Principle Changes to the Native Title legislation enacted by the Native Title Amendment Act in Australia and their effects.

Essay by robybaggioUniversity, Bachelor's May 2004

download word file, 7 pages 4.7

The reasons for the Native Title Amendment Act 1998 can be seen by, extracting the main differences between it, and the original Native Title Act 1993. The changes between the two have been the focus of discussion as to whether the new legislation is unconstitutional according to the idea of "race power", outlined in s 51(xxvi) of the Commonwealth Constitution, authorising Parliament to make laws with respect to:

"the people of any race for whom it is deemed necessary to make special laws"

In 1997 following a referendum under s128 of the Constitution, the words "other than the Aboriginal race in any state" had been removed from s 51(xxvi). Applicants in Kartinyeri v Commonwealth argued that s 51(xxvi) was confined so as to authorise only laws for the "benefit" of "the people of any race" generally, and particularly for members of "the aboriginal race" . This case will be reviewed more thoroughly at a later stage.

What the Amendment Act served to achieve if you will, is as follows:

An expansion of the role of Representative Aboriginal/Torres Strait Islander Bodies.

Extensive amendments to the right to negotiate procedures and the triggers to the right to negotiate procedures

The authorisation of States and Territories to establish different rights to negotiate procedures and confirmation of the nullification of native title by

specific land tenures

The putting in place of a higher test for the registration of native title claims

The granting to states and Territories the ability to validate titles granted between 1 January 1994 and 23 December 1996 without complying with the Native Title Act

Putting the Native Title Act to the provisions of the Racial Discrimination Act 1995 (Cth)

The shifting of responsibility for specific matters related to the lodgement and determination of native title claims from the...