Commonwealth Numbered Regulations - Explanatory Statements

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NATIVE TITLE (PRESCRIBED BODIES CORPORATE) REGULATIONS (AMENDMENT) 1998 NO. 120

STATUTORY RULES 1998 No. 120

Issued by the Authority of the Minister for Aboriginal and Torres Strait Islander Affairs

Native Title Act 1993

Native Title (Prescribed Bodies Corporate) Regulations

The Native Title (Prescribed Bodies Corporate) Regulations ("the Regulations") are amended by the Native Title (Prescribed Bodies Corporate) Regulations (Amendment) ("the Amendment") under section 215 of the Native Title Act 1993 (the Act). Section 215 of that Act empowers the Governor-General to make regulations prescribing matters:

*       required or permitted by the Act to be prescribed; or

*       necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Regulation 5 requires the rules of a Prescribed Body Corporate ("a PBC") to provide that the consent of the common law holders of native title must be obtained in relation to the changing of the PBC's rules and, generally, in relation to the performance of the PBC's functions. The Regulations provide that other than in relation to:

* the surrender of native title: or

* an agreement to acts affecting native title the Rules can prescribe circumstances where the consent of the common law holders would not be required for the performance of the PBC's functions.

Subsection 45(2) of the Aboriginal Councils and Associations Act 1976 requires that the Registrar of Aboriginal Corporations refuse to incorporate an association if the Registrar is satisfied that the rules of the association do not make sufficient provision to give the members effective control over the running of the association.

It is arguable that Regulation 5 of the Regulations and subsection 45(2) of the Aboriginal Councils and Associations Act 1976 are inconsistent because the Regulations require the Rules of a PBC to restrict the effective control of the members over the running of that PBC.

The purpose of the Amendment is to remove any inconsistency that might exist between the Regulations and the Aboriginal Councils and Associations Act 1976.

Also, the Regulations refer to particular sections of the Act. As it is likely that the Act will be amended and the section numbers changed, the Amendment removes references to particular sections of the Act.

Details of the Amendment are as follows:

Item 3 defines 'a group of common law holders'.

Item 4 requires that the membership of a PBC must only include persons who have native title rights and interests in the land for which the PBC is the agent or trustee.

Item 4.4 provides that if several groups are included in one native title determination, there need only be one PBC for all the groups.

Item 5.1 removes references to the Act.

Item 5.2 removes sub-subregulation 4(3), which requires a PBC to carry out its functions in accordance with its Rules. It is already required to do that under subsection 47(2) of the Aboriginal Councils and Associations Act 1976.

Item 6 (a) removes the requirement that the Rules of a PBC contain provisions for the obtaining of the consent of the common law holders before making any decision in relation to native title and provides that a PBC must act in accordance with decisions of the common law holders; and

(b) adds a new subregulation 5(4) which provides, where the persons with common law interests in a particular area form a subgroup of the common law holders for a PBC, then the PBC must act in accordance with decisions of that subgroup in relation to that particular area.

Item 7 (a) amends the Regulation 7 provisions, for the proof of consultation and consent consequent on the removal of the consultation and consent requirements from the Rules to the Regulations; and

(b) enables a PBC to obtain the consent of the common law holders to a class of actions.

The Amendment commenced on Gazettal.