money of the body are correctly made and properly authorised, and that adequate control is maintained over:  (a) the assets of, or in the custody of, the body; and  (b) the incurring of liabilities by the body; to the extent that the payments, or the assets or liabilities, relate to the performance of its functions or the exercise of its powers. 203DF  Inspection and audit, or investigation, of a representative body Appointment of person to conduct inspection and audit or investigation  (1) The Commonwealth Minister may appoint a person who, in the Commonwealth Minister’s opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of an inspection and audit or investigation under this section to:  (a) inspect and audit the accounts and records kept by a representative body under section 203DA; or  (b) investigate the body’s performance of its functions and exercise of its powers. Circumstances in which auditor or investigator can be appointed  (2) The Commonwealth Minister must not appoint a person under subsection (1) to conduct an inspection and audit, or an investigation, of a representative body unless the Commonwealth Minister is of the opinion that there is, or may be:  (a) serious or repeated irregularities in the financial affairs of the representative body; or  (b) a failure to satisfactorily perform its functions. Notice requirements  (3) If the Commonwealth Minister decides that an inspection and audit, or an investigation, is to be undertaken under this section, the Commonwealth Minister must give written notice of that decision to the representative body concerned. The notice must name the person who is to carry out the inspection and audit or the investigation. Report to Commonwealth Minister  (4) A person appointed under subsection (1) to conduct an inspection and audit or an investigation must give to the Commonwealth Minister a report on the results of that inspection and audit or investigation. Irregularity to be disclosed  (5) A report under subsection (4) must draw attention to:  (a) any irregularity in the financial affairs of the body disclosed by the inspection and audit or the investigation; or  (b) any failure by the body to perform its functions disclosed by the inspection and audit or the investigation. Report not to contain matters subject to legal professional privilege  (6) A report under subsection (4) must not contain any information, or include any document or record, that is subject to legal professional privilege or that is derived from information that is subject to legal professional privilege. Legal professional privilege must be claimed  (7) For the purposes of subsection (6), information, or a document or record, is not taken to be subject to legal professional privilege unless, at or before the time it was obtained by the person appointed under subsection (1), it was claimed to be subject to legal professional privilege by a person entitled to make such a claim. Auditor or investigator taken to be a Commonwealth public official  (9) To avoid doubt, a person appointed under subsection (1) of this section is taken, for the purposes of the Criminal Code, to be a Commonwealth public official. 203DG  Access to information  (1) For the purpose of conducting an inspection and audit, or an investigation, of a representative body under section 203DF, the person appointed under subsection 203DF(1):  (a) is entitled at all reasonable times to full and free access to documents relating to the representative body; and  (b) may make copies, or take extracts from, any such document; and  (c) may require a representative body:  (i) to answer such questions; and  (ii) to produce such documents in the representative body’s possession or to which the representative body has access;   as the person so appointed considers necessary for that purpose. Use of legally professionally privileged documents  (2) A representative body must produce a document or record or disclose information as required under paragraph (1)(c), whether or not the document, record or information is the subject of legal professional privilege. Production does not affect legal professional privilege  (3) A document, record or information does not cease to be the subject of legal professional privilege merely because it is produced under paragraph (1)(c). Failure to comply with paragraph (1)(c)  (4) A representative body who refuses or fails to comply with the requirement under paragraph (1)(c) commits an offence punishable upon conviction by a fine not exceeding 20 penalty units. Reasonable excuse for non‑compliance  (4A) Subsection (4) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code). Self‑incrimination  (5) For the purposes of subsection (4A), it is not a reasonable excuse for a representative body to refuse or fail:  (a) to give information; or  (b) to produce a record or document; in accordance with a requirement under paragraph (1)(c), on the ground that the information or the production of the document or record, as the case may be, might tend to incriminate the representative body or make the representative body liable to a penalty. Admissibility in criminal proceedings  (6) Despite subsection (5):  (a) giving the information or producing the document or record; or  (b) any information, document, record or thing obtained as a direct or indirect consequence of the giving of the information or production of the document or record; is not admissible in evidence against the person in any criminal proceedings, other than proceedings against, or arising out of, subsection (4) or (7). Making a statement that is false or misleading  (7) A representative body who, in purported compliance with the requirement under paragraph (1)(c), makes a statement that it knows to be false or misleading in a material particular, commits an offence punishable on conviction by a fine not exceeding 20 penalty units. 203DH  Effect of withdrawal of recognition  (1) A withdrawal of the body’s recognition under section 203AH does not affect the undertaking of an inspection and audit, or investigation, under section 203DF.  (2) The fact that the recognition of a body as a representative body for a particular area ceases to have effect does not affect the undertaking of an inspection and audit, or investigation, under section 203DF. Division 6—Conduct of directors and other executive officers 203E  Application of Division   This Division does not apply to anything that is not related to the performance of the functions of a representative body or the exercise of its powers. 203EA  Representative bodies that are not corporations  (1) This section applies to a representative body that is neither:  (a) registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; nor  (b) a company incorporated under the Corporations Act 2001.  (3) A director of the representative body who has a material personal interest in a matter that is being considered by the body’s governing body:  (a) must not be present during any deliberation by the governing body on the matter; and  (b) must not take part in any decision of the governing body on the matter.  (4) However, a contravention of this provision does not affect the validity of any resolution.  (5) Subsection (3) applies instead of any rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 which deal with the consequences of having a material personal interest in a matter that is being considered at a meeting of a governing body.  (6) To avoid doubt, this section does not otherwise affect the obligations imposed by the Public Governance, Performance and Accountability Act 2013 or any rules made for the purposes of that Act on a representative body that is a Commonwealth entity (within the meaning of that Act). 203EB  Representative bodies registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006  (1) This section applies in relation to a representative body that is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. Power to indemnify officers  (2) Except as provided in this section, a representative body may indemnify a person who is or has been an officer of the body from any liability incurred by the person as an officer of the body. Exemptions not allowed  (3) A representative body, or a subsidiary of a representative body, must not exempt a person (whether directly or through an interposed entity) from a liability to the body incurred as an officer of the body. When indemnity for liability (other than for legal costs) not allowed  (4) A representative body, or a subsidiary of a representative body, must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer of the body:  (a) a liability owed to the body or a subsidiary of the body;  (b) a liability for:  (i) a civil penalty order under section 386‑10 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or  (ii) a compensation order under section 386‑15 of that Act;   made in relation to a breach of subsection 265‑1(1), 265‑5(1) or (2), 265‑10(1) or (2) or 265‑15(1) or (2) of that Act;  (c) a liability that is owed to someone other than the body or a subsidiary of the body and did not arise out of conduct in good faith. This subsection does not apply to a liability for legal costs. When indemnity for legal costs not allowed  (5) A representative body, or a subsidiary of a representative body, must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against legal costs incurred in defending an action for a liability incurred as an officer of the body if the costs are incurred:  (a) in defending or resisting a proceedings in which the person is found to have a liability for which they could not be indemnified under subsection (4) of this section; or  (b) in defending or resisting criminal proceedings in which the person is found guilty; or  (c) in defending or resisting proceedings brought by the Registrar of Aboriginal and Torres Strait Islander Corporations under section 386‑20 or subsection 386‑55(8) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 for a court order if the grounds for making the order are found by the court to have been established; or  (d) in connection with proceedings for relief to the person under section 386‑60 of that Act against an application under section 386‑20 of that Act, or for relief to the person under section 576‑1 of that Act, in which the Court denies the relief. Paragraph (c) does not apply to costs incurred in responding to actions taken by the Registrar of Aboriginal and Torres Strait Islander Corporations as part of an investigation before commencing proceedings for the court order.  (6) For the purposes of subsection (5), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings. Insurance for certain liabilities of officers  (7) Except as provided in subsection (8), a representative body may insure a person who is or has been an officer against liabilities incurred by the person as an officer.  (8) A representative body, or a subsidiary of a representative body, must not pay, or agree to pay, a premium for a contract insuring a person who is, or has been, an officer of the body against a liability (other than one for legal costs) arising out of:  (a) conduct involving a wilful breach of duty in relation to the body; or  (b) a contravention of sections 265‑10 and 265‑15 respectively of the Corporations (Aboriginal and Torres Strait Islander) Act 2006. This section applies to a premium whether it is paid directly or through an interposed entity. Penalty: 5 penalty units.  (9) An offence based on subsection (8) is an offence of strict liability. Certain indemnities, exemptions, payments and agreements not authorised and certain documents void  (10) This section does not authorise anything that would otherwise be unlawful.  (11) Anything that purports to indemnify or insure a person against a liability or exempt them from a liability is void to the extent that it contravenes this section. 203F  Secretary to inform Minister of certain matters   If the Secretary of the Department is of the opinion that:  (c) a representative body is not satisfactorily performing its functions; or  (d) there may be serious or repeated irregularities in the financial affairs of a representative body; the Secretary must give written notice of its opinion to the Commonwealth Minister. Note: The Secretary must also give written notice of breaches of grant conditions to the Commonwealth Minister—see subsection 203CA(5). 203FB  Review of assistance decisions Persons may apply for review  (1) An Aboriginal person or Torres Strait Islander affected by a decision of a representative body not to assist him or her in the performance of its facilitation and assistance functions under section 203BB may apply to the Secretary of the Department for review of the decision. Note: The Aboriginal person or Torres Strait Islander is able to obtain a statement of reasons etc. for the decision from the representative body under section 13 of the Administrative Decisions (Judicial Review) Act 1977. Appointment of person to conduct the review  (2) As soon as practicable after receiving the application, the Secretary must:  (a) review the representative body’s decision; or  (b) appoint to conduct the review a person who, in the Secretary’s opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of the review. 203FBA  External review This section applies to external review  (1) This section applies if the Secretary of the Department appoints a person under paragraph 203FB(2)(b) to conduct the review. Review of decision  (2) Subject to subsection (4), the person appointed must review the representative body’s decision and report to the Secretary whether:  (a) the decision should be affirmed; or  (b) the Secretary should make funding available under section 203FE to a person or body for the purpose of performing specified facilitation and assistance functions of a representative body in relation to the matter to which the representative body’s decision relates. Matters to be taken into account when conducting review  (3) In reviewing the representative body’s decision, the person appointed must have regard to:  (a) whether it would be consistent with priorities determined by the representative body under paragraph 203B(4)(a) to provide the assistance sought; and  (b) whether, to provide the assistance sought, the representative body would need to allocate or re‑allocate resources in a way that interferes with the efficient performance of its functions; and  (c) whether the representative body would breach a condition imposed under section 203CA if the representative body were to provide the assistance sought; and  (d) if the assistance sought was in relation to an application under section 61:  (i) whether the provision of that assistance would promote an orderly, efficient and cost‑effective process for making such applications; and  (ii) in a case where one or more other applications have been made or are proposed to be made in relation to land or waters covered by the application—whether the provision of the assistance sought would be reasonable given the need to minimise the number of applications covering the land or waters; and  (e) any other matter relevant to the merits of the decision. Failure to use internal review procedures  (4) The person appointed must refuse to review the representative body’s decision if satisfied that the applicant did not, before applying for the review, make all reasonable efforts to seek a review by the representative body of its decision. Report to be given within 60 days  (5) The person appointed must give the report referred to in subsection (2) to the Secretary within 60 days after the day on which he or she was appointed, or within such other period as the Secretary allows (whether or not the 60 days have expired). Inviting submissions  (6) Before reviewing the representative body’s decision, the person appointed must invite the representative body to make a submission in relation to the decision. The invitation must specify a period of not less than 14 days within which submissions must be made. Action to be taken by the Secretary  (7) The Secretary must, within one month after the end of the period referred to in subsection (5):  (a) affirm the representative body’s decision; or  (b) make funding available under section 203FE as mentioned in paragraph (2)(b) of this section. Notice of decision on review  (8) The Secretary must give the applicant and the representative body written notice of the Secretary’s decision under subsection (7). The notice must include the reasons for that decision. 203FBB  Review by Secretary of the Department This section applies to review by Secretary  (1) This section applies if the Secretary of the Department conducts the review. Review of decision  (2) Subject to subsection (4), the Secretary must review the representative body’s decision and decide whether:  (a) the representative body’s decision should be affirmed; or  (b) the Secretary should make funding available under section 203FE to a person or body for the purpose of performing specified facilitation and assistance functions of a representative body in relation to the matter to which the representative body’s decision relates. Matters to be taken into account when conducting review  (3) In reviewing the representative body’s decision, the Secretary must have regard to:  (a) whether it would be consistent with priorities determined by the representative body under paragraph 203B(4)(a) to provide the assistance sought; and  (b) whether, to provide the assistance sought, the representative body would need to allocate or re‑allocate resources in a way that interferes with the efficient performance of its functions; and  (c) whether the representative body would breach a condition imposed under section 203CA if the representative body were to provide the assistance sought; and  (d) if the assistance sought was in relation to an application under section 61:  (i) whether the provision of that assistance would promote an orderly, efficient and cost‑effective process for making such applications; and  (ii) in a case where one or more other applications have been made or are proposed to be made in relation to land or waters covered by the application—whether the provision of the assistance sought would be reasonable given the need to minimise the number of applications covering the land or waters; and  (e) any other matter relevant to the merits of the decision. Failure to use internal review procedures  (4) The Secretary must refuse to review the representative body’s decision if satisfied that the applicant did not, before applying for the review, make all reasonable efforts to seek a review by the representative body of its decision. Inviting submissions  (5) Before reviewing the representative body’s decision, the Secretary must invite the representative body to make a submission in relation to the decision. The invitation must specify a period of not less than 14 days within which submissions must be made. Secretary to decide matter within 60 days  (6) The Secretary must make his or her decision under subsection (2) within 60 days after the day on which the application for review is made. Notice of decision on review  (7) The Secretary must give the applicant and the representative body written notice of the Secretary’s decision under subsection (2). The notice must include the reasons for that decision. 203FC  Transfer of documents and records Commonwealth Minister may issue directions  (1) The Commonwealth Minister may, by written instrument, issue directions requiring, or relating to, either or both of the following:  (a) a former representative body returning documents and records, relating to the performance of its functions or the exercise of its powers in respect of its former area, to the person or persons who provided them to the body;  (b) the former representative body allowing access to, giving or giving copies of documents and records held by the former representative body to a body (the replacement body) that has become the representative body for all or part of the former representative body’s former area, where the documents and records are reasonably necessary for the performance of the functions, or the exercise of the powers, of the replacement body. Directions take effect on the day on which they are issued.  (1A) An instrument made under subsection (1) is not a legislative instrument. Limit on directions  (2) Directions must not require the former representative body to:  (a) allow the replacement body access to documents and records of any kind mentioned in paragraph (1)(b) that relate to a claim made in a claimant application or a compensation application; or  (b) give the replacement body documents and records of any kind mentioned in paragraph (1)(b) that relate to a claim made in a claimant application or a compensation application, or give copies of such documents or records; unless the replacement body gives the Commonwealth Minister notice, in writing, that the replacement body has been requested to perform a representative body function in relation to the claim.  (2A) Directions must not require the former representative body to:  (a) allow the replacement body access to documents and records of any kind mentioned in paragraph (1)(b) that relate to native title rights and interests that are the subject of a determination of native title; or  (b) give the replacement body documents and records of any kind mentioned in paragraph (1)(b) that relate to native title rights and interests that are the subject of a determination of native title, or give copies of such documents or records; unless the replacement body gives the Commonwealth Minister notice, in writing, that the replacement body has been requested to perform a representative body function in relation to those native title rights and interests. Bodies must comply with directions  (3) A body to which directions apply must comply with those directions. Orders by the Federal Court  (4) If a body fails to comply with subsection (3), the Federal Court may, on the application of a person affected by the non‑compliance, make such orders as it thinks fit to ensure the body’s compliance. Former representative body under external administration  (4A) To avoid doubt, the Commonwealth Minister may make a direction under subsection (1), and the former representative body to which the direction applies must comply with the direction, even if the former representative body is under external administration. former area, in relation to a former representative body, means the area, or the part of an area, for which the body is no longer a representative body. former representative body means a body that:  (a) has ceased to be a representative body; or  (b) has ceased to be a representative body for a particular area; or  (c) has had the area for which it is a representative body reduced. 203FCA  Representative body etc. to comply with wishes of traditional custodians  (a) a representative body, in performing its functions and exercising its powers; or  (b) a former representative body (as defined in subsection 203FC(5)), in complying with directions in accordance with subsection 203FC(3); deals with traditional materials, or any information contained in them, the body must make all reasonable efforts to comply with the wishes of the traditional custodians of the traditional materials about the way in which the traditional materials or information is to be dealt with. traditional custodian of traditional materials means a person who, according to the traditional laws and customs concerned, is responsible for the traditional materials. traditional materials means documents, records or other things that are of significance to Aboriginal peoples or Torres Strait Islanders according to their traditional laws and customs. 203FD  Liability of executive officers etc.   An executive officer or a member of a representative body is not personally liable to an action or other proceeding for damages in relation to an act done or omitted to be done in good faith:  (a) by the representative body; or  (b) by the person in the capacity of executive officer or member; in connection with the performance of the representative body’s functions or the exercise of its powers. 203FE  Provision of funding by the Commonwealth Funding to perform functions of a representative body  (1) The Secretary of the Department may make funding available to a person or body, by way of a grant or in any other way the Secretary considers appropriate, for the purpose of enabling the person or body to perform, in respect of a specified area:  (a) all the functions of a representative body; or  (b) specified functions of a representative body; either generally or in relation to one or more specified matters. Funding following certain decisions under section 203FB  (2) The Secretary of the Department may make funding available to a person or body, by way of a grant or in any other way the Secretary considers appropriate, for the purpose of enabling the person or body to perform specified facilitation and assistance functions of a representative body in relation to a matter to which a decision under paragraph 203FBA(7)(b) or 203FBB(2)(b) relates. Conditions of funding  (3) Funds provided to a person or body under this section, whether provided by grant or otherwise, may be so provided on whatever conditions the Secretary considers appropriate. However, the Secretary of the Department must impose conditions relating to:  (a) the purposes for which the money may be spent; and  (b) the period within which the money is to be spent; and  (c) the acquittal of money spent; and  (d) the giving of information relating to expenditure of the money; and  (e) the appointment of a person, in cases where the Secretary considers that money from funds provided has not been spent in accordance with the conditions of the funding, with the power to prevent expenditure of further money from funds provided otherwise than in accordance with the conditions of the funding; and  (f) the person’s or body’s continuing satisfactory performance of its functions referred to in subsection (1) or (2), as the case requires; and  (g) the giving of information relating to the performance of the functions referred to in subsection (1) or (2), as the case requires, including the production and publication of financial statements. Certain instruments not to be legislative instruments  (3A) An instrument that determines conditions of funding for the purposes of subsection (3) is not a legislative instrument. Funding period to be specified  (4) The Secretary of the Department must determine the period during which the person or body may spend the money. Funding period may be extended  (5) If the Secretary of the Department considers it appropriate, the Secretary may determine that the period during which the person or body may spend the money is extended for a specified further period. Persons or bodies must comply with conditions etc.  (6) The person or body must comply with the conditions of funding, and with any determinations under subsection (4) or (5). 203FEA  Application of this Act to persons and bodies funded under subsection 203FE(1) Subsection 203FE(1) body has the same obligations and powers as a representative body  (1) A person or body to whom funding is made available under subsection 203FE(1) to perform a function in respect of a particular area has the same obligations and powers in relation to the performance of that function as a body recognised as the representative body for that area would have in relation to the performance of that function. Third parties should treat subsection 203FE(1) bodies in the same way as representative bodies  (2) A person (the third party) has the same obligations and powers, in relation to a person or body to whom funding is made available under subsection 203FE(1) to perform a function in respect of a particular area, as the third party would have in relation to a body recognised as the representative body for that area who is performing, or has performed, that function. Effect of certain provisions on subsection 203FE(1) bodies  (3) Without limiting subsection (1) or (2), the following provisions apply in the following ways:  (a) subsection 24DD(2) applies as if a person or body to whom funding is made available under subsection 203FE(1) to perform all of the functions of a representative body in respect of a specified area were the representative body for the area;  (b) section 203BD applies as if a person or body to whom funding is made available under subsection 203FE(1) to perform the facilitation and assistance functions in respect of a particular area were the representative body for the area;  (c) section 203FC applies in relation to a person or body to whom funding was made available under subsection 203FE(1) to perform some or all of the functions of a representative body in respect of a particular area, but who has ceased to perform those functions in respect of that area, in the same way as it would apply in relation to a former representative body (as defined for the purposes of that section) who had performed those functions in respect of that area;  (d) section 203FCA applies:  (i) in relation to a person or body to whom funding is made available under subsection 203FE(1) to perform some or all of the functions of a representative body in respect of a particular area—in the same way as it applies in relation to a representative body performing those functions in respect of that area; and  (ii) in relation to a person or body to whom funding was made available under subsection 203FE(1) to perform some or all of the functions of a representative body in respect of a particular area, but who has ceased to perform those functions in respect of that area—in the same way as it would apply in relation to a former representative body (as defined for the purposes of section 203FC) who had performed that function in respect of that area. Inspection, audit and investigation under section 203DF not affected by funding ceasing  (4) The fact that:  (a) the period within which funding made available under subsection 203FE(1) is to be spent has expired; or  (b) funding under that subsection has otherwise ceased to be available; does not affect the undertaking of an inspection and audit, or investigation, under section 203DF. Further application may be prescribed  (5) Without limiting the other provisions of this section, the regulations may prescribe the way in which other provisions of this Act are to apply in relation to a person or body to whom funding is made available under subsection 203FE(1). 203FEB  Application of this Act to persons and bodies funded under subsection 203FE(2) Obligations and powers of persons and bodies to whom funding is made available  (1) A person or body to whom funding is made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter has the same obligations and powers in relation to the performance of those functions in relation to that matter as a body recognised as the representative body for that area would have in relation to the performance of those functions in relation to that matter. Obligations and powers of third parties in relation to those bodies  (2) A person (the third party) has the same obligations and powers, in relation to a person or body to whom funding is made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter, as the third party would have in relation to a body recognised as the representative body for the relevant area who is performing, or has performed, those functions in relation to that matter. Section 203BD arrangements ineffective during funding period  (3) Subsection (4) applies if, as a result of a review under section 203FB of a refusal by a representative body for an area (the original body) to perform facilitation and assistance functions in relation to a matter, funding is made available to a person or body under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to the matter.  (4) Despite section 203BD, the representative body for an adjoining area cannot perform those functions in relation to that matter during the period within which the funding is to be spent, even if that body enters into an arrangement with the original body to do so. Effect of certain other provisions on subsection 203FE(2) bodies  (5) Without limiting subsection (1) or (2), the following provisions apply in the following ways:  (a) section 203FC applies in relation to a person or body to whom funding was made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter, but who has ceased to perform those functions in relation to that matter, in the same way as it would apply in relation to a former representative body (as defined for the purposes of that section) who had performed those functions in relation to that matter;  (b) section 203FCA applies:  (i) in relation to a person or body to whom funding is made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter—in the same way as it would apply in relation to a representative body performing those functions in relation to that matter; and  (ii) in relation to a person or body to whom funding was made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter, but who has ceased to perform those functions in relation to that matter—in the same way as it would apply in relation to a former representative body (as defined for the purposes of section 203FC) who had performed those functions in relation to that matter. Inspection, audit and investigation under section 203DF not affected by funding ceasing  (6) The fact that:  (a) the period within which funding made available under subsection 203FE(2) is to be spent has expired; or  (b) funding under that subsection has otherwise ceased to be available; does not affect the undertaking of an inspection and audit, or investigation, under section 203DF. Further application may be prescribed  (7) Without limiting the other provisions of this section, the regulations may prescribe the way in which other provisions of this Act are to apply in relation to a person or body to whom funding is made available under subsection 203FE(2). 203FEC  Certain provisions do not apply to persons and bodies funded under subsection 203FE(1) or (2)  (1) Section 203C does not apply in relation to the performance of a function, or the exercise of a power in relation to the performance of a function, by a person or body if funding is made available to the person or body under subsection 203FE(1) or (2) to perform the function.  (2) Section 203F does not apply in relation to:  (a) the performance of a function by a person or body; or  (b) serious or repeated irregularities in the financial affairs of a person or body in relation to the performance of a function by the person or body; if funding is made available to the person or body under subsection 203FE(1) or (2) to perform the function.  (3) Section 203FB does not apply in relation to a person or body to whom funding is made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter, to the extent that the section would otherwise apply to the performance of those functions in relation to that matter by that person or body. 203FED  Liability  (1) A person to whom funding is made available under subsection 203FE(1) or (2) to perform a function is not personally liable to an action or other proceeding for damages in relation to an act done or omitted to be done in good faith by the person in connection with the performance of the function, or the exercise of the person’s powers in relation to the performance of the function.  (2) An executive officer or a member of a body to whom funding is made available under subsection 203FE(1) or (2) to perform a function is not personally liable to an action or other proceeding for damages in relation to an act done or omitted to be done in good faith by:  (a) the body; or  (b) the person in the capacity of executive officer or member of the body; in connection with the performance of the function, or the exercise of powers in relation to the performance of the function. 203FF  Financial and accountability requirements imposed by other legislation Obligations under other laws unaffected  (1) The obligations imposed on a representative body by Divisions 4 and 5 are in addition to, and not instead of, requirements imposed by any other law of the Commonwealth, a State or Territory. 203FG  False statements etc.   A person commits an offence if the person:  (a) makes a statement or presents a document in or in connection with an application to the Secretary of the Department for funding under section 203C; and  (b) does so knowing that the statement is, or that the document contains information that is, false or misleading in a material particular. Penalty: Imprisonment for 6 months or 30 penalty units, or both. 203FH  Conduct by directors, employees and agents State of mind of directors, employees or agents of bodies corporate  (1) If, for the purposes of this Part, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:  (a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and  (b) that the director, employee or agent had the state of mind. Conduct of directors, employees or agents of bodies corporate  (2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. State of mind of employees or agents of persons other than bodies corporate  (3) If, for the purposes of this Part, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular conduct, it is sufficient to show:  (a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and  (b) that the employee or agent had the state of mind. Conduct of employees or agents of persons other than bodies corporate  (4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the person unless the person establishes that the person took reasonable precautions and exercised due diligence to avoid the conduct. Other persons not to be punished by imprisonment  (a) a person other than a body corporate is convicted of an offence; and  (b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted; the person is not liable to be punished by imprisonment for that offence. Meaning of state of mind  (6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:  (a) the knowledge, intention, opinion, belief or purpose of the person; and  (b) the person’s reasons for the intention, opinion, belief or purpose. Meaning of director  (7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory. Failing etc. to engage in conduct  (8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct. 203FI  Delegation   The Secretary of the Department may, by written instrument, delegate to an SES employee, to an acting SES employee or to another person of equivalent rank, all or any of the Secretary’s powers under sections 203C, 203CA, 203DC, 203F, 203FB, 203FBA, 203FBB and 203FE. Note 1: The expressions SES employee, and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901. Note 2: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.