Recommendation 12–1 The amendments recommended to s 223 of the Native Title Act 1993 (Cth) (Recommendations 5–1 to 5–5, and 8–1) should only apply to determinations made after the date of commencement of any amendment.
Recommendation 12–2 The amendments recommended regarding authorisation (Recommendations 10–1 to 10–9) and joinder (Recommendations 11–1 to 11–6) should only apply to matters that come before the Court after the date of commencement of any amendment.
12.9 The usual way for amended legislation to operate is prospectively, that is, it affects matters that come before the court after the date of the amendment. Legislation with prospective operation is consistent with the rule of law, which requires laws to be known and certain at the time of the act affected by the law. Accordingly, the ALRC recommends that the amendments recommended in this Report should only apply to determinations made after the date of commencement of any amendment. The Native Title Amendment Act 1998, which included amendments to s 223 and s 225, applied to all determinations made after the commencement of the amendment.
12.10 Some stakeholders called for the Native Title Act to provide that existing determinations are amended with automatic effect, so that those who have already had a determination of native title could benefit from the proposed reforms with regard to the nature and content of native title rights. While not necessarily retrospective (as it would operate from the date of the amendment), this approach would unsettle many determinations that were made by consent and were a result of negotiations and compromise between the parties.
12.11 There is provision in the Act for revisiting determinations in certain circumstances. Applications may be made under s 13 to revoke or vary an approved determination. Such applications may only be made by the registered native title body corporate, the Commonwealth Minister, the state or territory minister, or the Native Title Registrar. From a claimant perspective, this means that an application to revoke or vary could not be made where there was a determination that native title does not exist, as in this case there would be no registered native title body corporate. Also, applications may only be made on the grounds that
events have taken place since the determination was made that caused the determination no longer to be correct; or
the interests of justice require the variation or revocation of the determination.
12.12 Some stakeholders suggested that, as the Native Title Act is beneficial legislation, the proposed reforms should apply to determinations made as a result of an application under s 13 for a variation of a determination. Stakeholders who supported the reopening of past determinations referred to the fundamental requirement of justice and the importance of equity between groups whose claims have been determined and groups whose claims are yet to be determined. Some acknowledged the potential expense and inconvenience that reopening determinations could cause, but indicated that such inconvenience could be dealt with by carefully specifying the circumstances in which determinations could be reopened.
12.13 Other stakeholders indicated that reopening determined claims would be divisive, disruptive, would ‘divert resources away from the resolution of outstanding claims and undo years of work’ and would result in uncertainty.
12.14 The Native Title Act only allows a determination to be varied on the limited grounds outlined above. There has been no judicial determination as to whether statutory amendments to the Native Title Act invoke either of these grounds.
12.15 Section 13 does not provide for the variation of a determination by consent. Since the Native Title Act is intended to facilitate conciliation and negotiation, it may be useful for s 13 to provide that the consent of the parties is grounds for a variation of a determination.
Native Title Amendment Act 1998 (Cth) sch 1, item 42.
Ibid sch 2 item 80.
Ibid sch 5 pt 5 item 24. The transitional provisions only refer specifically to the amendments to s 225. In the absence of any specification, the amendments to s 223 can be assumed to operate upon commencement.
A Frith and M Tehan, Submission 12.
Native Title Act 1993 (Cth) s 61(1).
Levinge on behalf of the Gold Coast Native Title Group v State of Queensland  FCA 634 (3 June 2013) .
Native Title Act 1993 (Cth) s 13(5).
National Native Title Council, Submission 57; Queensland South Native Title Services, Submission 55; Central Desert Native Title Service, Submission 48.
National Native Title Council, Submission 57; Queensland South Native Title Services, Submission 55; A Frith and M Tehan, Submission 52; Central Desert Native Title Service, Submission 48; Native Title Services Victoria, Submission 45; North Queensland Land Council, Submission 42.
A Frith and M Tehan, Submission 52; Native Title Services Victoria, Submission 45.
Queensland South Native Title Services, Submission 55.
Yamatji Marlpa Aboriginal Corporation, Submission 62.
Association of Mining and Exploration Companies, Submission 54.
Minerals Council of Australia, Submission 65.
National Farmers’ Federation, Submission 62; The Chamber of Minerals and Energy of Western Australia, Submission 49.
Native Title Act 1993 (Cth) Preamble.
Law Council of Australia, Submission 64.