Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for External Territories) Share this | Hansard source

I have great pleasure speaking on the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017. I do not take pleasure, though, in the manner in which we have been forced to speak on it. It was rammed into the House this morning at the request, no doubt, of the Attorney, who, as the shadow Attorney, the member for Isaacs, has pointed out, has had some months to deal with this issue. He has been advised and warned, as The Australian informed us, that this issue needed to be addressed. The article in The Australian stated:

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

This urgency was some months ago. It was not today. The Attorney was aware of the issues well before the court case was determined. It was very well understood.

Ms Henderson interjecting—

I would advise you to speak about things you know about and not things you do not know about. I might just remind you and remind the House that I was part of the Keating government and indeed on the cabinet committee that finally negotiated the Native Title Bill. So I am aware of the detail that was involved in that legislation. I am aware of the late-night sittings. I am aware of the negotiations that took place and the fact that aspects of the bill were watered down to satisfy crossbenchers in the Senate. Part of the reason, I think, that we are in this fix is what happened in the final days of negotiating the bill through the parliament in the first instance.

Let's not deny what the Attorney-General has done here. He has fully embarrassed the Prime Minister, who only earlier this week in this place, in high rhetorical flourish, said a number of other things. He said:

The national interest requires a re-commitment to the relationship with Aboriginal and Torres Strait Islander peoples.

But there can be no relationship without partnership.

He used the words of Chris Sarra at the beginning of his speech:

'Do things with us, not to us, bring us policy approaches that nurture hope and optimism, and acknowledge, embrace and celebrate the humanity of Indigenous Australia.'

Rushing this legislation in this place does not do that

It is worth pointing out that I am in this place now, in this debate, when I would otherwise be in the House of Representatives Standing Committee on Indigenous Affairs discussing matters to do with Indigenous affairs. Why wouldn't the parliament, the Attorney and the Prime Minister refer this legislation for an inquiry by the House committee, for example? Is it not appropriate? It is an existing committee of the parliament. Its purpose is to look into issues to do with Aboriginal and Torres Strait Islander people. It is in a very good position—with some expertise, I might say—to look at the nature of these proposals.

I commend the member for Barton for her contribution. She brings to this place a great deal of insight and should be venerated for that insight, as too should the member for Hasluck. I think, with great respect to him, that he has been put in a very invidious position by the Attorney, as has the Minister for Indigenous Affairs, Senator Scullion. I am certain that they, having heard the Prime Minister's words about being concerned that we as a community work together with Aboriginal and Torres Strait Islander people, would be very worried by the haste with which the Attorney sought to have this bill dealt with today, rammed through the parliament without so much as a 'by your leave'.

We are not mugs around here. Some of us know what goes on. Some of us, like me, have a background in native title. My background is both as a legislator in this place and from then working as a consultant on native title negotiations when I was out of this place for a couple of years. So I understand native title, and I understand the primacy of understanding, acknowledging and dealing with the interests of Aboriginal and Torres Strait Islander people and, most importantly, making sure they are giving their informed consent to any agreements.

I note that the decision of the court in McGlade v Native Title Registrar created uncertainty in the native title sector regarding the status of ILUAs. It meant that area ILUAs registered without the signatures of all registered native title claimant members, including members who are deceased, did not meet the requirements for ILUAs as defined under the act, and area ILUAs lodged for registration which do not comply with McGlade can no longer be registered. That creates a problem. The member for Melbourne talked about Adani. That may well be an issue. I have no doubt that there is a view in the minds of some in this place that we have to do all things possible to accelerate Adani—not in my mind. But I do know—I think the figure is somewhere in the vicinity of 140—that there are ILUAs which were regarded as valid prior to McGlade but which have effectively been invalidated by the McGlade decision.

So something has to be done. There is no doubt about that, and that was recognised by native title rep bodies around the country. But you cannot rush stuff into this place in the way which has been done without thinking about what was in the mind of the Attorney. As the shadow Attorney-General pointed out, he had the Australian Law Reform Commission review 20 years of operation of the Native Title Act. The Law Reform Commission made a series of recommendations to the government for action. None of those recommendations have been addressed or considered by the Attorney.

I do not know what goes on in the Attorney's office, or in his mind for that matter, but clearly native title and issues to do with Aboriginal and Torres Strait Islander people are at the very recesses of it, because if he were on the job we would have been having an informed discussion some time ago about the recommendations coming out of the Australian Law Reform Commission, and we would be looking at what amendments might be required to make the act more effective. But the Attorney has had two years to come up with responses. He has not sought advice from native title bodies. He has not sought to hold consultations. He has not given exposure draft legislation or explanatory memoranda. We have a problem with the Attorney-General. He is asleep at the wheel. Something needs to be done.

In the case of this current legislation, the bill proposes to amend the Native Title Act to remediate the effects of the decision by the Full Court of the Federal Court in McGlade v Native Title Registrar. I will not go through what the court said but, as I said, it has cast in doubt the validity of a number of ILUAs. If these ILUAs were invalidated as a result of the McGlade decision, it could have significant adverse consequences for those projects, the relevant Indigenous groups and large sectors of the Australian economy. That is clear.

That does not mean, however, that we should not be concerned about some elements of this legislation. Specifically, item 5 of part 1 of the schedule amends section 251A of the Native Title Act to enable a native title claim group, when authorising the making of an ILUA, to authorise particular registered claimants—whether one, some or all of the registered claimants—to be the party of the ILUA or to authorise a process whereby the party or parties to the ILUA will be determined. If the claim group does not stipulate which of the registered claimants is to be party to the ILUA, then the amendments in item 1 of part 1 of the schedule cause the default position to remain unchanged, being that all registered claimants are party to the agreement must therefore sign the ILUA to be effective. That is important. But what is also important is the possibility that a group might delegate the responsibility to sign an ILUA to an individual or a small number of individuals who might be influenced by others. That raises the very vexed question of what 'informed consent' means in this context.

We have to argue and we have to ask very carefully of this legislation: what are the unforeseen impacts of this bill? That is why an inquiry is important. That is why we should not be considering this legislation today without an inquiry taking place in the first place, not post the fact, as is the case now. It also raises other significant questions. There is the whole issue of some claimants or some native title holders who might in their own minds believe that, if an agreement is reached, their native title will be extinguished forever, therefore they are not prepared to do it. What rights do they have under these proposals? They might subsume their rights to that of the group, saying a majority of the group may give the responsibility of signing an agreement to an individual or group of individuals, but those individuals might have no interest in protecting the rights of those others who have a concern about the extinguishment of native title. Is that a fair and reasonable suggestion? Why aren't their interests been properly represented? These are some of the things which I know are of concern to people right around this country.

There is no question that where I live, in the Northern Territory, Aboriginal people take the issue of decision-making responsibilities very seriously, and they know that having the right people speak in the right place in the right way is a key and fundamental issue. We need to ask ourselves whether the amendments proposed here actually go against that principle. We need to be very clear in our minds about the impact of the proposed amendments on the rights of Aboriginal native title holders right around the country. We have to seemingly do something to validate those previous agreements. But I do think we need to be contemplating more seriously whether or not we should not be looking at other amendments to protect the rights of all native title holders.

We know that the government has been sitting on the Australian Law Reform Commission proposals and recommendations for some time. But Justice Reeves's decision in Bygrave, and the McGlade decision require us to be deliberative. We need to have detailed parliamentary consideration of them and their implications. We need to make sure there is appropriate and proper consultation with native title holders and their representative bodies. The way we were expected to come in here this morning and hurry through this bill gives no hope of that. It just highlights that the high rhetoric of the Prime Minister earlier this week means nought. It means nought. And that is a shame.

I really respect the member for Hasluck, and we on this side of the parliament would want to think we could work in a proper bipartisan way around issues to do with Aboriginal and Torres Strait Islander people. Yet we are asked to accept this fiction that the bill has to be through the parliament today, without us having the right to give it proper scrutiny. Now, that is not appropriate, it is not fair and it is not reasonable, and something needs to be done. I would say to the members opposite: if it is your intention to ram this through the parliament today, as it seems to be, then it is very clear to me that the people of Australia are being conned by the Prime Minister and, most importantly, being let down absolutely by the Attorney-General. I am not sure what the functional relationship is in this government between the Attorney-General and the Minister for Indigenous Affairs, and other members of the cabinet, but it is very, very clear there is no discussion, because I think Senator Scullion would be appalled by the way in which this matter has been dealt with.

There are very serious issues at stake here that need us to do a lot more in considering them, rather than ramming this piece of legislation through today. No question, things have to be done—no question. Nevertheless, it is not appropriate in the context of this parliament to make us in the House of Representatives not able to give it true and proper consideration, which we are not being allowed to do as a result of the decisions taken by the government today.

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