Recommendation 12–3 The Australian Government should explore options for specialist training schemes for professionals in the native title system.
12.83 In the Discussion Paper, the ALRC asked whether a scheme for the training and certification of professionals in the native title system should be developed. An accreditation scheme was identified as an option by Deloitte Access Economics in its 2014 Review of the Roles and Functions of Native Title Organisations:
A stronger form of regulation would be to operate a registration system for which native title practitioners require accreditation. Accreditation could be based on a simple test of competencies or qualifications in areas of law or relevant experience. Again, the registration could be voluntary, providing additional information to the market, or mandatory.
12.84 Such a system was considered in this Inquiry as an option for addressing concerns raised by some stakeholders. AIATSIS, for example, expressed
a particular concern that native title applicants may access legal representatives who carry none of the additional obligations that currently vest in officers of the NTRBs/NTSPs. These obligations exist in order to assist, consult with and have regard to the interests of RNTBCs, native title holders and persons who may hold native title and they also extend to requiring the NTRB to identify persons who may hold native title.
12.85 The question drew a range of views from stakeholders. A number of submissions expressed support for a training or certification scheme. The Law Society of Western Australia noted that there may be value in training schemes for non-legal practitioners in the native title system:
Non-legal practitioners working in native title (who do not provide legal advice) are not otherwise regulated or accountable and there may be some basis for establishing a process of registering and accrediting these persons for work in this area. This would, however, require the establishment of a supervisory body funded and administered so that it was effective and any poor practices could be addressed, including through de-registration.
12.86 Several stakeholders, however, expressed concern about any further regulation of legal practitioners. The MCA submitted that any training and certification program should
not be burdensome to the legal profession which is already heavily regulated. It could focus on ensuring professionals can efficiently and effectively navigate a complex system. We also note that this program should not be at the exclusion of all practitioners who are involved or specialise in native title. We recommend it be made available to practice area experts who may wish to reinforce their knowledge.
12.87 The Law Council of Australia (in a submission including comments from the Law Society of NSW and the Law Institute of Victoria) opposed any further regulation of legal practitioners, noting that practitioners ‘are already subject to comprehensive regulation from a range of sources, including statute, regulations, statutory rules, professional conduct rules and supervision by the court’. The Law Council also noted that such a scheme may be impractical, given that:
clearly delimiting ‘native title practice’ is difficult—there may be matters relating to native title that require a practitioner with, for example, commercial law expertise; and
accreditation schemes are typically available for relatively broad practice areas (for example, criminal law) with relatively large numbers of practitioners—for a relatively specialised practice area such as native title, it may be impractical to operate such a scheme.
12.88 The ALRC agrees that mandatory certification would not be advisable. A mandatory certification scheme would have a limited role in building capacity.
12.89 The ALRC considers, however, that further consideration should be given to voluntary specialist training schemes for native title professionals. Specialist training schemes for legal practitioners exist in a range of practice areas. These training schemes assist members of the public in identifying practitioners with experience and additional training in particular areas of law, such as family law or commercial litigation. Such a specialist training scheme was supported by the Law Society of Western Australia. Although opposed to regulation that would require legal practitioners to obtain certification before acting in native title matters, the Law Society was supportive of
recognition of particular expertise in an area, and the undertaking of advanced training in the area (eg cross-cultural practice, short courses in native title law and anthropology) similar to the approach of recognising specialists in criminal law and family law.
12.90 A specialist training scheme would not prevent a professional from being involved in native title matters without completing the relevant additional training, but would allow those with expertise to differentiate themselves. This may, in turn, encourage other professionals to develop their expertise.
12.91 The ALRC notes that a specialist training scheme for non-legal practitioners in the native title system may be one way to address the limited availability of anthropologists and other experts, discussed earlier in this chapter.
12.92 The ALRC accepts that there may be difficulties in implementing a specialist training scheme. For example, as noted by the Law Council of Australia, the number of professionals involved in the native title system is relatively small compared to other areas of law, and the number of professionals undertaking specialist training may therefore be relatively small. Any such scheme should take into consideration existing regulations relating to native title professionals, and should not be unduly burdensome.
12.93 Consideration should be given to which bodies may be the most appropriate provider of a specialist training scheme. An organisation operating primarily in the native title system, such as the National Native Title Tribunal, may be better placed than professional bodies to operate such schemes.
Australian Law Reform Commission, Review of the Native Title Act 1993, Discussion Paper No 82 (2014) Question 9–6.
Deloitte Access Economics, ‘Review of the Roles and Functions of Native Title Organisations’ (Australian Government, March 2014) 39. The Terms of Reference for this Inquiry specifically direct the ALRC to consider this report.
AIATSIS, Submission 36.
Yamatji Marlpa Aboriginal Corporation, Submission 62; National Native Title Council, Submission 57; Queensland South Native Title Services, Submission 55; Native Title Services Victoria, Submission 45.
Law Society of Western Australia, Submission 41.
See, for example, Minerals Council of Australia, Submission 65; Law Council of Australia, Submission 64.
Minerals Council of Australia, Submission 65.
Law Council of Australia, Submission 64.
Law Society of Western Australia, Submission 41.