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Part 1—Preliminary

1.   Short title [see Note 1]

This Act may be cited as the Native Title Act 1993.

2.   Commencement [see Note 1]

Commencement of provisions on Royal Assent

(1)    Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

Commencement of provisions by Proclamation

(2)    Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

Forced commencement of provisions

(3)    If a provision referred to in subsection (2) does not commence under that subsection within the period of 9 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3.   Objects

Main objects

The main objects of this Act are:

(a)    to provide for the recognition and protection of native title; and

(b)    to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

(c)     to establish a mechanism for determining claims to native title; and

(d)    to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

4.   Overview of Act

Recognition and protection of native title

(1)    This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.

Topics covered

(2)    Essentially, this Act covers the following topics:

(a)    acts affecting native title (see subsections (3) to (6));

(b)    determining whether native title exists and compensation for acts affecting native title (see subsection (7)).

Kinds of acts affecting native title

(3)    There are basically 2 kinds of acts affecting native title:

(a)    past acts (mainly acts done before this Act’s commencement on 1 January 1994 that were invalid because of native title); and

(b)    future acts (mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title).

Consequences of past acts and future acts

(4)    For past acts and future acts, this Act deals with the following matters:

(a)    their validity;

(b)    their effect on native title;

(c)     compensation for the acts.

Intermediate period acts

(5)    However, for certain acts (called intermediate period acts) done mainly before the judgment of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2, or for any other reason because of native title, this Act provides for similar consequences to past acts.

Confirmation of extinguishment of native title

(6)    This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non‑exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.

Role of Federal Court and National Native Title Tribunal

(7)    This Act also:

(a)    provides for the Federal Court to make determinations of native title and compensation; and

(b)    establishes a National Native Title Tribunal with power to:

(i)      make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act; and

(ii)      provide assistance or undertake mediation in other matters relating to native title; and

(c)     deals with other matters such as the keeping of registers and the role of representative Aboriginal/Torres Strait Islander bodies.

5.   Act binds Crown

This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. However, nothing in this Act renders the Crown liable to be prosecuted for an offence.

6.   Application to external Territories, coastal sea and other waters

This Act extends to each external Territory, to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973.

7.   Racial Discrimination Act

(1)    This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.

(2)    Subsection (1) means only that:

(a)    the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and

(b)    to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.

(3)    Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.

8.   Effect of this Act on State or Territory laws

This Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act.

8A.Application of the Criminal Code

(1)    Subject to subsection (2), Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:  Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2)    Part 2.5 of the Criminal Code does not apply to an offence against Part 11 of this Act.

9.   Definitions located in Part 15

Part 15 contains definitions of certain expressions that are used in this Act.