Annual report 2005—2006

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• About this report
• Letter of transmission
• List of figures
• List of tables
• President's overview
  • The year in review
    • Introduction
    • External factors affecting the Tribunal
    • Trends within the Tribunal
  • Context of native title
    • Legal context, community attitudes and the projected workload
    • Native title is not a panacea, but a range of outcomes can be negotiated
    • By-products of native title
    • Native title and a whole-of-government approach service delivery
    • Governance issues before and after determinations of native title
    • Customary law and native title
    • International law developments and native title
  • Conclusion
• Tribunal overview
  • Role and function
  • Tribunal members
  • Organisational structure
  • Outcome and output structure
• Report on performance
  • Financial performance
  • Outcome and output performance
  • Overview of current applications
  • Output group 1-Stakeholder and community relations
    • Output 1.1-Capacity-building and strategic/sectorial initiatives
    • Output 1.2-Assistance and information
  • Output group 2 -Agreement-making
    • Output 2.1-Indigenous land use agreements
    • Output 2.2-Native title agreements and related agreements
    • Output 2.3-Future act agreements
  • Output group 3 - Decisions
    • Output 3.1-Registration of native title claimant applications
    • Output 3.2-Registration of indigenous land use agreements
    • Output 3.3-Future act determinations and decisions whether negotiations were undertaken in good faith
    • Output 3.4-Finalised objections to expedited procedure
• Management
  • Corporate governance
    • Members' meetings
    • Strategic Planning Advisory Group
    • Agreement-Making Liaison Group
    • National Future Act Liaison Group
    • ILUA Strategy group
    • Research Strategy Group
    • External Relations Working Group
  • Tribunal Executive
    • Role and responsibilities
    • Senior management committees
    • SES remuneration
  • Corporate planning
  • Management of human resources
    • Learning and development
    • Workforce planning
    • Indigenous employees
    • Indigenous Study Awards, traineeships and cadetships
    • Indigenous Advisory Group
    • Occupational health and safety performance
    • Performance of disability strategy
  • Certified Agreement and Australian Workplace Agreements
    • Certified Agreement 2003-2006
    • Workplace agreement negotiations
    • Employee survey
    • Australian Workplace Agreements
  • Risk management
  • Information management
    • Strategic information and technology management
• Accountability
  • Ethical standards and accountability
    • Code of Conduct
  • External scrutiny
    • Judicial decisions
    • Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account
    • Freedom of information
    • Other scrutiny
  • Accountability to clients
    • Client satisfaction
    • Client Service Charter
    • Social justice and equity in service delivery
    • Online services
  • Performance against purchasing policies
    • Procurement
    • Information technology outsourcing
    • Consultancies
    • Asset management
  • Environmental performance
• Appendices
  • Appendix I Human resources
  • Appendix II Significant decisions
  • Appendix III Consultants
  • Appendix IV Freedom of information
  • Appendix V Use of advertising and market research
  • Appendix VI Audit report and notes to the financial statements
  • Appendix VII Glossary

Management

Members’ meetings

The President and members held two members’ meetings in the reporting period: in Perth during September 2005 and in Melbourne during April 2006.

A range of issues was discussed at the meetings with particular focus on the Tribunal’s strategic direction and current operating environment. Other items included:

• relations with clients and stakeholders, including outcomes of client satisfaction research;
• the new Tribunal output structure;
• Federal Court practice and recent decisions;
• general practice issues, including prioritisation of claims and possible cost recovery for some services;
• the review of the claims resolution process;
• governance arrangements and budget management within the Tribunal;
• updates from various Tribunal strategy groups, and
• research undertaken by the Tribunal.

Strategic Planning Advisory Group

The Strategic Planning Advisory Group is a key forum for corporate governance of the Tribunal under the authority of the President and Registrar . It comprises President Graeme Neate, Deputy President Chris Sumner, Deputy President Fred Chaney, ILUA Member Coordinator Ruth Wade, Chair of the Research Strategy Group Dan O’Dea (formerly Professor Douglas Williamson), Agreement-Making Liaison Group Member Dr Gaye Sculthorpe, the Registrar and the divisional directors.

The group integrates management and administration with the strategic direction of the organisation as described in the Tribunal’s Strategic Plan 2006–2008. It met nine times during the reporting period to advise on high-level budget priorities for 2005–06, monitor the Tribunal’s performance and make recommendations to the President and Registrar to facilitate Tribunal projects.

Agreement-Making Liaison Group (formerly Agreement-Making Strategy Group)

The terms of reference of the Agreement-Making Strategy Group were revised at the September 2006 members’ meeting to reconstitute the group as a key liaison group in relation to Tribunal-assisted agreement-making processes. The group was renamed the Agreement-Making Liaison Group (AMLG). It continues to be chaired by the President, supported by an executive officer, and includes members McFarlane, O’Dea and Sculthorpe, the Director of Service Delivery and the Western Australian state manager. The AMLG generally meets each six weeks.

During the reporting period the AMLG maintained a watching brief on agreement- making practice, issues and trends on a national and state-by-state basis. It instigated the regular production of a national agreement-making report addressing (among other things) emerging issues, agreement-making activity reports and analysis of Federal Court activity, as well as feedback on the Tribunal’s agreement-making practice obtained from the Tribunal’s client satisfaction survey.

The AMLG focused on the finalisation of outstanding implementation projects arising out of the development and publication of the Tribunal’s internal guide to agreement-making — Native Title Agreement-making in Australia: A Guide to National Native Title Tribunal Practice. Work included:

• identification of knowledge and skills gaps, and exploration of the options in relation to the provision of further agreement-making training to Tribunal employees and members;
• development and publication of the Pocket guide for agreement-making teams;
• the national practitioner workshop held in Brisbane in February 2006, which provided a forum for various employees and members to exchange ideas regarding agreement-making practice and for the articulation of key recommendations relating to practice development, mentoring, community of practice and internal communication;
• development and implementation of a national case-management tool for mediation planning and project management;
• development and implementation of a Tribunal practitioner forum on the intranet to support community of practice and allow for national information sharing and practice discussion between practitioners.

National Future Act Liaison Group

The National Future Act Liaison Group (NFALG) was established in November 2000 to identify and address future act issues. It is chaired by Deputy President Chris Sumner and comprises members McFarlane, Sosso, Catlin, Chaney and O’Dea as well as the Registrar , the Director of Service Delivery, Manager Geospatial Services and other senior managers. In December 2005, NFALG changed its meeting schedule from bi-monthly to quarterly meetings. NFALG plays a key role as the executive forum responsible for:

• maintaining an overview of the national future act picture on a region-by-region basis through statistical and state reports;
• identifying and addressing strategic and policy-related future act issues;
• coordinating national future act practice, for example, considering matters arising from members’ meetings, officer training or information products;
• considering matters referred to it from future act working groups, or referring matters back to those working groups;
• liaising with other Tribunal strategy groups as required; and
• referring appropriate issues to the Strategic Planning Advisory Group.

Some of the issues considered by NFALG during this reporting period include:

• a review of client feedback obtained through the Tribunal’s client satisfaction survey for the purposes of identifying any necessary changes to future act policy and/or practice;
• provision of feedback and endorsement of the Tribunal’s new outcome and outputs structure;
• endorsement of the appointment of additional future act members in Western Australia to assist with increasing workload;
• consideration of a new mineral exploration information product for Western Australia;
• streamlining of acceptance processes in Western Australia; and
• progression towards electronic lodgement of objection applications.

ILUA Strategy Group

The ILUA Strategy Group was established in November 2000 to facilitate the integration and management of ILUA activity across the Tribunal. It is chaired by the ILUA Member Coordinator Ruth Wade, and comprises the Registrar, the Director of Service Delivery, the Director of Corporate Services & Public Affairs and other senior managers including a Registrar's delegate and representatives from Geospatial and Mapping Services and Legal Services.

During the reporting period the ILUA Strategy Group moved from a six-weekly to a 12- weekly meeting interval, and therefore met four times. Its major activities were to:

• monitor and coordinate ILUA activity with a national and strategic approach;
• monitor trends in the diverse use of ILUAs by native title groups and others to provide practical and flexible agreements for the use and management of land;
• develop best practice ILUA processes and practices; and
• oversee workload assessment and management of ILUA activity through regular review of statistical reports.

Other activities included:

• provision of technical advice to the Attorney General’s Department on a number of matters, both legislative and operational;
• a review of the Australian Government responses to the reports of the PJC on Effectiveness of the National Native Title Tribunal (released in December 2003) and Inquiry into Indigenous Land Use Agreements (tabled in September 2001) for the purposes of identifying any necessary changes to policy and/or practice;
• a review of client feedback, with a focus on ILUAs, obtained through the Tribunal’s client satisfaction survey for the purposes of identifying any necessary changes to policy and/or practice;
• ongoing review of the portfolio budget statement to criteria relating to ILUAs with consequent amendment to the portfolio statement to reflect an increased performance figure;
• co-ordination of ILUA general information and seminars;
• review and revision of the Area Agreement application form to reflect feedback from clients as well as operating and business practices.

Research Strategy Group

The Research Strategy Group is chaired by Member Dan O’Dea, who was appointed following the conclusion of the term of Professor Douglas Williamson RFD QC in December 2005. It comprises five members, the divisional directors, representatives of the Principal, state and territory registries, plus the managers of the Research Unit, Legal Services and Library.

It is responsible for developing and overseeing national policies and priorities for the Tribunal’s research activities, reviewing and monitoring operational research proposals and performance, monitoring the need for shifts in work emphasis, and coordinating all research projects.

The Research Strategy Group also develops policies and strategies for research undertaken by, or for, the Tribunal in conjunction with other organisations involved in native title issues and provides Tribunal members and staff with timely notice of research findings in the wider native title system.

The Research Strategy Group met four times in the reporting period.

External Relations Working Group

The External Relations Working Group was established in August 2005 to help the Tribunal identify and respond to key external issues and to be proactive in developing relationships with stakeholders at a high level. It is chaired by the President and comprises members Catlin, Faulkner, MacPherson and Sumner, the Registrar and the Manager, Public Affairs.

The group met six times in the reporting period. Its terms of reference include the following broad responsibilities:

• proactively managing and maintaining an overview of national stakeholder communication issues, including government relations;
• identifying and developing responses to strategic issues relevant to the Tribunal;
• covering matters relevant to the coordination of public affairs within the Tribunal
• liaising with other Tribunal groups as appropriate; and
• referring appropriate issues to the Strategic Planning Advisory Group.

Current issues being considered by the group include the development of key messages about native title, identification of aspects of the whole-of-government approach to service delivery to Indigenous people that are relevant to the Tribunal, and identification and development of contacts of strategic relevance to the Tribunal.

Tribunal Executive

Role and responsibilities

The executive of the Tribunal’s administration comprises the President, Registrar and directors of the three divisions: Service Delivery, Corporate Services & Public Affairs and Information & Knowledge Management (see Figure 1). A description of the qualifications and background of the Tribunal executive is available on the Tribunal’s website.

Under the Act, the President is responsible for managing the administrative affairs of the Tribunal, assisted by the Registrar. The Registrar has responsibility for the day-to-day operations of the Tribunal, in close consultation with the President. The Registrar may delegate all or any of his or her powers under the Act to Tribunal employees. During the reporting period delegates of the Registrar assessed claimant applications and ILUAs for registration, notified interested persons of the various types of applications and managed the three statutory registers (for more information, see Output 3.1 and Output 3.2) .

Senior management committees

The Registrar and directors comprise the Executive Team. The Executive Team meets fortnightly to consider operational and strategic/governance issues and remains as the main formal vehicle through which the directors assist the Registrar on a range of issues affecting the Tribunal.

The Risk Management and Audit Committee comprising the Director of Corporate Services & Public Affairs, nominated senior managers from each division and an independent external representative (as required) reviews the assessment of internal control measures. The committee meets regularly and is currently undertaking a review of internal project management capabilities within the Tribunal, as well as the development and implementation of a new risk management plan.

A number of regular forums assist in the planning for, and implementation of, new and ongoing business. During the reporting period:

• the national operations group met fortnightly to plan for and oversee service delivery through the Tribunal’s regional registries. It comprises state and territory managers and senior Principal Registry staff, such as the Director of Service Delivery, and other senior staff according to the issues at the time;
• meetings of the Corporate Services & Public Affairs senior managers were held fortnightly with the director of the division to coordinate divisional projects, work plans and communication strategies;
• senior managers met four times by video- or tele-conference and twice a year in the Principal Registry for training, development and planning activities.

SES remuneration

Senior executive service (SES) employees are employed under Australian Workplace Agreements. The SES Band 1 salaries are set by the Registrar. For more information see Certified Agreement and Australian Workplace Agreements.

Corporate planning

The Strategic Plan 2006–2008 is the key governance and operational document for the Tribunal. The plan was developed during the reporting period and provides the Tribunal with a new direction to respond to our environment, and importantly, guide how we are going to deliver outcomes to our clients.

The plan contains four key result areas:

• our clients and stakeholders
• our services
• our people, and
• our business performance.

Objectives, strategies and measures (including links to the Tribunal’s Portfolio Budget Statement) are listed under each of those key result areas. Section and registry operational plans were initiated based on the key result areas above and take into account issues in the external and internal operating environment, external client and stakeholder feedback and the future direction of the Tribunal. The key result areas will also be reflected in staff performance management plans for 2006–07.

Management of human resources

Some of the main people management activities during the reporting period were:

• development and implementation of absence management principles and strategies in line with the Certified Agreement 2003-2006
• delivery of employee health initiatives (previously known as ‘Health Month’) as part of the Tribunal’s Occupational Health and Safety Strategy
• consolidation of the Tribunal’s formal workforce planning framework
• continued advancement of the learning and development leadership program, and
• development and implementation of the new online Quarterly Settlement System.

Learning and development

The focus for the Tribunal during the reporting period continued to be on enhancing the leadership skills of senior managers. Preparatory development work was undertaken for middle managers, as part of the 2006–07 Tribunal leadership program. A preferred skill set for case managers was developed this year for inclusion in performance management plans in 2006–07. A suite of tools to assist managers to successfully manage absences in the workplace was created which was supported by face-to-face training.

Following the review of the delivery of learning and development across the Tribunal in the last reporting period, more flexible training methods were used this year. This included the use of video conferencing and digital recording of key sessions for future delivery.

Other learning and development activities continued in three key areas.

Corporate compliance included:

• occupational health and safety training for those travelling in the field, especially in remote locations (for example, remote first aid and four-wheel drive training)
• workplace harassment contact officer training
• diversity training in the workplace and in the field (for example, awareness of Indigenous cultures), and
• Code of Conduct investigation training.

Skills development training included:

• leadership for senior managers and middle managers
• leading organisations in a changing future (change management)
• project management
• governance
• video conferencing, and
• giving and receiving feedback.

Professional and career development, included:

• participation in the APS Commission Career Development Assessment Program.

Workforce planning

The workforce planning framework is used to consider what the future workforce requirements of the Tribunal will be, taking into account internal and external factors. In the reporting period this included, or was affected by:

• the development of absence management principles and strategies to assist with achieving the  productivity improvements consistent with the Certified Agreement 2003–2006, and
• ensuring that the organisational structures required to support agreement-making processes are in place.

When implementing its agreement-making processes, the Tribunal considers related issues such as: current and future workloads and environmental impacts; specialist roles; professional and technical assistance and support; role of members and staff in the context of the agreement-making process; and relationships to other Tribunal functions such as registration and arbitration.

A major component of workforce planning is to link the expenditure on employees to business outcomes. Total expenditure on the salaries of the members, Registrar and employees for 2005–06 was $19.989 million compared with $20.180 million for the previous reporting period—a decrease of 1.0 per cent.

At 30 June 2006, the Tribunal had 14 Holders of Public Office (President, Registrar and members) and 241 people employed under the Public Service Act 1999 (Cwlth) (PSA), an overall decrease of 22 from the end of the previous reporting period. Of the 241 PSA employees, 234 were covered by the Tribunal’s Certified Agreement 2003–2006 and seven were on Australian Workplace Agreements (for further information see Certified Agreement and Australian Workplace Agreements).

During the reporting period 12..5 per cent or 33 PSA employees resigned (22 ongoing, 11 non-ongoing). In the previous reporting period 17.1 per cent or 50 PSA employees had resigned. The number of resignations decreased by 4.6 per cent in the current reporting period. The Tribunal recently undertook an employee survey (which included issues relating to turnover and retention) and is waiting on an analysis of the survey results due in the next reporting period.

Of the 241 people employed under the PSA, 164 were female and 77 were male, 201were full-time and 40 part-time, 209 were ongoing staff and 32 non-ongoing (see Appendix I). Twenty-six people identified themselves as being either Aboriginal or Torres Strait Islander, four people identified themselves as having a disability, and 11 people as coming from a linguistically diverse background.

Indigenous employees

In the State of Service report issued in November 2005, the Public Service Commissioner advised that, at 30 June 2005, the average proportion of ongoing Indigenous employees in APS agencies was 2.2 per cent. In that same reporting period, ongoing Indigenous employees made up 13.5 per cent of the Tribunal’s national ongoing workforce. Of the 83 agencies providing statistical information, the Tribunal ranked fourth in the number of Indigenous employees behind AIATSIS, Torres Strait Regional Authority and Aboriginal Hostels Limited. At 30 June 2006, the Tribunal’s percentage of Indigenous employees was 10.8 per cent of ongoing employees, a decrease of 2.3 per cent from the previous reporting period.

Of the 26 Indigenous employees, 25 are employed in the Service Delivery division, and one is in the Corporate Services & Public Affairs division. For more information about levels and location of Indigenous employees within the Tribunal, see Appendix I.

Indigenous study awards, traineeships and cadetships

The Tribunal has offered one award under the Indigenous Employee Undergraduate Study Award during the reporting period. The undergraduate award gives Indigenous employees the opportunity to study full-time at Australian universities or other tertiary institutions in an area relevant to a career in the Tribunal or the APS.

The Tribunal employed one Indigenous trainee during the reporting period. The trainee has maintained employment on a non-ongoing basis.

The Tribunal’s remaining cadet completed her studies in July 2005, and is employed on a full-time basis.

Indigenous Advisory Group

As reaffirmed in the Certified Agreement 2003–2006, the Tribunal is committed to the maintenance and continued development of an Indigenous Advisory Group (IAG). The IAG is open to all Indigenous employees. The group elects a steering committee each financial year to represent Indigenous employees in a range of forums and to progress matters identified by the broader group. The Registrar regularly meets with the steering committee and full IAG.

During the reporting period, the Registrar, executive and IAG continued to work on implementing and addressing some of the outcomes from the national Indigenous employees’ workshop held in March 2005. In particular, recruitment, retention and career development have been targeted in an Indigenous recruitment and development plan.

Indigenous employees have continued with their involvement in APS Indigenous Employment Network Steering Committee meetings and several have participated in APS Indigenous career development programs.

Occupational health and safety performance

Occupational health and safety remained a standing agenda item for the Tribunal’s Consultative Forum during the period and reports were provided on a regular basis. During the reporting period no accidents were notified under s. 68 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cwlth). Preventative workplace assessments and early interventions in return to work were commonplace in this reporting period. No performance improvement notices were provided to the Tribunal in the reporting period.

The Tribunal’s Certified Agreement reinforces the commitment that all reasonable steps are to be taken to provide a healthy and safe workplace. During the reporting period, the focus remained on safety while working in remote areas. Training in four-wheel driving, bush survival skills and remote first aid continued to be provided to employees and members who undertake field travel for the Tribunal.

The Tribunal continued its program of preventative medical assistance for all ongoing employees. The program includes provision of eyesight testing for employees who use screen-based equipment, carriage of the Tribunal’s vaccination program (which includes influenza, tetanus, hepatitis and Japanese encephalitis), and fitness for continued duty examinations as required (for example, the return to work of ill or injured employees).

As a result of reviewing medical examination for employment, in this reporting period the Tribunal replaced medical examinations for new employees with Employee Medical Statements.

Performance of disability strategy

The Tribunal ensures that all employment policies and procedures comply with the Disability Discrimination Act 1992 (Cwlth), and continued to update its disability strategies during the reporting period.

The Tribunal has grievance procedures in place, which allow access for those people within and outside the Tribunal to complain or raise issues of concern in relation to its services to people with disabilities.

Certified Agreement and Australian Workplace Agreements

Certified Agreement 2003-2006

The Tribunal’s third Certified Agreement was approved by the Australian Industrial Relations Commission on 23 December 2003 and its nominal expiry date is 22 December 2006.

During the reporting period preparations commenced for a replacement agreement.

Workplace agreement negotiations

Membership of the respective negotiation teams was finalised and negotiation training was held in June 2006.

Employee survey

With the assistance of the company ORIMA Research, the Tribunal developed an employee survey during the reporting period. The response rate was 76% and the Tribunal is waiting on an analysis of the survey results due in the next reporting period. The results will assist the Tribunal in determining its people management priorities in the forthcoming reporting periods. For further information, see Appendix III.

Australian Workplace Agreements

Seven employees of the Tribunal are currently working within an Australian Workplace Agreement. Two of these employees are SES and the remaining five are non-SES. Of the five non-SES, three are Executive Level 2 and two are Executive Level 1 or equivalent.

Risk management

As part of the Tribunal’s ongoing commitment to risk management, a review of risk management strategies was undertaken during the reporting period. In particular, the Tribunal obtained external assistance from Comcover in developing a risk management plan which will be implemented over the next reporting period.

The Tribunal’s Strategic Plan 2006-2008 forms the basis of the risk management framework, with the risk management plan to be incorporated within the planning framework.

The Tribunal also re-constituted its Risk Management and Audit Committee, with a new charter issued with the updated Chief Executive Instructions in January 2006.

Physical security at reception facilities have continued to be upgraded in several offices. A new level of airport-style security screening was introduced at the Commonwealth Law Courts building in Perth at the end of reporting period, which will improve the level of security for the Principal Registry .

Information management

Strategic information and technology management

The Registrar has a statutory requirement to maintain a number of registers that hold records of native title claimant and non-claimant applications, determinations, and certain agreements made under the Act. These are the:

• Register of Native Title Claims, which contains information about all claimant applications that have been registered under s. 190A of the Act or were registered prior to the 1998 amendments to the Act;
• National Native Title Register, which contains information about determinations of native title; and
• Register of Indigenous Land Use Agreements, which contains information about all ILUAs that have been accepted for registration.

The Tribunal has continued its work on information and knowledge management projects based on present and future organisation-wide information needs commenced in the last reporting period.

Work continued during the reporting period on the development of the Operational Business Framework (OBF), an integrated business menu and the continued deployment of the Electronic Document Records Management System (EDRMS). A review of the OBF project was undertaken during the reporting period to better assess the Tribunal’s changing business needs. The review confirmed the need for the OBF project. Work was suspended in March 2006 pending an examination of the systems architecture and the development of business system requirements to meet a broader range of information management needs. That examination was ongoing at the end of the reporting period (for further information, see Appendix III).