Strangulation by regulation? The Proposed NTA Reforms

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As many of you will be aware, the Commonwealth Attorney General’s Department is currently conducting (another) review of the operation of the Native Title Act 1993 (Cth).

This time, the scope hasn’t just been limited to the Native Title Act (NTA), but has included proposals which would require amending the Corporations (Aboriginal & Torres Strait Islander) Act 2006 (Cth) (CATSI Act). These proposals are aimed at Prescribed Bodies Corporate, the entities that are charged with holding native title, either as agent or on trust, for the native title holders.

The CATSI Act Proposals

Generally, a number of the proposals are good, necessary and useful – particularly those that are aimed at protecting the rights and interests of native title holders in relation to the corporation that is responsible for holding their native title.

However, there are also a number of proposals which apparently seek to increase transparency and good governance, but really add more compliance, regulation and oversight than is necessary. Much of it has that distinctive smell that accompanies paternalism and in my opinion won’t actually provide any long term, positive outcomes for PBCs. They are all quick fix, one term government propositions to ‘problems’ that aren’t problems per se, but rather symptoms of the shortage of human and financial resources and skills.

If I sound a bit cynical and bitter about the proposed reforms, it probably is because I am. The NTA has been reviewed ad nauseum in the last few years and sadly important proposed reforms, such as those contained in the Australian Law Reform Commission’s Review “Connection to Country” Report have been pretty much ignored. The ALRC Review was well conducted, well thought out and the recommendations, if implemented, would have been of substantial benefit to native title groups and traditional owners, and, would have shifted the NTA back to being the “beneficial legislation” its Preamble declares it to be.

With regards to the latest review, I think the following statement essentially sums up my response to many of the proposed CATSI Act amendments: underfunded, understaffed organisations do not need to be strangled by more regulation. They need resources, on going professional development and time.

Many of the issues that the proposed amendments aim to address can be done within the existing legislative and governance frameworks. For example, proposal F7 suggests requiring PBCs to set up two registers: one about ‘native title’ decisions and one about ‘trust money’ decisions. However, resolutions of meetings are already recorded in minutes, and minutes are available to members. Many organisations also keep a register of resolutions for ease of reference and as good governance practice. So rather than legislating the requirement, which will no doubt come with a penalty attached for non-compliance, the Commonwealth Government should be directing resources so that Directors and staff are properly equipped to implement standard best practice governance practices.

Proposed reform F8 suggests that the CATSI Act be amended to require PBCs to keep separate financial records and reports in relation to native title monies. Again, good governance, fiduciary duties and adherence to Australian accounting standards should mean that accounting for, and reporting on, those monies is already happening. Where it isn’t, is legislative requirement plus non-compliance penalty the answer? Nope. Access to good legal and tax advice when setting up corporations, trusts, constituent documents and ongoing professional development of those in charge is.

State, Territory and Federal Governments should stop underestimating the ability of people to manage their own affairs. Regardless of the industry or sector, or even in your own private lives, having the resources, skills, knowledge and confidence is key to success. Imposing more requirement, more fear of penalties and more boxes to tick does nothing to serve the long term interests of not only PBCs but the communities who they work for.

 

Christina Araujo is a Director of Mojo Learning and has extensive experience in native title law, PBCs and governance. All opinions expressed in this article are those of the author.

The proposals relating to the CATSI Act and PBCs are mainly found in Attachment F and some in Attachment G of the “Native Title Act Rerforms Options Paper” available at https://www.ag.gov.au/Consultations/Pages/Reforms-to-the-Native-Title-Act-1993.aspx

The Australian Law Reform Commission Report – an excellent read – can be found at https://www.alrc.gov.au/publications/alrc126

 

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