These guidelines are the Native Title (Assistance from Attorney‑General) Guidelines 2012.
1.2 Purpose
These guidelines are to be applied in authorising the provision of assistance under section 213A of the Act.
Note: Section 213A of the Act allows certain persons to apply to the Attorney‑General for legal or financial assistance in relation to certain inquiries, mediations, agreements, or disputes, or in relation to the development or review of certain standard form agreements. Subsection 213A(5) of the Act provides that the Attorney‑General may make guidelines that are to be applied in authorising the provision of the assistance.
Part 2—Interpretation
2.1 Definitions
In these guidelines:
Act means the Native Title Act 1993.
agency has the same meaning as in the Public Service Act 1999.
applicant:
(a) in relation to an application for assistance relating to legal representation or disbursements—means an entity or group that applies for assistance, or on whose behalf an application for assistance is made, under section 213A of the Act; and
(b) in relation to an application for assistance under the Native Title Officer Funding Scheme—means a peak body or other organisation that employs, or is seeking to employ, a person as a native title officer to assist respondents to resolve native title claims.
applicant considerations: see section 4.8.
application means an application for assistance made under section 213A of the Act.
assessment of costs document means the document titled Commonwealth Legal Financial Assistance Schemes Assessment of Costs, dated July 2012.
court includes any court or tribunal established by or under Commonwealth law.
decision maker means the Attorney‑General or a person delegated by the Attorney‑General to authorise the provision of assistance under section 213A of the Act.
disbursements has the meaning given by section 2.2.
entity means any of the following:
(a) an individual;
(b) a body corporate;
(c) a body politic;
(d) an incorporated body;
(e) an unincorporated body.
excluded costs: see section 2.3.
expenses: see section 4.14.
financially‑associated entity: see section 4.9.
financial circumstances: see subsection 4.8 (2).
group means 2 or more entities that:
(a) have similar interests in a matter in relation to which assistance is sought under section 213A of the Act; and
(b) make an application for assistance under section 213A of the Act together; and
(c) are all represented by the same legal representative.
Note: Examples:
1 A group of pastoralists who make an application as a group.
2 Two local governments who apply together for assistance.
ILUA means an indigenous land use agreement as defined in section 253 of the Act.
income: see section 4.11.
legal action means:
(a) legal proceedings; or
(b) a process (other than legal proceedings) to resolve a dispute; or
(c) an action associated with the negotiation of an agreement mentioned in paragraph 213A (2) (a) of the Act; or
(d) an action associated with the development of a standard form of agreement mentioned in paragraph 213A (3) (a) or (b) of the Act.
legal considerations: see section 4.15.
legal practitioner means a legal practitioner (however described) of the High Court or the Supreme Court of an Australian State or Territory.
legal representation costs means costs incurred for legal representation in a legal action (other than disbursements).
liabilities: see section 4.13.
Native Title Officer Funding Scheme means the scheme under which an amount is available, up to a maximum amount each financial year, to fund a peak industry body or organisation to employ persons, known as native title officers, to:
(a) educate peak industry bodies or organisations about native title issues; and
(b) facilitate grouping of respondents in claim areas; and
(c) coordinate instructions to legal representatives in legal action;
so as to facilitate efficient and effective resolution of native title claims.
2.2 Meaning of disbursements
(1) In these guidelines, disbursements:
(a) means amounts of money paid by an entity to discharge a debt or expense for the purposes of legal action; and
(b) includes, but is not limited to, the following:
(i) fees in relation to initiating or taking a step in a legal action;
(ii) fees for the preparation of expert opinions;
(iii) travel expenses (other than travel expenses mentioned in paragraph 2.3 (f));
(iv) fees for obtaining copies of reports and records;
(v) fees charged for the provision of transcripts from courts;
(vi) fees charged by interpreters;
(vii) any other item contained within the assessment of costs document.
(2) However, disbursements does not include legal representation costs for a legal practitioner.
2.3 Excluded costs
In these guidelines, a cost is an excluded cost if it is any of the following:
(a) compensation for loss of earnings due to time spent in preparing for, or appearing in, legal action;
(b) compensation for costs (including legal representation costs) incurred by an applicant to make an application under Part 3 or for a review under Part 5;
(c) compensation for costs (including legal representation costs) incurred by a grant recipient in dealing with the Department in relation to the grant;
(d) compensation for costs incurred in the preparation of an itemised bill of costs;
(e) giving an indemnity for costs that may be awarded against the grant recipient;
(f) travel for the purposes of participating in legal action in person unless attendance is reasonably required by an entity presiding over the action;
(g) living expenses;
(h) filing fees for courts in jurisdictions where the court is able to waive all or part of the filing fee;
(i) a fee paid to a legal practitioner in advance to secure the legal practitioner to act on the grant recipient’s behalf (whether or not it is described as a retainer).
Part 3—Application process
3.1 Application must be in accordance with Part 3
(1) A decision maker must not authorise the provision of assistance under section 213A of the Act unless the application for the provision of the assistance is made in accordance with this Part.
Note: Subsections 213A(1), (2) and (3) of the Act set out who may apply for the provision of assistance.
(2) However, the decision maker may authorise the provision of assistance under Part 4 to an applicant whose application is not made in accordance with this Part if there are exceptional circumstances that justify authorising the provision of the assistance.
3.2 Application requirements
A decision maker may refuse to consider an application that is not a complete application.
3.3 What is a complete application?
An application is a complete application if the application is:
(a) made in writing using the application form provided by the Department; and
(b) submitted to the Department electronically (including by online lodgement when available), by mail or by fax to the following address:
(ba) if the application is for assistance under the Native Title Officer Funding Scheme—submitted between 1 April and 30 April in the financial year before the financial year to which the assistance relates; and
(c) either:
(i) all information required by the decision maker is contained in, or attached to, the application; or
(ii) not all the information required by the decision maker is contained in, or attached to, the application, but:
(A) the applicant provides the missing information in response to a request from the decision maker under section 3.4, or on the applicant’s own initiative; or
(B) the decision maker tells the applicant in writing that the applicant is not required to provide the missing information.
(1) A decision maker may, by notice in writing, ask an applicant to provide any information, within the period specified in the notice, that the decision maker reasonably requires to enable the decision maker to decide the application.
(2) If the information is not provided to the decision maker within the specified period, the decision maker may refuse the application without further consideration.
3.5 Consent to obtaining, disclosing and using further information
(1) By making an application, an applicant consents to a decision maker disclosing information in the application to, or obtaining information from, any of the following persons:
(a) an agency;
(b) an organisation that provides legal aid;
(c) a relevant industry body;
(d) the applicant’s legal practitioner;
(e) a legal practitioner not associated with the matter to which the application for assistance relates.
(2) The decision maker must only disclose or obtain the information for the purpose of performing functions relating to the provision of assistance in relation to the application.
3.6 Responsibilities of applicants
(1) An applicant has the following responsibilities:
(a) to give honest and accurate information, that is not misleading, in an application and to a decision maker when required;
(b) to tell the decision maker if the circumstances of the applicant change before the decision maker makes a decision on the application, if the change may affect the application.
(2) The decision maker may refuse to consider an application if:
(a) the application contains dishonest, inaccurate or misleading information; or
(b) the circumstances of the applicant change in a way that may affect the application and the applicant does not tell the decision maker of the changed information.
Part 4—Applications for assistance relating to legal representation and disbursements
Division 1—General requirements
4.1 Making a decision on an application
(1) A decision maker must decide whether or not to authorise the provision of assistance in relation to a complete application.
(2) In deciding whether to authorise the provision of assistance, the decision maker must have regard to the following:
(a) the interest of the applicant in the matter in relation to which the assistance is sought in accordance with Division 2;
(b) for assistance for disbursements—the matters in Division 3;
(c) for assistance for legal representations—the matters in Division 4;
(d) whether the authorisation of the provision of the assistance is reasonable in all the circumstances;
(e) the likely cost of the legal action;
(f) the availability of funds, in any given year, under the appropriation for assistance from the Attorney‑General;
(g) the number and relative merits of other applications for grants made under the appropriation for assistance from the Attorney‑General;
(h) the number and relative merits of grants likely to be made under the appropriation for assistance from the Attorney‑General;
(i) whether the applicant is a group, and whether it is more appropriate that:
(i) an applicant who is not a group should form part of a group; or
(ii) a group should form part of another group.
(3) The decision maker may decide the weight that should be given to each matter relevant to the circumstances of the case.
(4) The decision maker must not authorise the provision of assistance for an excluded cost.
(5) The decision maker may authorise the provision of assistance for disbursements or legal representation to an applicant who does not meet the requirements of this Part only if:
(a) the decision to authorise the provision of the assistance is reasonable; and
(b) there are exceptional circumstances.
4.2 No assistance for retrospective costs
A decision maker must not authorise the provision of assistance for costs incurred before the date on which the Department receives a complete application, except in exceptional circumstances.
4.3 Notice of decision
(1) The decision maker must, not later than 28 days after the receipt of the complete application, give the applicant, or the entity that applied on behalf of the applicant, written notice of the decision maker’s decision.
(2) The notice must:
(a) give reasons for the decision maker’s decision; and
(b) include information about how the applicant may seek a review of the decision.
Division 2—Interest of applicant
4.4 Interests for which assistance is not to be granted
A decision maker must not grant assistance under section 213A of the Act to an applicant if the applicant’s interest in the matter for which assistance is sought:
(a) is a previous exclusive possession act; or
(b) has extinguished native title according to law; or
(c) is a low impact future act; or
(d) is a Scheduled interest; or
(e) relates to connection or other anthropological issues; or
(f) relates to compensation.
Division 3—Assistance for disbursements
4.5 Matters to be considered—assistance for disbursements
(1) A decision maker may authorise the provision of assistance for disbursements to an applicant if the requirements of subsections (2) to (5) are met.
Note: Division 4 sets out the considerations for the provision of assistance for legal representation.
(2) If subsection 213A(1) of the Act applies to the applicant, the decision maker must consider the applicant considerations unless the applicant is a group.
Note: The applicant considerations are dealt with in Division 5.
(3) If subsection 213A(2) of the Act applies to the applicant and the application is for assistance with negotiating an ILUA or an agreement about rights conferred under subsection 44B(1) of the Act:
(a) the applicant must have identified a native title party or other relevant party who is willing and able to negotiate an agreement with the applicant; and
(b) the decision maker must consider the applicant considerations unless the applicant is a group.
(4) If subsection 213A(2) of the Act applies to the applicant and the application is for assistance with an inquiry, mediation or proceeding in relation to an agreement mentioned in paragraph (a), or the resolution of a dispute about rights conferred under subsection 44B(1) of the Act:
(a) the applicant must have identified a native title party or other relevant party who is willing and able to negotiate an agreement with the applicant; and
(b) the applicant must be joined, or intend to be joined, as a party to a dispute about the agreement; and
(c) the decision maker must consider the applicant considerations unless the applicant is a group.
(5) If subsection 213A(3) of the Act applies to the applicant:
(a) the applicant must have identified a native title party or other relevant party who is willing and able to negotiate, with the applicant, an agreement to which paragraph 213A(3)(a) or (b) applies; and
(b) the decision maker must consider the applicant considerations unless the applicant is a group.
Division 4—Assistance for legal representation
4.6 Matters to be considered—assistance for legal representation
General considerations
(1) A decision maker may authorise the provision of assistance for legal representation to an applicant to whom subsection 213A(1) or (2) of the Act applies if the decision maker is satisfied that it is reasonable to do so after considering the following:
(a) the likely benefit to the applicant of participating in the inquiry, mediation, proceeding, agreement or dispute relative to the likely cost of assistance;
(b) whether the applicant’s interest is protected or capable of being protected under the regime for future acts in the Act;
(c) whether the applicant’s interest is appropriately protected having regard to the identity and interest of other parties to the inquiry, mediation, proceeding, agreement or dispute;
(d) whether the applicant’s participation in the inquiry, mediation, proceeding, agreement or dispute will enhance the prospect of a mediated outcome;
(e) the nature of the applicant’s interest and the nature of the native title rights being claimed;
(f) the number of claims that directly affect the applicant;
(g) the applicant considerations unless the applicant is a group;
(h) the legal considerations;
(i) any considerations mentioned in subsections (2), (3) and (4) that are relevant to the application.
Assistance for inquiries, mediation or proceedings—further considerations
(2) If the applicant is seeking assistance for legal representation under subsection 213A(1) of the Act, the decision‑maker must consider whether the applicant’s interest is likely to be adversely affected in a real and significant way if the native title claim is recognised.
Assistance for agreements and disputes—further considerations
(3) If the applicant is seeking assistance for legal representation under subsection 213A(2) of the Act, the decision‑maker must consider whether there is a significant benefit to the applicant, or likely to be a significant benefit to others, of an agreement being negotiated or a dispute being resolved, having regard to the following:
(a) the extent of any adverse effect on the applicant’s interest of a determination of native title;
(b) whether all parties necessarily involved in the matter in relation to which assistance is sought are willing and able to negotiate;
(c) the potential parties to the proposed agreement;
(d) whether a standard form of agreement, or template for an agreement, exists;
(e) the area of land or waters covered by the proposed agreement;
(f) the duration of the proposed agreement;
(g) the matters to be dealt with under the agreement.
Assistance for trials or preliminary or interlocutory proceedings
(4) If the applicant is seeking assistance for legal representation in a trial or preliminary or interlocutory proceeding, the decision‑maker must be satisfied that:
(a) the trial or proceeding raises a new and significant question of law relevant to the applicant’s interest; or
(b) the court requires the applicant’s participation; or
(c) both:
(i) the trial or proceeding is likely to adversely affect the applicant’s interest in a real and significant way; and
(ii) mediation has failed for reasons beyond the applicant’s control.
Division 5—Matters to be taken into consideration
Subdivision A—Applicant considerations
4.8 What are the applicant considerations?
(1) For Divisions 3 and 4, the applicant considerations are an assessment of whether the applicant has the means to meet the cost of the legal action without incurring serious financial difficulty having regard to the financial circumstances of the applicant.
(2) The financial circumstances of the applicant include, but are not limited to, the following:
(a) the applicant’s income;
(b) the applicant’s assets (including whether the applicant is able to sell assets, or to secure a loan against the assets);
(c) the applicant’s liabilities;
(d) the applicant’s expenses;
(e) the applicant’s style or standard of living;
(f) the income of a financially‑associated entity of the applicant;
(g) the assets of a financially‑associated entity of the applicant.
4.9 Who is a financially‑associated entity?
(1) A financially‑associated entity of an applicant is any entity:
(a) from which the applicant usually receives financial support, or to which the applicant usually provides financial support; and
(b) that could reasonably be expected to financially assist the applicant in obtaining legal services.
(2) For the purposes of determining whether a financially‑associated entity of an applicant could reasonably be expected to financially assist an applicant to fund the legal action, the decision maker may have regard to any relevant matter including, but not limited to, whether:
(a) the income or assets, or both, of the financially‑associated entity of the applicant are available for the use or benefit of the applicant; or
(b) the applicant has access to the income or assets of the financially‑associated entity of the applicant; or
(c) the financially‑associated entity has a contrary interest to the applicant in the legal action.
4.10 Additional applicant considerations for entities other than individuals
(1) For an applicant that is not an individual, the decision maker may have regard to other financial resources that may be available to the applicant, including, but not limited to:
(a) for an incorporated body—the use of personal guarantees from directors of the body as security for a loan; and
(b) for an entity that has shareholders or members—the capacity of the entity to seek additional financial resources from the shareholders or members.
(2) A publicly listed corporation is taken to have sufficient means to meet the cost of legal action without incurring serious financial difficulty.
4.11 What is income?
In this Division income includes, but is not limited to, the following:
(a) wages or salaries;
(b) business income;
(c) any benefit payable under legislation by the Commonwealth or a State or Territory;
(d) workers compensation benefits;
(e) superannuation payments;
(f) maintenance payments;
(g) proceeds from the rent or lease of property;
(h) interest earned and dividends paid on investments.
Note: Example for paragraph (c): A pension payable to the applicant.
4.12 What are assets?
In this Division assets:
(a) include, but are not limited to, property or money; but
(b) do not include the following unless its value is unusually high:
(i) clothes;
(ii) tools of trade;
(iii) household furniture;
(iv) equity in applicant’s principal home;
(v) a motor vehicle which is reasonably necessary for domestic or employment purposes.
4.13 What are liabilities?
In this Division, liabilities are any amounts of money that the applicant is legally obliged to pay to another entity.
4.14 What are expenses?
In this Division, expenses are any amounts of money that the applicant usually or regularly pays or remits to obtain a good or service for the domestic or business purposes of the applicant.
Subdivision B—What are the legal considerations?
4.15 What are the legal considerations?
(1) The legal considerations to which a decision maker may have regard include, but are not limited to, the following:
(a) the prospects of success of the legal action;
(b) whether parties have taken genuine steps to resolve the dispute before initiating proceedings (within the meaning of the Civil Dispute Resolution Act 2011);
(c) whether a party to the proceeding has been found by a court to be a vexatious litigant.
Note for paragraph (b): This includes, for example, participating in mediation.
(2) In determining the prospects of the success of the legal action, matters to which the decision maker may have regard include, but are not limited to, the following:
(a) whether a party to the legal action has a reasonable case to argue;
(b) whether the legal action is fanciful or raises only speculative arguments.
(3) In deciding whether to authorise the provision of assistance, the decision maker may have regard to an opinion from counsel (whether sought by the Department or another entity) and the views of a relevant government organisation with responsibility for administering the relevant law.
Part 5—Review
5.1 Review of decisions
(1) This section applies if a decision maker makes one of the following decisions (the reviewable decision):
(a) to refuse to grant assistance under Part 4 to an applicant;
(b) to make a grant of assistance under Part 4 for an amount that is less than the amount applied for by the applicant;
(c) to impose terms and conditions on a grant of assistance under Part 4 (whether set out in these guidelines or in the grant offer).
(2) However, this section does not apply if the reviewable decision is made because there are no funds available to make a grant under section 213A of the Act.
(3) The applicant may apply for internal review by the Department of the reviewable decision.
(4) The application for internal review must be made in writing not later than 28 days after the day on which the applicant is notified of the reviewable decision.
(5) The Secretary must, as soon as practicable after receiving the application for internal review, arrange for a person (other than the person who made the original decision) to review the decision.
(6) The decision maker for the review must decide the application for review within 28 days of the receipt by the Department of the application for review.
Part 5A—Applications for assistance under the Native Title Officer Funding Scheme
Division 1—General requirements
5A.1 Making a decision on an application
(1) A decision maker must decide whether or not to authorise the provision of assistance in relation to a complete application.
(2) In deciding whether to authorise the provision of assistance, the decision maker must have regard to the following matters:
(a) in relation to respondents for whose benefit assistance is sought by the applicant, the nature of the respondents’ interests and rights, having regard to considerations such as:
(i) the sector that the applicant represents; and
(ii) the likely benefit to such respondents in participating in a relevant native title proceeding; and
(iii) the native title issues that such respondents are likely to face in the relevant native title proceeding; and
(iv) whether the interests of such respondents are likely to be adversely affected in a real and significant way if a native title claim is recognised, or whether those interests are capable of being protected under the Act by another party to the relevant native title proceeding, relative to other applications for assistance;
(b) if the applicant has received assistance under the Native Title Officer Funding Scheme or other governmental monetary assistance—its record of compliance with any terms and conditions on which that assistance was provided;
(c) the applicant’s ability to match the assistance provided by the Commonwealth;
(d) whether authorising the provision of assistance represents value for money and is reasonable in all the circumstances;
(e) the availability of funds for the year in which the assistance is to be provided.
(3) The decision maker must give equal weight to each matter.
5A.2 No assistance for retrospective costs
A decision maker must not authorise the provision of assistance for costs incurred before the date on which the Department receives a complete application, except in exceptional circumstances.
5A.3 No assistance for administrative costs etc.
A decision maker must not authorise the provision of assistance for:
(a) if a person is, or is to be, a native title officer and will carry out other duties—costs incurred in respect of those other duties; or
(b) administrative expenses, including ongoing costs of the applicant peak body or other organisation; or
(c) costs incurred in dealing with the Department in relation to an application for assistance; or
(d) costs incurred in relation to activities which are already funded, or significantly funded, by the Commonwealth.
5A.4 Notice of decision
(1) The decision maker must give the applicant, or the entity that applied on behalf of the applicant, written notice of the decision maker’s decision.
(2) The notice must:
(a) give reasons for the decision maker’s decision; and
(b) be given not later than 28 days after the last day on which submissions may be submitted, as mentioned in paragraph 3.3(ba).
Division 2—Interests of respondents
5A.5 Interests for which assistance is not to be granted
A decision maker must not grant assistance under section 213A of the Act to an applicant in respect of a respondent for whose benefit assistance is sought if the respondent’s interest in a native title proceeding:
(a) is, or may be, a previous exclusive possession act; or
(b) has, or may have, extinguished native title according to law; or
(c) is, or may be, a low impact future act; or
(d) is, or may be, a Scheduled interest; or
(e) relates, or may relate, to connection or other anthropological issues; or
(f) relates, or may relate, to compensation.
Division 3—Native Title Officer Funding Scheme
5A.6 Matters to be considered
A decision maker may authorise the provision of assistance under section 213A of the Act if the decision maker is satisfied that the assistance will fund the position of a person, known as a native title officer, to:
(a) educate peak industry bodies or organisations about native title issues; and
(b) facilitate grouping of respondents in claim areas; and
(c) coordinate instructions to legal representatives in legal action;
so as to facilitate efficient and effective resolution of native title claims.