Commonwealth Consolidated Acts Commonwealth Consolidated ActsDetermination about alternative provisions
(1) If:
(a) a law of a State or Territory provides for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that are attributable to the State or Territory; and
(b) the Commonwealth Minister determines, by legislative instrument, that the alternative provisions comply with subsection (2);
then, while the determination is in force, the alternative provisions have effect instead of this Subdivision.
Requirement to be satisfied
(2) The alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they:
(a) contain appropriate procedures for notifying registered native title bodies corporate, representative bodies, registered native title claimants and potential native title claimants of the act; and
(b) require negotiation in good faith among the persons concerned; and
(c) provide for mediation by a person or body to assist in settling any dispute among the persons concerned regarding the act; and
(d) give registered native title bodies corporate and registered native title claimants the right to object against the act; and
(e) make provision on similar terms to section 30 and contain time limits similar to those applicable under this Subdivision; and
(f) provide that the body determining the objection consists of, or includes, persons enrolled for at least 5 years as legal practitioners of:
(i) the High Court; or
(ii) another federal court; or
(iii) the Supreme Court of a State or Territory; and
(g) make provision to the same effect as section 39 in relation to matters that are required to be taken into account by the body determining the objection; and
(h) if the alternative provisions involve the hearing and determination of the objection by a person or body other than the NNTT or a recognised State/Territory body for the State or Territory--provide for a member of the recognised State/Territory body (if any) or of the NNTT to participate in the determination; and
(i) provide that any decision of the body determining the objection may only be overruled on grounds of State or Territory interest or of national interest; and
(j) make appropriate provision for compensation for the act, including provision for:
(i) bank guarantees on similar terms to those in subsections 36C(5), 41(3) and 42(5), and regulations made for the purposes of subsections 36C(5A), 41(4) and 42(5A); or
(ii) for trusts on similar terms to those in subsections 36C(5B), 41(5) and 42(5B); and
(k) if the alternative provisions allow a Minister to make a determination in relation to the act in circumstances other than those covered in paragraph (i)--provide for those circumstances to be similar to those set out in section 36A and for requirements similar to those in sections 36B and 36C to apply.
Effect of including conjunctive agreement/determination provisions and expedited procedure provisions
(2A) If the only reason for the Commonwealth Minister not being of the opinion that the alternative provisions comply with subsection (2) is that they include conjunctive agreement/determination provisions or expedited procedure provisions (see subsection (5)), the alternative provisions nevertheless comply with subsection (2).
Revocation of determination
(3) If at any time the alternative provisions are amended so that they no longer comply with subsection (2), the Commonwealth Minister must:
(a) advise the State Minister or the Territory Minister concerned in writing of the fact; and
(b) if, at the end of 180 days after doing so, the alternative provisions do not comply and subparagraphs (c)(i) and (ii) do not apply--by legislative instrument, revoke the determination made under paragraph (1)(b); and
(c) if:
(i) at the end of 180 days after advising the State Minister or Territory Minister, the alternative provisions do not comply and the Commonwealth Minister is satisfied that the State Minister or the Territory Minister is using his or her best endeavours to ensure that the alternative provisions will comply; and
(ii) before the end of the 180 days, the Commonwealth Minister determined, by legislative instrument, that a further period should apply for the purposes of this paragraph; and
(iii) at the end of the further period, the alternative provisions still do not comply;
by legislative instrument, revoke the determination made under paragraph (1)(b).
(3A) If, at any time, the alternative provisions cease to have ongoing effect, the Commonwealth Minister must, by legislative instrument, revoke the determination made under paragraph (1)(b).
Regulations to make transitional provisions
(4) The regulations may prescribe any modifications of this Act that are necessary to deal with transitional matters arising from the making, amendment or revocation of determinations under this section.
Meaning of certain expressions
(5) In this section:
"conjunctive agreement/determination provisions" means provisions that:
(a) are included in alternative provisions; and
(b) in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that subsection 26D(2) of this Act has in combination with the other provisions of this Subdivision.
"expedited procedure provisions" means provisions that:
(a) are included in alternative provisions; and
(b) in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that section 32 of this Act has in combination with the other provisions of this Subdivision.