Summary of MPS Law work in 2023-2024

Summary of MPS Law work in 2023-2024

MPS Law has a national practice with work around Australia. Some of our recent work and clients are shown below.

MPS Law also measures performance in a number of ways. Some of our key performance indicators are shown below.

For more information about our national coverage or our performance, please contact us at info@mpslaw.com.au.

 

Recent recognition by industry experts

Throughout 2023 and to start 2024, MPS Law has continued to be recognised by industry experts.

In February 2023, MPS Law Principal Michael Pagsanjan was recognised as a leading lawyer in Doyle’s Guide, with MPS Law Senior Lawyer Reade Allison recognised as a native title rising star. 

In May 2023, MPS Law Special Counsel Georgina Reid, along with Reade Allison, presented to industry experts and colleagues on “Ethical Negotiation of Indigenous Land Use Agreements” at a Legalwise conference.

In August 2023, Michael was recognised as the native title partner of the year in the Lawyers Weekly Partner of the Year Awards. Michael was also a finalist in the Pro Bono partner of the year category.

MPS Law was also a finalist for Boutique Law Firm of the Year for the 2023 Australian Law Awards. Michael was further recognised as a finalist for Managing Partner of the Year.

In December, Michael was ranked Band 1 as a Lawyer for Native Title: Traditional Owners by the Chambers Asia-Pacific Legal Guide 2024.

Also in December, Reade was shortlisted as a finalist in the Lawyers Weekly 30 under 30 awards.

In February 2024, MPS Law was recognised in Doyle’s Guide as a leading native title firm, with Michael also recogised as an industry leader. In addition, Georgina was listed as ‘recommended’, and Senior Lawyer Helen Orr was recognised as a native title rising star.

On behalf of MPS Law, Michael credits recognition to the hardworking team, supportive family and resilient clients.

MPS Law welcomed to new office by Kaurna

On 24 May 2022, friends and team members of MPS Law were welcomed to MPS Law’s new office by Kaurna elder Rosalind Coleman.

Mrs Coleman, on behalf of Kaurna Yerta Aboriginal Corporation, blessed and welcomed guests, powerfully explaining Kaurna’s forever lasting and special connection to the Adelaide region.  

MPS Law is pleased to have been formally welcomed to our new office by Kaurna. We also thank Kaurna Yerta Aboriginal Corporation for approving the use of Kaurna language throughout our office, as daily recognition of Kaurna as the traditional custodians of Adelaide.

 

Recognition in the 2021 Doyle’s Guide

Our Principal Michael Pagsanjan and our firm MPS Law has been further recogised for our expertise, in the 2021 Doyle’s Guide.

 

Doyle’s Guide is an independent legal market research organisation that ranks Australia’s best lawyers and barristers. The ranking is based on testimonials and interviews with clients, peers and stakeholders. This is the second time Michael has been listed, and, the first time our firm has been listed.

“This is a significant achievement for our team at MPS Law. We are pleased that clients and peers believe in the work that we do and our contribution to the law. Full credit must go to the team as a whole, and we celebrate this as a team achievement.” says Mr Pagsanjan.

 

Announcement of Stage Two of the Indigenous Voice to “Parliament” Co-design process

On 30 October 2020, The Hon Ken Wyatt AM MP (Mr Wyatt) announced the beginning of the Indigenous Voice co-design process. The Indigenous voice co-design Process Interim Report (the Report) was handed to the Hon Ken Wyatt in October by the Senior Advisory group.

On 9 January 2021, the Government launched stage two of the co-design process by releasing the interim report and beginning a four-month consultation process about the proposed voice models.

Individuals, communities and organisations are invited to provide feedback either by completing a survey or entering a submission. Submissions close on 31 March 2021 and the survey will close at the end of the engagement period on 9 May 2021.

This article summarises the proposals and responses.

Summary

Currently, there are proposals for (1) a Local and Regional Voice and (2) a National Voice:

Local and Regional Voice Proposal:

That a regional level governance structure:

  • Be designed and led by communities
  • Provide advice to all levels of government to make plans on how to meet community aspirations and deliver on local priorities
  • Provide local views to the National Voice where this informs national issues.

National Voice Proposal:

That a national body made up of Aboriginal and Torres Strait Islander people that:

  • Could provide advice to the Australian Parliament and Government on relevant laws, policies, and programs.
  • Could engage early on with Australian Parliament and Government in the development of relevant policies and laws.”[1]

Further detail on proposed Local and Regional Voice structure

There is no requirement for the local and regional voice to have a set structure. Different regions can create structures that are best suited to their local community. The report proposes 25-35 local and regional voice regions across Australia.

The recommendation is a flexible principals-based framework. This could include the following features:

  • Clear ways for local Aboriginal and Torres Strait Islander people, communities, and organisations in the region to get involved and have more of a say.
  • Allow for local priorities to be addressed at the local level.
  • An agreed way to work together in partnership with governments (e.g. partnership meetings)

Further detail on proposed National Voice Structure

Membership for the National Voice could happen in two different ways:

  • ‘Structurally linked’ – selected from local and regional voices or
  • ‘Directly elected’ – where elections are held for Aboriginal and Torres Strait Islander people to elect national voice members.

Members would represent their States, Territories and the Torres Strait Islands.

The National voice could include the following features:

  • Consist of up to 20 members, with guaranteed gender balance of members.
  • Include Youth and Disability Advisory Groups to ensure voices of these groups are heard.
  • Connect with Local and Regional Voices to provide views from local communities.
  • Work with existing bodies structures and organisations.
  • Advise on national matters that are critically important to the social spiritual and economic wellbeing of Aboriginal and Torres Strait Islander people.

Response to the Report

In response to the Report, Mr Wyatt noted that “the best outcomes are achieved when Indigenous Australians are at the centre of decision‑making. We know that for too long decision making treated the symptoms rather than the cause.”[2] This sentiment has been echoed in media, political and academic conversation surrounding the public release of the report.

In October 2020, prior to the release of the report, Ms Pat Turner, Co-Chairperson of the Joint Council in Closing the Gap, cautioned against the risk of an Indigenous voice to parliament, as proposed in the Uluru Statement from the heart, being subverted into a “voice to government”.  Ms Turner warned that the latter is “likely to be disjointed, conflicted, and thus counterproductive”.[3]

Ms Turner, who is also a member of the senior advisory group, elucidated that an essential foundational element is to prevent “the indigenous voice from being applied only at the discretion of governments when and on what governments determine”.[4]

Professor Megan Davis, a Cobble Cobble Aboriginal woman and the Balnaves Chair in constitutional law, echoes Ms Turner’s concerns regarding the interim report preferencing a “voice to government”. However, Professor Davis is very encouraging of the co-design process and highlights that “self-determination is at the core of democratic governance.”[5] Professor Davis notes that the important consultation process should not be muddied by a “legislate first, enshrine later debate” and emphasises the need to enshrine the voice to parliament in the constitution by referring to it as a ‘vision of unity’.[6]

Mr Tom Calma, the Co-chair of the senior advisory group, commented that “the key thing is to create a forum in which dialogue between political decision makers and Aboriginal and Torres Strait Islander people can take place because it doesn’t happen at the moment and it needs to happen.”[7]

Information and documents regarding the Indigenous Voice co-design process can be accessed from the NIAA website.

Endnotes

[1] See https://voice.niaa.gov.au/.

[2] The Hon Ken Whyatt AM MP. ‘Have your say on Indigenous Voice proposals’ (Media Release, 9 January 2021) https://ministers.pmc.gov.au/wyatt/2021/have-your-say-indigenous-voice-proposals.

[3] Hurst, Daniel. ‘Indigenous voice to parliament: Pat Turner urges PM to show ‘a bit of backbone’, The Guardian (online, 30 September 2020) https://www.theguardian.com/australia-news/2020/sep/30/indigenous-voice-to-parliament-pat-turner-urges-pm-to-show-a-bit-of-backbone.

[4] Hurst, Daniel. ‘Indigenous voice to parliament: Pat Turner urges PM to show ‘a bit of backbone’, The Guardian (online, 30 September 2020) https://www.theguardian.com/australia-news/2020/sep/30/indigenous-voice-to-parliament-pat-turner-urges-pm-to-show-a-bit-of-backbone.

[5]Davis, M. ‘Our Indigenous voice is just waiting to be heard’. The Australian (online, 16 January 2021) < https://www.theaustralian.com.au/inquirer/our-indigenous-voice-is-just-waiting-to-be-heard/news-story/1f8c05d20d90bd11bb535e34e04df64c>.

[6] Davis, M. ‘Our Indigenous voice is just waiting to be heard’. The Australian (online, 16 January 2021) < https://www.theaustralian.com.au/inquirer/our-indigenous-voice-is-just-waiting-to-be-heard/news-story/1f8c05d20d90bd11bb535e34e04df64c>.

[7] Dingwall, D. ‘Indigenous Voice to Parliament would create much-needed dialogue with government: Tom Calma’. New Castle Herald (online, 15 January 2021) < https://www.newcastleherald.com.au/story/7085668/how-indigenous-voice-to-parliament-works/>.

Principal recognised in the 2021 Chambers Asia-Pacific Guide

MPS Law Principal, Michael Pagsanjan, has been ranked in the 2021 Chambers and Partners Asia-Pacific Guide (the Guide).

 

The Guide provides reliable information on Australia’s top lawyers, with rankings based on in-depth analysis by leading researchers. The Guide analyses the international legal market, including in Australia, China, India, Japan, South Korea and Singapore.

Michael is ranked amongst nine other top native title lawyers for representing Traditional Owners, and is the only ranked native title practitioner based in South Australia.

This is the first time Michael has been ranked in the Chambers Guide.

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Proposal for Aboriginal ‘voice’ to South Australian Parliament

Dr Roger Thomas, Commissioner for Aboriginal Engagement, has published his biennial Report of the Commissioner (‘the Report’). The Report, which details Dr Thomas’ activities, also provides commentary on the ongoing ‘exclusion and inequalities’ experienced by Aboriginal South Australians.

This article discusses Dr Thomas’ proposal for the establishment of an Aboriginal Representative Body in South Australia.

The Aboriginal Representative Body

The South Australian Government Aboriginal Affairs Action Plan originally proposed the development of an Aboriginal Engagement Reform proposal. The proposal’s aim was to better enable ‘engagement between government and Aboriginal communities, and for Aboriginal voices to be more represented in government decision-making’. [1]

Currently, the South Australian Aboriginal Advisory Council (‘the SAAAC’), is the formal Aboriginal representation to the South Australian Government. The SAAAC’s members are appointed by Premier Steven Marshall following a public nomination process.

In developing his Aboriginal Engagement Reform proposal, Dr Thomas undertook a five-stage process to determine an appropriate model. The culmination of this process is the proposal of a new Aboriginal Representative Body (‘the Body’), which would replace the SAAAC.

In an effort to consider the entirety of Aboriginal South Australians, Dr Thomas undertook a five-stage process. Importantly, the process:

  • developed twelve principles to guide the proposal, prompting broad community engagement, self-determination of Aboriginal people and legitimacy of the Body.
  • held state-wide consultation within Aboriginal communities. The majority of those consulted expressed interest in ‘improving engagement with the state government’ and there was ‘support for an Aboriginal voice to government that was an independent, representative and genuinely connected with the state’s Aboriginal community’. Further, the Body, being chosen directly by the community, as opposed to being chosen by the government, was welcomed. [2]

The Role and Functions of the Body

In December 2019, Dr Thomas presented his model to Premier Steven Marshall and the South Australian Parliament.

The proposed Body will serve a number of roles and functions. Importantly, the Body will progress the establishment of a Voice in Parliament, which was one of the principal requests from the Uluru Statement of the Heart. [3]

The Body will contribute directly to government decision-making in areas which impact Aboriginal South Australia by:

  • contributing to state policy debate;
  • making recommendations to government on issues and barriers of Aboriginal people;
  • making recommendations to agencies on policy and programs;
  • continuing and improving the relationship between Aboriginal communities at the government; and
  • continuing involvement in Cabinet Strategic Meetings.

The members of the Body will be elected by Aboriginal South Australians across five (to be established) electoral wards. The government currently appoints the SAAAC members and it is believed this new approach will better reflect the diversity of the Aboriginal community and have greater grass-roots links. [4]

Next Steps

COVID-19 travel restrictions into Aboriginal communities several restricted Dr Thomas’ intentions to establish the Body in July 2020. Dr Thomas and his office will continue their work into 2021 by:

  • drafting election rules;
  • drafting legislation for the election of members from five wards; and
  • establishing an electoral roll of Aboriginal South Australians and the mechanisms to promote and support voter registration.

Further commentary on the Uluru Statement from the Heart

In 2017, 250 delegates from Aboriginal and Torres Strait Islander peoples, came together to adopt the Uluru Statement of the Heart. One of the two requests sought, was the establishment of a Constitutionally enshrined First Nations Voice to Parliament (‘the Voice’), which would act as the Voice of Indigenous peoples in federal parliament.

In October 2019, Federal Minster of Indigenous Affairs, the Hon Ken Wyatt AM MP, announced the Indigenous voice co-design process, which would work towards establishing local, regional and national elements of an Indigenous voice. Minister Wyatt established a Senior Advisory Group to develop models which would ensure Indigenous Australian’s are heard at all levels of government. [5] In October 2020, the Senior Advisory Council conducted their final meeting before preparing their interim report for the federal government.

The approach to working with Indigenous communities was a focus of the Morrison Government in addressing the failings of the Closing the Gap targets. In 2020, the Morrison Government entered into the National Agreement on Closing the Gap. The new agreement is founded on the approach where ‘policy making that impacts on the lives of Aboriginal and Torres Strait Islander people is done in full and genuine partnership’. This genuine partnership was also been echoed by Mr Thomas in his Report, believing ‘long-term, suitable change for Aboriginal people can only be achieved through self-determination that is achieved by having Aboriginal people at the heart of decisions that concern them and their lives’. [6]

More information on the new approach to Closing the Gap is available in our Year in Review.

For further information, please contact Michael Pagsanjan (michael@mpslaw.com.au).

ENDNOTES

[1] Department of the Premier and Cabinet, South Australian Government Aboriginal Affairs Action Plan 2019 – 2020 (Annual Report, 2020) 15.

[2] Dr Roger Thomas, Report of the South Australian Commissioner for Aboriginal Engagement (Biennial Report, November 2020) 23.

[3] Ibid 24

[4] Ibid 24.

[5] Australian Government, ‘Indigenous voice co-design process announced’, Indigenous Voice (News Release, 30 October 2019) .

[6] Dr Roger Thomas, Report of the South Australian Commissioner for Aboriginal Engagement (Biennial Report, November 2020) 9.

Update on Native Title Legislation Amendment Bill

The Native Title Legislation Amendment Bill (the Bill) proposes amendments to both the Native Title Act 1993 (Native Title Act) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).

 

Broadly, the Bill proposes changes in relation to:

1.       Authorisation

2.       Applicant Decision Making

3.       Indigenous Land Use Agreements

4.       Historical Extinguishment

5.       Registered Native Title Body Corporate’s right to bring compensation applications

6.       Intervention and Consent Determinations

7.       Procedural Changes

8.       RNTBC Obligations

Authorisation

The requirements for authorisation of an application for a determination of native title are set out in s 251B of the NTA. Amendments to s 251BA are proposed to:

  • Allow the claim group to impose conditions on the authority of the applicant.
  • Require the claim group to make public notification of any conditions imposed on the applicant.
  • Allow the people named as the applicants to be changed without further authorisation in certain circumstances.
  • Allow the claim group to make succession plans for individual members of the applicant as part of the authorisation process, if they were to pass-away.

In short, the amendments give more freedom to the native title claim group to manage and limit the authority of the person/people who are bringing the native title application on their behalf. The Law Council of Australia has acknowledged that the amendments reflect how authorisation has been practised in many cases for some years now. [1]

Applicant Decision Making

Changes proposed under the Bill seek to:

  • Clarify the duties of the applicant to the claim group.
  • Allow the applicant to act by majority as the default position.

In scrutinising the Bill, the Parliamentary Joint Committee on human rights noted that this aspect of the proposed amendments may limit or interfere with the right to culture, particularly where is a conflict between an individual’s right to culture versus the right of the majority to culture. [2]

Indigenous Land Use Agreements

In relation to Indigenous Land Use Agreements (ILUAs), the following changes are proposed:

  • Property descriptions and parties to agreements can be amended on registered ILUAs
  • Amendments to an ILUA cannot include any additional area of land or waters not previously included in the agreements.

Body Corporate ILUAs vs Area ILUAS

Currently only area ILUAS can deal with compensation for extinguishment.  The proposed changes will allow body corporate ILUAs to be made on land where native title rights are fully extinguished.  By allowing use of body corporate ILUAs, this may simplify the agreement making process, by avoiding more complex authorisation and objections processes.

Deregistration

The proposed changes clarify the validity of future acts, completed under ILUA’s that have been deregistered. The amendments clarify that any acts done in accordance with a deregistered ILUA or any acts invalidly done which were validated by a deregistered ILUA remain valid.

The Law Council of Australia has noted that the practical benefit of this amendment may be limited; there may be valid reasons why the validity of a future act ought to be set aside. For example, if the ILUA was affected by fraud, duress, coercion, jurisdictional error or administrative law error. [3]

Historical Extinguishment

The Bill proposes to broaden the circumstances where historical extinguishment can be disregarded. This broadens the range of circumstances in which Native Title can be claimed.

The proposed circumstances where historical extinguishment is invalid include:

  • Areas of national state or territory parks, where the parties agree.
  • Pastoral Leases controlled or owned by Native Title Corporations.

It is important to note that at the Senate Committee, the Attorney-General’s Department informed the committee that the invalidation of historical extinguishment will only occur when native title and government parties agree, and subject to any conditions required by the relevant government party.[4]

Registered Native Title Body Corporate’s right to bring compensation applications

The Bill will allow an RNTBC to make a compensation claim over areas within the external boundary of its determination area where native title has been fully extinguished.

Intervention and Consent Determinations

The Bill proposes amendments to clarify the role of the relevant Commonwealth minister when intervening in Native Title Proceedings.

The Bill also clarifies the procedural requirements for the Federal Court to make determinations with the consent of the parties.

Organisations such as Central Desert Native Title Services, National Native Title Council and Australians for Native Title and Reconciliation have commented that often the Commonwealth intervene belatedly and having to satisfy their needs once they join as a party can further complicate proceedings rather than improve their means of productive intervention. [5]

Procedural Changes

Section 31 Agreements relates to negotiation procedure surrounding the granting of mining and exploration rights. The validity of section 31 agreements was clouded in uncertainty following the decision from the Full Federal Court in McGlade v Native Title Registrar & Ors [2017] FCAFC 10.

The full court held where not all members of the registered Native Title Applicants signed an ILUA it was deemed invalid.

  • The changes confirm that decisions made under section 31 are valid where not all members of the registered Native Title Applicant have signed the agreement. It is proposed that these changes apply retrospectively to all agreements.
  • It is also proposed that the Native Title Registrar create and maintain a public record of section 31 agreements.
  • This register record would include a description of the area of land or water, name and address of each party to the agreement, the period in which the agreement will operate and the existence of any initial or additional agreements between the some or all of the same parties.

The Explanatory Memorandum raises the issue that parties will be unable to challenge the validity of agreements on legitimate grounds as well as illegitimate grounds.[6] The justification provided to address this concern is that the reform is necessary, proportionate and provides certainty to all stakeholders in the Native Title System.

A submission by Ross Mackay, MPS Law consultant lawyer, was referenced in the senate committee report.  He emphasises the importance of the Native Title Register to assist native title holders to be aware of their rights and obligations, particularly when Native Title has been inherited.

RNTBC Obligations

The Bill proposes a number of amendments to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).  The intent of the amendments to the CATSI Act is to improve accountability, transparency, and governance of Registered Native Title Bodies Corporate.  Broadly, this is achieved by changes which:

  • Regulate the interaction between RNTBC’s and their members regarding cancellation of membership.
  • Place a RNTBC under special administration where it has failed to comply with certain obligations.
  • Require RNTBC’s to amend their constitutions to establish dispute resolution pathways.

The proposed changes to the CATSI Act were poorly received with many submissions from stakeholders citing concerns that these amendments undermine the rights of self-determination of native title holders.

Progress of the Bill through Parliament and next steps

On 19 August 2020, the Senate Legal and Constitutional affairs Committee recommended that the Federal Parliament pass the Native Title Legislation Amendment Bill 2019.[7]

If the Bill is passed by the House of Representatives and Senate, it will be the most significant changes to the Native Title Act 1993 since the Howard Government’s amendments after the Wik decision in 1998.[8]

For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

****UPDATE: On 3 February 2021 the Bill passed both Houses of Parliament and received assent on 16 February 2021****

 

ENDNOTES:

[1]Senate Legal and Constitutional Affairs Legislation Committee, Law Council of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] (December 2019).

[2] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Human Rights Scrutiny Report. Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (December 2020).

[3] Senate Legal and Constitutional Affairs Legislation Committee, Law Council of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] (December 2019).

[4] Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (Final Report, August 2019).

[5] Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (Final Report, August 2019).

[6] Explanatory Memorandum, Native Title Amendments Bill 2019 (Cth).

[7] Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Legislation Amendment Bill 2019 [Provisions] Senate Committee Report (Final Report, August 2019).

[8] Cross, H. ‘Commonwealth puts forward long overdue Native Title Reform’.  National Indigenous Times (online, 30 October 2019) < https://nit.com.au/commonwealth-puts-forward-long-overdue-native-title-reform/>.

Four quick tips for effective drafting

Effective drafting will help you to write clearly and strengthen your position when exchanging written documents. This article provides four tips for effective drafting.

1.     An intelligent start

Before you start writing, we recommend ‘an intelligent start’ by asking yourself four questions:

  1. What is my goal?
  2. How important is my goal?
  3. How will my goal be received by the reader?
  4. Should I write this at all?

This will assist you to organise your thoughts, save time and determine whether or not you need to write something or if it is better to wait, or, pick up the mobile and call someone to discuss.

2.     Brainstorm to organise thoughts and language

After brainstorming as many thoughts as possible, sort through your thoughts and edit your ideas, ensuring that you get to your stated goal. It may cause you to revisit your goal. We recommend grouping your thoughts into key themes, which may then form headings for each section of your document. Re-organise your thoughts so that each section will make as much sense as possible to the reader, logically flowing to each key theme.

3.     Write a knock-out lead sentence

You need to get to the point. Once you have sorted your sections using headings, take the time to draft a clear lead sentence. Give the reader the answer they are looking for, or make the point you want to make, without requiring the reader to sift through detail.

4.     Keep it simple

Try not to over-complicate your message and always use plain English. Avoid words and terms that aren’t used in everyday language and keep sentences short. Less is more. As best as you can, try to avoid emotive language – although it can add passion, it tends to cause your key messages to be lost. Emotive language will likely make it harder for you to achieve your goal through writing.

For more information, contact Barbara Kekes (barbara@mpslaw.com.au) or Michael Pagsanjan (michael@mpslaw.com.au).