Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I will just indicate Labor’s support for these amendments. They are technical in part, but they go to improving the bill.

Question agreed to.

by leave—I move opposition amendments (22), (24), (25), (27) and (29) together:

(22)  Schedule 2, item 51, page 38 (line 28) to page 39 (line 2), omit subsection 136G(3B).

(24)  Schedule 2, item 53, page 44 (line 20), at the end of subsection 136GE(2), add “; provided that the parties to the proceeding agree.”.

(25)  Schedule 2, item 57, page 46 (lines 8 to 10), omit subsection 138B(3).

(27)  Schedule 2, item 67, page 50 (line 18), after “must”, insert “, provided the parties consent,”.

(29) Schedule 2, page 52 (after line 22), after item 73, insert: 73A Subsection 203C(1)After “body”, insert “or a prescribed body corporate”.

I will see if I can deal with those seriatim. They would then deal with all of the amendments save for opposition amendment (26) and, ultimately, schedule 2. I will confine my comments to the significant parts of the bill that we wish to see some improvement in and give the government the opportunity to have a look at those particular areas. Amendments (17) and (20) both concern the effect of proposed item 36 in the bill, which would insert proposed section 94C. This proposed section would require the court to dismiss an application in response to a future act if certain criteria were met. Further acts are defined under section 233 of the act as acts which in particular circumstances affect or purport to extinguish native title.

There is no reason why native title applications lodged with the motive of protecting native title, where a future act is notified, should be regarded as improper or an abuse of process. To make them the subject of summary strike-out can only be regarded as an unfair attempt to deprive native title claimants of their rights to pursue the proper court processes available to attain their rights. It is also unnecessary, given that the courts can already strike out claims if they are manifestly unsound. So in this instance there is the ability for the courts to deal with these types of applications. You can also have an application by the respondents to bring that about, but that is an aside really. The real issue of course is: it seems that the amendments of the government in this bill will reduce the rights of those people bringing claims and may in fact impinge on existing rights.

Amendment (18) in addition moves to strike out item 19 of the bill, which reduces the ability of the Federal Court to monitor and supervise the progress of mediation of matters before it and, when it considers it appropriate, to explore other ways to resolve matters, through court based mediation.

For the benefit of people listening: Labor is just going through the relevant amendments that we seek to move and speaking to those. Some of them are consequential so I will not go through those in any detail. It is clear from the amendments that they are in fact consequential. Amendments (19) and (21) both relate to the production of documents, albeit in different contexts. Amendment (19) relates to the bill’s item 31, which would provide a mechanism for the courts to enforce a direction given by the member presiding over the Native Title Tribunal mediation conference where a party fails to comply with the direction. That can be seen in schedule 1, items 45 and 47, which propose to empower the presiding member to direct parties to attend mediation and produce documents.

Amendment (21) would give the presiding member of the tribunal the power to direct the production of a document which might assist the parties to reach agreement on any matters mentioned. This is not conducive to the mediation process. If mediation is designed to get the parties together to come to a result, that would be better served if the government actually turned its mind to how it could improve the mediation process overall rather than by making these proposed amendments. Labor seeks to ensure that the parties can use the mediation process.

Although the bill’s explanatory memorandum states that the parties will not be required to produce documents that are subject to legal professional privilege, it is not made explicit. Labor believes that it should be. Amendment (22) relates to item 51, which provides for reports by the tribunal to the court on progress in mediation. Section 136G(3B) provides for the tribunal to include in the reports proposed breaches of duty to mediate in good faith and to appear and produce documents. The last two obligations are opposed by Labor. The inclusion of all of these aspects in reports to the court is not conducive to the mediation process and could compromise the court’s position as the ultimate arbitrator of the matter before the court.

It might be worth explaining what I am seeking to do. I sought leave to move that first group of amendments, but I am also dealing with a second group. I do understand that the questions have to be put separately, but I think for the sense of ensuring that all these amendments are before—