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

The Native Title Act was passed by the Keating government in 1993, giving legislative form to the historic decision of the High Court of Australia in the Mabo decision. Since 1993, Labor has worked to ensure that our native title laws continue to facilitate the recognition and protection of rights of First Nations people to country. We in Labor have a proud history of creating, strengthening and defending native title law, working in close and respectful consultation with the communities most directly affected as well as with the wider Australian community. Through our decades of work in this area, Labor understands that the native title system is still far from perfect. Numerous inquiries into the native title system have highlighted some of its problems, and the inquiry into this bill, the Native Title Legislation Amendment Bill 2019, by the Senate Legal and Constitutional Affairs Legislation Committee revealed once again just how dissatisfied many First Nations communities are with the way in which the Native Title Act currently operates.

It was concerns about shortcomings in the native title system that led me, as Attorney-General in 2013, to direct the Australian Law Reform Commission to inquire into a number of aspects of the Native Title Act. The Australian Law Reform Commission carried out that inquiry and in May 2015 provided a comprehensive report—regrettably to the coalition government—including 30 detailed recommendations for reform. It is regrettable that five years have passed and this government has still not bothered to produce a formal response to that excellent report by the Australian Law Reform Commission and the detailed recommendations that it made.

This bill makes a number of reforms to the Native Title Act. Labor will be supporting the bill because we support those changes designed to improve native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes. However, as the committee minority report into this bill, from Labor senators, makes very clear, Labor is concerned about the fitness for purpose of the native title system generally and has a number of specific concerns about several provisions in the bill. The Labor committee members made the following general criticism of the native title system:

First Nations have placed their trust in legal institutions to secure their native title rights yet have be repeatedly supplanted by the legislature denying their position in the interests of third parties.

Multiple submitters noted that the high original undertaking of the Native Title Act has been brought into disrepute by amendments that have progressively eroded the rights and interests of First Nations. The Labor senators on the committee went on to note:

… recently significant court decisions have been made affecting native title. In McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade), the Full Federal Court of Australia made a decision with potentially sweeping impacts on a range of existing and future native title claims, negotiations and arrangements. The Government responded by expediting amendments to the Native Title Act, primarily as advocated for by third parties concerned their interests would be impacted by the McGlade decision. In 2019, in Northern Territory v Griffiths[1] (Timber Creek), the High Court of Australia ruled that where native title was extinguished, native title holders were entitled to compensation for both economic loss and for non-economic loss arising from the intangible harm caused by the loss of spiritual connection to country. The Government has not responded to the Timber Creek decision. Labor Senators are concerned at the clear pattern from this Government of being unresponsive to native title holders but being expedient to accommodate the interests of third parties.

However, because there are a number of aspects of this bill which Labor supports, and it is now just over a year since this bill was introduced, Labor has agreed to expedite passage today in the expectation that this bill can be subject to a full and rigorous debate in the other place with a view to passing it before the end of the parliamentary year. My friend and colleague in the other place, the shadow assistant minister for reconciliation, Senator Dodson, participated in the committee inquiry into this bill and I expect that he will speak in some detail about Labor's outstanding concerns regarding particular provisions in this bill when it is debated there.

I will highlight just one of Labor's concerns here today, and that is the changes the bill makes to the law in relation to deregistration of Indigenous Land Use Agreements. The government argues that the amendments to sections 24EB and 24EBA do no more than clarify how the current law operates. However, far from removing doubt, as section 24EB purports to do, it creates doubt about the integrity of the system by purporting to establish a presumption of validity for future acts done pursuant to an ILUA, notwithstanding that the ILUA has been deregistered as a consequence of fraud, duress or undue influence.

This aspect of the operation of Indigenous Land Use Agreements was examined by a 2016 COAG investigation into Indigenous land administration and use. Amendments of the kind this bill contains were considered by that investigation but were opposed by the Expert Indigenous Working Group participating in it. Many submitters to the inquiry into this bill also expressed concern about the consequences of validating future acts, even where the ILUA that those future acts relate to has been so tainted by fraud, duress or undue influence that it has been deregistered. As the National Native Title Council noted:

This means that any future act authorised by the ILUA that has been done through fraud, undue influence or duress remains valid and will still affect native title.

The Law Council of Australia opposes these provisions for the same reasons.

Given the opposition to these changes to the law from the COAG Expert Indigenous Working Group and from other stakeholders during the inquiry into the bill, including the Law Council of Australia, our firm view is that these amendments should be reviewed as a priority as part of the independent evaluation of this bill in five years time. As I've said, I'll leave a more detailed discussion of our outstanding concerns about certain provisions in this bill to the shadow assistant minister for reconciliation when a fuller debate on this bill takes place in the other place. But I will briefly make two further points. First, we thank the government for agreeing to an amendment in this bill requiring an evaluation and report on its operation within five years of commencement. The recommendation for a review of this kind was one of the recommendations of the Senate committee's minority report.

Second, I note that, as a consequence of the government's changes to laws directing the work of the Australian Human Rights Commission, since 2016 the mandatory annual report by the Aboriginal and Torres Strait Islander Social Justice Commissioner into social justice and native title is no longer being produced. We therefore thank the government for its commitment to instruct the social justice commissioner to undertake a review of the Native Title Act following the completion of her current work on her Wiyi Yani U Thangani (Women's Voices) report.

Labor understands that law reform is an ongoing process and that considerable work still needs to be done to review and reform the native title regime. Many Indigenous communities understand, through their intimate experience of native title law, how that law works in practice and how it could work better. That's why we in Labor are committed to always consulting closely with Indigenous Australians on any changes to the Native Title Act, and I call on the government to always show that same concern and respect.

Before I finish my remarks about the native title reforms contained in this bill, it's appropriate to acknowledge that this is NAIDOC Week, our nation's annual celebration of the history, culture and achievements of Aboriginal and Torres Strait Islander peoples. Speaking on the occasion of NAIDOC Week just yesterday, my friend and colleague the shadow minister for Indigenous Australians and member for Barton reiterated in unequivocal terms that Labor's position on the Uluru Statement from the Heart is rock-solid and it includes support for establishing an Indigenous voice to the parliament in our Constitution. It includes establishing a makarrata commission, which will have responsibility for agreement and treaty-making, and it includes establishing a national process for truth-telling.

My friend and colleague in the other place Senator Dodson, known across the nation as the father of reconciliation, had this to say yesterday:

The Uluru Statement is a very important invitation to the nation, in order to take things forward and deal with a Voice to the Parliament, have that constitutionally entrenched; to deal with the Truth-Telling about our history, and our relationship, and an understanding of how it's intertwined, and has contributed good things as well as many sad things. But it's also an opportunity for us to relook at our relationship and enter into agreements around the many things that still cause consternation to First Nations peoples, and that actually diminish our nation because we haven't resolved them.

Voice. Treaty. Truth. These are the pillars of Labor's commitment to honouring the Uluru Statement from the Heart. It is of deep regret to me that the three pillars of the Morrison government's response to that invitation to reconciliation appear to be arrogant silence, cynical obfuscation and, if forced to speak on the subject, lame excuses and marketing spin trying to justify the government continuing to do precisely nothing.

Despite the appalling failings of the government in responding to the Uluru statement and despite the shortcomings in this bill, it does make a number of positive reforms to native title law, and Labor commends this bill to the House. I move the second reading amendment that is being circulated in my name, in these terms:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) recognises the critical importance of native title law for the self-determination of First Nations people;

(2) notes that several provisions of this bill as presently drafted may undermine the integrity of the Native Title system;

(3) regrets that the Government has declined to make requested amendments to remedy the identified deficiencies in the bill; and

(4) calls on the Government to act on matters of importance to First Nations people, including:

(a) improving native title law so that it better serves the interests of First Nations and non-Indigenous Australians;

(b) improving access to justice and justice outcomes for First Nations people;

(c) progressing a meaningful government response to the Uluru Statement from the Heart; and

(d) devoting more attention and resources to Closing the Gap targets to reduce the disparities between First Nations and non-Indigenous Australians".

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

I thank the member for Isaacs. Is the amendment seconded?

Josh Wilson (Fremantle, Australian Labor Party, Shadow Assistant Minister for the Environment) Share this | Link to this | Hansard source

I second the amendment and reserve my right to speak.

Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Assistant Minister for Financial Services) Share this | Link to this | Hansard source

I speak in support of the second reading amendment that's been moved by the shadow Attorney-General which points out the importance of consultation with First Australians around important changes to native title legislation such as this and, like the shadow minister, I reiterate my—and Labor's—support for all of the elements of the Uluru Statement from the Heart and, in particular, a constitutionally enshrined voice to the parliament. Getting the views of Aboriginal and Torres Strait Islander people from throughout the country about important amendments to legislation such as this would be quite beneficial and helpful for us in our deliberations. We again call on the government to work in consultation with First Australians and, indeed, with us—as the Labor Party and the opposition—on progressing this important issue for true reconciliation and true recognition of the role, the important role, that First Australians have played in the development of our nation.

This bill amends the Native Title Act to extend the operation of subdivision JA for another 10 years. We support that extension. In 2010, Labor introduced this subdivision into the Native Title Act to assist in the urgent construction of public housing and a limited class of community facilities, including education, health and emergency services. Improving housing and infrastructure in First Nations communities is vital in helping to close the gap on Indigenous disadvantage. The subdivision provides for a degree of consultation with affected parties, including periods for comment on any proposed construction. Labor introduced these provisions in government to deal with situations where there was an urgent need for the construction of public housing and other public facilities on land subject to native title. We all know the importance of providing a roof over people's heads, particularly in some of the harshest environments in the country, and there was a definite need for urgent provision of amendment to that act at the time by the Labor government to ensure that that could occur quickly.

The subdivision has been used 127 times since being introduced 10 years ago: 53 times in Queensland and 74 times in Western Australia. When introduced, the provision included a 10-year sunset which was to approximate the duration of the National Partnership Agreement on Remote Indigenous Housing that Labor had put in place when in government. Limiting the period of the extension to a further 10 years provides the opportunity to reassess the ongoing need for this provision later on down the track.

Improving housing and infrastructure in Indigenous communities must remain an important role of the Commonwealth and, importantly, working with the states on this issue that traditionally has the responsibility of delivering social housing for Australians. It's a crucial step in supporting the health and economic outcomes of First Nations communities. Indigenous Australians make up three per cent of the Australian population but, unfortunately, at the last census 20 per cent of all persons who were homeless were Aboriginal. We all know that there are additional problems that come with homelessness. Homelessness is, unfortunately, a catalyst to further social and health problems, and I believe it's one of the principal reasons you see higher rates of health issues and of social dislocation for many First Australians throughout the country—all stemming from the fact that they have that 20 per cent rate of homelessness when they make up only three per cent of our population.

The high rates of overcrowding and overcrowded dwellings in First Nations communities was included in the revised Closing the Gap targets to increase the proportion of Aboriginal and Torres Strait Islander people living in appropriately sized housing to 88 per cent by 2031. Labor's called on the Morrison government to invest in the construction of social housing across this country as a stimulus measure and as a measure to provide jobs and support, particularly in rural and regional communities that are going to be struggling the most during this pandemic. This would be a win-win to keep more tradies working and to solve some of these problems of homelessness and in particular overcrowding in First Nations communities.

Of course, it's essential that communities are sufficiently involved in the planning and ongoing management of constructed facilities, and it's important that the Morrison government ensures that this subdivision continues to be used only when strictly necessary to facilitate urgent construction. The shadow minister for reconciliation and constitutional recognition of Indigenous Australians expressed concern that the current framework doesn't guarantee sufficient involvement of communities in the planning and ongoing management of constructed facilities, and the procedural rights of native title holders to comment are fairly weak and do not guarantee ongoing involvement in the management of facilities once constructed.

These concerns were raised with the National Indigenous Australians Agency by the shadow attorney-general, who received assurances that the provisions will continue to be used only when necessary, for urgent construction of facilities. When these are utilised, the government will seek to ensure that there is appropriate consultation and ongoing engagement with communities about the management of any constructed facilities. That's something that was reiterated in the second reading amendment moved by the shadow attorney-general, and I want to put in the House the importance of this framework for consultation when this particular provision is used, albeit sparingly. One of the principal issues and complaints that First Australians have had about management of remote communities has been the lack of consultation and having whitefellas, if you like, tell them what's best for their communities.

That's why it's important that we get that consultation piece right, and it's important that we have a constitutionally enshrined voice to parliament so that there's a formalised process of that consultation taking place and that voice being heard in this place on important legislation such as this. At all times, the proper consultations should take place with affected communities before, during and after the construction is completed. The Morrison government has a real opportunity here to deliver substantive investment in housing and infrastructure that will change the lives of First Nations people and hopefully reduce that elevated rate of homelessness in some of these communities—and not just in remote communities but also across urban communities, where we still see rates of homelessness, rough sleeping and overcrowding for First Nations Australians that are unacceptable. We as a parliament, as a Commonwealth authority on these things, need to make sure that we get the balance right and that we're providing not only the funding but also the legislative mechanisms to improve those rates.

Luke Howarth (Petrie, Liberal Party, Assistant Minister for Community Housing, Homelessness and Community Services) Share this | Link to this | Hansard source

(—) (): I thank the honourable members for their contributions to the debate on the Native Title Legislation Amendment Bill 2019. The bill will amend the Native Title Act 1993 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 to make practical and pragmatic improvements to ensure the ongoing effectiveness of the native title system. In doing so, the bill will implement recommendations for a range of recent reviews of the native title system, including the Australian Law Reform Commission's Connection to country: review of the Native Title Act 1993.

The passage of this bill will improve the native title system for all parties by supporting the capacity of native title holders by providing greater flexibility around internal decision-making; streamlining claims resolution and agreement-making processes; allowing historical extinguishment to be disregarded over areas of national, state or territory parks with the agreement of the parties; increasing the transparency and accountability of native title corporations to native title holders; and improving pathways for dispute resolution following a determination of native title. The bill will also confirm the validity of important mining and exploration related agreements made under section 31 of the Native Title Act potentially affected by the full Federal Court's decision in McGlade v Native Title Registrar & Ors.

Despite significant progress, the government considers there is scope for improving the native title system to improve the recognition and management of native title rights and traditional lands. The bill demonstrates the Australian government's commitment to ensuring that the native title system meets the current needs of all native title stakeholders. Taken together, these amendments will improve the native title system for all parties, promoting effective native title claims resolution and agreement-making in the management of native title land, post determination. I thank all honourable members for their contributions to the debate.

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

The original question was that this bill be now read a second time. To this the honourable member for Isaacs has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. So the immediate question is that the words proposed to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.