Robert Oakeshott (Lyne, Independent) Share this | Hansard source

I move:

(1)    Schedule 6, page 53 (after line 20) after Part 2, insert:

Part 3—Burden of proof for applicants

20            After section 61A

Insert:

61B         Burden of proof for applicants

        (1)    This section applies to an application for a native title determination brought under section 61 of the Act where the following circumstances exist:

             (a)    the native title claim group defined in the application applies for a determination of native title rights and interests where the rights and interests are found to be possessed under laws acknowledged and customs observed by the native title claim group;

             (b)    members of the native title claim group reasonably believe the laws and customs so acknowledged to be traditional;

             (c)    the members of the native title claim group, by their laws and customs have a connection with the land or waters the subject of the application;

             (d)    the members of the native title claim group reasonably believe that persons from whom one or more of them was descended, acknowledged and observed traditional laws and customs at sovereignty by which those persons had a connection with the land or waters the subject of the application.

        (2)    Where this section applies to an application it shall be presumed in the absence of proof to the contrary:

             (a)    the laws acknowledged and customs observed by the native title claim group are traditional laws and customs acknowledged and observed at sovereignty;

             (b)    the native title claim group has a connection with the land or waters by those traditional laws and customs;

             (c)    if the native title rights and interests asserted are capable of recognition by the common law then the facts necessary for the recognition of those rights and interests by the common law are established.

In response the government’s view that this has been a rushed amendment, whilst I certainly appreciate the discussions that have taken place in the last 48 hours in good faith between the government and me I would like to put on record that this is not something that the new kid on the block has thrown into the parliament as some sort of cheeky attempt to embarrass the government. Rather, this has been, in the most simple of terms, a listening and doing exercise on my behalf—listening to a three-year review process that has taken place in regard to the Native Title Act, and doing what the recommendations and the continual voices that have come from the practitioners have put forward about making the Native Title Act more just and more efficient. Surely every single person in this place would hold dear to their heart those two concepts—the issue of justice and the issue of efficiency with taxpayers’ dollars.

This amendment is doing no more or no less than making the Native Title Act more just—and, as was referred to by a previous member, that is very much a part of the preamble of the act—and more efficient. For anyone in this place who cares to be an economic conservative and cares about maximising the use of taxpayers’ dollars, this amendment will save dollars and will make the determination process much more efficient.

We saw in Tuesday night’s budget an additional $15 million for the native title system. With the current speed of claims and determinations before the court, that is the equivalent of five more determinations being completed. There is a backlog of over 500 determinations. The system as it currently stands is not working and, whilst I am a supporter of the Native Title Amendment Bill that is going through, and I certainly hope greater mediation powers for the Federal Court assist in removing that backlog, I also think we can make it a good deal better. That is the point of this amendment.

The shifting of the burden of proof, as I say, is not something that I dreamt up 48 hours ago. It does have the support of a wide range of people who are practitioners in the field, and I ask this place: who are we to reject the views of the practitioners? Whilst it is dangerous in this place to say that my amendment has the support of the 50,000 lawyers of Australia—and I am sure there are plenty of smirks about lawyer jokes that can be attached to that, and politician jokes—it does have the support of the Law Council of Australia, which represents every law society and every bar association in this country. Yesterday the Law Council sent me a note saying:

The Law Council of Australia supports the thrust of the amendment to the Native Title Amendment Bill 2009 proposed by the Independent Member for Lyne. The amendment is designed to create a presumption of continuity in native title claims, as originally proposed by Chief Justice Robert French in July 2008.

The Law Council considers such an amendment would markedly improve—

markedly improve—

both the efficiency of the native title system and benefits to native title claimants. The Law Council calls on all Parliamentarians to support the proposed improvement to the Native Title Amendment Bill 2009.

I also received a note from Tom Calma of the Australian Human Rights Commission, who made a similar point:

Shifting the burden will better recognise this country’s history while also improving the operation of the native title system. It will ensure that justice is accessible for a greater number of indigenous people and will have flow on effects to the number of issues that are brought before the court in each claim, and impact on the parties’ approach to the case.

I ask this House, therefore, if this is not the time and this is not the bill, and if the views of the practitioners are to be rejected, under what authority does this place operate—when is the right time for such a move to take place and what is the right bill? I also noted that in the very good faith discussions that have taken place with government, consideration of this type of amendment has not been rejected and I hope, in good faith, we see something along similar lines in the near future. I do note, however, that this has to go through the other place. It will be interesting to see who is walking together and who is reconciling in this process. It is looking as though it is going to be Labor and Liberal walking together rather than Indigenous and non-Indigenous walking together for the future of this country. I hope that is not the case; I hope if this amendment is rejected we do see something similar to it in the very near future from government. We had the symbolism of the apology and the broad respect that came with that. I hope we can now get down to the detail. (Time expired)

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