Commonwealth: Native Title Amendment (Technical Amendments) Act 2007 (Cth)

Native Title Amendment (Technical Amendments) Act 2007 Act No. 125 of 2007 as amended This compilation was prepared on 19 April 2010 taking into account amendments up to Act No. 33 of 2010 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title [see Note 1] 2 Commencement 3 Schedule(s) Schedule 1—Amendment of the Native Title Act 1993 Part 1—Amendments Native Title Act 1993 Native Title Amendment Act 2007 Part 2—Application and other provisions Schedule 2—Amendments relating to representative bodies Part 1—Amendments Native Title Act 1993 Part 2—Application provisions Schedule 3—Amendments relating to prescribed bodies corporate Part 1—Amendments Native Title Act 1993 Part 2—Transitional and application provisions Schedule 4—Technical amendments relating to legislative instruments Native Title Act 1993 Native Title Amendment Act 1998 Schedule 5—Applications not considered or reconsidered under items 89 and 90 of Schedule 2 to the Native Title Amendment Act 2007 Notes An Act to amend legislation in relation to native title, and for related purposes The Parliament of Australia enacts: 1 Short title [see Note 1] This Act may be cited as the Native Title Amendment (Technical Amendments) Act 2007. 2 Commencement (1) Each provision of this Act 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. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 20 July 2007 2. Schedule 1, items 1 to 83 A single day to be fixed by Proclamation. 1 September 2007 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2007L02416) 3. Schedule 1, items 83A to 83C The day after this Act receives the Royal Assent. 21 July 2007 4. Schedule 1, items 84 to 89 At the same time as the provision(s) covered by table item 2. 1 September 2007 4A. Schedule 1, items 90 and 91 Immediately after the commencement of Schedule 2 to the Native Title Amendment Act 2007. 15 April 2007 4B. Schedule 1, items 91A to 91E At the same time as the provision(s) covered by table item 3. 21 July 2007 4C. Schedule 1, items 91F to 139 At the same time as the provision(s) covered by table item 2. 1 September 2007 5. Schedule 2, items 1 to 3 The day after this Act receives the Royal Assent. 21 July 2007 6. Schedule 2, item 4 1 July 2007. 1 July 2007 7. Schedule 2, items 5 to 12 At the same time as the provision(s) covered by table item 5. 21 July 2007 8. Schedule 3, items 1 to 6 At the same time as the provision(s) covered by table item 5. 21 July 2007 9. Schedule 3, item 7 1 July 2008. 1 July 2008 10. Schedule 3, items 8 to 10 At the same time as the provision(s) covered by table item 5. 21 July 2007 10A. Schedule 3, item 10A Immediately after the commencement of Schedule 1 to the Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006. 1 July 2007 10B. Schedule 3, items 11 and 12 At the same time as the provision(s) covered by table item 5. 21 July 2007 11. Schedule 4 At the same time as the provision(s) covered by table item 2. 1 September 2007 12. Schedule 5 At the same time as the provision(s) covered by table item 2. 1 September 2007 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Native Title Act 1993 Part 1—Amendments Native Title Act 1993 1 Subsection 13(2) (note) Repeal the note, substitute: Note: In these circumstances, the compensation application must be accompanied by the affidavit, and contain the information, that would be required for a native title determination application for the area: see subsection 62(3). 2 Subsection 24AA(3) Repeal the subsection, substitute: (3) A future act will be valid if the parties to certain agreements (called indigenous land use agreements—see Subdivisions B, C and D) consent to it being done and, at the time it is done, details of the agreement are on the Register of Indigenous Land Use Agreements. An indigenous land use agreement, details of which are on the Register, may also validate a future act (other than an intermediate period act) that has already been invalidly done. 3 After paragraph 24BB(e) Insert: (eaa) providing a framework for the making of other agreements about matters relating to native title rights and interests; 4 Section 24BF Before "Persons", insert "(1)". 5 At the end of section 24BF Add: (2) The NNTT must not use or disclose information to which it has had access only because it has provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information. 6 At the end of section 24BG Add: Registrar may assist parties (3) The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material. 7 Subsection 24BH(1) Repeal the subsection, substitute: Notice to persons who are not parties to an agreement (1) The Registrar must give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement: (a) the Commonwealth Minister; (b) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory; (c) any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement; (d) any local government body for the area covered by the agreement; (e) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate. 8 Subsection 24BH(2) Omit "paragraph (1)(a) or (b)", substitute "subsection (1)". 9 Paragraph 24BH(2)(a) Repeal the paragraph, substitute: (a) identify the area covered by the agreement, whether by including a map or otherwise; and 10 Paragraph 24BH(2)(c) Repeal the paragraph, substitute: (c) set out: (i) any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d) or 24EBA(1)(a); or (ii) a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained. 11 At the end of section 24BH Add: Notice to specify day (3) The notice under subsection (1) must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day. Which days may be specified (4) That day must be a day by which, in the Registrar's opinion, it is reasonable to assume that all notices under subsection (1) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under that subsection. Notice to parties to the agreement (5) The Registrar must give notice to the parties to the agreement of the notification day for the agreement that was specified in the notice under subsection (1). 12 Subsection 24BI(2) Omit "after the Registrar gives notice under section 24BH", substitute "after the notification day". 13 Paragraph 24BI(3)(a) Omit "after the Registrar gives notice under section 24BH", substitute "after the notification day". 14 After paragraph 24CB(e) Insert: (eaa) providing a framework for the making of other agreements about matters relating to native title rights and interests; 15 Section 24CF Before "Persons", insert "(1)". 16 At the end of section 24CF Add: (2) The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information. 17 At the end of section 24CG Add: Registrar may assist parties (4) The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material. Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised (5) To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect. 18 Paragraph 24CH(2)(a) Repeal the paragraph, substitute: (a) identify the area covered by the agreement, whether by including a map or otherwise; and 19 Paragraph 24CH(2)(c) Repeal the paragraph, substitute: (c) set out: (i) any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d) or 24EBA(1)(a); or (ii) a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained; and 20 At the end of section 24CI Add: Information obtained to provide assistance not to be used or disclosed in other contexts (3) The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information. 21 Subsection 24CK(4) After "any information given", insert "to the Registrar". 22 Subparagraph 24CL(2)(b)(ii) Omit "subsection 190D(2)", substitute "subsection 190F(1)". 22A After subparagraph 24CL(2)(b)(ii) Insert: (iia) the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or 23 Subparagraph 24CL(2)(b)(iii) Omit "section 190D", substitute "section 190E or 190F" 24 Section 24DG Before "Persons", insert "(1)". 25 At the end of section 24DG Add: Information obtained in providing assistance not to be used or disclosed in other contexts (2) The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information. 26 At the end of section 24DH Add: Registrar may assist parties (3) The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material. 27 Paragraph 24DI(2)(a) Repeal the paragraph, substitute: (a) identify the area covered by the agreement, whether by including a map or otherwise; and 28 Paragraph 24DI(2)(c) Repeal the paragraph, substitute: (c) set out: (i) any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b) or (c) or 24EBA(1)(a); or (ii) a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained; and 29 At the end of subsection 24DJ(1) Add: Note: Section 77A sets out the material and fees that must accompany the application, and includes a requirement to state reasons why it would not be fair and reasonable to register the agreement. 30 At the end of section 24DJ Add: Information obtained in providing assistance not to be used or disclosed in other contexts (3) The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information. 31 Subparagraph 24FE(b)(ii) Omit "subsection 190D(2)", substitute "subsection 190F(1)". 31A After subparagraph 24FE(b)(ii) Insert: (iia) the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or 32 Subparagraph 24FE(b)(iii) Omit "section 190D", substitute "section 190E or 190F". 33 After subsection 24IC(2) Insert: Replacing 2 or more leases etc. with a single lease etc. (2A) If a single lease, licence, permit or authority is granted in place of, respectively, 2 or more leases, licences, permits or authorities (the original leases etc.), then: (a) for the purpose of subsection (1), the single grant is taken to be a renewal of the original leases etc.; and (b) paragraphs (1)(b) to (e) apply as if a reference in those paragraphs to the original lease etc. were a reference to the original leases etc. 34 After paragraph 24KA(2)(l) Insert: (la) an automatic weather station; 35 Paragraph 24KA(8)(b) Repeal the paragraph, substitute: (b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned; 36 Paragraph 24KA(8)(c) Omit "for the area concerned", substitute "for that part of the area concerned for which there is no registered native title body corporate". 37 Paragraph 24KA(8)(d) Omit "in the area concerned", substitute "in that part of the area concerned for which there is no registered native title body corporate". 38 Paragraph 24KA(9)(b) Repeal the paragraph, substitute: (b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned; 39 Paragraph 24KA(9)(c) Omit "in the area concerned", substitute "in that part of the area concerned for which there is no registered native title body corporate". 40 Paragraph 24KA(9)(d) Omit "for the area concerned", substitute "for that part of the area concerned for which there is no registered native title body corporate". 41 Paragraph 24MD(6B)(b)(note) Repeal the note. 42 After subparagraph 24MD(6B)(c)(iii) Insert: and (iv) the Registrar; 43 Paragraph 24MD(7)(b) Repeal the paragraph, substitute: (b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned; 44 Paragraph 24MD(7)(c) Omit "for the area concerned", substitute "for that part of the area concerned for which there is no registered native title body corporate". 45 Paragraph 24MD(7)(d) Omit "in the area concerned", substitute "in that part of the area concerned for which there is no registered native title body corporate". 46 Paragraph 24MD(8)(b) Repeal the paragraph, substitute: (b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned; 47 Paragraph 24MD(8)(c) Omit "in the area concerned", substitute "in that part of the area concerned for which there is no registered native title body corporate". 48 Paragraph 24MD(8)(d) Omit "for the area concerned", substitute "for that part of the area concerned for which there is no registered native title body corporate". 49 Paragraph 24NA(9)(b) Repeal the paragraph, substitute: (b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned; 50 Paragraph 24NA(9)(c) Omit "for the area concerned", substitute "for that part of the area concerned for which there is no registered native title body corporate". 51 Paragraph 24NA(9)(d) Omit "in the area concerned", substitute "in that part of the area concerned for which there is no registered native title body corporate". 52 Paragraph 24NA(10)(b) Repeal the paragraph, substitute: (b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned; 53 Paragraph 24NA(10)(c) Omit "in the area concerned", substitute "in that part of the area concerned for which there is no registered native title body corporate". 54 Paragraph 24NA(10)(d) Omit "for the area concerned", substitute "for that part of the area concerned for which there is no registered native title body corporate". 55 Paragraph 28(2)(a) Repeal the paragraph, substitute: (a) in a case where an amount is to be secured by bank guarantee in favour of the Registrar in compliance with a condition of a determination made under section 36A or 38 or a declaration made under section 42—the Registrar is informed by the Government party as mentioned in item 2 of the table in subsection 52(2) that it no longer proposes to do the act; and 56 Subsection 29(8) Repeal the subsection, substitute: Multiple acts (8) The Commonwealth Minister may, by legislative instrument, determine the circumstances and manner in which notice to a person under subsection (2) of 2 or more acts to which this Subdivision applies may be given in the same notice. (8A) Notice to the public under subsection (3) of 2 or more acts to which this Subdivision applies may be given in the same notice. 57 At the end of section 31 Add: Information obtained in providing assistance not to be used or disclosed in other contexts (4) If the NNTT is the arbitral body, it 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: (a) providing that assistance; or (b) establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b); without the prior consent of the person who provided the NNTT with the information. 58 Subsection 36C(5) Repeal the subsection, substitute: Bank guarantee condition (5) If a condition to be complied with is that an amount is to be secured by bank guarantee: (a) the arbitral body must: (i) determine the amount; and (ii) specify the person who must secure the amount in that way; and (b) the condition is not complied with unless: (i) the guarantee is given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959; and (ii) the guarantee is secured in favour of the Registrar; and (iii) regulations made under subsection (5A) are complied with. (5A) The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee. 59 Subsection 41(3) Repeal the subsection, substitute: Bank guarantee condition (3) If, in the case of a determination by an arbitral body, a condition to be complied with is that an amount is to be secured by bank guarantee: (a) the arbitral body must: (i) determine the amount; and (ii) specify the person who must secure the amount in that way; and (b) the condition is not complied with unless: (i) the guarantee is given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959; and (ii) the guarantee is secured in favour of the Registrar; and (iii) regulations made under subsection (4) are complied with. (4) The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee. 60 Subsection 42(5) Repeal the subsection, substitute: Bank guarantee condition (5) If a condition to be complied with is that an amount is to be secured by bank guarantee: (a) the arbitral body must: (i) determine the amount; and (ii) specify the person who must secure the amount in that way; and (b) the condition is not complied with unless: (i) the guarantee is given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959; and (ii) the guarantee is secured in favour of the Registrar; and (iii) regulations made under subsection (5A) are complied with. (5A) The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee. 61 Paragraph 43(2)(j) Repeal the paragraph, substitute: (j) make appropriate provision for compensation for the act, including provision for bank guarantees on similar terms to those in subsections 36C(5), 41(3) and 42(5), and regulations made for the purposes of subsections 36C(5A), 41(4) and 42(5A); and 62 After subsection 43(2) Insert: Effect of including conjunctive agreement/determination provisions and expedited procedure provisions (2A) If the only reason for the Commonwealth Minister not being of the opinion that the alternative provisions comply with subsection (2) is that they include conjunctive agreement/determination provisions or expedited procedure provisions (see subsection (5)), the alternative provisions nevertheless comply with subsection (2). 63 At the end of section 43 Add: Meaning of certain expressions (5) In this section: conjunctive agreement/determination provisions means provisions that: (a) are included in alternative provisions; and (b) in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that subsection 26D(2) of this Act has in combination with the other provisions of this Subdivision. expedited procedure provisions means provisions that: (a) are included in alternative provisions; and (b) in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that section 32 of this Act has in combination with the other provisions of this Subdivision. 64 After subsection 43(3) Insert: (3A) If, at any time, the alternative provisions cease to have ongoing effect, the Commonwealth Minister must, by legislative instrument, revoke the determination made under paragraph (1)(b). 65 After subsection 43A(9) Insert: (9A) If, at any time, the alternative provisions cease to have ongoing effect, the Commonwealth Minister must, by legislative instrument, revoke the determination made under paragraph (1)(b). 66 After subsection 44B(4) Insert: Information obtained in providing assistance not to be used or disclosed in other contexts (4A) The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information. 67 Section 44F Before "If", insert "(1)". 68 At the end of section 44F (after the note) Add: (2) The NNTT must not use or disclose information to which it has had access only because it mediated in the dispute for any purpose other than mediating the dispute without the prior consent of the person who provided the NNTT with the information. 69 Section 52 Repeal the section, substitute: 52 Bank guarantee required under right to negotiate procedures (1) This section applies if a condition to be complied with under: (a) a determination made under section 36A; or (b) a determination made under section 38; or (c) a declaration made under section 42; in respect of an act is that an amount is to be secured by bank guarantee given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959 (an ADI) in favour of the Registrar. Directions to ADI and payments to ultimate beneficiaries (2) The Registrar must take the action set out in column 3 of the following table in the circumstances set out in column 2 of the table: Directions to ADI and payments to ultimate beneficiaries Item If: the Registrar must: 1 an approved determination of native title is made to the effect that there is no native title in relation to the area concerned immediately before the act takes place direct the ADI to cancel the bank guarantee. 2 the Government party informs the Registrar in writing that it is not going to do the act direct the ADI to cancel the bank guarantee. 3 (a) an approved determination of native title is made to the effect that the native title parties concerned are (disregarding any holding of the native title in trust under Division 6) the native title holders in relation to the area affected by the act; and (a) direct the ADI to pay the amount secured to the Registrar; and (b) the registered native title body corporate advises the Registrar that it wishes to accept the amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act; and (b) pay that amount to the registered native title body corporate in relation to the area concerned. (c) the person who secured the amount by bank guarantee advises the Registrar that the person agrees to the registered native title body corporate accepting the amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act 4 (a) a determination is made, on a claim for compensation in respect of the act, that a person (the ultimate beneficiary) is entitled to compensation: (a) direct the ADI to pay the amount secured to the Registrar; and (i) in accordance with this Division; or (b) pay that amount to the ultimate beneficiary. (ii) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; and (b) the amount secured is less than or equal to the amount determined 5 (a) a determination is made, on a claim for compensation in respect of the act, that a person (the ultimate beneficiary) is entitled to compensation: (a) direct the ADI to pay the amount secured (the original amount) to the Registrar; and (i) in accordance with this Division; or (b) pay an amount equal to the amount determined to the ultimate beneficiary; and (ii) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; and (c) pay the remainder to the person who secured the original amount by bank guarantee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment. (b) the amount secured by bank guarantee is more than the amount determined 6 a determination is made, on a claim for compensation in respect of the act: direct the ADI to cancel the guarantee. (a) in accordance with this Division; or (b) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; that no person is entitled to compensation 7 (a) the person who secured the amount by bank guarantee obtains an alternative bank guarantee from an ADI in favour of the Registrar; and direct the ADI to cancel the guarantee. (b) the alternative bank guarantee complies with regulations made for the purposes of subsection 36C(5A), 41(4) or 42(5A) (as the case requires) 8 (a) the Registrar applies to the Federal Court in accordance with subsection (3) for an order in relation to the amount secured; and (a) direct the ADI to pay the secured amount (the original amount) to the Registrar; and (b) the court orders that an amount be paid to a person (the ultimate beneficiary) (b) pay an amount to the ultimate beneficiary equal to the amount the court orders to be paid; and (c) if the amount to be paid to the ultimate beneficiary is less than the original amount—pay the remainder to the person who secured the original amount by bank guarantee or, if that person no longer exists, the person to whom the Federal Court orders it to be paid. 9 (a) none of the other items apply; and (a) direct the ADI to pay the amount secured to the Registrar; and (b) the Federal Court decides, on application by any person, that it would be just and equitable in all the circumstances to pay the amount secured by bank guarantee to a person (the ultimate beneficiary) (b) pay that amount to the ultimate beneficiary. Application to the Federal Court where compensation includes transfer of property or provision of goods or services (3) If: (a) a determination is made, on a claim for compensation in respect of the act: (i) in accordance with this Division; or (ii) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; that a person is entitled to compensation; and (b) some or all of the compensation is constituted by the transfer of property or the provision of goods or services; the Registrar must apply to the Federal Court for a direction as to the payment of the amount secured. Federal Court jurisdiction (4) The Federal Court has jurisdiction in relation to the matters mentioned in: (a) items 5, 8 and 9 of the table in subsection (2); and (b) subsection (3). Compensation payable is greater amount than that secured (5) If: (a) a determination is made, on a claim for compensation in respect of the act: (i) in accordance with this Division; or (ii) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; that a person is entitled to compensation; and (b) the amount secured by the bank guarantee is less than the amount determined; the Government party must pay the shortfall to the person. No compensation if already paid under bank guarantee (6) Subject to section 53, if the Registrar pays an amount to a registered native title body corporate in accordance with item 3 of the table in subsection (2), there is no entitlement to compensation under Division 3 for the act. 70 Paragraph 57(2)(a) Repeal the paragraph, substitute: (a) first, it must request a representative of the common law holders to: (i) nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose; and (ii) include with the nomination the written consent of the body corporate; 71 Subparagraph 62(1)(a)(ii) Omit "an entry in the National Native Title Register", substitute "an approved determination of native title". 72 Subparagraph 62(1)(a)(v) Repeal the subparagraph, substitute: (v) setting out details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and 73 Paragraph 62(2)(c) After "carried out", insert "by or on behalf of the native title claim group". 74 After paragraph 62(2)(g) Insert: (ga) details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area; 75 Subsection 62(2) (note) After "Notices under", insert "paragraph 24MD(6B)(c) and". 76 Subparagraph 62(3)(a)(iv) Repeal the subparagraph, substitute: (iv) setting out details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and 77 At the end of section 62A Add: Note: This section deals only with claimant applications and compensation applications. For provisions dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2. 78 Subsection 64(3) Repeal the subsection, substitute: Application may be amended despite current action by Registrar or Federal Court (3) In the case of a claimant application, the fact that: (a) the Registrar is, under section 190A, considering the claim made in the application; or (b) the NNTT is, under section 190E, reconsidering the claim made in the application; or (c) the Federal Court is, on the application of the applicant under subsection 190F(1), reviewing the decision of the Registrar in relation to the claim; does not prevent amendment of the application. 79 Subsection 64(5) Repeal the subsection. 80 Subparagraph 66(3)(a)(iv) Omit ", when the application was filed in the Federal Court, held", substitute "when the notice is given, holds". 81 After subsection 66A(1) Insert: Amending claims to re‑include area (1A) If: (a) the Registrar is given a copy of an amended application under section 64; and (b) the amendment concerned is to re‑include in the area covered by the application an area of land or waters that was covered by the original application; the Registrar must: (c) give notice of the amended application to each person who, when the Registrar receives the copy, is a party to a proceeding under Part 4 in relation to the application; and (d) if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended: (i) give notice of the amended application to all persons to whom the Registrar gave notice of the application in accordance with paragraph 66(3)(a); and (ii) notify the public in the determined way of the amended application; and (e) give notice of the amended application to each person whom the Registrar would, under subsections 66(3) and 66(5), be obliged to give notice if the application as amended were a new application, but to whom notice is not already required to be given under paragraph (c) or (d). (1B) A notice under paragraph (1A)(e) must specify a day as the notification day for the amendment. (1C) Each such notice in relation to the amendment must: (a) specify the same day; and (b) state that a person who wants to be a party in relation to the amended application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day, or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party. 82 Subsection 66B(1) Repeal the subsection, substitute: Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant: (i) the person consents to his or her replacement or removal; (ii) the person has died or become incapacitated; (iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; (iv) the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. 83 At the end of subsection 66B(1) Add: Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application. 83A Paragraph 66C(1)(c) Omit "and". 83B Paragraph 66C(1)(d) Repeal the paragraph. 83C Paragraph 66C(2)(b) Omit "paragraph 94C(1)(d)", substitute "paragraph 94C(1)(c)". 84 Subsection 69(1) (table item dealing with claim registration application) Omit "subsection 190D(2)", substitute "subsection 190F(1)". 85 At the end of section 82 Add: Maximising use of video links, audio links and other appropriate means of giving testimony, appearing and making submissions (3) The Court or a Judge must exercise the discretion under section 47B of the Federal Court of Australia Act 1976 to allow a person to appear before the Court or Judge, or make a submission to the Court or Judge, by way of video link, audio link or other appropriate means if the Court or the Judge is satisfied that: (a) the conditions set out in section 47C in relation to the video link, audio link or other appropriate means are met; and (b) it is not contrary to the interests of justice to do so. 86 Paragraph 84(3)(b) Repeal the paragraph, substitute: (b) the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding: (i) within the period specified in the notice under section 66; or (ii) if notice of an amended application is given under paragraph 66A(1A)(e)—within the period specified in the notice under that paragraph. 87 After subsection 84(6) Insert: (6A) In determining, for the purposes of subsection (6), when the first hearing of the proceedings starts, disregard directions hearings. 88 After section 84C Insert: 84D Proceedings affected by possible defect in authorisation (1) The Federal Court may make an order requiring: (a) a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the court that he or she was authorised to do so; or (b) a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so. (2) An order under subsection (1) may be made: (a) on the Federal Court's own motion; or (b) on the application of a party to the proceedings; or (c) on the application of a member of the native title claim group or compensation claim group in relation to the application. (3) Subsection (4) applies if: (a) an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or (b) a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so. Note: Section 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them. (4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice: (a) hear and determine the application, despite the defect in authorisation; or (b) make such other orders as the court considers appropriate. 89 After subsection 86F(2) Insert: Information obtained in providing assistance not to be used or disclosed in other contexts (2A) The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement except for the following purposes: (a) providing assistance in negotiating the agreement; (b) mediating in relation to the whole or any part of the proceeding; without the prior consent of the person who provided the NNTT with the information. 90 Paragraph 87(1)(d) Repeal the paragraph. 91 Subparagraph 87A(1)(c)(v) Repeal the subparagraph, substitute: (v) each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made; 91A Paragraphs 94C(1)(b), (c) and (d) Repeal the paragraphs, substitute: (b) it is apparent from the timing of the application that it is made in response to a future act notice given in relation to land or waters wholly or partly within the area; and (c) the future act requirements are satisfied in relation to each future act identified in the future act notice; and 91B After subsection 94C(1) Insert: (1A) For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the current law applies if: (a) the future act notice is given in relation to land or waters wholly or partly within the area; and (b) the application is made during the period of 3 months after the notification day specified in the future act notice; and (c) the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, before the end of 4 months after the notification day specified in the future act notice. (1B) For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the pre‑1998 law applies if: (a) the future act notice is given in relation to land or waters wholly or partly within the area; and (b) the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, within the period of 2 months starting when the notice is given. (1C) The regulations may prescribe, for the purposes of paragraph (1)(b), other circumstances in which it is taken to be apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice, including circumstances in which it is taken to be apparent in relation to a future act notice given under alternative provisions. (1D) For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the current law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice: (a) subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done; (b) a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure; (c) native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6); (d) an agreement of the kind mentioned in paragraph 31(1)(b) is made; (e) a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with; (f) a determination is made under section 36A or 38 that the act must not be done; (g) a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42; (h) a circumstance occurs in which, under the regulations, the future act requirements are satisfied. (1E) For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the pre‑1998 law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice: (a) subsection 32(2) of the pre‑1998 law (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done; (b) a determination is made under subsection 32(4) of the pre‑1998 law that the act is an act attracting the expedited procedure; (c) a copy of an agreement that the act may be done, or may be done subject to conditions being complied with, is given to the arbitral body under section 34 of the pre‑1998 law; (d) a determination is made under section 38 of the pre‑1998 law that the act may be done, or may be done subject to conditions being complied with; (e) a determination is made under section 38 of the pre‑1998 law that the act must not be done; (f) a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42 of the pre‑1998 law; (g) a circumstance occurs in which, under the regulations, the future act requirements are satisfied. (1F) The regulations may prescribe, for the purposes of paragraphs (1D)(h) and (1E)(g), other circumstances in which future act requirements are satisfied. (1G) The regulations may prescribe circumstances in which future act requirements are satisfied in relation to a future act notice given under alternative provisions. 91C Subsection 94C(6) Insert: future act notice to which the current law applies means a future act notice to which the provisions in Subdivision P of Division 3 of Part 2 of this Act apply. 91D Subsection 94C(6) Insert: future act notice to which the pre‑1998 law applies means a future act notice to which the provisions in Subdivision B of Division 3 of Part 2 of the Native Title Act 1993 apply, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act). 91E Subsection 94C(6) Insert: pre‑1998 law means the Native Title Act 1993, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act). 91F After section 96 Insert: 96A Powers of Registrar—ILUAs and future act negotiations The Registrar has the powers set out in Part 2. 91G After subsection 108(1A) Insert: Reconsideration of claims (1AA) The Tribunal has the functions in relation to applications for the reconsideration of claims made to the Tribunal under section 190E that are given to it under that section. 91H After paragraph 123(1)(ca) Insert: (cb) the person who is to constitute the Tribunal for the purposes of reconsidering a decision of the Registrar not to accept a claim; 92 At the end of section 124 Add: Constitution—inquiry into objection to registration of indigenous land use agreement (3) The Tribunal must not be constituted by, or include, for the purposes of an inquiry in relation to a subsection 24DJ(1) objection application, a member who has assisted a party to the agreement to which the application relates in negotiations as mentioned in subsection 24DJ(2), unless the parties otherwise agree. 93 Paragraph 139(d) After "indigenous land use agreement", insert "(a subsection 24DJ(1) objection application)". 94 Subsection 141(4) Omit "into whether a person satisfies the Tribunal that it would not be fair and reasonable to register an indigenous land use agreement", substitute "in relation to a subsection 24DJ(1) objection application". Note: The heading to subsection 141(4) is replaced by the heading "Subsection 24DJ(1) objection applications". 95 After section 163 Insert: 163AA Reports after inquiries into subsection 24DJ(1) objection applications Tribunal to make report (1) After holding an inquiry in relation to a subsection 24DJ(1) objection application, the Tribunal must make a report about the matters covered by the inquiry. Tribunal must state findings of fact (2) The Tribunal must state in the report any findings of fact upon which it is based. 96 Subsection 169(2) Omit "relating to registration of an indigenous land use agreement", substitute "in relation to a subsection 24DJ(1) objection application". Note: The heading to subsection 169(2) is replaced by the heading "Subsection 24DJ(1) objection applications". 96A Subparagraph 186(1)(g)(i) After "the Registrar", insert "or the NNTT". 97 Paragraph 190(1)(a) After "under section 190A", insert "or in response to notification by the NNTT under section 190E". 98 Paragraph 190(3)(a) Repeal the paragraph, substitute: (a) amend the Register to reflect the amendment if: (i) the claim is accepted for registration under section 190A; or (ii) the claim is accepted for registration on reconsideration under section 190E; or (iii) the claim is accepted for registration under section 190A but, because subsection 190A(1A) applies, the Registrar need not consider the claim made in an amended application; or 99 Paragraph 190(3)(b) After "under section 190A", insert "or in response to notification by the NNTT under section 190E". 100 After paragraph 190(4)(d) Insert: (da) if an approved determination of native title is made to the effect that native title exists in relation to an area: (i) but no determination has yet been made under section 56; or (ii) a determination has been made under section 56 that the native title rights and interests are to be held by the common law holders, but no determination has yet been made under subsection 57(2) of which prescribed body corporate is to perform the functions mentioned in subsection 57(3); amend the entry on the Register that relates to the claim so that it reflects that fact; or 101 Subsection 190A(2) Repeal the subsection, substitute: Effect of certain notices (2) If, either before the Registrar begins to do so or while he or she is doing so, a notice is given in accordance with: (a) paragraph 24MD(6B)(c); or (b) section 29; or (c) a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43; or (d) a provision of a law of a State or Territory that corresponds to section 29 and is covered by a determination in force under section 43A; in relation to an act affecting any of the land or waters in the area covered by the application, the Registrar must use his or her best endeavours to finish considering the claim by the end of: (e) in a paragraph (a) case—2 months after the notice is given; or (f) in a paragraph (b) case—4 months after the notification day specified in the notice; or (g) in a paragraph (c) case—the period, in the law of the State or Territory, that corresponds to the period of 4 months mentioned in paragraph 30(1)(a); or (h) in a paragraph (d) case—the period at the end of which any person who is a registered native title claimant or registered native title body corporate has a right to be consulted about the act, to object to the act or to participate in negotiations about the act. Otherwise, claim to be considered as soon as is practicable (2A) In any other case, the Registrar must finish considering the claim as soon as is practicable. 102 Subsection 190A(6) Repeal the subsection, substitute: Test for registration (6) The Registrar must accept the claim for registration if: (a) either: (i) the claim was made in an application given to the Registrar under section 63; or (ii) the claim was made in an amended application given to the Registrar under subsection 64(4) and subsection (6A) of this section does not apply; and (b) the claim satisfies all of the conditions in: (i) section 190B (which deals mainly with the merits of the claim); and (ii) section 190C (which deals with procedural and other matters). (6A) The Registrar must accept the claim (the later claim) for registration if: (a) a claim (the earlier claim) was made in an application given to the Registrar under section 63 or subsection 64(4) (the earlier application); and (b) the Registrar accepted the earlier claim for registration under subsection (6) of this section; and (c) the later claim was made in an application given to the Registrar under subsection 64(4) that amends the earlier application; and (d) the Registrar is satisfied that the only effect of the amendment is to do one or more of the following: (i) reduce the area of land or waters covered by the application, in circumstances where the information and map contained in the application, as amended, are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters; (ii) remove a right or interest from those claimed in the application; (iii) change the name in the application of the representative body, or one of the representative bodies, recognised for the area covered by the application, in circumstances where the body's name has been changed or the body has been replaced with another representative body or a body to whom funding is made available under section 203FE; (iv) change the name in the application of the body to whom funding was made available under section 203FE in relation to all or part of the area covered by the application, in circumstances where the body's name has been changed or the body has been replaced by another such body or a representative body; (v) alter the address for service of the person who is, or persons who are, the applicant. (6B) If neither subsection (6) nor (6A) applies, the Registrar must not accept the claim for registration. Note: The fact that the Registrar is considering the claim under this section does not mean that the application cannot be amended: see subsection 64(3). 103 Subsection 190B(1) Omit "paragraph 190A(6)(a)", substitute "subparagraph 190A(6)(b)(i)". 104 Subsection 190C(1) Omit "paragraph 190A(6)(b)", substitute "subparagraph 190A(6)(b)(ii)". 105 Paragraph 190C(4)(a) (at the end of the note) Add "A representative Aboriginal/Torres Strait Islander body may certify the application, even if it is only the representative body for part of the area claimed.". 106 After subsection 190C(4) Insert: Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised (4A) To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect. 107 Section 190D Repeal the section, substitute: 190D If the claim cannot be registered—notice of decision (1) If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including: (a) if the Registrar does not accept the claim because the Registrar is notified by the NNTT under section 190E that he or she should not do so—a copy of the NNTT's statement of reasons for its decision; or (b) otherwise—a statement of the Registrar's reasons for his or her decision. Content of notice where failure to satisfy physical connection test (2) If the only reason why the claim is not accepted for registration is that the condition in subsection 190B(7) (which is about a physical connection with the claim area) is not satisfied, the notice must advise the applicant of the applicant's right to make an application to the Federal Court under section 190F and of the power of the Court to make an order in accordance with that section in respect of the application. Statements of reasons must specify whether section 190B satisfied (3) If