Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to 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—

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

The minister on a point of order?

Greg Hunt (Flinders, Liberal Party, Minister for Health) Share this | Link to this | Hansard source

Yes, Mr Deputy Speaker. I would be grateful if the shadow minister could return to the topic of the bill in line with the orders on relevance.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

It is not a point of order.

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

A bit sensitive over there on the other side! Returning to the topic more directly: we know what the views of this Attorney-General are about racial discrimination. They are deeply connected to this native title bill that is before the parliament. This is the Attorney-General that said in the parliament that people have a right to be bigots, you know! We see here his attitude to the Aboriginal people of this country, by rushing on this bill for debate— (Time expired)

Julian Leeser (Berowra, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017.

Native title has been a revolution in Australian law. I remember the Mabo decision of 25 years ago and the way in which that changed the way we viewed land law and the way in which there was effectively a new type of land law in native title that had been created by the High Court.

I remember a number of the debates around the Native Title Act, introduced by the Keating government, and then the surprise that greeted Australians with the Wik decision of the High Court—and perhaps one of the most lengthy and divisive debates ever witnessed in this parliament, being the debate around the Wik legislation at the time.

I had the privilege of working for my predecessor as member for Berowra when he was Attorney-General. One of the responsibilities for which I had the privilege of assisting him with was native title. In a conclusion to the issue of the Wik case, shortly after the 2004 election we travelled to Aurukun and were present for the final determination of that Wik case. It was a really extraordinary occasion to be there at Aurukun with a couple of the original claimants who had brought the original High Court case there some half a decade earlier, and to see the resolution of those matters.

One of the key things that came out of the Native Title Act, and one of the important things in native title, has been the way in which agreements have been made around the claims. Indigenous Land Use Agreements have been a very important part of agreement making in the native title space, and an important part of ensuring that there is some development, progress and prosperity given to successful Indigenous communities that have made a claim and been registered.

In relation to this bill, everyone is in agreement that urgent amendments are needed to remedy the implications of the recent Federal Court decision. These changes will ensure certainty in agreement making and enable native title holders to continue to use native title in beneficial ways. The government has moved quickly to introduce amendments that will restore the status quo in this space, and we ask the Labor Party to stand beside us to consult on these amendments and help the government move forward.

The government intends to move this bill through the House and then spend the next four weeks consulting before it gets considered by the Senate. States, territories and Indigenous stakeholders, and other affected parties, are calling for these amendments. The Queensland Labor Premier in particular is urgently seeking a resolution.

The government remains committed to the Indigenous Land Use Agreement system. As I said, it has been a very important system in delivering outcomes for Indigenous people and Indigenous communities. It is the best way of facilitating agreements between native title holders and parties who wish to do business on native title land. That includes many of the pastoralists, miners, tourism operators and so on who operate on native title land. These amendments simply restore the status which prevailed before the decision in McGlade.

The bill is a response to the decision of the full Federal Court in the McGlade case. It will remove the requirement that was stated in that decision for all registered native title claimants to sign an Indigenous Land Use Agreement. More particularly, for ILUAs, or Indigenous Land Use Agreements, concluded after the coming into force of the bill, the bill will provide that not all registered native title claimants are required to sign the ILUA. That was one of the subjects in that McGlade case.

For agreements lodged with the National Native Title Tribunal, but not registered by the Native Title Registrar, it will provide that those agreements are not taken to be invalid, merely on the ground that not all registered native title claimants have signed the agreement. Similarly, it will provide for agreements that have been registered but were not signed by all registered native title claimants.

The Native Title Act 1993 provides that any act done after 1 January 1994 is invalid to the extent that it affects native title—defined as a `future act' in the Native Title Act—unless the Native Title Act otherwise provides.

One means of validating future acts provided for by the Native Title Act is an Indigenous Land Use Agreement. Parties to an Indigenous Land Use Agreement may agree that an act which would otherwise have been invalid can proceed, in exchange for which the non-Indigenous party or parties will pay compensation or agree to do some other act benefiting the native title holders. By way of example, mining and pastoral projects will often require an Indigenous Land Use Agreement so as to avoid affecting native title rights and interests.

The Native Title Act sets out a range of provisions as to who must be parties to an Indigenous Land Use Agreement and how it is to be authorised by the claim group, negotiated and lodged with the National Native Title Tribunal. Crucially, in order to validate any future acts, the Indigenous Land Use Agreement must also be registered by the National Native Title Tribunal.

In 2010, the Federal Court decided that in order to be a valid Indigenous Land Use Agreement, at least one member of the registered native title claimant for an area had to sign the agreement. That was the orthodox position in precedent under the QGC case in Bygrave and others. That stood as the accepted interpretation of the Native Title Act until 2 February this year, when the McGlade decision was published.

McGlade overruled Bygrave, holding that the correct interpretation of the relevant provisions of the Native Title Act required all registered native title claimants to sign an Indigenous Land Use Agreement in order for it to be capable of registration. Going forward, the decision may make it more difficult for native title respondents, including government, pastoralists and mining companies, to negotiate an Indigenous Land Use Agreement with local native title holders.

The decision affects two groups of Indigenous Land Use Agreements that have already been signed: those which have been lodged with the tribunal, but not registered, and those which were registered in reliance on the decision in Bygrave. There are 123 Indigenous Land Use Agreements in the latter category, of which 109 are in Queensland. And you can understand, with that large number in Queensland, why the Queensland Labor Premier is particularly concerned to seek an early resolution to this matter.

Those on the government side would ask those opposite to actually stand behind us and help us consult on the amendments moving forward. The government wants to move this bill through the House and then spend some time doing the consultations over the next four weeks before it is considered by the Senate. Everyone is in agreement that the urgent amendments are needed to remedy the implications of that Federal Court decision in McGlade, and I think that these changes will ensure certainty in agreement-making and enable native title holders to continue to use native title in those many beneficial ways in which they have, in the various native title claimant groups right across our country. I commend this bill to the House.

Linda Burney (Barton, Australian Labor Party) Share this | Link to this | Hansard source

I rise on behalf of the Labor Party to talk to the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017. I want to do this in three parts: I want to reflect on what native title means to Indigenous people; I want to examine what this bill does; but I also want to make comment on how this debate has progressed so far this morning.

First of all, I would like to say that, for native title, this legislation is critically important, not only for Aboriginal Australians but for all Australians. I have some personal connection to the original Native Title Act in the sense that my late partner in life, Rick Farley, was the executive director of the Farmers' Federation when the original native title legislation was being put in place and worked very closely with the then Prime Minister and, of course, the Farmers' Federation and other groups, to bring about what was an absolutely historic piece of legislation—historic in the sense that it, for the first time, put land tenure around Aboriginal occupation and Aboriginal ownership of land. But it also did something else quite remarkable for us in this country: it brought together farmers, environmentalists, and, of course, governments and also Indigenous people. And for a piece of legislation of that importance to do that was remarkable. Through the careful way in which it was negotiated—the very long debate in this place and the incredibly complex consultation process—we ended up with a piece of legislation that, as I said, brought people together. And it established native title land tenure for the first peoples of this country. I think that is a very important point to make. And of course Rick Farley was also a member of the first native title tribunal. So I do have some quite personal connection to this piece of legislation.

Labor is the party of native title and land rights and, as I said, it was Paul Keating who was the Prime Minister when this legislation was first put through. I was also a member of the national Council for Aboriginal Reconciliation in 1997, when the then Howard government launched an unprecedented attack, led by Minister Herron, who was the Aboriginal affairs minister at the time, on that piece of legislation, trying to wind it back. I think that was the most divisive debate that we have seen in this country, on the 10-point plan to wind back native title. So I do know what I am talking about, and I understand the importance of this piece of legislation.

It was the Keating government, as I said, that introduced native title, and I say from the outset that, continuing in that tradition, it is very likely that Labor will also support moves to protect the integrity of native title. The recent Federal Court decision outlined by the shadow Attorney-General had the effect of invalidating currently-operating ILUAs. Indigenous Land Use Agreements have been in place, along with the native title legislation, as a way of establishing the way in which pieces of land with many interests can be used. These ILUAs in many ways provide agreements and direction, particularly for state governments but also for individual Indigenous communities and individual Indigenous nations.

Can I also add to the words that have been said this morning about the clumsy, lazy way in which the Attorney-General has not dealt properly and has not dealt respectfully with this legislation or with Indigenous peoples. There is nothing outrageous, there is nothing wrong, with wanting a consultation process. And there was no need—absolutely no need—for the rush in bringing in this legislation: introducing it last night and then having it debated and possibly decided on today.

So this is a mess of the government's own making—completely disrespectful to Indigenous people, completely disrespectful to the intent and the spirit of native title, and completely unnecessary in terms of the way in which I was treated in this chamber by the Leader of the House for the government. Gagging me was not a very wise thing to do. And it was disrespectful to the spirit of this place and what we have dealt with this week: the fine speeches from both the Prime Minister and the Leader of the Opposition in terms of the Closing the Gap report; the wonderful ceremony that we had in the Great Hall on the Redfern Statement; the fact that both the government and the opposition signed that Redfern Statement. And then to end the week with this unnecessary, unedifying stupidity was the making of the Attorney-General and the making of the Leader of the House. I am pleased that sense has come into this discussion and decency has come into this discussion on the way in which this legislation is going to be managed today, but it was unnecessary, it was unedifying, and it was certainly not in the spirit of what has taken place in this House over the last few days. If the Attorney-General does not think that this is not going to be well understood out there in the Aboriginal community, then he is making a very big mistake—a very big mistake indeed.

The court ruling in Western Australia has enormous implications for many projects around this country. There are 123 currently registered agreements, and others which are in negotiation. But those opposite have known for months, as the shadow Attorney-General said, that there would be a need for this piece of legislation. They knew for a very long time and did nothing to prepare for that court decision. The implications are far-reaching. Of course Labor understands perfectly well that there need to be amendments to the native title legislation, but what is at hand here is the way in which it has been dealt with by this government: without respect, without integrity, without any thinking about the way in which it is going to affect people, and certainly without understanding of or care for the message that it will send out to the Aboriginal community and the broader community about the attitude of the Attorney-General towards Indigenous people and Indigenous issues.

This is about land tenure. This is about the fundamental thing that underpins Aboriginal culture and Aboriginal people: connection to country; connection to land. It is fundamental to who we are as first peoples. It is also something that transcends for all Australians. All Australians understand in their hearts about country and understand in their hearts about the environment. They understand the way in which we identify ourselves as Australians through country—through the colour of the sand, through the colour of the mountains, through the bush, through rivers and through all of those things that make up our environment. That is one of the ways in which we define ourselves as Australians, and to just push that into the face of Aboriginal people by the way in which this has been dealt with is reprehensible. I will make sure, as Labor will, that people understand that.

I do not want to debate this legislation at any great length—I think the shadow Attorney-General has done that very well—but I do want to say that changes to native title can have huge impacts for Aboriginal communities and private businesses. This parliament deserves the opportunity and should provide the opportunity for consultation with those that will be affected. The Attorney-General's actions fly in the face of the sentiment expressed by the Prime Minister just a few days ago. I have absolutely no doubt—and I have known the Prime Minister for some time—that he was genuine about those sentiments, and he must be absolutely furious at the way in which the incompetent Attorney-General has managed this. How can we possibly consider this legislation given only a day's notice? How can Aboriginal communities consider the implications? How can businesses consider the implications? This is simply ridiculous.

When Labor were last in government, we recognised that aspects of the Native Title Act should be closely examined to ensure that the act continued to operate to effectively serve its key purposes. These purposes include:

(a) to provide for the recognition and protection of native title; and

(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

(c) to establish a mechanism for determining claims to native title …

Those things are fundamental to the Native Title Act, and those things are what Labor put in place when we were in government and recognised native title.

In June 2015, the Australian Law Reform Commission tabled its report, which included some 30 recommendations for changes to the Native Title Act. The ALRC's report included recommendations to change two of the key provisions that are subject to this bill. In keeping with this government's complete lack of interest in Indigenous Australians—or certainly Senator Brandis's—there has been a great failing to respond to the Law Reform Commission's report.

The Leader of the House said:

The convention has always been that the bill should be introduced and then debated the following sitting week, not the next day. Only in the rarest circumstances is the parliament required to have a bill introduced and then debated the next day.

This is not the rarest of circumstances. This bill does not have to be passed today, and I am pleased that sense has prevailed, because Labor will not support legislation which has been introduced in a rush, particularly when it comes to the issue of native title. It is a complex area of law. It is a complex piece of legislation. It has far-reaching impacts not just for the Indigenous community but also for the business community. On that basis, it cannot be rushed.

It is clear from this bill that significant compensation may need to be paid. I watched the advisers box when the shadow Attorney-General said that and I hope that that is being considered. How can you rush a bill like this through with the implications that it has for so many people for compensation and for the way in which we take forward Indigenous issues in this country? It is an insult to the highest degree not just to me but to the parliament, to the people of Australia and, particularly, to First Australians. I do not know the Attorney-General very well, but I hope this is not an indication of how seriously he takes Indigenous issues and how assiduously he applies himself to his job. He is the highest lawmaker in the land. How can he be so sloppy? How can he be so lazy and so incompetent? He has dragged the government into what is now an embarrassing situation. That is what the Attorney-General has done. He has embarrassed his government, he has embarrassed this parliament and he has certainly sent a message to the Indigenous community and the business community that native title, and therefore Aboriginal people, do not matter. I do not accept that from the chief lawmaker of the land. We should be getting better.

In closing, native title is important to Indigenous people, but native title did something very remarkable after the Mabo decision. It, for the first time, created law around the way in which land issues could be dealt with between Aboriginal people, governments and businesses. That is not insignificant. That is not something that should be rushed through and gagged. I take offence—particularly with the way in which I conduct myself: hopefully with grace, decency and fairness—that I would be gagged in this place. I was not going to get up and rubbish anyone. I was going to talk about the legislation and the lack of consultation that came along with this legislation.

I think that there have been lessons learnt today. I hope there have been lessons learnt. Labor will protect native title. Labor will work with the government on making sure amendments go through on the native title legislation for the benefit of everyone. For us to be rushed, for the community to be rushed in this way is completely unacceptable, and I say that very firmly.

Ken Wyatt (Hasluck, Liberal Party, Minister for Aged Care) Share this | Link to this | Hansard source

I rise to speak on the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017. I was around at the time when discussions on native title commenced and I remember sitting with Rob Riley, who has since passed away, and Peter Yu, Dennis Eggington and many other great leaders, talking about what the Native Title Act would mean and the opportunities it would create. The other important element was the empowerment in many forms not only in terms of determining use of land but in determining opportunities to create economic empowerment in a way that meant that we sat as equal partners within those negotiations with all parties.

The Mabo and Wik decisions and the Native Title Act were probably salient points in the history of this nation. They changed the relationship between all Indigenous Australians and all entities of Australian society. They created a sense of understanding that registered across the whole of Australian society. Whilst many may have reacted with unkind responses—I did hear a state premier who made the comment 'there goes our backyards' under native title—that was never the intent.

The act had served Aboriginal and Torres Strait Islander communities well up until 2 February, when the full Federal Court handed down the McGlade v Native Title Registrar decision, which then had unintended consequences that had not been thought of. The McGlade decision created uncertainty in the native title sector regarding the status of areas of the ILUAs. That meant that area ILUAs registered without the signatures of all RNTC members, including members who were deceased, were agreements which did not meet the requirement for ILUAs as defined under the act and that area ILUAs lodged for registration which did not comply with McGlade could no longer be registered.

And so it is obvious and natural that a government would respond by looking at the remedy to ensure that all of these agreements have the status that is expected by those Indigenous communities and areas where these agreements have been entered into. Certainly in phone calls I have received land councils have asked that we do something to remedy the outcome of that decision and have supported any legislation required to address the issue of uncertainty created by the Federal Court.

To this end, the Attorney-General has proposed that the amendments to the act will achieve the following. They will secure existing agreements which have been registered on or before 2 February 2017 but do not comply with McGlade. I think that is a very relevant, salient point to give absolute certainty to all of our traditional owners and all of our communities who have native title agreements that are in train and that have been negotiated in good faith between all parties. They will enable the registration of agreements which have been made and have been lodged for registration on or before 2 February 2017 but do not comply with McGlade and will clarify who must be a party to an area ILUA in the future unless the claim group determines otherwise.

Those are important changes. They do not alter the intent of the Native Title Act. They give certainty in Commonwealth legislation to the agreements that have been struck. None of us ever foresee the decisions and ramifications of the full Federal Court and what the implications are until those decisions are handed down. Whilst we might have some prior knowledge of what might be an unintended consequence, we cannot act on that with the degree of certainty implied until those decisions are made. I hope that in this debate we focus on the amendments that are being suggested. I certainly have heard criticism of the Attorney-General, which is not the basis for the change. From what I ascertain from talking with colleagues on both sides, everyone is in agreement with the amendments that are needed to remedy the implications of the recent Federal Court decision. Their commitment to Aboriginal and Torres Strait Islander people across this nation has not altered. On that basis, I hope that we would focus on the amendments proposed and not on the peripheral matters that I hear being raised.

The certainty that is needed is not only with Aboriginal and Torres Strait Islander people but also with those parties who have entered into the agreements, so that they can plan the way forward as agreed and honour those commitments.

This bill will move through this House, it will complete its journey and then it will spend time in the Senate, where for the next four weeks consultation will be occurring through the committee process within the Senate. I think that is an important element of this whole debate, because it will allow others to contribute to the impact of this decision and also for them to present their point of view on the importance of these amendments being moved expediently through the parliament, both this chamber and the Senate, to enable their planning and their consideration of land use to proceed in the way that had been planned.

When we tackle this complex issue and take it from personal perspectives, then I think we demean the value of the amendments, and I would hope that the rest of the debates that I hear are about the way in which we, collectively, in this chamber, support those amendments, which will make a difference to the decision that arose out of the full Federal Court.

When I look back on the Closing the Gap targets and our failure to meet them and when I look at the economic pathways and opportunities that are available to Indigenous Australians through native title land use agreements, I see an avenue bringing together opportunities for all of us to effect the changes that will close the differences in the levels of disadvantage that have prevailed in this country for so long. I certainly appreciate the comments made by my colleague the member for Barton in terms of what land means to us, what country means, the beauty and the richness of connection to country and the relationship that is important to all Indigenous Australians. But, equally, we have to also acknowledge that, when the Indigenous land councils express a view that they want government to make the amendments so that they can continue with their negotiations, that is also an important step in listening to the voices that prevail, who have negotiated these agreements over a period of time and who can see the economic advantage that is important to the people they represent.

I ask all colleagues in this House to focus on those very particular issues. And, whilst there might be views about the Attorney-General that are being expressed, they are not the primacy of this debate and the debate of this legislation. What we need to do is demonstrate that we are totally committed to the way in which the intent of native title—as negotiated in this chamber over a lengthy period of time, and Paul Keating's commitment and stance on what was being pushed for and eventually achieved, gave a great opportunity to create those economic pathways. But it is not just economic pathways; it is also the importance of country. Having native title means that association continues and becomes very critical in the way in which our culture continues to maintain its existence with Mother Earth and the surrounds that have been important for periods in excess of 60,000 years.

I would ask all members to focus on the amendments, to allow the Senate process of consultation over that four-week period to occur and to collectively stand together. I ask Labor to stand with us on this, in terms of the amendments, because, as my colleague sitting opposite me the Shadow assistant minister for Indigenous health knowns only too well, when we are out in communities and sitting in the red dirt, talking to people, land is always raised. The use of land has always been paramount in many of those discussions.

I know that there will be individuals and groups that will be disappointed with the full Federal Court decision, because what they see is the potential for an opportunity to slip away. On the basis, I would ask that we give credence to the process in this House, but that we focus on the amendments and that, equally, we stand together to ensure that this bill passes through to the Senate, so the Senate is able to do its committee work and then deliberate in its considerations.

I also ask the Greens to stand with us on this issue. I know that Senator Rachel Siewert has played a significant role in being a champion for many of the things that Aboriginal and Torres Strait Islander people aspire to. I know that, when she has been out within the communities, her heart and her soul are enmeshed within the thinking of those discussions. She and I have had some great conversations about many of the issues that have arisen out of peoples' reliance on country, their reliance on land and their reliance on the opportunities. So I would also ask the Greens to stand with us on this one, to right a wrong, in one sense, to make the amendments ensured through both Houses, so it gives back to all Aboriginal and Torres Strait Islander people the certainty they deserve and the certainty they have always anticipated and expected with native title.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

There is one reason and one reason only why the government was trying to rush this legislation through this week and have it wound back by this House. There is one reason why the government came here and put a motion on the Notice Paper to try and gag this debate until this House stood up to them: Adani—Adani, Adani, Adani.

In their rush to build a coalmine, this government is prepared to ride roughshod over Aboriginal and Torres Strait Islanders. When it comes to making laws, this government rolls out the red carpet for multinational coal companies but slams the door on our first Australians. Everyone knows that this government is prepared to defy the science and defy the will of the people of this country who do not want public money going to prop up an uneconomic coalmine that is going to be a climate bomb. So, to avoid that scrutiny, the government comes in here and says, 'We're going to rush legislation through, even if it means potentially taking away the rights of Aboriginal and Torres Strait Islander Australians.'

When you look at the approach the government have taken this morning and everything they have said this week during the Closing the Gap statements and at other times, you see that it is just words. It is outrageous that the government thought it was good enough to ask every member of parliament in this place to vote today on a bill that, as we have heard, deals with some incredibly complex matters and potentially takes away people's right to determine what happens on their land.

I was very pleased to support the opposition's motion to wind the government back, and I am sure that is part of the reason that the government have realised the error of their ways and are now saying that they are not going to rush it through. But the Labor opposition is paying ducks and drakes on this, because something happened in the Senate today that betrays everything that Labor did in here this morning as just sound and fury—sound and fury signifying nothing. What happened in the Senate today—and we have heard it from the shadow Attorney-General—is that the government and the opposition have agreed to a quick and dirty inquiry into a fundamentally important piece of legislation; a quick and dirty inquiry that will allow this bill to be rushed through potentially on the next sitting day. The Senate is sitting today? When is it next sitting so that it could debate this legislation? On 20 March. So the government and Labor have agreed, 'We'll give the Senate one sitting day to consider this, and we'll stitch it all up in between, we'll hope that the inquiry comes down with a recommendation and then we'll push it through the Senate'—a few weeks for an inquiry that affects the fundamental rights that people have to their land and their country.

We have heard from both the Labor opposition and the government about the complexities in negotiating this legislation in the first place. We know—because the court case was brought that has led us to this position—that there are many differing voices within the Aboriginal and Torres Strait Islander communities that need to be heard. Whilst there might be some issues about the technical drafting of the law that might need to be addressed—and everyone, including the Greens would look at that—we also know that something as important as dealing with native title should not be rushed through this parliament. The ABC rural and regional advocacy bill got a six-month inquiry in the Senate. The sports betting reform bill got a six-month inquiry in the Senate. If those issues are worthy of several months of deliberation by a very busy committee that has a number of inquiries on its plate, then surely this—given its potentially significant consequences that we have just heard from both sides—is deserving of consideration.

The member for Hasluck, the shadow minister—who I respect—got up and made some very kind comments about our Senator Rachel Siewert, who is responsible for this area and for this bill for the Greens. As the shadow minister said, Senator Siewert has a significant amount of respect amongst Aboriginal and Torres Strait Islander communities in this country. Senator Siewert got up this morning and asked the Senate to allow until 8 May for the Senate to look at this bill so that we could hear from all of the voices around this country—all the Aboriginal and Torres Strait Islander voices, not just the ones that the old parties want to hear from; so that we could hear from everyone—about the impact of this legislation. But Labor and government said, 'No; we are going to insist on a quick and dirty inquiry and push it through quickly,' which just shows that everything that happened here this morning was show for the press, show for the cameras, and, behind the scenes, they are on their way to doing a deal to ram this through.

Maybe this is good legislation—maybe it is. Maybe this is legislation that is worthy of being passed. Maybe it is legislation that requires being amended to satisfy concerns. Maybe it is legislation that deserves to be opposed. That is what a thorough examination of this would uncover. But, no, Labor and Liberal in the Senate today have nailed their colours to the mast and said, 'The most important thing is that the Adani coalmine go ahead and if that means we have to have a quick and dirty inquiry and ride roughshod over people's rights then we will do it'—and that is a disgrace. It cannot be justified to have a one-month inquiry into such an important matter, especially when the point has been made that involves such complexity and it is going to fundamentally affect people's rights.

So why does the government, with Labor's support, want to make it this happen. We are talking about a coalmine in Queensland that is carbon bomb. There have been reports that have suggested that the decision of the Federal Court might affect the ability of that carbon bomb to go ahead. That is why the government is coming in here. If all the coal in that coalmine in the broader Galilee Basin is dug up and burnt, it is going to produce as much pollution as the entire European Union countries all put together do in a year. We are talking countries' worth of pollution sitting under the ground in the Adani coalmine in the broader Galilee Basin. Faced with that, many, many people around the country are saying, 'This coal needs to stay in the ground.' People are saying that, once it is dug up and burnt, it may be too late, because we only have a very small carbon budget left. We can only burn a certain amount of the coal that is in the ground before it becomes too late.

But so keen are Liberal—and it seems Labor—to build it that they will throw people's rights to the wind. So keen is the government to build it, that they are prepared to put a billion dollars' worth of public money into it, when that could be spent on schools, hospitals or renewable energy. So keen are Labor and Liberal to do it that they will change Queensland laws to make sure that it goes ahead. And now it seems that so keen are Labor and Liberal to get the Adani coalmine happening that this bill will also be caught up in their mad rush to burn more coal.

If this bill were to be put to a vote today, I suspect there are many people who would not support it, because it is not right that people be asked to vote on something that they have only seen from yesterday. I hope that we are not going to see a truncation of the speaking list here so that the sound and fury happens but the bill actually goes through with a gag in all but name. But I hope the spirit of what we have heard here this morning translates also into the further scrutiny of this bill in the Senate and that the opposition reconsider their decision to side with the government for a quick and dirty inquiry and instead allow a full inquiry that will allow all voices to be heard.

As you go through this bill, and as you look at the court decision, you understand that there are many significant things that are covered by this bill. For example, this bill and the court decision deal with issues of what happens when native title claimants are deceased. One question that has been thrown up is: does the recent Federal Court ruling then throw into question agreements that have been struck if someone is deceased? Everyone would say that is a legitimate question that deserves a bit of examination.

But caught up in the government's drafting of this very short bill with very big implications is this fundamental point: what we are dealing with here is a full court decision that said, in a nutshell, that for certain agreements to be valid you need to have the agreement of all native title claimants. What the court decision turned on was what 'all' means. Does it mean everyone? What happens if there are claimants in Aboriginal and Torres Strait Islander communities who object to what is being done notionally on their behalf? That is a very serious question that we will need to grapple with. What happens if there is a difference of views?

The government's answer is to come in and say, 'We want you to very quickly sign up to something that says that if there is dissent it doesn't really matter, because we are going to effectively legislate away people's rights to have a different opinion.' That is what this bill will do, and that is why there are many people who are concerned about it. There will be some who say, 'Support it.' There will be some who say, 'Oppose it,' and there will be some who say, 'Support it with some changes.' But we owe it to everyone who is affected by this bill to have a good hard look at it.

This bill, of all the bills that we consider, should not be caught up in the government's new coal culture wars, but that is what is happening. This bill has been caught up in the government's push to build a coalmine, and that is disgraceful. What is also very upsetting is that the push to get this bill through quickly is potentially being aided and abetted by an opposition who also want that coalmine built. So I have a very simple proposition—let's separate this bill out from the push to build a coalmine. Let's consider this bill on its merits. Let's give this bill the kind of inquiry that the Senate usually gives for matters this important. Let's give it the kind of worth and merit review that you might give the sports betting reform bill.

We did not even propose six months in the Senate. We propose that it come back in May. But no, it is going to be rushed through, and that is very disappointing. But there is time for people to change their minds and I hope that some common sense prevails and that we do not see this bill rushed through. If it gets put to a vote here today, the Greens cannot support it, not because we think that it is necessarily legislation that we would oppose but because we should not be asked to vote on it today. So I hope that we are not going to see a truncation of the speaking list and we are not going to be forced to vote today.

But the fact that the government would even consider pushing this to a vote today should ring alarm bells for everyone. Why is this so urgent for the government? Adani, Adani, Adani. This bill should not be caught up in the government's coal culture wars. This bill should be considered on its own merit. It should not be pushed to a vote today. It should be allowed time for proper scrutiny so that all voices around this country can be heard about a matter that will be of fundamental importance to many of our fellow Australians.

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for External Territories) Share this | Link to 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.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Finance) Share this | Link to this | Hansard source

I will not delay the House long. Obviously, the Labor Party are in the position in this debate where we have had to argue about legislation which we have not had a chance to consider and on which we have not had an opportunity to consult. Obviously, that has put a limit on the number of speakers who are able to speak today and also has put a limit on the quality of those speeches in terms of the extent to which they have been able to mount a final argument.

The thing for the Labor Party when it comes to consultation with Aboriginal and Torres Strait Islander communities is that that consultation is real. We do not know our final position until we have conducted that consultation. I say that to the government.

I also say it to some of the environment groups that wanted to see this legislation through the lens of one project. The Labor Party cannot support a view of Aboriginal self-determination that says, 'We will support self-determination when it agrees with our environmental agenda and oppose it if it does not agree with our environmental agenda.' If you have that view then, put simply, you do not in fact believe in self-determination. When the Labor Party consider this bill our sole focus in arriving at a final position will be Aboriginal and Torres Strait Islander communities. That will be the consultation we will be conducting and that is how we will be arriving at our decision.

I caution anyone wanting to consider this issue through the lens of one project in one part of our country and simply say: how can we possibly ignore all the other places in Australia where this legislation will be relevant? Also, how can our position on self-determination be determined by whether or not Aboriginal communities agree with us? If we have been serious about any of the arguments that have been made in the House this week, we need to be serious about the fact that native title is there because the title is then owned by the traditional owners. That is the meaning of the term.

I want to put that on the record to make clear the way in which Labor will be arriving at our position. There is a better debate to have once the consideration has concluded and once the consultation has concluded. Unfortunately, that better debate will happen only in the Senate because of the timing and the manner of this debate. I leave on the record that we may well be in a situation where Labor in the final analysis is voting in favour of this bill but where we land will be determined by the consultation we conduct and that consultation will, quite properly, be with the Aboriginal and Torres Strait Islander communities who have been left out of the discussion up until this moment.

Question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.