Peter Andren (Calare, Independent) Share this | Link to this | Hansard source

As I begin, can I correct the Parliamentary Secretary to the Minister for Industry, Tourism and Resources. It is unfortunate for him to continue to pronounce Timor-Leste ‘Timor-Leased’ with all the connotations that that phrase may have. It should be pronounced ‘Timor-Lestay’. It is a pity that the parliamentary secretary cannot be questioned about his carriage of that legislation in this House, but that is another matter.

When the amended native title bill came from the Senate on 6 December 1997 after 55 hours of debate and the government voted down those passionately argued changes and laid aside the Native Title Amendment Bill 1996, I said on that day:

The rights of pastoralists will prevail. There is nothing in this amended bill that says otherwise, so the right to negotiate remains just that: the right to negotiate. Aborigines do not want freehold but access, with the right to negotiate ... The Prime Minister speaks of his covenant with the miner and the pastoralist. What about the third part of that troika, the Aborigine? Where is the covenant with him?

After all of the tribulations and debate on native title over the past decade almost, we come to the Native Title Amendment Bill 2006. The general stated intent of the bill is to address the incredible delays that thwart timely resolution of native title claims. It is also supposed to allow the minister to put a badly performing native title representative body on a year’s notice and more easily not renew recognition of that body. This bill is mainly about making processes more efficient.

It is no small irony that it is largely governments that oppose claims as a matter of course and as a matter of ideology, tying up precious time, resources and money in forcing such claims to appeal. Given it can take up to 10 to 20 years to resolve a native title claim in some instances, often with the claimants not living to finally witness formal recognition of their continuing connection with their country, it is an admirable and proper aim to tighten the process and limit the excessive delays inherent in the current process. But this bill just does not seem to do this.

It is important to note that out of the 1,683 native title claims filed, there are currently 604 remaining, suggesting that 13 years of claims have sorted out many of the procedural and legal questions for use in later cases. My concern starts with the process around the bill itself, with a recognised lack of consultation by many parties to the native title process, especially with the native title representative bodies, NTRBs, which represent the native title interests of Indigenous Australians—or are supposed to—especially in the establishment of native title claims.

Not only this, but with just six weeks for submissions to the Senate Legal and Constitutional Affairs Committee—over the Christmas and New Year break—and with that inquiry’s report not even due until the 23rd of this month, I seriously question any commitment to truly working this process out and to properly debating it in the House of Representatives, since we are without the benefit of the report, as is so often the case.

Certainly some measures appear to be recognised as positive, such as splitting claims to progress the more straightforward areas of a claim while the rest is argued, or the granting of legal aid to respondents. However, the main achievements of this bill seem to be entirely at odds with its aims and with the original aims of the Native Title Act itself.

First of all is what looks like a complete undermining of native title representative bodies. This bill explicitly removes the criteria that a representative body, to remain eligible as such, must represent and consult with its constituency across its region. These bodies will provide policy advice to governments about land, water and customary use of country by traditional owners.

Under this bill, registration of native title representative bodies is exclusively at the invitation of the minister, which opens up the possibility of large and expensive law firms, with no endorsement by Aboriginal people, providing representation for those people about processes that are in effect about ancient connections to country, without being representatives of those people. It is absolutely inappropriate that non-Indigenous bodies could take up the role of native title representative bodies in this process.

With this proposed further diminishing of Indigenous participation, this bill also allows the ‘summary dismissal of certain native title applications’ if a presumption is made about the reasons for which a claim is being made. Further, this bill also allows the minister to recognise a representative body for a minimum of one year at a time, and for up to six years, ostensibly to enable the derecognition of such a body if it continues to not perform. So the bill proposes a situation where all the representative bodies may or may not be invited to tender to continue their functions every six years at the most. Those bodies that may have just one year’s grace imposed must try to keep hold of specialist legal staff on a one-year contract, divert already scarce resources towards the process of rerecognition—as will happen every six years regardless—and demonstrate progress in processes that can take up to 10 or more years. There are surely better ways of dealing with the nonperformance of single bodies. With that in mind, and in the name of cutting red tape, the bill also removes the requirement for strategic plans.

How on earth does this provide greater efficiency where resources are so stretched, where cases take up to a decade or more to progress and where an already high turnover in staff or board members of these bodies diminishes corporate memory and can remove traces of those markers that flag the way? In this environment, how does a representative body mark its priorities and progress and how does it build critical levels of competence—and how can a court determine this and how does a minister measure outcomes?—without a detailed strategic plan to provide a compass to stop the process going in circles for even longer periods? Surely it would be more helpful to ensure good public strategic plans are in fact formulated and followed, with the resulting transparency informing questions of governance and forward planning of scarce resources and providing answerability to its constituents—and indeed the minister.

Another major concern is the role under this bill of the National Native Title Tribunal, which is invested with a quasi-judicial power at the expense of the Federal Court with its power to supervise and impel the progress of proceedings. Under the bill, the tribunal, with its members who are appointed to provide mediation, is given power to coercively direct parties to attend mediation conferences and produce documents. But this is totally inappropriate for an administrative body and will in fact increase costs and delays, because only the Federal Court has the power to enforce such orders to make them effective. Further, this is constitutionally suspect and inappropriate for a mediation setting and is very likely to set off further litigation as parties, especially governments, so ordered by a tribunal seek to protect their own privileges.

It is also proposed that the court’s power to mediate be restricted while the tribunal is mediating a matter, reducing the court’s ability to progress a claim by threatening to take the matter into its own hands and make a determination. Without this threat, the process of mediation can be very easily subverted by parties who do not have an interest in settling—and, as with any litigation, delays usually favour one of the parties. In the case of native title, the parties with the interest in waiting are usually governments. The tribunal in fact already hasn’t the capacity to fulfil its expected functions, with parties already taking advantage of procedural rights that hold up the whole process without having to be tested themselves within that process.

Just over a year ago, of 356 claims with the NNTT for mediation, 272—about 76 per cent—had been with them for more than three years and 170—just under 48 per cent—for more than five years. Yet in the name of expediency this bill bestows yet another option to further divert the process by allowing parties to apply for a review in the tribunal of the existence of native title. This is where a claimaint could be made to bear the time and cost of presenting their case to the tribunal and the applicant for the review. With so much of the work in a native title claim going into assembling evidence over years, one would be forgiven for thinking that compelling a claimant to do this in a tribunal mediation setting, when it has to be done again in a court anyway, is a structured system that creates, perhaps not deliberately, a further delaying tactic designed, inadvertently or otherwise, to diminish the claimant’s energy and resources and to provide a valuable dry run for the applicant to the review in testing the claimant’s case prior to a court hearing, without any binding determination. It seems clear that the Federal Court’s ability to flexibly case manage native title claims, including its ability to order conferences and mediation, is highly regarded and should not be diminished or compromised by a parallel, inexpert and unpractised process that will have to refer to the court in the end anyway.

I am not in the habit of supporting second reading amendments—often as they are an expression of the world as it might be if there were a change of government—but in this case one would hope that the second reading amendment would be a precursor to substantive amendments with the arrival of the inquiry into this in the other place. I note the second reading amendment says:

... that the amendments proposed by the Government;

(b)

overlook calls from the Minerals Council ... and successive ATSI Social Justice Commissioners to properly resource Native Title Representative Bodies and Prescribed Bodies Corporate;

(c)

contain changes which, despite being intended to improve the performance of Native Title Representative Bodies, will adversely effect their capacity to represent and pursue Indigenous interests;

Those are exactly the sorts of concerns that I have been able to identify in my study, along with that of my staff, of this particular piece of legislation. I support the opposition’s second reading amendment as an expression of the processes that need to emerge from this while I am hopeful that there will be possible, and indeed necessary, amendments in the other place.

Finally, I come to what I said on that highly charged Saturday morning in 1997 when the House sat to consider those amendments brought back from the Senate. There had been 55 hours of forensic debate. It was the most inspiring debate that I think I have seen in this place in a decade. Due respect was paid to the work of Senator Harradine and others, and the agony was obvious in the decisions that they arrived at. What happened is that when those amendments arrived in this House they were voted down by the government and the bill was laid aside at that point. I said on that Saturday in 1997, as that amended bill was laid aside, that I had decided that the bill as amended at that point ‘provided the framework for the coexistence of title identified in the Wik judgement’. I said:

... genuine native title is the key to restoring our acceptance of the validity of the Aboriginal culture and recognising that without that title or belonging our Indigenous fellow Australians are condemned to tiptoe around the fringes of this society as outcasts in a predominantly white society.

Nothing—or very, very little, if anything—has changed.

Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I first thank the members for Wills, Jagajaga, Fisher, Grey, Lingiari, Hotham, Kingsford Smith, Fremantle and Calare for their contributions to this debate. I often find there is little in amendments that I can agree with, but I do agree with (1)(a) of the Labor amendment:

(1)

that the native title system is currently mired in bureaucracy, and urgently needs a considered and practical approach from the Government;

(a)

to resolve native title claims effectively, expeditiously and fairly …

I agree with that. That is what the Native Title Amendment Bill 2006 is about. That ought to be our objective. But I find that the rest of the amendment is fundamentally misplaced and I will demonstrate that in my comments.

A number of members, including the member for Calare, who has just spoken, have referred to the current inquiry by the Senate Standing Committee on Legal and Constitutional Affairs into the provisions of this bill and have suggested detailed consideration could await the committee’s report. Yet the motion put forward by the member for Wills effectively pre-empts this by asserting the bill represents a missed opportunity to remedy causes of delay and particular bottlenecks. In this, Labor are trying to have it both ways: portraying the current native title system as a failure but refusing to engage constructively on reform. The opposition has not put forward any real proposals for reform since the substantial amendments to the act were passed in 1998.

At the last federal election, the opposition’s general policy on native title reform comprised three sentences:

A Federal Labor Government will review the Native Title Act to ensure its workability. Labor will not amend the Act without comprehensive consultation with Indigenous Australians, miners, pastoralists and other governments ... Labor’s review of the Native Title Act will consider PBCs’ operational funding needs.

These are all steps that have been undertaken by the present government in a transparent process dating back over the past two years. I say to the member for Calare in particular that the government’s framework for this native title package was announced in September 2005. At the time of that announcement, I emphasised the need for practical reforms to achieve better and more efficient outcomes and, since then, there have been extensive consultations with stakeholders on all aspects of the reforms. From September 2005, the consultation has been ongoing. It was to help give us advice as to what matters might be dealt with in the bill.

The bill was introduced into the House of Representatives more than two months ago and it has been available for scrutiny since then. Yet, when it is scheduled for debate in this chamber, the most the opposition can do is offer a motion suggesting that native title needs a considered and practical approach. However, I should acknowledge the opposition’s express support for the provisions contained in schedules 3 and 4, which implement two aspects of the four key reforms contained in the bill.

The member for Jagajaga and the member for Hotham referred to the Keating government’s enactment of the original Native Title Act in 1993. With considerable understatement, the member for Jagajaga was at least prepared to acknowledge that the original legislation was ‘not perfect’. It is instructive to consider the opposition’s record on native title when it was in government. The Keating government sought to respond to the Mabo decision of 1992 through the Native Title Act 1993. At the time, the coalition’s clear and consistent view was that the act was inadequate, unworkable and failed to address many of the uncertainties arising from Mabo. In the period from 1993 to the Howard government’s amendments in 1998, progress was painfully slow. Only three determinations of native title were made in that time. After the election of the Howard government in 1996, the government worked through an open and participatory process on the development of amendments to achieve a more workable system. Many of the government’s amendments were opposed, particularly by the opposition. However, following the commencement of the government’s amendments, the situation has improved. It has improved very steadily to the point where, as of 12 February this year, there have been 95 determinations of native title claims. Significantly, 53 were consent determinations which have been made with the agreement of all of the parties involved. Sixty-four determinations were to the effect that native title exists in all or part of the determination areas. We are happy to stand by this record when we compare it to that of the Labor Party. We believe that we have been securing practical and considered measures and that these reforms will help further.

A number of members, including the member for Calare, have raised specific concerns about the proposals to enhance the performance of native title representative bodies. The level of proficiency of native title representative bodies in performing core functions is a key factor in the effectiveness of this system. Experience over time has identified varying levels of proficiency. With some, there are examples of poor administration and governance. In 2002, as the then minister with responsibility for Indigenous affairs, I commissioned the Miller report to examine the performance and accountability of NTRBs.

Mention has been made of the role of the strategic plans. As minister, I had to approve the strategic plans. I tried to read them to get what guidance I could on performance. With the information that was provided, where there was no requirement for a body to be compared with other bodies, I found no realistic basis that the strategic plans performed any useful functions whatsoever. I wanted to be able to compare performance. I wanted to see which organisations were performing more effectively, what aspects of their management and approach led to more effective outcomes and whether it was better to pursue negotiated outcomes than litigation. There was no way in which to find out about effective performance and accountability by examining the strategic plans.

The Miller review identified a series of shortcomings in relation to accountability, performance standards and the constitutional and governance arrangements. It was clear at the time, and subsequent developments confirmed, that further measures were needed to ensure that NTRBs would focus squarely on the provision of services to native title claimants and holders. These reforms are to assist in improving NTRB performance in the interests of securing better services for Indigenous parties within the native title system.

Particular mention has been made of funding of the representative bodies and their capacities. Currently the NTRBs have sufficient funding to perform their functions and no increase in funding is proposed. Almost half of the total Australian government budget expenditure for the native title system goes to the NTRBs. In the last financial year, a number of the NTRBs reported significant funding surpluses. On the question of capacity building, the Department of Families, Community Services and Indigenous Affairs continues to fund significant target activities to improve the performance of NTRBs under its performance enhancement program.

The members for Wills, Lingiari and Jagajaga raised concerns about the introduction of fixed recognition terms for NTRBs. The fixed terms will provide an opportunity for periodic review of their performance and will provide incentives for NTRBs to work towards outcomes for clients.

Mention was made by the member for Wills and the member for Calare that the stated reforms may lead the government to doing an open tender and bringing in non-Indigenous law firms. I might say they said the same about the government’s changes to the way in which we fund Aboriginal legal services. While there has been a capacity for other bodies to indicate that they might be able to provide such services, it has not led to a non-Indigenous body running Aboriginal legal services. I think it has been very important. As I said when I announced the tender results, it has led to increased performance and they have been able to demonstrate that, as against others, on meeting the criteria they are best placed to be able to do so. We have produced substantial efficiencies in their operations as a result and they are better able to assist Indigenous people who need legal advice.

These amendments do expand the range of organisations that can eventually be recognised as NTRBs. To be recognised, they will still need to show that they can satisfactorily perform the functions, and this of course is one of the reasons why Indigenous organisations, because of their local knowledge and networks, would be better able to do that. Removing the requirement for the representative bodies to be incorporated under Indigenous-specific legislation has the potential to expand the range of skills and experience available to the NTRBs. The three current native title service providers which perform functions in New South Wales, Victoria and southern Queensland are incorporated under the Corporations Act. This has not affected their ability to provide culturally appropriate services.

There has been mention that rerecognition might cause disruption. Replacement of NTRBs is unlikely to be a frequent occurrence. NTRBs that perform well during the initial program recognition can expect to be recognised for subsequent terms. The reasons for not inviting bodies to apply for subsequent terms would be poor performance, a lessening of workloads in the area or a wish not to be recognised. That has happened. That is what happened in New South Wales and Victoria.

In relation to the Claims Resolution Review and dissatisfaction with the NNTT, a number of members opposite have raised concerns about measures to provide the NNTT with additional powers and functions to facilitate its mediation role. For the member for Calare, although he is no longer here, I ought to explain that mediation has to be conducted on the basis of producing an outcome which is consistent with the framework of law. It is certainly appropriate, if you are going to be able to encourage parties to reach a decision that is within the framework of the native title law that has been enacted as part of this nation, where there are issues of connection that have to be sufficiently dealt with, that the mediation process is one in which that sort of information has to be reasonably canvassed to ensure that the parties are well informed and appropriately informed so that their legal rights and entitlements are properly protected. So I do not accept the view that, in dealing with a mediation, you should not do so in the knowledge and background of the legal rights and entitlements and a proper assessment of those matters to ensure that the parties are fully informed in the mediation.

We come to the question of how many mediators the Commonwealth should pay for. One of the reasons I adopted, and my colleagues accepted, the recommendation that the role of the National Native Title Tribunal be enhanced is that it is the body we are funding to carry out the mediation task. The idea that you can have courts saying, ‘We want something dealt with by way of mediation but we will send it off to a different group of mediators that we have decided should undertake the task,’ seems to me to leave you dangerously exposed to having a body that you have funded with public money underutilised while you then have to find the resources to pay for the choice of mediator that the courts might have identified.

There were two views in relation to the Claims Resolution Review that I initiated. The proposed changes to the NNTT were a result of the consideration of the views of the two independent consultants, Graham Hily QC and Dr Ken Levy. That report and the response were released publicly in August last year. The review recognised concerns about the effectiveness of the NNTT mediation and in particular found:

… that the NTT’s present powers are inadequate for it to effectively perform its mediation role.

It stated:

… there appears to be no reason to assume that another body with the same constraints as those which presently exist in relation to NNTT mediation could have been more effective than the NNTT.

Accordingly, both consultants recommended that the tribunal be given greater statutory powers of compulsion and a number of additional functions, and these recommendations have been adopted by the government. The review also found that existing duplication and mediation functions between the court and the tribunal create confusion and have significant resource implications, and it recommended that mediation should not be carried out by both bodies at once.

The tribunal was originally established by the Keating Labor government in 1994 with its primary function being to mediate native title claims. The people who were involved were people with considerable experience: former Liberal ministers—people like Fred Chaney—and former Labor ministers, some from South Australia. This is not a body of this government’s creation, but the government does remain of view that the NNTT has played a valuable role and will continue to play a valuable role in providing specialised mediation services in native title proceedings. As the review recognised, it is patently inefficient to require parties to participate in two separate alternative resolution processes, with two different institutions, at the same time.

The government concluded that the most effective means of addressing the problems identified by the review was to remove that duplication. As noted by members, the bill also confers a number of additional powers and functions on the tribunal designed to address concerns that the tribunal’s lack of statutory powers inhibits effectiveness of mediation. The new powers and functions of the tribunal must be considered in the light of other measures in the bill. Amendments will better enable the tribunal to report to the court about issues relating to a mediation, including the progress of mediation, behaviour of the parties and priorities of regions. This will ensure that the court is better informed about the progress of mediation and better able to make decisions for the disposition of native title claims. The amendments will enable the court and the tribunal to work together in guiding parties to facilitate agreement. Ultimately, all native title claims are proceedings before a court, and better coordination between the court and the tribunal is necessary to ensure expeditious resolution of claims.

In relation to the views of stakeholders, a number of members opposite were somewhat alarmist about reported views of native title stakeholders in relation to the bill. While I acknowledge some concerns have been raised about aspects of the bill, I think it is important we approach this discussion in a balanced and constructive way. From the Western Australian government’s perspective, the Office of Native Title advised the Senate committee:

Overall, the Office of Native Title considers the amendments proposed in the Bill have the potential to improve practical operation of the system.

The Minerals Council said it supports the proposed reforms to the Native Title Act relating to representative Aboriginal and Torres Strait Islander bodies, including simplified derecognition processes. The Aboriginal and Torres Strait Islander Social Justice Commissioner’s submission to the Senate committee notes in paragraph 68, relating to the resolution of claims:

I welcome and support many of the reforms in Schedule 2 of the Bill ...

In summary, the picture is not as bleak as the opposition would have us believe. While we remain prepared to engage in constructive consideration of ways to improve native title, it is important that the debate be open and realistic. This measure has been underway since September 2005. There has been very considerable consultation and dialogue. The bill is a significant piece of legislation. It is designed to deliver better outcomes in native title, which is in the interests of all Australians.

I take no pleasure—and I have made this point before and stated it many times publicly—that the delay in the resolution of claims is such that many people may not see claims to which they are entitled resolved in their lifetime. I take no pleasure in that. I want to see all parties using these measures in a way to achieve outcomes that are lawful. We are dealing with the Native Title Act, which represents the situation resolved by our High Court about native title rights that existed. It is a codification of that system. We cannot remove it. That is one of the points I have made. Were we to seek to remove it, there would be claims for just compensation.

These measures we are implementing are not a doctrinaire response but measures that have been designed to address the particular problems that have been identified about getting effective and efficient outcomes from the system. I deliberately eschewed measures that might be seen as fundamental changes to the Native Title Act. This bill is about improving performance, and I hope that, in looking at these matters, people take a constructive approach. I have noticed the Senate Legal and Constitutional Affairs Committee have often done that. I hope that they do so in relation to this matter and I will look objectively at any recommendations that they might make. I do not have a closed mind to them, but I do not want to undermine the fundamental framework, which I believe is important to ensuring that the courts and the tribunal can work together and effectively to achieve the most efficient and effective outcome in resolving these issues.

Question put:

That the words proposed to be omitted (Mr Kelvin Thomson’s amendment) stand part of the question.