Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

I rise today to speak on the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 with regret, because this is a bill which was introduced to the parliament only yesterday—barely 24 hours ago—without the slightest indication that it was going to be brought back for debate today. Happily, the Leader of the House has just announced that the bill, despite earlier indications, is not going to be brought to a vote in this House today, which is entirely appropriate. But it remains inappropriate that anybody in this House should have been forced to speak about a significant bill which makes important changes to an extraordinarily important piece of legislation—the Native Title Act.

It is a matter of great regret to the opposition that the government has chosen to proceed in this manner. I say that because, although the opposition entirely understands the need for this legislation, it is legislation which has been prompted by a decision of the full Federal Court in a case called McGlade, which was handed down on 2 February this year. I repeat: the opposition understands the need for this legislation to be brought to the parliament, but the opposition is at a complete loss to understand—and I would believe that all Australians witnessing this would be at a complete loss to understand—why the government has seen it as necessary to bring the bill on for debate scarcely 24 hours after it was introduced to the parliament.

At a procedural level, it is the case that the Senate will not be able to debate this bill today, even if it were to have been voted on in the House of Representatives—which, happily, the government is now not proceeding with. It will also not be able to be debated in the Senate during the next sittings of the Australian parliament, commencing on 27 February, because those are sittings during which the Senate will be conducting Senate estimates. The first opportunity for this matter to be considered by the Senate, even if it is able to be fully debated in this House, will be the week commencing 20 March.

In the meantime, appropriately, this bill has been referred to a Senate committee for inquiry and report and, as I understand it, that report will be delivered on 17 March. That is a prompt and efficient inquiry by the Senate committee that is going to deal with this which, as I understand it, is the Senate Legal and Constitutional Affairs Legislation Committee. It could have taken longer, but it will give an opportunity for this bill to be considered by Aboriginal and Torres Strait Islander communities across Australia; it will give an opportunity for this bill to be considered by land users across Australia who interact with the native title system; and it will provide an opportunity for all those Australians who have an interest in native title matters to properly consider the import of this bill, and that is appropriate. What is not appropriate is the government seeking to rush through this legislation.

Could I say that the Native Title Act—an act passed by the Keating government in 1993—is, in my view, one of the most important laws passed by this parliament. I say that, because this is an act which gave legislative form to the fundamental change to Australian law created by the High Court's decision in Mabo. In doing so, the Native Title Act has been instrumental in redefining the relationship between Aboriginal and Torres Strait Islander peoples and the wider Australian nation. The main objects of the Native Title Act, of course, include providing for the recognition and protection of native title; establishing ways in which future dealings affecting native title may proceed, and to set standards for those dealings; and establishing a mechanism for determining claims to native title.

I might read from a beautifully-put description of the importance of this legislation from a recent report—or not now so recent, because it was published in June 2015—by the Australian Law Reform Commission entitled Connection to Country. It is a report that deals with a reference that I gave to the Australian Law Reform Commission as Attorney-General in 2013. It deals with some very important aspects of the Native Title Act, most notably the difficulties that have arisen in a procedural sense under the Native Title Act in dealing with connection to country. In the introduction to this excellent report, the Australian Law Reform Commission said this:

For Aboriginal and Torres Strait Islander peoples, the recognition of native title has immense significance as acknowledging their first occupation of Australian land and waters, and it brings the potential for tangible benefits. The recognition and protection of native title is a central object of the Native Title Act—and the Preamble identifies the beneficial purposes of the Act. Reforms of connection requirements, authorisation and joinder are important to ensure that native title law and legal frameworks achieve efficiencies but remain consistent with such beneficial purposes.

Relevantly to the bill that is before the parliament, the Native Title Act also provides for a process by which native title groups can negotiate agreements with individuals or corporations for the use of land or water. The requirements for the making of these Indigenous land use agreements, or ILUAs, are also set out in the Native Title Act. The law and practice of native title, including ILUAs, has significantly and necessarily developed over time. There have been a number of significant court decisions and, at times, amendments have been made to the Native Title Act to ensure that it better fulfils the important purposes for which it was established.

I want to make clear that Labor accepts and understands the important role that ILUAs have played in the native title system and Labor understands absolutely why this legislation is being brought before the parliament; it is to deal with the a decision of the full Federal Court of Australia made on 2 February. It is a decision which has far-reaching implications for approximately 150 existing Indigenous land use agreements that have been made under the Native Title Act, most of them made in the last seven years—as we understand it, in the short time we have had to examine the problem—in the period since another decision of the Federal Court by a single judge in a case called Bygraves in 2010. That decision which invalidated a particular Indigenous land use agreement in Western Australia—in fact, invalidated four Indigenous land use agreements in Western Australia—is also a decision that has far-reaching implications for future Indigenous land use agreements that are now under negotiation right across Australia, in every state and territory.

In addition, Labor accepts that some legislative intervention is required to ensure that existing Indigenous land use agreements that were made in accordance with the law, as it was understood before the decision of the full Federal Court in the McGlade case, are not invalidated. Further, Labor accepts that there are some changes to the Native Title Act which are likely to be required to ensure that Indigenous land use agreements that are currently under negotiation, as well as Indigenous land use agreements that have not yet been even conceived or for which negotiations have not yet even commenced, will be able to be effectively negotiated. So changes to the Native Title Act are going to be required to deal with those two issues—that is, the issue of the effect of the Federal Court's decision in McGlade—that affect being to likely invalidate some 150 existing Indigenous land use agreements; and the second problem, which is the procedure to be adopted going forward in relation to Indigenous land use agreements that are now under negotiation or Indigenous land use agreements for which negotiations have not yet commenced.

It is extraordinary that this incompetent Attorney-General and this incompetent government should seek to bring this bill on for debate a mere 24 hours after it was introduced in this parliament, at a time when the government let alone the opposition has not begun to consult with Aboriginal communities across Australia and has not properly consulted with anybody affected by these changes—nor could it because the bill was only actually introduced to this parliament yesterday. That is an extraordinary way to proceed. It is an extraordinary way to proceed in the week of the fine Closing the Gap speeches delivered in this place by the Prime Minister and the Leader of the Opposition. In his Closing the Gap speech, the Prime Minister quoted the words of Chris Sara, where Chris Sara implored this parliament and implored Australian governments to 'Do things with us not to us'. What do we have? Two days later, after those fine words from the Prime Minister, we have the government rushing on for debate a complicated bill about native title—to be sure, a bill that the opposition accepts is necessary to deal with a problem created by a decision of the full Federal Court but one for which there needs to be consultation.

It beggars belief that the government would seek to rush it on in this way when the government has not itself consulted, and the government knows that the opposition and all the other parties in this parliament have not had any opportunity to talk to land councils across Australia, have not had any opportunity to talk to native title representative bodies across Australia, have not had any opportunity to talk to native title practitioners across Australia—all of whom will have something to say about the amendments that are to be found in this bill.

It is not to the point for the government to say that the bill is a relatively short one. As we all know, short bills often contain words of tremendous importance and of tremendous significance. It is possible to change entirely the effect of an existing act of parliament with the replacement of a single word. So the shortness of the bill is not the point; it clearly makes very important changes to the Native Title Act. It is an extraordinary regret to the opposition that, far from there being consultation with the Indigenous community Australia, far from the government seeking to do things with the Indigenous community of Australia who will be impacted by these changes, the government is rushing this legislation on for debate in this parliament. It is entirely a betrayal of the sentiment that was expressed in this place just a couple of days ago by the Prime Minister. We have a government here, regrettably, that is intent on continuing to do things to our First Australians rather than with them, as Labor would do.

We have requested a briefing on this bill and, as yet, it has not been provided. We requested a briefing last week from the Attorney-General and were provided with a briefing by officials from the Attorney-General's Department, who outlined to the opposition the difficulties that have been created by this decision of the full Federal Court in McGlade, but not at that briefing and not subsequently has the government sought to say that this bill is so urgent that it has to be brought on for debate scarcely 24 hours from when it was introduced in this parliament. Might I say, the government could have prepared for the outcome of the McGlade case. It knew that this was coming and it was warned that this was coming, but, instead, seemingly caught unawares by the decision on 2 February, the government has scrambled. It did not have any legislation at all last week to show us, and yesterday it rushed this bill into the parliament, again without an explanation as to why it is so urgent.

Might I remind members of the House that, when Labor were last in government, we recognised that there were aspects of the Native Title Act that needed to be closely examined in order to ensure that the act continued to operate effectively to serve its key purposes. Those purposes include providing for the recognition and protection of native title, establishing ways in which future dealings affecting native title may proceed and setting standards for those dealings, and establishing a mechanism for determining claims to native title.

To that end, as Attorney-General, I referred to the Australian Law Reform Commission a range of aspects of the Native Title Act, and asked the Australian Law Reform Commission to look at making improvements. That included requesting them to examine and make recommendations in relation to connection requirements relating to the recognition and scope of native title rights and interests, including, but not limited to, whether there should be a presumption of continuity of acknowledgement and observance of traditional laws and customs in connection; a clarification of the meaning of 'traditional' to allow for the evolution and adaptation of culture and recognition of native title rights and interests; a clarification that native title rights and interests can include rights and interests of a commercial nature; confirmation that connection with the land and waters does not require physical occupation, or continued or recent use; and empowerment of courts to disregard substantial interruption or change in the continuity of acknowledgement and observance of traditional laws and customs, where it is in the interests of justice to do so. Finally, in this reference to the Australian Law Reform Commission, I asked them to look at barriers imposed by the act's authorisation and joinder provisions to claimants, potential claimants and respondents' access to justice.

In relation to those areas, and in light of the preamble and objects of the Native Title Act, Labor in government, and I as Attorney-General, requested that the commission consider what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks. The Australian Law Reform Commission's report, entitled Connection to country, was published in June 2015. It included some 30 recommendations for changes to the Native Title Act, and also recommendations that expressly dealt with two of the sections of the Native Title Act that are the subject of amendments in this bill.

So it is not as if the government has not had before it, for nearly two years, recommendations of the Australian Law Reform Commission about, in part, the very subject matter of this bill. Regrettably, in keeping with this government's near complete lack of interest in all things to do with native title, and, I regret to say, near complete lack of interest in making the Native Title Act work better, the government—and the Attorney-General, Senator Brandis, in particular—has completely failed to respond to the law reform commission's report for almost two years.

This government seems to have done nothing to address identified problems with the Native Title Act. It is not doing any unkindness to this Attorney-General to say that he has said nothing substantive about native title in the almost 3½ years that he has, regrettably, been the minister responsible for the Native Title Act. The one announcement that I can recall Senator Brandis, as Attorney-General and minister responsible for the Native Title Act, making in relation to native title matters was to restore funding to the native title respondents fund. That, of course, is the fund established in the aftermath of the passage of the Native Title Act, which provided, and was intended to provide, funding for test cases, and ensured that respondents, namely people who oppose native title claims—mostly mining companies and pastoralists—could get funding from the federal government to ensure that they were adequately resourced to put their side of the argument.

In government, as Attorney-General, I did not see any need for that fund to still be in existence some 20 years after the Native Title Act had been passed. The time had well passed for test cases to be litigated and decided—that has happened—and we abolished the native title respondents fund. But this government, and particularly this minister, decided it was an appropriate thing to restore funding to the native title respondents fund; this, of course, was at the same time as they were busily cutting funding from Aboriginal and Torres Strait Islander legal services, community legal centres and legal aid commissions, and, indeed, the whole of the legal assistance sector.

What we have here is a government that has drafted this legislation in a mad rush and is seeking to have it debated in this House without any proper consideration—without consideration by Aboriginal communities, by land councils and representative bodies, by the legion of academics who are expert in native title law, or by the legion of barristers and solicitors across Australia who are expert in native title law.

If it were not enough that the government has utterly failed to respond to an Australian Law Reform Commission report that is nearly two years old, we now know, courtesy of the front page of The Australian on Monday morning, that Senator Brandis, the Attorney-General and the minister responsible for native title, was expressly warned about the potential impact of the McGlade decision—or, at that point when he was warned some six months ago, the McGlade litigation, because there had not yet been a decision. But it was entirely clear to anyone looking at that litigation—litigation, of course, is a public activity in this country—that there was the potential for this decision of the full Federal Court to displace several years of practice in native title, and, in doing so, to cause some considerable disruption to the native title system.

As it happens, the full Federal Court in the McGlade decision expressly recognised the consequences of its own decision, which was determined not by what the consequences for other ILUAs would be but, rather, by a question of statutory interpretation. I am not wishing to dispute in any way the decision of the Full Federal Court, which was a matter of statutory interpretation. I am here dealing—and the government needs to be here dealing and this parliament needs to be here dealing—with what the practical consequences of it are. But Senator Brandis was warned of this some six months ago. This is what the article in The Australian said:

A leaked letter to Senator Brandis shows indigenous groups pleading in August—

that is, August 2016—

for 'urgent' technical amendments to the Native Title Act to thwart this month’s Federal Court decision that has invalidated land-use agreements across Australia.

Any competent government would have acted on that warning. They would have been working through the issues that they were warned about last year and consulting with the Indigenous community, with companies potentially impacted, and so on. If we had a competent minister and a competent government, we could have been ready in this parliament on the very day that the McGlade decision was handed down with a response that had been properly prepared. But this minister and this incompetent government did nothing about what clearly was potentially going to be a problem, so now the government are scrambling to cover up their incompetence by seeking to rush through debate on this bill without consultation. It is incompetence and the government are seeking to cover up that incompetence, because the flurry of activity that the government have brought about here is in no way a substitute for the orderly way in which this government should have approached the problem.

Might I say that it is clear from the bill, on its face, that significant compensation might need to be paid to individuals and groups impacted by the bill. Did the government seek, in the second reading speech that was delivered in this House by the Minister for Justice yesterday, to explain in any way this compensation provision, which is known as a 'historic shipwrecks clause'? No. They simply put it in the bill and thought perhaps no-one would notice that part of the fix being put in place would necessarily involve, in order to avoid the bill being treated as an unconstitutional piece of legislation, the government providing for compensation to be paid to anybody that says they have been deprived of a right of action by the validation of the 150 or so agreements that may be invalid as a result of the McGlade decision. The government have not explained how much it might cost. Why is that? It is because this government do not have the faintest idea. It is because they have not taken the time to find out.

The government has not even sought to explain to this parliament or put before this parliament a list of the 150 or so agreements that may have been invalidated by the McGlade decision. As I understand it from the inquiries that we have been able to make since 2 February, it will include a number of national park agreements—that is, Indigenous land use agreements that concern national parks. It will include Indigenous land use agreements affecting agricultural ventures. It will certainly include Indigenous land use agreements affecting very large areas of land in every state and territory of Australia. It will certainly include Indigenous land use agreements that affect mining ventures. Some of those mining ventures may already have been completed—in other words, the mine dug, the resource extracted, payments made to traditional owners and the venture completed, but with a potential invalidation which might lead to all sorts of consequences different from those intended by the traditional owners when they negotiated the agreements in the first place. The government has not told this parliament how many agreements might be affected—why this parliament is being asked to pass validating legislation—because the government has not taken the trouble to find out. Even though it has had plenty of time and plenty of warning about the potential effect of a decision that was being litigated, that for some months has been reserved and that has now resulted in a decision, on 2 February, the government was seemingly totally unprepared for it.

How could a government be so incompetent in dealing with an act of parliament that is of such significance to Australians, namely the Native Title Act? I think that that can be answered in four words: Attorney-General George Brandis. What has he been so busy with that he could not take the trouble to consult about the native title report of the Australian Law Reform Commission, which he received almost two years ago? What has he been so busy with that he could not take the trouble to respond to the warning that he was given six months ago? I do not have the time to explain what he has been so busy with, but we should not be surprised that this hapless Attorney-General has messed things up once again.

This, though, is too important an issue to allow this bill to be rushed through without proper scrutiny by this parliament. I am pleased that the government has now said—contrary to its position late last night and earlier this morning—that it will not put this bill to a vote today. That is entirely appropriate. But nor should it have brought this bill on for debate at a time when the opposition have not been able to examine the bill through our party processes and have not had the opportunity for our excellent Aboriginal and Torres Strait Islander Caucus Committee to examine and debate the bill and its consequences. As it happens, we have within the federal opposition now three Indigenous members of caucus, one of whom, Senator Patrick Dodson, is someone who has had deep, long, personal experience of native title matters stretching right back not just to the inception of the Native Title Act but well before then.

Let's just think about what the Attorney-General might have been doing that prevented him from actually looking at what needed to be done on this bill. Perhaps it was reading a book of poetry during an estimates hearing? Perhaps it was claiming more than $1,600 in taxpayers' money to attend a mate's wedding? Perhaps it was bungling the announcement of the royal commission into Indigenous incarceration, which happily now has been put back on an even footing despite the incompetence of the Attorney-General? Perhaps it was misleading the Senate on the advice that was given by the Solicitor-General on a key national security question?

Perhaps it was spending time forcing an excellent Solicitor-General from office, because of the power grab that the Attorney-General was engaged in? Perhaps it was pressuring the President of the Australian Human Rights Commission to resign because this Attorney-General did not like Professor Triggs? Perhaps it was spending more than $15,000 on bookshelves for his own office—

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