Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

We are currently debating five bills. They come to 537 pages in total. There are also 196 pages of explanatory memoranda. With regard to the opposition’s ability to scrutinise these bills, the public should appreciate that the shadow spokesperson was only given copies midmorning yesterday and they filtered through all the way into the evening. The ultraspeedy passage of these bills is clearly designed to avoid public scrutiny, not least from Aboriginal communities but also from other community bodies with legitimate concerns about the government’s proposals.

But the Government still appears to see any critic as an enemy that needs to be demonised and Parliament as a rubber stamp. The arrogance of the Government is palpable.

Those are not my words. They are the words of the Law Council President, Tim Bugg, who criticised Minister Brough’s proposal to rush the legislation through the House of Representatives today and the minister’s expressed intention to conclude Senate debates by week’s end. That press release was issued by him today.

It is important to go to when this saga began. Shortly before question time on 21 June 2007, the Prime Minister and the Minister for Families, Community Services and Indigenous Affairs held a press conference. The Prime Minister opened by saying:

Well ladies and gentlemen, Mr Brough and I have called this news conference to announce a number of major measures to deal with what we can only describe as a national emergency in relation to the abuse of children in indigenous communities in the Northern Territory.

He went on to say that he was unhappy with the response of the Northern Territory government to the report by Rex Wild QC and Pat Anderson. The interesting thing is that their report contained 97 recommendations, and I am advised that while this government has relied on their report for this intervention it has only partially picked up five out of their 97 recommendations.

I am a bit suspicious. I think it is a ruse, when one looks at the permits that are being dealt with in this legislation and the compulsory acquisition of land. I do not think those provisions have anything to do with the abuse of children, because historically the minister has put on the record that he wants to do away with the permit system. But he has been rebuffed by the communities and the Northern Territory government. Indeed, he has been rebuffed in relation to a number of communities and his 99-year leases. They have been picked up in this legislation. The abuse of children is a cover to do a number of things that do not need to be done.

In a national emergency one would think that the Prime Minister, if he were acting in a proper fashion, would involve the opposition. In my view that would make him look prime ministerial; it would elevate him. One would think that he would advise the Northern Territory government, in particular the Chief Minister of the Northern Territory. None of that was done. The Prime Minister in his press conference did say that he tried to contact Clare Martin, but we know from the press that Mr Brough managed to contact Noel Pearson and tell him what was happening 15 minutes before a press conference. If this issue is to be above politics then it should not be politicised by the government trying to sideline the opposition. I would have thought that involving the opposition, but in particular involving the communities, would mean that you would have a better chance of success.

We are told now that this measure will cost $580-odd million, more than $200 million of which, I am advised, will go into administration. That is just for 12 months. That is not what the Prime Minister said when asked by a journalist at the press conference on 21 June: ‘Are there estimates of the total cost?’ He said:

No, no, no, I mean it will be some tens of millions of dollars. It’s not huge but there could be some costs in relation to the extra police.

The timetable is important for the Prime Minister because he has a pending election. This is about trying to get him kudos in the lead-up to the election. It is the Kath and Kim approach to politics—’Look at me, look at me.’ There is a bit of shock and awe in the intervention in the Northern Territory. It has not been properly thought out. That is why it has taken them to this point in time to also produce the legislation, when we were promised a special sitting of parliament. I have to say that I am a bit cynical when it comes to this Prime Minister’s motives, particularly in relation to Aboriginal people, because he has form.

The other thing that I find quite bizarre is that, when he was asked by a journalist: ‘But is this a problem in Aboriginal communities elsewhere?’ he said, ‘Yes, it is, but we have the power to do something in the Northern Territory.’ And further down he says: ‘We don’t have the power to do these things in other parts of Australia.’ That is just not true. I know he is a suburban solicitor from Wollstonecraft, but he has been involved with the Racial Discrimination Act since he came into this parliament—indeed, as a junior backbencher he led the charge in the debate in the House of Representatives in 1975, particularly in relation to the removal of the racial hatred provisions that were then in the Racial Discrimination Bill.

A special measure in relation to Indigenous communities can be spread across boundaries. The surveyors lines do not stop a special measure, if it is truly a special measure, applying to Indigenous people in Western Australia, Queensland or New South Wales, where there have been a number of reports on this. So this disingenuous approach by the Prime Minister in saying, ‘We’ve only got the power in relation to the Northern Territory,’ is wrong—and I challenge him to come into this parliament and provide the legal advice that says I am wrong, because he cannot. If it were a special law then the other power that he could rely on in relation to other communities is in effect the referendum power, the race power, section 51(xxvi). That could apply to Indigenous people in the states. But the Northern Territory has been picked for a particular reason: to quarantine your fight, to bash up the Northern Territory Labor government, to try and save the skin of the member for Solomon and to in effect try to undermine the member for Lingiari. That is all that one can conclude from the way the government have conducted themselves—the ambush, the secrecy in relation to the legislation.

There is one point I now want to concentrate on: the way the operation of the Racial Discrimination Act interacts with three of these bills. Today on AM Melinda James said:

Among the visitors to Garma this year was the nation’s longest-serving Federal Court judge, now retired, Murray Wilcox QC.

The retired judge assessed the Federal Government’s emergency response legislation yesterday afternoon on a laptop in a stringybark forest on the edge of Arnhem Land, and he’s not impressed.

Murray Wilcox says:

Well, I think it’s constitutionally valid, but it’s extremely discriminatory legislation, that is actually acknowledged by the legislation because it specifically excludes the operation of the Racial Discrimination Act and the Anti Discrimination Act legislation of the Northern Territory. In other words, the Government is saying this is racially discriminatory legislation but nonetheless it is to be regarded as valid.

We were promised it would be a special measure. And in each of the three bills the government asserts in the relevant clauses that it is a special measure. But it does not have the courage of its convictions, because clauses 4(2) and 4(3) of the Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 state:

(2)

To the extent that this subsection applies, the provisions referred to in paragraph (1)(a), and any acts referred to in paragraph (1)(b), are, for the purposes of the Racial Discrimination Act 1975, special measures.

(3)

To the extent that this subsection applies, the provisions referred to in paragraph (1)(a), and any acts referred to in paragraph (1)(b), are excluded from the operation of Part II of the Racial Discrimination Act 1975.

It then goes on to purport to say what some special measures are for the purposes of the Racial Discrimination Act.

In the Northern Territory National Emergency Response Bill 2007 it is clause 132 which says:

(1)

The provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures.

However, it then goes on:

(2)

The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.

Then, in the third act, it is clause 4 of the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007 that goes on to do the same thing. It attempts to assert in 4.1 that the provisions are for the purposes of the Racial Discrimination Act 1975 special measures and then goes on in subsection 2 to exclude the operation of part II of the Racial Discrimination Act.

In my view it is unacceptable to racially discriminate against any Australian citizen in this age. The Racial Discrimination Act was enacted in 1975 and was consistent with the racial discrimination convention. It is the basis upon which Aboriginal people have won historic victories in Mabo and Wik and it has been the basis of other High Court challenges. For example, Koowarta v Bjelke-Petersen was upheld four to three, I think, when Bjelke-Petersen basically acquired Mr Koowarta’s land.

The reason it is being excluded in this case is that the government knows that some of its actions are very dodgy. Under a special measure, providing the balance of what you do is beneficial and a temporary measure and is about advancement, you can have positive and negative measures in your package and it can still constitute a special measure and not be deemed to be racial discrimination.

Why do I know a bit about this, Madam Deputy Speaker? The previous Labor government had this debate as well when it had to enact the Native Title Act in response to the High Court’s decision in Mabo and people were running around thinking that their backyards were not safe. The legal advice to the then Labor government was that the only way through the impasse was to suspend the Racial Discrimination Act and to act in a racially discriminatory way to assure people that their backyards were safe.

The Labor government refused to do that and there was some internal discussion, and to his eternal credit the then Prime Minister, Paul Keating, embraced the Racial Discrimination Act in the solution that his government brought down. It had in it positive measures in relation to Indigenous people with the promise of a land fund and a social justice package, but there were negative provisions in relation to Aboriginal people in terms of validation of titles. The preamble—and I read these out so that you can compare and contrast, because they are chalk and cheese—of the Native Title Act said:

The law, together with initiatives announced at the time of its introduction and others agreed on by the Parliament from time to time, is intended, for the purposes of paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975, to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders, and is intended to further advance the process of reconciliation among all Australians.

In terms of the provision in the Act clause 7(1) said:

(1)

This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.

(2)

Subsection (1) means only that:

(a)

the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and

(b)

to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.

We acted in a non-discriminatory way, whereas this government in a deliberate fashion—I have not seen such blatant clauses as the ones I have read out in the 17½ years I have been in this parliament—has basically overridden the Racial Discrimination Act. Not only has it overridden the Racial Discrimination Act, because a later federal act can override an earlier federal act—and this government has got form on that in relation to the Native Title Amendment Act and also the Hindmarsh Island Bridge Act—but for the first time the government has been specific. It knows its actions are targeted at Indigenous people in a racially discriminatory way.

This is a lazy government. This is an arrogant government. This is a Prime Minister with one thing on his mind: saving his own skin. He understands that out there in the community most people will not be across this legal argument. I say that a decent government, a good government, could legislate to protect Aboriginal people from the calumnies that have been exposed without doing it in a way that could be seen to be racially discriminatory. If this legislation is truly a special measure, if it is truly beneficial for Indigenous people, then as an overall package it could stand up. In any event it could still be—and would be in my view and I am sure in Murray Wilcox’s view—very unlikely to be overturned by the High Court because of the referendum power, the races power, the special laws that parliament has the power to make. That is my concern in relation to this. I am not going to be lectured by the Prime Minister or by this Aboriginal affairs minister or any other member of the government as if they have the high moral ground on this. You do not, and the way you have dealt with the Racial Discrimination Act shows it.

I do not sheet that home to all members of the government because the truth is that these responses are determined by the leadership invariably on both sides of the House. I do not say that there are not concerns on this side of the House, but there are a number of amendments that the Labor Party will be moving in the committee stage of this debate which deserve support, particularly one relating to the Racial Discrimination Act.

I am disturbed because it means something to me. I do not accept the argument that to save children we have to act in a racial discriminatory way. Your legislation should involve the Racial Discrimination Act. It should embrace it like the original Native Title Act of the Keating government did and, through doing that, our international reputation is protected; it is not trashed for the sake of base politics with an election pending and a Prime Minister and government in trouble. That is what you are remembered by. As I said, I do not have a lot of confidence in this Prime Minister when it comes to Aboriginal people. His first act in his budget of 1996 was to rip $470 million out of ATSIC, which turned over a lot of remote communities and the support structures they had. I would like to spend the $580 million within existing structures in a partnership way, not wasting a lot of that money on administration but having it benefit Indigenous people.

Those are my concerns about this bill. I would like the Prime Minister or the minister to come in and tell me I am wrong about the Racial Discrimination Act and put up the legal advice. I know I am right. (Time expired)

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