Case: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33
Outcome: considered
The occasion for affording the word "likely" the meaning "more probable than not" in a provision directed to the dismissal of a native title application without a hearing on the merits of that application is less compelling. It is true that the occasion for the exercise of the dismissal power in s 190F(6) of the Native Title Act may arise after the Registrar's registration decision has either been administratively reviewed on the merits by the NNTT or reviewed by this Court. In the latter form of review the Court may make such decision in respect of issues of fact and law on the material then available as will do justice: Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 (Full Court). Yet the focus of these review alternatives remains the Registrar's registration decision, not a determination of the merits of the native title claim made in the application. 46 Regard pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth) to secondary materials concerning the Bill which became the Technical Amendments Act offers no assistance either in the preferable meaning to afford the word "likely" in s 190F(6)(a) or, for that matter, in the ascertainment of the purpose of the power conferred on the Court by the sub-section. 47 The reference in the explanatory memorandum to the clause which became s 190F(6) is nothing more than a paraphrase of the provision. The Ministerial Second Reading Speech (Commonwealth Parliamentary Debates, House of Representatives, 29 March 2007, p. 1) in respect of the Bill which became the Technical Amendments Act is brief, the then Attorney remarking generally of the amendments proposed in that Bill, "While these amendments are minor and technical in nature, they will substantially improve the workability of the Native Title Act ." There is no reference to the proposed empowerment of the Court to dismiss an application as a sequel to a decision by the Register not to accept for registration the claim made in it and after exhaustion of review remedies in respect of that decision. 48 Amendments to that Bill were proposed in the Senate following a report by the Legal and Constitutional Affairs Committee of that House. Both in that committee's report and in Parliamentary debates one finds reference to the report of a review commissioned by the then Attorney-General of native title claims resolution processes by two members of the Queensland Bar, Mr Hiley RFD, QC and Dr Levy RFD (Hiley and Levy, Native Title Claims Resolution Review, Commonwealth of Australia, released on 31 March 2006). The report of that review was made public but it was not tabled in the Parliament. Further, the extent of its influence on the presence in the Native Title Act of what is now s 190F(6) is not made clear either in an explanatory memorandum or the Second Reading Speech. In these circumstances, I do not consider that it would be appropriate to refer to that review report for statutory construction purposes. 49 A study of secondary materials confirms what a perusal of the 2007 Amendment Act and the Technical Amendments Act would in any event suggest, which is that the two Acts were the culmination of an endeavour to address inadequacies perceived by the Parliament in native title law and practice under the Native Title Act even after major amendments were made to that Act by the Native Title Amendment Act 1998 (Cth) (1998 Amendment Act).