Lawyers fail the native title test

Simon Kearney, Michael McKinnon
8th August 2005

INEXPERIENCED lawyers have been blamed for disrupting the smooth operation of Australia's native title system.

An audit of the operation of native title, which costs taxpayers more than $110million a year, found that claims were often badly put together and delayed in court because of the high turnover of young lawyers willing to do the work.

"Native title claims are often prepared and run by relatively junior staff that generally have very little litigation experience in gathering together the evidence required for native title cases," says the report by consultants KPMG.

"The preparation of native title cases has often been inadequate, thereby affecting the presentation of native title cases."

The audit, which is the latest two-yearly review of native title funding, was completed last year. The federal Government sought to keep the report under wraps, refusing The Australian's Freedom of Information request for the details, but they were released after a successful appeal to the Administrative Appeals Tribunal.

The federal Government asked the consultants to examine the impact of a drastic cut in funding to native title bodies.

The report found the cuts would affect a number of agencies involved in the native title system, with the biggest losers being the National Native Title Tribunal and the Federal Court.

The tribunal would have lost $10million, more than half of the tribunal members and as many as 100 staff if the funding cut went ahead. The Federal Court would have lost one-third ($3million) of its budget for deciding native title claims.

"A reduction in funding to one or more of the agencies would have flow-on effects throughout the system," the report says. "For example, reduced funding to the Federal Court would lower the number of cases which could be heard."

The Government decided not to go ahead with the cuts in this year's budget, allocating native title an extra $79million over four years. A spokeswoman for Attorney-General Philip Ruddock said the report was commissioned because the old funding program was due to end.

She said the funding was designed to allow more cases to be heard in the Federal Court so that a body of legal precedents could be created.

A source involved in native title cases said lawyers received low pay, and were subject to high stress levels and lots of travelling. This led to high staff turnover and few senior lawyers wanting to take on the job.

A report on the issue written by Sydney lawyer Richard Potok said the performance of lawyers was "crucial to the effective functioning of the native title system". He called on the Government to back measures to encourage lawyers to work in native title.

  © The Australian