Native Title (Notices) Determination 2024

Clear description (s5): A description of an area that contains enough information, whether by map drawn to scale or other means, to work out the general location and approximate boundaries. This standard is not rigid but must be functional. The instrument does not define “enough information” in absolute terms, leaving the government entity to judge. Section 10 adds a complementary obligation: if a clear description is required, the notice must also tell the reader how to obtain further information about that description. This could be by contacting a named officer, accessing further maps, or visiting a website. The combination of approximate boundaries and a means to get more detail suggests the determination expects the notice to be informative at the general level, with precision available on request.

Coverage requirement (s9): The central mechanism for ensuring a notice reaches the relevant audience. For newspapers and relevant special‑interest publications, it operates as a three‑step cascade. First, the publication must generally circulate in hard copy form in the “affected area” (the area that may be affected by the act to which the notice relates). Second, if the affected area is an offshore place, look to the closest onshore place. Third, if no hard copy publication generally circulates in the affected area or the onshore place (whether for regular newspapers or for special‑interest publications), then the publication must generally circulate in hard copy in the area closest to the affected area or onshore place, and also be available online in the affected area or onshore place. For radio, television and online communications, the requirement is simpler: the broadcast or streaming must be accessible in the affected area or, for offshore places, the closest onshore area (s9(4)). The instrument does not specify what “generally circulates” means - a phrase likely to be interpreted by the courts in light of the underlying Act. The cascade prioritises physical circulation, which disadvantages purely digital media and may impose search and verification costs on the notifying entity, particularly for remote or cross‑border areas.

Relevant special‑interest publication (s5): A newspaper or magazine that caters mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders and is published at least once a month. This definition limits the pool of qualifying outlets. The monthly frequency requirement excludes online‑only newsletters or blogs that may update more or less frequently. The determination assumes such publications exist and circulate in the affected area; if they do not, the coverage requirement cascade applies using comparable rules (s9(3)). The instrument does not recognise digital‑only special‑interest publications; they must also be available in hard copy under the cascade.

Affected area and offshore place: The determination repeatedly distinguishes between onshore and offshore places. “Offshore place” is not separately defined but takes its meaning from the Native Title Act context. The cascade for offshore places looks to the “onshore place closest to the affected area” to determine circulation, then the area closest to that onshore place. This acknowledges the practical difficulty of notifying in an offshore area but introduces additional steps and potential ambiguity where no single closest onshore place is obvious (e.g., multiple states or territories adjacent to an offshore area). The entity must make a judgment call, which may be challenged if the notice is contested.

The determination directly imposes obligations on States and Territories (for validation of intermediate period acts under s6), and on any entity required to give a notice under the Native Title Act’s provisions listed in ss7 and 8. That entity may be the Commonwealth, a State or Territory government, a proponent of a future act (such as a miner or infrastructure developer), or a person who has made an application for a determination of native title. The practical burden of compliance falls on the government lawyers, policy officers, and communications staff who must draft the notice, select the medium, and pay for its publication.

Representative Aboriginal/Torres Strait Islander bodies (s8) receive notices by post (or alternative means if they agree). They are affected because they must be given an opportunity to comment on certain acts, and the notice must contain a clear description and statement of that opportunity. Registered native title bodies corporate and registered native title claimants are similarly recipients. The instrument does not impose any duty on them to respond, but their right to be heard is contingent on proper notification.

Newspaper publishers and relevant special‑interest publication operators are indirectly affected: the determination creates a steady demand for their advertising space, as notices must be placed in hard copy publications that generally circulate in the affected area. This increases revenue for those publications but also imposes a cost on the notifying entity that may be passed through to proponents. The determination’s emphasis on hard copy circulation creates a barrier to entry for digital‑only publications and may entrench existing print media in specific regions. For remote areas, the fallback requiring online availability still relies on a hard copy publication existing somewhere, even if it does not circulate in the affected area itself; that publication may be a major metropolitan daily with little local readership, undermining the purpose of notification.

The public, particularly persons who may hold native title or have an interest in land, are the intended beneficiaries of the notices. They gain the ability to make submissions (under s26A/26B notices), to obtain information about future acts, applications, and special inquiries. However, the determination’s reliance on newspapers and special‑interest publications assumes those persons read these outlets. Indigenous communities with limited access to print newspapers or the internet may be poorly served by the hard‑copy default. The determination does not require notices to be translated into local languages or delivered orally, which are common needs in remote Indigenous communities.

Proponents of future acts (e.g., miners, pastoralists, developers) are affected because the validity of the underlying act may depend on proper notification under this determination. A defective notice can trigger litigation, delay, and additional costs. They must ensure that the government entity or they themselves (if responsible for notification) comply strictly with the determination’s requirements.

Legal practitioners and native title advisors must become familiar with the new rules, and advise clients on whether a notice satisfies the determination. The replacement of the 2011 determination means case law under that instrument may not directly apply, creating a period of uncertainty until the new provisions are tested.

Duty to publish in specific media: For notices under s6 (validation of intermediate period acts), the State or Territory must publish the notice in its Gazette, on the internet, in a qualifying newspaper (daily, at least five times a week) that meets the coverage requirement, and in a qualifying relevant special‑interest publication (s6(2)-(3)). The notice must also include a statement that information is available in the Gazette and on the internet, a statement that the State/Territory is obliged to notify the public, and a reference to any State/Territory law that replicates ss22B and 22C of the Native Title Act (s6(4)). This is a prescriptive set of duties, with no discretion to substitute other mediums.

Duty to include prescribed content: Section 7(4)-(7) sets out the content required for specific notices. For example, a notice of a proposed determination of an approved exploration etc. act (under s26A) must include details of the determination, a clear description of the area, the name and postal address of the person making the determination, and an invitation to the public to make submissions (including electronically) within a specified period. A notice of a future act (under s29) must include a clear description of the area, a description of the nature of the act, the name and postal address of the person by whom the act would be done, and a statement of how further information can be obtained (including electronically). A notice of an application (under s66) must include details of the application, a clear description of the area, and a statement of how further information can be obtained (including electronically). These detail requirements are mandatory.

Duty to notify representative bodies by post: Section 8(2) requires that notices to representative bodies, registered native title bodies corporate, and registered native title claimants be given by post. However, if the recipient agrees, an alternative means (such as email) may be used (s8(3)). The default postal rule imposes cost and delay, particularly if the recipient is in a remote location. It also prevents the notifying entity from relying on faster electronic means unless it first secures consent, which may require a prior communication.

Duty to provide opportunity to comment: For several categories of notices under s8 (e.g., s23HA previous non‑exclusive possession acts, s24GB primary production on leases, s24GD off‑farm activities, s24GE granting rights on leases, s24HA water/airspace, s24ID effect of applying a subdivision, s24JB public works, s24JB park management plans), the notice must include a statement that the recipient must be given an opportunity to comment within a period mentioned in the notice (s8(4)(c)). This creates a right in the recipient to have a reasonable period in which to comment, though the determination does not set a minimum period. The notifying entity must also provide the name, postal address, and email address of the person to whom comment must be given (s8(4)(d)). For public housing notices (s24JAA), the requirement is to provide an opportunity to comment or to be consulted (s8(5)(c)).

Right to obtain further information about area description: Under s10, if a notice includes a clear description of an area, the notice must also state how a person can obtain further information about that description. This is a right of access to more detailed mapping or contact details. The instrument gives examples: “information about how a person can access further maps or descriptions of the area, or can obtain further information about the description from a contact person.” This is an important safeguard, as the clear description itself may be only an approximation.

No right to any particular format for the public: The determination does not give the public a right to receive the notice in a language other than English, nor in a non‑written format. It also does not require that the notice be broadcast in a particular indigenous language or that it be read aloud. The coverage requirements may not ensure actual receipt in remote communities.

The determination itself does not create any criminal offences, civil penalties, or infringement notices. There is no monetary fine for non‑compliance. However, the instrument is made under the Native Title Act 1993, and failure to comply with its requirements may have significant legal consequences because the notification procedures are a precondition to the validity of certain acts under that Act. For instance, if a notice under s29 of the Act (future act) does not comply with the determination’s requirements for content, medium, size of type, or coverage, the notification may be deemed invalid. That would affect the timeline for making objections or claims, and could lead to a court setting aside the future act or declaring that the right to negotiate has not been properly triggered. Similarly, a notice of an application under s66 that omits a required clear description could jeopardise the prosecution of the native title application.

The enforcement mechanism is therefore through judicial review in the Federal Court or other competent courts. A party who is adversely affected by a defective notice (e.g., a native title claimant who did not receive proper notice and missed a deadline) may apply for relief, including an extension of time or a declaration that the notice was not given in accordance with law. The instrument also changes the law from the 2011 determination, so pre‑existing compliance practices may need to be revised. There is a risk that government entities inadvertently continue using outdated templates. The determination is a legislative instrument subject to disallowance by either House of Parliament under the Legislation Act 2003, but that is a parliamentary check, not a penalty.

The only enforcement‑adjacent provision is s11 (size of type), which sets a minimum requirement. If a newspaper publishes a notice in smaller type, the notice may not comply. The publisher could be in breach of the determination, but the instrument does not impose a penalty on the publisher; the onus is on the notifying entity to ensure compliance. The entity would need to reject substandard advertisements or accept the risk of invalidity.

From a private‑enterprise perspective, the determination expands the regulatory burden on government entities but does not impose direct costs on private parties. However, the indirect cost of litigation over defective notices can be substantial for proponents of future acts, who may face project delays while notice issues are resolved. The determination’s detailed prescription reduces discretion and therefore uncertainty, but only if strictly followed. In practice, small errors (e.g., omitting the required statement about further information) could lead to challenge.

The determination is made under the Native Title Act 1993 and derives its legal force from that Act. It does not replace or override the Act; rather, it fills in the procedural details that the Act leaves to regulation. The Native Title Act contains multiple provisions that say a notice must be given “in accordance with a determination under section 252” or similar cross‑references to the notice‑making power. The instrument specifies what those notices must contain and how they must be published. It works in tandem with the Act’s substantive provisions, such as the right to negotiate, the validation of acts, and the registration of indigenous land use agreements.

The determination also interacts with State and Territory legislation. Section 6(4)(c) requires that a notice of validation of intermediate period acts include a reference to “any law of the State or Territory that contains provisions to the same effect as sections 22B and 22C of the Act.” This means the notifying entity must identify and cite parallel State or Territory provisions. It also requires publication in the relevant State or Territory Gazette, which is governed by each jurisdiction’s legislation.

The determination’s coverage requirement (s9) intersects with broadcasting and media laws at the Commonwealth and State level. For radio, television and online communications, the requirement is that the communication be accessible in the affected area. This will be satisfied if the broadcast is licensed to cover that area or the website is generally accessible. It does not require compliance with any particular broadcasting standard, but the entity must ensure accessibility.

The instrument may also interact with the Legislation Act 2003 (Cth), which governs the registration, tabling, and disallowance of legislative instruments. The determination was registered and tabled, and is subject to disallowance. It also interacts with the Acts Interpretation Act 1901 (Cth) for definitional and commencement issues.

There is no explicit statement that the determination overrides State or Territory notice requirements that are not inconsistent. If a State law already requires notice in a particular way, the entity must comply with both, unless the Native Title Act provides that the determination is exhaustive. The instrument’s preamble lists its enabling provisions, but does not say whether it is intended to cover the field. In practice, notifying entities will need to satisfy both the determination and any applicable State/Territory publication rules, which could lead to duplication.

The determination replaces the 2011 determination operating under the same Act. Any acts or notices that were validly commenced under the 2011 determination remain effective; the determination contains no transitional provision, so the old instrument continues to govern past steps. This means a party who relies on a notice given before 1 October 2024 must refer to the 2011 determination, not the 2024 one. Those involved in ongoing native title processes need to check which instrument applied at the time of the notice.

The Native Title (Notices) Determination 2024 was made by the Attorney‑General, Mark Dreyfus KC, on 28 August 2024, and commences on 1 October 2024. It is a standalone instrument that repeals and replaces the Native Title (Notices) Determination 2011 (No.1) in its entirety. Schedule 1 effects that repeal. The instrument is made under multiple enabling provisions of the Native Title Act 1993 (listed in s3) and also references the general regulation‑making power in s252 of the Act. There is no transitional provision: the instrument does not explain how the change applies to notices that straddle the commencement date. For example, if a notice is published in a newspaper on 30 September 2024, it will be governed by the 2011 determination; a notice published on 1 October 2024 must comply with the 2024 determination. Entities with ongoing notification obligations that commence after 1 October may need to adjust their practices immediately.

The 2011 determination had been in force for 13 years and was presumably replaced to reflect changes in media technology, the experience of administering the earlier instrument, and perhaps court decisions about the adequacy of notices. However, the instrument itself does not state the reasons for the repeal. The 2024 determination makes several notable changes compared to its predecessor: it explicitly includes online communications as a permitted method of broadcasting (s7(3)), and it mandates publication on the entity’s website (s7(2)(c)). It also expands the coverage requirement cascade to include online availability as a fallback for hard copy publications (s9(2)(c)(ii), s9(3)(c)(ii)). These changes suggest a response to the growth of digital media and the decline of print circulation. The 2011 determination did not include an online accessibility option; the 2024 determination now makes online availability a secondary requirement when no hard copy publication circulates in the affected area. This increases flexibility but retains the hard copy default.

The instrument is a legislative instrument and is subject to the normal disallowance, sunsetting, and review mechanisms of the Legislation Act 2003. Future amendment or replacement will occur through the same regulation‑making framework.

The instrument itself records no litigation history. It has only been in force since 1 October 2024, so no court has yet had the opportunity to interpret its terms. However, it is almost certain that the provisions of the determination will be judicially considered when a party challenges the sufficiency of a notice under the Native Title Act. The predecessor instrument, the 2011 determination, may have been the subject of litigation, but the 2024 determination does not cite any cases, and referring to them would be outside the source. The determination’s text does not refer to any court decisions, and it does not provide any notes or guidance on how the courts have interpreted similar language.

That said, the underlying Native Title Act provisions that the determination supports have an extensive litigation history. The requirement to give proper notice is a recurrent issue in native title proceedings, and decisions on the adequacy of notices necessarily involve an assessment of whether the notice complied with the then‑current determination. The 2024 determination is likely to be tested on matters such as whether a particular area description is “clear”, whether a particular newspaper “generally circulates” in the affected area, and whether the type size is adequate. The determination’s definitions are not exhaustive, leaving room for judicial elaboration.

One potential litigation risk concerns the “clear description” definition. The instrument provides only an outcome standard: the description must contain enough information to work out the general location and approximate boundaries. But it does not set a bright‑line test. Litigants may argue that a description is too vague or that a map is not drawn to scale, and the court will need to decide whether the description meets the threshold. The fact that s10 requires a statement about how to obtain further information suggests that the clear description itself may be less than precise, but it must nevertheless be sufficient for the reader to identify the area in general terms.

Another likely area of dispute is the coverage requirement cascade, particularly the phrase “generally circulates.” Does a free commuter newspaper that is widely distributed but not typically subscribed to “generally circulate”? Is a publication that is delivered by post to a selection of addresses but not available at newsstands considered to “generally circulate”? The determination does not define “generally circulate”. The phrase “in hard copy form” is included, but digital editions are only a fallback. This phrasing may generate litigation where the only publication available in a remote area is a digital‑only outlet, and the notifying entity must then rely on the fallback, which requires that another hard copy publication circulates in the closest area. The question of what constitutes the “closest area” may also be contested, particularly for offshore places.

Given the instrument’s recent commencement, litigation history is currently nil. Practitioners should monitor Federal Court decisions on the validity of notices issued after 1 October 2024. Any challenge will likely arise in the context of a native title proceeding, where a party seeks to invalidate a notification step. The determination does not contain its own penalty provision, so enforcement is through judicial remedies.

The determination contains several traps that can catch even experienced practitioners. First, the requirement that a notice be published in a “newspaper that is published at least 5 times a week” (s6(3)(a)(i), s7(2)(a)(i)) effectively excludes many local or regional papers that publish only weekly or bi‑weekly. In small country towns, there may be no daily newspaper that generally circulates in the affected area. The entity must then rely on the coverage requirement cascade (s9(2)), which may lead to a metropolitan daily that has low local readership. The same issue applies to the requirement for a relevant special‑interest publication: if there is no monthly publication that circulates in the affected area, the entity must find one that circulates in the closest area and is available online. This could be a publication from a different state.

Second, the size of type requirement (s11) is deceptively simple: “a print size at least as large as that used for most of the editorial content of the newspaper or publication.” Many newspapers use a variety of font sizes across their pages; what counts as “most of the editorial content” may be ambiguous. If the body text is 10 pt and headlines are 36 pt, “most” of the editorial content is likely the body text. However, if a newspaper uses unusually small body text (e.g., 8 pt), the notice must match that. The entity should check the newspaper’s body text and ensure the notice is set in at least that size, not the size of the classified ads section. Failure to do so could invalidate the notice.

Third, the requirement to “give by post” (s8(2)) cannot be avoided by email unless the recipient has agreed (s8(3)). This means that even if the notifying entity and the recipient regularly communicate by email, the notice must still be posted unless there is an explicit prior agreement. In practice, entities should secure such agreements early and in writing (including email consent) to avoid the cost and delay of postal delivery. The determination says “if the person to be notified agrees” - it does not require written agreement, but an oral agreement would be difficult to prove.

Fourth, the definition of “relevant special‑interest publication” requires that the publication “caters mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders” and is “published at least once a month.” This excludes publications that are not specifically targeted at Indigenous Australians, even if they have a large Indigenous readership. It also excludes online‑only publications, as the definition uses “newspaper or magazine”, which implies a physical product. The coverage requirement for special‑interest publications (s9(3)) also requires hard copy circulation, with online availability only as a fallback. Notifying entities may need to identify and verify the existence of qualifying publications, which may be difficult in some states or territories.

Fifth, the coverage requirement for offshore places (s9(2)(b), (3)(b), (4)(b)) requires the entity to identify the “onshore place closest to the affected area”. This can be ambiguous if there are multiple equidistant onshore places or if the offshore area is adjacent to more than one state or territory. The determination does not provide a tie‑breaker. The entity may need to use a newspaper that generally circulates in the closest onshore place, but if two places are equally close, the entity must choose one and risk a challenge that the notice did not reach the right audience.

Sixth, the requirement to include a statement of how further information can be obtained (s10) applies whenever a notice includes a clear description of an area. This is easy to overlook. The notice must not only describe the area but also point the reader to a source of more detailed mapping or contact details. If the notice says “see attached map” but does not explain how to get further information, it is non‑compliant.

Seventh, the absence of a transitional provision means that the 2024 determination applies to any notice given on or after 1 October 2024, regardless of when the underlying act or application was first initiated. Entities may have templates and workflows based on the 2011 determination. Those must be updated immediately. A notice that uses the old template (even if similar) may need to be changed to include new requirements such as the website publication or the online availability fallback.

Eighth, the instrument does not address the situation where no qualifying newspaper or special‑interest publication exists at all in the affected area or anywhere nearby. The cascade requires that if no such publication generally circulates in the affected area or the onshore place, then the entity must use one that generally circulates in the “area closest” and is available online. But if there is no such publication anywhere (e.g., a very remote area with no daily newspaper and no relevant special‑interest publication), the cascade does not provide an alternative. The entity may need to seek a court order or rely on the broadcasting option (s7(3)), but that is permissive, not mandatory. The Act may require notification, but the determination may be impossible to comply with in extreme circumstances, creating a potential legal vacuum.

Compliance with the Native Title (Notices) Determination 2024 requires a methodical approach that begins with identifying the specific provision of the Native Title Act under which the notice is being given. The determination distinguishes between three broad categories: (a) notices for validation of intermediate period acts (s6); (b) notices to the public (s7); and (c) notices to representative bodies, registered native title bodies corporate, and registered native title claimants (s8). Each category has different medium, content, and circulation requirements.

Step 1: Identify the affected area. This is the area that may be affected by the act, application, or inquiry. Its location determines which newspapers, special‑interest publications, and broadcast media satisfy the coverage requirement. If the area is an offshore place, the entity must identify the closest onshore place. If the area is remote, the entity may need to consider multiple jurisdictions.

Step 2: Determine the medium. For public notices (s7), the entity must publish by advertisement in one or more newspapers that meet the coverage requirement (hard copy generally circulating in the affected area, or the fallback if none), and in a relevant special‑interest publication that meets the coverage requirement, and on the entity’s own website (s7(2)). The notice may also be broadcast by radio, television or online communication (s7(3)), but this is optional and does not replace the newspaper and special‑interest publication requirements. For validation notices (s6), the entity must publish in the State/Territory Gazette, on the internet, in a daily newspaper (at least 5 times a week) that meets coverage, and in a special‑interest publication. The notice must also contain specific statements about the Gazette and the State/Territory law.

For notices to representative bodies etc. (s8), the default is by post, though alternative means are permitted if the recipient agrees. The entity should consider seeking a standing agreement with each body to use email or other electronic means, in order to reduce cost and time. Without agreement, the entity must prepare and post a letter containing the required details, which must include a clear description of the area, a description of the nature of the act, an opportunity to comment, and contact details (name, postal address, email address). For public housing notices (s24JAA), the content is slightly different (opportunity to comment or be consulted).

Step 3: Draft the notice with all required content. The determination specifies what must be included for each notice type. For a s29 future act notice, the required content is listed in s7(5): clear description of area, nature of act, name and postal address of the person who would do the act, and a statement of how further information can be obtained (including electronically). For a s26A or s26B proposed determination notice, the notice must also invite the public to make submissions (including electronically) within a specified period (s7(4)). It is critical to check the underlying Act provision for any additional content requirements not replicated in the determination.

Step 4: Ensure the clear description complies with s5 and s10. The description must enable a person to work out the general location and approximate boundaries. The notice must also include information about how a person can obtain further information about that description (e.g., “for a more detailed map, contact the Native Title Unit at…or visit www…”). This is a separate statement, not just the description itself.

Step 5: Verify the type size. If the notice is placed in a newspaper or special‑interest publication, the entity must negotiate with the publication to ensure that the notice is set in a type size at least as large as the editorial body text. The entity should obtain a proof and a confirmation from the publication that the size meets the requirement. It may be wise to specify the minimum point size in the advertising order.

Step 6: Publish on the entity’s website (for s7 notices) or on the internet (for s6 notices). The determination does not prescribe where on the website it must appear, but it must be published so that it is accessible. The entity should keep a screenshot or permanent record.

Step 7: Retain evidence of publication. For each notice, the entity should keep a copy of the Gazette notice, the internet publication (including URL and date/time of posting), the hard copy newspaper advertisement (either the actual newspaper or a tear sheet), the relevant special‑interest publication advertisement, the postal receipt or agreement to use alternative means, and any broadcasting logs. This documentation is essential in case the notice is challenged.

Step 8: Update internal procedures. All templates and checklists that were based on the 2011 determination must be revised to reflect the 2024 determination’s requirements. Training should be provided to legal, policy, and communication teams. The entity should also consider establishing agreements with representative bodies for electronic notification, to reduce the postal burden.

Step 9: Seek legal advice for complex cases. If the affected area is offshore, or if there is no daily newspaper or no relevant special‑interest publication that generally circulates there, the entity should obtain advice on how to apply the coverage requirement cascade. The determination does not provide a dispensation if no medium is available; the entity may need to apply to a court for directions. Proactive advice can mitigate the risk of defective notice.