: Proposed Native Title Reforms: An update

Proposed Native Title Reforms: An update

Katie O’Byrne

Following in the wake of various proposed amendments to the native title system over the last year, the Native Title Act 1993 (Cth) (‘the Act’) has now been made the subject of an inquiry by the Australian Law Reform Commission. Draft terms of reference were released for public consultation on 7 June 2013, with submissions closing on 28 June 2013. The two specific areas of inquiry as currently contained in the draft terms of reference are:

  1. connection requirements relating to the recognition and scope of native title rights and interests, and
  2. the identification of barriers, if any, imposed by the Act’s authorisation and joinder provisions to claimants’, and potential claimants’:
    1. access to justice, and
    2. access to and protection of native title rights and benefits.

Some of the other proposed amendments to the Act are contained in the Native Title Amendment Bill 2012 which was introduced into parliament on 28 November 2012, but which has now lapsed with the proroguement of the parliament. These amendments relate to the requirement to negotiate in good faith, the disregard of historical extinguishment of native title in conservation areas, and the streamlining of Indigenous Land Use Agreement processes. After its introduction the Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs and the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs.  Each committee has since produced an advisory report on the Bill, both of which were released in March 2013. Subject to a couple of proposed amendments contained in the Senate Committee Report, both reports recommended that the Bill be passed.

Other proposed reforms to the native title system have now occurred. Following the outcomes of a 2010 Treasury consultation paper on Native Title, Indigenous Economic Development and Tax, and the establishment of a Treasury-led working group in March this year to look into the issue of the tax treatment of native title payments, the Tax Laws Amendment (2012 Measures No 6) Act 2013 was passed by both houses of parliament, and assented to on 28 June 2013. The Act clarifies that native title payments are not subject to income tax (including capital gains tax).

In addition, institutional reforms to the native title system have also taken place, with the enactment of the Courts and Tribunals Legislation Amendment (Administration) Act 2012. These reforms, which amended the Native Title Act, came into effect in March 2013. According to the Attorney-General’s media release they include:

  • transferring responsibility and resourcing for native title claims mediation from the National Native Title Tribunal to the Federal Court;
  • Federal Court and Tribunal sharing staff across human resources, finances and information technology areas, and where possible, working from the same buildings and sharing the same facilities;
  • merging of the backend corporate services of both agencies;
  • Tribunal financial and staffing services to be provided through the Federal Court administration; and
  • sharing of the legal obligations for financial and annual reporting.

Further information and updates on current native title reforms can be found at:


Further information about the Australian Law Reform Commission Inquiry can be found at:


On 5 August 2013 the draft terms of reference were finalised and Professor Lee Godden was appointed as Commissioner to the Inquiry. The Commissioner must report to the Commonwealth Attorney-General by March 2015.

KATIE O’BRYAN is a former native title lawyer, and now PhD candidate at Monash University.

(2013) 38(3) AltLJ 192
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