Dismissal of parties under s 84(8)

Recommendation 11–4           The Native Title Act 1993 (Cth) should be amended to clarify that the Federal Court’s power to dismiss a party (other than the applicant) under s 84(8) is not limited to the circumstances contained in s 84(9).

11.123         Recommendation 11–4 makes clear that the Court, when considering whether to dismiss a party under s 84(8), may consider a wider range of circumstances than those set out in s 84(9). Section 84(8) of the Act provides that the Federal Court may at any time order a person, other than the applicant, to cease to be a party to the proceedings. Section 84(9) provides:

The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)    the following apply:

         (i)      the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

         (ii)     the person’s interests are properly represented in the proceedings by another party; or

(b)     the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

11.124         AIATSIS suggested that there may be uncertainty as to whether the Court must take the matters listed in s 84(9) into consideration when making a decision to dismiss a party, or whether those matters were merely possible considerations for the Court. Recommendation 11–4 would make clear that s 84(9) simply provides one set of circumstances in which the Court is to consider making an order under s 84(8).[159] On the other hand, some stakeholders submitted that it was sufficiently clear that the Court’s power under s 84(8) is not limited to the circumstances contained in s 84(9), and there are decisions indicating that the Court may take other factors into account.[160] However, these stakeholders did not oppose clarifying the matter in the Act.[161] Stakeholders who commented on this proposal generally supported it.[162]