Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

in reply—I would like to thank members for their contributions to the debate on the Native Title Amendment Bill 2009. I would also like to thank the Senate Standing Committee on Legal and Constitutional Affairs for its detailed consideration of the bill. I note the shadow minister and member representing the shadow Attorney-General is also present in the House, and I extend my appreciation.

The Native Title Amendment Bill 2009 will amend the Native Title Act to contribute to broader and more flexible negotiated settlements of native title claims. The key amendments to this bill support the government’s main objective for the native title system of resolving issues through negotiation rather than litigation. As I said when I introduced the bill, native title can provide an important avenue for economic development for Indigenous people. It should be about more than just delivering symbolic recognition. However, it is also clear from reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner, and the comments of individual judges, that the system is in need of reform. It is unacceptable that, under the existing native title system, on current estimates it may take more than 30 years to clear the backlog of claims. Indeed, the previous speaker spoke of process being an impediment to resolution. We are certainly trying to address that.

The passage of this bill will give the Federal Court the central role in managing all native title claims, including deciding who mediates the claim. The reforms will draw on the court’s significant alternative dispute resolution experience to achieve more negotiated outcomes. The government believes that the Federal Court is in the best position to work out how a case is best resolved. This view is supported by an overwhelming number of stakeholders in the native title system. Having the court, with the authority that it brings, actively control the direction of each case will mean that opportunities for resolution can be more readily identified. This change is in line with the stakeholder feedback and is consistent with the government’s position when in opposition. These changes also reflect the recommendation of Mr Graham Hiley QC, one of Australia’s most respected native title practitioners, when he reviewed the native title system in 2006. The value of this change was concisely summed up by the Federal Court in its evidence to the Senate Standing Committee on Legal and Constitutional Affairs last month. Warwick Soden, the chief executive of the court, said:

… being seen and being given the responsibility and accountability for managing all of these cases will put an emphasis on the judges to find ways to resolve some of the bottlenecks … The big, fundamental difference between us and the tribunal—

that is, the Native Title Tribunal—

in relation to that issue is what the judges can do by way of orders of the court, from the powers that they have, which may put some real pressure on the respondents to change their attitude …

For example, the court’s innovative approach in consent determinations in several South Australian claims demonstrates its active and creative approach. I do not accept the criticism made by the Native Title Tribunal in evidence to the Senate legal and constitutional committee that these amendments may make the system more ad hoc, less effective and more costly. The government has confidence in the ability of the Federal Court to provide a nationally coordinated approach to the resolution of native title. The court has indicated that following the passage of this bill the current practice of each list judge convening regional call-overs of all cases will continue and be improved where necessary. It will also be able to request regional reports from mediators as necessary. The court has also made clear that it will be approaching native title claims in a consistent and nationally coordinated way, drawing on a team of specialist lawyers within the courts across Australia.

Other amendments in the bill aim to encourage and facilitate more flexible negotiated settlements. A majority of stakeholders who responded to a discussion paper that I released in December last year supported these amendments.

Importantly, the passage of the bill will enable the court to make consent orders on matters other than native title. This will allow outcomes to extend beyond the bare recognition of legal rights. They can include sustainable benefits that deliver improved economic and social outcomes for current and, importantly, future generations of traditional owners. This bill also empowers the court to rely on an agreed statement of facts in consent determinations. This is intended to allow for greater efficiency in the native title process. Last year I introduced the Evidence Amendment Act 2008, which, among other things, will make it easier for the court to hear evidence of Aboriginal and Torres Strait Islander law and customs, where that is appropriate.

This bill also includes a number of amendments to part 11 of the Native Title Act, which deals with representative bodies. The main aim of these amendments is to streamline the processes involved in the recognition and re-recognition of native title claims representative bodies.

I would now like to address some specific comments raised by members. In his speech the member for Lyne foreshadowed an amendment to the bill and I have had the courtesy of some discussions with him. I respect his view and I acknowledge the genuineness of his position. In particular, he has proposed an amendment along the lines of that proposed by the Chief Justice of the High Court, His Honour Mr Robert French, to reverse the onus of proof in relation to connection, essentially based on the thesis that there is a presumption of regularity if that continued association is established. As I indicated in my second reading speech, I share the member for Lyne’s great frustration about the grinding slowness of native title claims and that has also been echoed by a number of speakers.

As I have previously indicated I also have an open mind to further legislative change that may facilitate resolution of native title claims. However, the government will not rush into such changes without first consulting stakeholders. It is very important that there be genuine community support for measures that are after all designed to or intended to promote the welfare of Indigenous owners and their descendants. Without such consultation history shows that changes can be controversial and counterproductive.

Let me briefly state the issues raised by opposition members of the Senate legal and constitutional affairs committee in their report. The first point made was that nothing in the amendments passed in 2007 limited the Federal Court from doing what these amendments seek to allow it to do. That is not the case. The 2007 amendments created a mandatory referral to the tribunal and provided the tribunal with an exclusive mediation role with no time limit. These changes in the current bill mean that, rather than automatically referring every case to the National Native Title Tribunal for mediation, the court will decide which individual or body should mediate in each case, and there have indeed been some outstanding mediations in recent times conducted by persons other than the tribunal.

The amendments will also allow the court to make orders concerning a mediation at any time after it has been referred to the mediator. Orders might address the way in which the mediation is to be conducted, whether the person conducting the mediation may be assisted and any other matter the court considers relevant; for example, orders could include reporting dates, the specific issues that should be mediated and any other issues that would complement the court’s management of the matter. This would provide the court with flexibility in allowing it to make any orders it deems necessary to manage each native title matter.

Secondly, the opposition senators expressed the opinion that the Federal Court’s capacity to direct the tribunal may result in confusion about respective powers. The government considers that the bill makes clear the respective powers and functions of the court and the tribunal. It is envisaged that the court would refer a matter to the tribunal and then the tribunal president would refer it to a specific member. Therefore, no conflict should arise between the court’s and the tribunal president’s powers.

Thirdly, opposition senators expressed the view that giving the court unlimited discretion could result in serious unintended consequences. I do not believe that this will be the case. Under the amendment the court will have the central control over the management of all native title claims. The government is confident the court is well equipped to choose the most appropriate mediator for each case. The court would be able to allocate matters to mediators who, over time, proved that they could achieve good outcomes and establish faith with claimant and respondent bodies. In exercising this discretion the court would be able to match the best mediator with the substance of the particular matter without being limited to the tribunal.

Finally, it was suggested that there had been inadequate consultation with respect to this matter. As I have indicated in both my second reading speech and in this response, that is not the case. There has been widespread consultation, including consultation with stakeholders, the National Native Title Tribunal and the Federal Court of Australia.

In conclusion, the key objectives of this bill are to improve the operation of the native title system and the outcomes that parties can achieve in that system. The amendments aim to foster broader, quicker and more flexible negotiated outcomes for native title claims. The Rudd Labor government is committed to improving the native title system. The amendments in this bill combined with the behavioural change of all participants in the native title system will bring about important and necessary changes in the native title system. This will lead to less delay and reduce costs for parties. The beneficiaries will be not only the claimants, particularly as a result of broader settlements, but all participants in the system. I commend the bill to the House.

Question agreed to.

Bill read a second time.

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