Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

The Democrats do not support the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 as it stands. There are components within it that have been developed through ongoing consultation with Indigenous peoples in the Northern Territory and with other stakeholders over a prolonged period of time, particularly with regard to the area of mining. Those components are the ones that clearly have the support of traditional owners and land councils and are the ones that we will not oppose.

But there are other components of this legislation which, despite all the talk of nine years of consultation, did not appear in any form until late last year or earlier this year. Some of the other components of the legislation actually go in the other direction, to findings of various reports that were brought down as part of previous consultations. So let us once and for all, from the start, put aside any farcical deception that this legislation has been the subject of ongoing consultation at the community level for the last nine years. Some components of it have been, but there are key, vital components that have not.

We only have to look at the evidence given to the disgracefully short Senate Community Affairs Legislation Committee inquiry into the legislation—by one of the few Indigenous voices at traditional owner level who were able to give their views—to see quite clearly that traditional owners are not aware of some of the components of this legislation, are not supportive of other components and have not been consulted on them. If we look at the Senate committee transcript of that single day of hearings in Darwin, we see that the officers from the federal government’s Office of Indigenous Policy Coordination made it quite clear that they had not spoken to traditional owners about some of the newer key, crucial and controversial components of the legislation; they admitted that up-front. They had spoken to the land councils, not to consult them but to inform them as to what the government was proposing, and left it at that. This is from the part of our government that is now responsible for overseeing all activities in the area of Indigenous policy. If there were any one group of people in the entire armoury of the federal bureaucracy who should know the importance of meaningful consultation with traditional owners, particularly on matters that directly affect them, it would have to be the people at the top of the Office of Indigenous Policy Coordination. But they did not do that consultation—they openly admitted that—and from what I could see they did not see any reason why they should have.

I drew the attention of the Senate committee and the officers of the OIPC to the submission from the government’s own Aboriginal and Torres Strait Islander Social Justice Commissioner which in part went to public commitments by this government in the domestic and international arenas with regard to the rights of Indigenous peoples—principles they had agreed to follow with regard to dealing with Indigenous peoples on issues and decisions that directly affected them. The core of those is the principle of free and informed consent by Indigenous peoples to legislative changes that directly affect their rights. The response from the OIPC officer—I think he was one of those who stayed in Canberra; he could not even be bothered to travel to appear before the committee in Darwin but gave evidence by phone—was, ‘Well, the concept of free and informed consent is a bit fuzzy around the edges.’ Like many legal concepts, international or domestic, it is fuzzy around the edges. But the fact that something is fuzzy around the edges should not be used as an excuse when it is quite clear what the heart of it involves. And it is quite clear that what this government did was not make any effort at all to give effect to any free and informed consent. How can there be free and informed consent when there is not even any informing in the first place? It does not matter how fuzzy the definition is; that is right outside any definition of free and informed consent.

So we have yet another example of lots of lofty-sounding rhetoric from this government, trying to fool people into thinking that they are doing things the right way, that they have some genuine commitment to these basic principles. But, when you look at the reality of what they do on the ground, there is not even a pretence of following these principles; they are treated with total disdain, complete contempt. Unfortunately, that is not just disdain and contempt for a nice-sounding principle; it is disdain and contempt for the Indigenous peoples themselves, for the traditional owners. I find that extremely offensive and very distressing.

When the previous minister announced by way of a media conference, towards the end of last year, this new idea about township leases, I spoke on that subject in the Senate. She did not give a ministerial statement in the Senate, because that is out of fashion. Important matters affecting the public are now announced via a media doorstop interview outside. Ministers very rarely bother to announce them through statements in the parliament now, thus making it more difficult to debate them. But, when I did speak on the matter a couple of times towards the end of last year, I spoke quite specifically about the need for direct engagement and consultation with the people who are affected, the people at the community level. No matter how fantastically brilliant the government thinks these changes are, if they are not going to involve the peoples whose land is affected, whose rights are directly affected; if they are not going to talk to them and treat them with respect, dignity and basic courtesy; if they are just going to impose it on them as another brilliant idea from Canberra, then the chances of it working are dramatically reduced. Of course, that is exactly what has happened. Not even the slightest effort was made.

What that says to me is not that the government did not think about it—of course they would have thought about it. What it quite clearly says is that there is no genuine commitment to try to make these changes work. If there were, there would be genuine engagement with the people who these changes affect. That is not a political or ideological point; that is just basic common sense. If you want a community to work with changes and to make those changes work effectively, then you work with them. You do not just drop it on them from a hundred miles above and then try to convince them afterwards that it is a fabulous thing that is going to be good for them, particularly not when it is something as fundamental as this, and particularly given our extremely sad and sorry history with regard to the dispossession of Aboriginal people.

It seems the latest form of conservative political correctness these days is that you are not allowed to talk about Indigenous history. You are not allowed to talk about symbolism or rights because we all have to be practical, and if you talk about history you are looking backwards, and we have got to look forward; we cannot be trapped in the past. I agree that we cannot be trapped in the past, but there is no way we can walk effectively into the future unless we honestly acknowledge how we got to where we are today. And there has been no honest acknowledgement of how we have got to where we are. That is part of why changes like these can be made with such contempt and such dismissiveness, not just towards the Senate and the parliament—we in the Senate are getting used to being treated with contempt—but, far more importantly and far more unforgivably, towards Indigenous people.

That, to me, is the core problem with this legislation. I have stated publicly a number of times that, even though I have concerns with the specifics of some aspects of the legislation, if the traditional owners, or a reasonable proportion of them, were to make it clear that they were broadly supportive of these changes going through then I would vote for them anyway because this law is, first and foremost, a law regarding the Aboriginal people of the Northern Territory. If they are supportive of it then that is their business. But the evidence is quite clear, even from the very limited Senate inquiry that we had, that they are not supportive of it.

I should emphasise and put on the record that this legislation first appeared at the end of May—less than 2½ months ago. The initial indication from the government when requests were first made to refer it to a Senate committee was that that could not happen, because it had to pass by the end of June. The initial insistence from the government and from the minister was that this had to be pushed through within less than a month. With some strong urgings—urgings that it was in the government’s interest, let alone basic due process and decency—there was agreement to hold the briefest possible Senate committee inquiry. I sometimes wonder these days whether Senate committee inquiries that are impossibly short just give the government a fig leaf to make it look like they have engaged in consultation when they have not.

I note that a number of people, including important witnesses such as Oxfam Australia, did not put in submissions to the inquiry, because they did not have time, in the extremely short time frame available, to put in meaningful submissions. The committee did not have time to take evidence from some of the people we would have liked to have had evidence from. The report of the committee, which included government members, categorically stated that there was insufficient time for the committee to properly scrutinise the legislation. With legislation as fundamental as this you cannot get a more basic description of contempt than that. The Senate committee members, including the government members, openly stated that there was insufficient time to scrutinise it. How contemptuous can you get?

And it is not just traditional owners that we were not able to hear from. Other important bodies I would have liked to have had more evidence from included, particularly, the Minerals Council of Australia. When you have the mining industry in the Territory lining up with Indigenous people in the Territory in expressing concerns about some of these changes then you know something is deeply wrong. If you look at the detail of the changes, you can see why. There is a consistent pattern coming out, with many different pieces of legislation in a wide range of areas being forced through the Senate, of more power being centralised in the hands of the national government.

We have heard a number of federal government ministers in recent times speaking more and more frequently about the need to get more and more power into the hands of federal government. Whatever the area is, it seems that the government’s solution is to give more power to themselves. That is what they have done in the area of Indigenous affairs; we have already seen it in a wide range of other areas. In the administration of Indigenous issues, under the guise of so-called mainstreaming, we have had the government taking full control. Even though all the rhetoric is of opening up more opportunities for economic development for Indigenous people, creating more flexibility and generating opportunities for enterprise, what you see when you look at the detail is more control for the minister.

That is why the Minerals Council are also concerned about some of these changes. Indeed, even where you had amendments recommended by the land councils, by the Northern Territory government and by the minerals industry, the government did not make some of those changes in particular areas, because that would have meant them relinquishing control and giving more control and power to the land councils, the traditional owners and industry to work it out amongst themselves. You would have thought that a government like this, with all their ideological rhetoric, would be all for any opportunity for government to get out of the way and allow Aboriginal people and industry to figure it all out for themselves without red tape, without bureaucracy and without government interference.

If you look at all of the contentious changes in this legislation, you see that they all have one thing in common: they either give more power to the minister and the government or they take power away from Aboriginal Australians. Sometimes they do both in one measure. When you look at that you see a pattern, and that is why it is not sufficient for the minister to give vague assurances that there will be no coercion of Aboriginal people to sign up to 99-year leases on their townships—that it will all be voluntary. He can say that now, but once the legislation is passed there is no way of preventing people from being coerced in all sorts of ways into leases that they would rather not enter into.

If you look at some of the other changes in the legislation, you see changes that increase the minister’s control over the budgets of the land councils. Previously, there was a legislative minimum that land councils had to receive each year. They had a guaranteed floor that they knew they would receive each year in funding. That is now to be taken away. What other possible reason could there be for that, other than for the federal minister to have more power, more influence and more ability to provide implicit threats to the land councils? If they do not do the right thing then their budgets can be diminished. Anybody that suggests that does not and would not happen is either a fool or a liar. It happens time and time again. It is not a practice solely the province of the current federal government; it is the practice of governments state and federal, Labor and Liberal, over a long period of time. It seems to have got worse, I might say, in recent times, at both state and federal levels; it is a practice that we all know happens. If this legislation goes through, it will be a clear example of where there is a major weapon in the back pocket of the minister. The minister will be able to require the land councils to do what he wants and to inflict punishment if that does not happen.

In addition to that, the minister now gets power to be able to override a land council’s refusal to delegate powers and functions. Supposedly, there is more flexibility because the land council can delegate more easily, and that is good, and they can also decide that they do not want to and keep the decision with themselves. But under this legislation they can have that overridden from left field by the minister. We have the potential for the minister to be able, against the land council’s wishes, to more easily establish smaller land councils. These are the sorts of provisions that were opposed and have been opposed by the Minerals Council for the simple reason that it will increase uncertainty. It will mean the potential for dealing with different people and different bodies making different decisions about the same situation. This legislation has the real prospect, which perhaps in some respects could please some environmentalists, of making it more difficult to establish mining in the Northern Territory. It actually increases the potential complexity and the prospect of bureaucratic interference.

The other aspect which I think really does need emphasising is: who will be paying for any 99-year leases that occur over townships? Remember, this is the government’s brand new idea. The government have not consulted with traditional owners and it has not been part of the long reconsideration of this act to have a 99-year headlease over a township. Yet any rents payable to traditional owners who agree to lease their land will come not from the lessee, like the Northern Territory government, for example, but from the existing pool of money already set aside for Aboriginal people which has been directly derived from mining royalties on Aboriginal land. Frankly, every time I look at this I think there must be a mistake. They could not be so brazen as to say under the guise of providing economic opportunity for Aboriginal people, ‘You can rent your land to somebody else for 99 years and the money to pay for that rent will come from your own money that has already been set aside.’ Not a single new cent will be provided to assist in the so-called economic development for Aboriginal people under this act if any of these leases are agreed to. The money will come from funds already set aside for the benefit of Aboriginal people and derived directly from mining royalties from their own land. So, to pay for leases, the government is now going to dip into that set amount of money already there and meant to be used for Aboriginal people.

There are a range of other aspects that need some questioning in the committee stage. One of the downsides of not having time for proper committee inquiries is that in the committee stage of debate we have to ask the questions on the floor of the chamber. The government might think that it saves time by having short committee inquiries but it actually chews up the time of the Senate as a whole. I will explore some of those other matters later.