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

by leave—I move Democrat amendments (10) to (13) on sheet 5192 together:

(10)  Schedule 1, item 18, page 9 (lines 18 and 19), omit paragraph 203AE(4)(b).

(11)  Schedule 1, item 18, page 9 (lines 30 to 35), omit subsection 203AE(6).

(12)  Schedule 1, item 19, page 11 (lines 23 and 24), omit paragraph 203AF(4)(b).

(13)  Schedule 1, item 19, page 12 (lines 4 to 9), omit subsection 203AF(6).

These amendments are based on a recommendation from Tom Calma in his submission to the Senate committee. He is the Aboriginal and Torres Strait Islander Social Justice Commissioner of the Human Rights and Equal Opportunity Commission. These amendments go to the issue of the public’s right to comment on extensions and variations. It is probably easier if I quote from the submission. Mr Calma said:

46. I am concerned that the proposed changes to the way in which decisions to extend, vary or reduce a representative body area are made.

47. Presently, such decisions cannot be made without -

a. in case of extension:

• the representative body’s agreement [s203AE(f)], and

• Ministerial satisfaction that the body will ‘satisfactorily represent persons who hold or may hold native title’ [s203AE(c)], and

• Ministerial satisfaction that the body ‘will be able to consult effectively with ATSI peoples living in the area’ [s203AE(d)], and

• Ministerial satisfaction that the body will satisfactorily perform its functions [s203AE(f)];

b. in the case of variation:

• joint application for variation being made by the representative bodies[s203AF(1)], and

• a consultation requirement [s203AF(2) & (3)], and

• Ministerial satisfaction that the body will satisfactorily represent native title holders and claimants [s203AF(4)(a)] and effectively consult with Aboriginal and Torres Strait Islander peoples [s203AF(4)(b)], and

• Ministerial satisfaction that the body will satisfactorily perform its functions [s203AF(4)(c)].

c. In the case of reduction:

• Ministerial satisfaction that the body is not satisfactorily representing native title holders and claimants or effectively consulting with Aboriginal and Torres Strait Islander peoples [s203AG(1)(a) & (b) but will do so in relation to the remainder of the area [s 203AG(2)(a) &(b)];

• Ministerial satisfaction that the body will satisfactorily perform its functions [s203AG(2)(c)].

48. It is proposed to remove all of these criteria save the sole criterion that the Minister is satisfied that, after the extension or variation, the representative body or bodies will satisfactorily perform statutory representative body functions in relation to the extended, varied or reduced areas.

In this regard, Mr Calma noted that representative bodies’ functions do not include general representation and consultation requirements—something that the minister himself was indicating earlier on—and that they did not suggest any standard for representation and consultation. So under the proposed changes the minister would, in relation to extension and variation decisions, be required to give 60 days notice of his or her intentions to the public inviting submissions about the matter and to consider any submissions made by the public before making a decision.

Mr Calma’s submission continues:

51. I am concerned that ‘the public’ are thought of as having:

• any relevant interest in which particular body will be responsible for providing legal representation to native title holders in an area, or

• any relevant opinion about the likelihood of satisfactory performance of statutory functions by any particular body.

52. The inclusion in the Bill of a proposed requirement that there be notice of these matters to the public and consideration of the public’s submissions, underscores my concerns that leaving recognition decisions to be decided solely on the basis of a broadly defined criterion susceptible to differing interpretations, exposes representative bodies to an actual or at least perceived danger that decision making will be influenced by political considerations.

When one talks about the danger of political consideration, it is always worth emphasising that it is not necessarily attempting to cast a slur on the current government or the current minister. It is always worth noting that we are not here deciding whether or not to make life easier for the current government; we are deciding whether or not to change the law. Of course that law stays, potentially, for decades to come—well past the life of this government and perhaps its successor. So we have to look at what is likely to work and at what the potential consequences and uses are of a section of an act once it is agreed to.

It is a combination here of the fact that all of these current requirements are being removed and left basically solely with ministerial discretion, combined with the ability to take notice of opinions from a wider group of people than would necessarily have any relevant interest, particularly with regard to which particular body would be responsible for providing legal representation to native title holders in an area. I am certainly not against consultation, but, in changing the law to basically give much wider, more open-ended discretion for the minister and on top of that allowing the minister to take into account a much wider range of opinions or views in coming to the decision, there is a potential risk and certainly potential for perceptions about political considerations.

Again, I point out that this is coming from the Social Justice Commissioner and reflects views from some sections of the Indigenous community about how some of these powers might be used. It is a matter of whether or not people will have confidence and be relaxed about how discretion might be used down the track and whether people and representative bodies can feel secure in what they are doing, or whether in undertaking their tasks they will have a little extra creeping suspicion at the backs of their minds that upsetting the wrong person might come back to bite them. Once we take out all those specific legislation criteria and leave open-ended discretion, it opens up that risk.

On the flipside of it, there is also the issue of providing some security for the relevant minister, whoever it might be down the track. As we have seen in some other areas, such as migration, when there is nothing else there but ministerial discretion it can actually leave ministers and decision makers exposed to unfair perceptions about the reasons behind their decisions. To me that also suggests there are good public policy reasons for having more specific criteria outlined.

Question negatived.

I move Democrats amendment (16) on sheet 5192:

(16)  Schedule 1, item 27, page 14 (lines 24 and 25), omit “the body’s organisational structures and administrative processes will operate, or are operating, in a fair manner”, substitute “on the basis of published criteria:

             (a)    the body’s organisational structures and administrative processes will operate, or are operating, in a fair manner; and

             (b)    there has been satisfactory compliance with approved statutory plans under section 203D; and

             (c)    the body has effective planning procedures in place and complies with them; and

             (d)    there has been satisfactory representation and effective consultation with constituents.”.

I might have lost that last vote, but I do not think I lost the debate.