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

by leave—I move amendments (24) and (29) together:

(24)  Schedule 2, item 35, page 31 (lines 1 to 3), omit subparagraph 87A(1)(c)(ii).

(29)  Schedule 2, item 48, page 37 (lines 4 to 8), omit subsection 136DA(1), substitute:

        (1)    Subject to subsections (2) and (3), if the presiding member considers that a party to a proceeding:

             (a)    is not a person covered by paragraph 66(3)(a); and

             (b)    does not have an interest that may be effected by a determination in the proceeding;

he or she may refer to the Federal Court the question of whether the party should cease to be a party to the proceeding.

Amendment (24) amends item 35 of schedule 2 of the bill to clarify the meaning of the reference in section 87 to ‘each registered native title applicant’. The act provides that the court will determine native title in relation to part of a claim area on the agreement of the parties. Proposed new section 87A limits the range of parties whose agreement is needed for such a determination to be made. This amendment is derived from concern expressed by the Social Justice Commissioner about how clear the definition was or what was meant by the words ‘each registered native title claimant’ in relation to any part of a determination area. He noted that perhaps what is meant is the applicant in any other proceeding to an application for a determination of native title in relation to any part of that area—that it is meant to cover those instances in which there are overlapping claims.

Amendment (29) amends item 48 of schedule 2 to clarify the meaning of ‘relevant interest’ and again is derived from concerns expressed by the Social Justice Commissioner, Mr Calma. He supported the intent of the proposed new section 136DA but was concerned whether the test of the words ‘does not have a relevant interest in the proceeding’ was sufficiently clearly articulated to be readily applied by the presiding member of the Native Title Tribunal. He suggested that the test should be reworked to refer to whether or not the person’s interests are likely to be significantly affected by a determination if they cease to be a party. Currently it reads:

... if the presiding member considers that a party to a proceeding does not have a relevant interest in the proceeding, he or she may refer to the Federal Court the question of whether the party should cease to be a party to the proceeding.

The Democrat amendment here suggests that that criterion be clarified somewhat so that it would apply:

... if the presiding member considers that a party to a proceeding:

(a)

is not a person covered by paragraph 66(3)(a); and

(b)

does not have an interest that may be effected by a determination in the proceeding;

I think it makes it clearer and also a bit safer in regard to how that new provision may be interpreted.

While I am on my feet, I will mention the other Democrat amendment here, which has oppositions to a range of items, some of which are the same as those that have already been put forward by Senator Ludwig on behalf of the ALP. They broadly go to the issue of mediation and the way that may apply, but there are a few extra ones in here. They go to what the outcome will be, how much it leaves to the decision making of the representative bodies, and the flexibility for them to make their own decisions about how they are being controlled and the allocation of their resources—the potential, to use one example, for regional work plans to be made and priorities to be set without proper regard to the objectives and priorities of the relevant representative body or bodies. Given the circumstances and the time, I will not elaborate on those in any great depth this time around, as we have already covered a lot of that.

A lot of the concerns that the Democrats have in regard to this go to the balance of things—how they are going to apply once these new changes are gone through. We are giving a fair few extra powers to the Native Title Tribunal. Some of those are justifiable and we are not opposing them. But it should be mentioned again and reinforced—I think Senator Siewert and Senator Crossin have both referred to it—that there was a reasonable degree of evidence provided to the Senate committee that the tribunal is not necessarily operating in a way that is receiving a universal seal of approval from all of the people who have to engage with it. That is not just those from the Indigenous side of things. Obviously, nothing is perfect, but, in a situation where a reasonable cross-section of those who are engaging with the tribunal as it operates at the moment are suggesting that in some circumstances it was not operating particularly well, to be giving a lot of extra powers on top of that without really going to recognising or resolving some of the existing problems does not particularly give a lot of confidence that this will necessarily lead to an overall improvement.

By giving all these extra powers to the tribunal we are also putting in place—even though the final oversight is still with the court—what was described by the Social Justice Commissioner as having the disadvantages of trial but without the advantages. That in my view and the Democrats’ view is not likely to lead to better outcomes. I would reinforce again that that is what we are about here: trying to get better outcomes—not just quicker ones for the sake of completing them, but actually better, fairer, more just, more complete and more positive outcomes.

It should be emphasised, to go to the broader points in my speech in the second reading debate, that we still do need to do more to highlight the positive opportunities that native title presents for everybody. Obviously there are times—and these amendments go to some of those times—where you have people on opposing sides unable to reach agreement and with competing interests. But there are many circumstances where, particularly if we could get the mediation process working better and the broader support and encouragement from governments working better, there are opportunities for positive gains for everybody. That is really what we should be aiming for wherever possible. I do not think we have done enough of that either in this process here or in the wider approach to native title.

There is still, clearly, a pretty widespread view—and in my view a justified one—that there is still an imbalance with regard to the Indigenous applicants. They have less in terms of resources, capacity and continuity. There are a lot of difficulties there in terms of the burden of reviews, inquiries and what has to be demonstrated. That is already the case. Some of the submissions to the inquiry suggest that this further burden of reviews and inquiries will fall unequally on the applicant. They bear the burden of proof in relation to most of the matters at issue in native title proceedings. If anything, this is going to make it more difficult. Again, the concern has been raised that a number of these proposals that the Democrats are therefore opposing will further complicate the institutional framework for the resolution of native title proceedings. It is already complex because the tribunal and the court must be involved in every proceeding. That is something that this bill and the government seek to address but I do not think they have got it right.

That is a broad snapshot of the reasons the Democrats are opposing a number of these items—not all of them—in schedule 2. In broad terms, we are not convinced that they are going to work. We are not convinced that they are going to have the effect that the government says they will. We are concerned that, in a worse-case scenario, they may further complicate matters and make things more difficult, more expensive and less smooth. That is not where we want to end up.