This instrument is the Native Title (Tribunal) Regulations 2024.
2 Commencement
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
3 Authority
This instrument is made under the Native Title Act 1993.
4 Schedule 2
Each instrument that is specified in Schedule 2 to this instrument is amended or repealed as set out in the applicable items in that Schedule, and any other item in that Schedule has effect according to its terms.
5 Definitions
Note: A number of expressions used in this instrument are defined in the Act, including the following:
(a) act attracting the expedited procedure;
(b) future act;
(c) representative Aboriginal/Torres Strait Islander body;
(d) right to negotiate application;
(e) Tribunal.
In this instrument:
Act means the Native Title Act 1993.
expedited procedure objection application means a right to negotiate application objecting as mentioned in subsection 32(3) of the Act against the inclusion of a statement that an act is an act attracting the expedited procedure.
future act determination application means a right to negotiate application mentioned in section 35 of the Act for a determination in relation to a future act.
Part 2—Right to negotiate applications to the Tribunal
6 Application of this Part
This Part applies in relation to right to negotiate applications made to the Tribunal under Division 3 of Part 2 of the Act in respect of future acts proposed to be done by a Government party.
Note: A Government party may be the Commonwealth, a State or a Territory.
7 Right to negotiate applications—prescribed form
For the purposes of paragraph 76(a) of the Act, the prescribed form of a right to negotiate application is a form that includes the following:
(a) if the applicant is a registered native title claimant—a statement identifying the relevant native title determination application entered on the Register of Native Title Claims;
(b) if paragraph (a) of this section does not apply—the name of the applicant;
(c) the Government party that has given the notice of the future act;
(d) a description of the future act in respect of which the application is made;
(e) the notification day for the future act;
(f) the physical or postal address to which summons may be served on the applicant;
(g) the contact details for the applicant, including:
(i) the applicant’s telephone number (if any); and
(ii) a physical, postal or email address to which documents (other than summons) may be sent to the applicant;
(h) if the applicant has a representative—the name and contact details of the representative.
Note: The following may be applicants for a right to negotiate application:
(a) in the case of an expedited procedure objection application—a native title party;
(b) in the case of a future act determination application—a negotiation party (being a Government party, a native title party or a grantee party).
8 Expedited procedure objection applications—prescribed information
For the purposes of paragraph 76(c) of the Act, a statement why the applicant believes that the future act is not an act attracting the expedited procedure (see section 237 of the Act) is information that must be contained in an expedited procedure objection application.
9 Future act determination applications—prescribed information
For the purposes of paragraph 76(c) of the Act, the information that must be contained in a future act determination application is the following:
(a) a description of the area of land or waters concerned;
(b) a statement that the negotiation parties have not been able to reach agreement about the future act;
(c) a statement of the nature and extent of the matters mentioned in subsection 39(2) of the Act.
For the purposes of paragraph 76(d) of the Act, $1,038 is the prescribed fee for a future act determination application.
Note 1: There is no prescribed fee for an expedited procedure objection application.
Note 2: For the annual indexation of the prescribed fee, see section 14.
11 Future act determination applications—when fees are not payable
The fee for a future act determination application is not payable by the person or body liable to pay the fee if:
(a) the person or body has been granted legal aid, for the matter to which the fee relates, under a legal aid scheme or service:
(i) established under Commonwealth, State or Territory law; or
(ii) approved by the Attorney‑General; or
(b) the person or body is assisted, for the matter to which the fee relates, by:
(i) a representative Aboriginal/Torres Strait Islander body; or
(ii) a person or body to whom funding has been made available under section 203FE of the Act; or
(c) the person is the holder of any of the following cards issued by the Commonwealth:
(i) a health care card;
(ii) a pensioner concession card;
(iii) a Commonwealth seniors health card;
(iv) any other card that certifies the holder’s entitlement to Commonwealth health concessions; or
(d) the person is an inmate of a prison or is otherwise lawfully detained in a public institution; or
(e) the person is a child under the age of 18 years; or
(f) the person is receiving youth allowance or Austudy payments under the Social Security Act 1991 or benefits under the ABSTUDY Scheme; or
(g) the person is a Government party and makes the application (the new application) in the following circumstances:
(i) the party has previously made a future act determination application (the first application);
(ii) the prescribed fee for the first application was paid;
(iii) the first application and the new application relate to the same future act;
(iv) the first application was withdrawn to allow the party to negotiate in good faith with the other negotiation parties.
12 Future act determination applications—waiver of fees
(1) A person liable to pay a fee for a future act determination application may apply to the Registrar for the fee to be waived on the ground that the payment of the fee would impose financial hardship on the person.
(2) In deciding whether to waive the fee, the Registrar must have regard to the income, expenses, liabilities and assets of the person.
(3) The Registrar must notify the person, in writing, of a decision under this section within 28 days of making the decision.
(4) If the Registrar decides not to waive the fee, the notice must include:
(a) the reasons for the decision; and
(b) a statement that the person may apply to the Administrative Review Tribunal for review of the decision.
(5) The person may apply to the Administrative Review Tribunal for review of a decision under this section not to waive a fee.
13 Future act determination applications—refund of fees
A person who has paid a fee for a future act determination application is entitled to a refund of the fee if:
(a) the fee was not payable by the person; or
(b) the fee has been waived; or
(c) all of the following apply:
(i) the application to which the fee relates has not been accepted under section 77 of the Act;
(ii) after that application was made, a body was determined as a recognised State/Territory body under section 207A of the Act;
(iii) the applicant has requested the Registrar to treat the application as withdrawn so that an application may be given to the recognised State/Territory body;
(iv) the application is treated as withdrawn by the Registrar;
(v) the applicant produces evidence that an application has been given to the recognised State/Territory body; or
(d) a determination is made under section 162 of the Act and the Tribunal certifies that the proceedings to which the fee relates terminated in a manner favourable to the applicant.
14 Future act determination applications—indexation of prescribed fee
(1) In this section:
CPI number, for a quarter, means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician for that quarter.
earlier CPI number is the CPI number for the last March quarter before the beginning of the relevant period.
latest CPI number is the CPI number for the most recent March quarter before the end of the relevant period.
relevant period means a financial year starting on or after 1 July 2024.
(2) If, in a relevant period, the latest CPI number is greater than the earlier CPI number, the fee prescribed by section 10 is taken to increase, on 1 July immediately following the end of the period, in accordance with the formula:
Start formula start fraction Fee times Latest CPI number over Earlier CPI number end fraction end formula
where:
fee is the fee in force at the end of the relevant period.
(3) If, apart from this subsection, the amount of a fee increased under subsection (2) would be an amount of dollars and cents, the amount is to be rounded to the nearest whole dollar and, if the amount to be rounded is 50 cents, rounded down.
(4) Subject to subsection (5), if, at any time, whether before or after the commencement of this section, the Australian Statistician publishes for a particular March quarter a CPI number in substitution for an index number previously published by the Australian Statistician for that quarter, the publication of the later index number is to be disregarded for the purposes of this section.
(5) If, at any time, whether before or after the commencement of this subsection, the Australian Statistician changes the index reference period for the Consumer Price Index, then, for the purposes of the application of this section after the change is made, regard only the numbers published in terms of the new index reference period.
Part 3—Inquiries by the Tribunal
15 Application of this Part
This Part applies in relation to inquiries held by the Tribunal.
16 Inquiries into special matters—notification by person wanting to be a party
A notification under subsection 141(3) of the Act to the Tribunal by a person who wants to be a party to an inquiry into a special matter may be in accordance with Form 1 set out in clause 1 of Schedule 1.
17 Summons by member of Tribunal to be in approved form
A summons by a member of the Tribunal under subsection 156(2) of the Act for a person to appear before the Tribunal must be in accordance with Form 2 set out in clause 2 of Schedule 1.
18 Giving address for service of summons and contact details to Registrar
Requirements for parties (other than applicants) to give addresses and contact details to Registrar
(1) A party (other than the applicant) to a right to negotiate application must, by notice in writing, give to the Registrar:
(a) the physical or postal address to which summons may be served on the party; and
(b) the contact details for the party, including:
(i) the party’s telephone number (if any); and
(ii) a physical, postal or email address to which documents (other than summons) may be sent to the party.
(2) The information must be given to the Registrar no later than 7 days after the day on which the party is given notice of the application.
Other persons may give addresses and contact details to Registrar
(3) A person who may give evidence or documents to the Tribunal in relation to a right to negotiate application may, by notice in writing, give to the Registrar:
(a) a physical or postal address to which summons may be served on the person; and
(b) the contact details for the person, including:
(i) the person’s telephone number (if any); and
(ii) a physical, postal or email address to which documents (other than summons) may be sent to the person.
Persons may update addresses and contact details
(4) A person who has given to the Registrar (whether under this section or in a right to negotiate application):
(a) an address to which summons may be served on the person; or
(b) the contact details for the person;
may, at any time, give a new address or contact details to the Registrar.
19 Service of summons
(1) For the purposes of sections 171 and 174 of the Act, the way of service of a summons set out in this section is prescribed.
(2) A summons may be served on a person:
(a) by personal service in accordance with subsection (3), (4), (5) or (6), as the case requires; or
(b) by post in accordance with subsection (7).
Serving summons by personal service
(3) A summons may be served on an individual by handing a copy of the summons to the individual, or by putting the summons down in the individual’s presence, and telling the individual of its general nature.
(4) If a person has given an address for the service of summons that includes a physical address, a summons may be served on the person by handing a copy of the summons to any person at that physical address who apparently:
(a) lives or works there; and
(b) is at least 16 years of age.
(5) If an individual has not given a physical address for the service of summons, a summons may be served on the individual at the individual’s residential or business address last known to the person serving the summons by handing a copy of the summons to a person who apparently:
(a) lives or works there; and
(b) is at least 16 years of age.
(6) If a corporation has not given a physical address for service of summons, a summons may be served on the corporation at its registered office by handing a copy of the summons to a person who apparently:
(a) lives or works there; and
(b) is at least 16 years of age.
Serving summons by post
(7) A summons may be served on a person by post as a letter addressed to the person:
(a) if the person has given an address for the service of summons—at the physical or postal address so given; or
(b) if the person has not given an address for the service of summons:
(i) in the case of an individual—at the individual’s residential or business address last known to the person serving the summons; or
(ii) in the case of a corporation—at its registered office.
(8) If a summons is served by post in accordance with subsection (7), the summons is taken to be served on the day on which it is posted.
When a person lodges an address for the service of a summons
(9) For the purposes of this section, a person lodges an address for the service of summons if:
(a) the person includes a physical or postal address (or both) for the service of summons in a right to negotiate application (see paragraph 7(f)); or
(b) the person gives a physical or postal address (or both) for the service of summons to the Registrar in accordance with section 18.
20 Service of notices or documents
(1) This section provides for the way a notice or other document (other than a summons) that is required or permitted to be served in relation to an inquiry held by the Tribunal may be served.
(2) A party to the inquiry may serve the notice or document on the Tribunal by sending it by post or email to the address notified by the Tribunal to the party for that purpose.
(3) If a party to the inquiry has given a physical, postal or email address to the Registrar, the notice or document may be served on the party by sending the notice or document by post or email to that address.
(4) If a notice or other document is served by post in accordance with this section, it is taken to be served on the day on which it is posted.
(5) This section does not limit the ways in which a notice or other document may be served.
21 Witness fees and allowances for expenses
(1) For the purposes of subsection 182(1) of the Act, this section prescribes the fees and allowances for expenses that persons (other than parties) that are summoned to appear before the Tribunal to give evidence are entitled to be paid.
Fees—expert witnesses
(2) A person summoned to appear as a witness before the Tribunal because of the person’s professional, scientific or other special skill or knowledge must be paid:
(a) if the person is remunerated in the person’s occupation by wages, salary or fees—an amount equal to the amount of wages, salary or fees not paid to the person because of the person’s attendance in accordance with the summons; or
(b) if paragraph (a) does not apply to the person—$320 for each day on which the person so attends.
Fees—other witnesses
(3) A person summoned to appear as a witness before the Tribunal, except a witness referred to in subsection (2), must be paid:
(a) if the person is remunerated in the person’s occupation by wages, salary or fees—an amount equal to the amount of wages, salary or fees not paid to the person because of the person’s attendance in accordance with the summons; or
(b) if paragraph (a) does not apply to the person—$80 for each day on which the person so attends.
Allowances
(4) A person summoned to appear as a witness before the Tribunal must be paid an amount that is equal to the amount spent by the person for:
(a) the transportation of the person directly between the person’s usual place of residence and the place that the person attends in accordance with the summons; and
(b) if, in accordance with the summons, the person is required to be absent overnight from the person’s usual place of residence—the person’s meals and accommodation during the absence.
Part 4—Application, saving and transitional provisions
Division 1—Transitional provisions in relation to the commencement of this instrument
22 Things done under the old regulations
(1) If:
(a) a thing was done for a particular purpose under the Native Title (Tribunal) Regulations 1993, as in force immediately before those Regulations were repealed; and
(b) the thing could be done for that purpose under this instrument;
the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument.
(2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to an application for a waiver or a refund of a fee being made or an address for service of a summons being given.