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

Some of the amendments—although not all—that Senator Ludwig has moved mirror what had been circulated in the Democrats’ name, particularly in regard to various items of schedule 2 which we are also opposing. Not surprisingly, I agree with the ALP’s position on those. As I said when we were debating this legislation last Friday, I think there is, to a fair degree, a shared view around the chamber about the outcome people would like: a native title determination system that will work more effectively and efficiently. I think there is simply a disagreement about how best to achieve that. In some of the responses the minister gave, he was talking about the government’s amendments being derived from a review, or one aspect of the review and consultation that were done. That is true, but I also think it is true to say that evidence from a number of different witnesses to the Senate committee of inquiry was that the government did not get it right in the component of the review it chose to go with. At the end, it just comes down to a matter of judgement as to whose assessment or judgement you go with. A lot of different aspects have been put forward by Senator Ludwig, and the minister responded to a lot of them. But I think there is a particular problem here, that what is being put forward in the government’s amendments is almost at cross-purposes. I think removing parts of it, as proposed by the opposition’s amendments, is a safer approach.

The aspect with regard to item 31, which the opposition is seeking to remove, gives the court power to make orders consistent with directions by the tribunal, and that includes things like directing a party to produce documents—for example, for the purposes of mediation. In evidence provided to the committee by those who quite regularly engage in this area of activity, there was a lot of concern about that—not so much that a power like that might exist, but that it is conveying a mixed message about the approach of the tribunal and the role of mediation more broadly. It is potentially problematic. I know evidence was provided to the committee that reinforced this view that providing powers to direct the production of documents is appropriate to a forum that has a role in determining facts. The purpose of mediation is not to determine facts, per se; it is to encourage parties to reach agreement on relevant matters.

If a tribunal is running mediation and then comes in with the power to demand that documents be produced, I think that is potentially problematic. I am not saying it will automatically blow everything out of the water all the time, but there is confusion, in my view, about the nature and purpose of mediation and what sorts of things make mediation work well. If you are forcing people to comply with mediation then it is not mediation, and you might as well not call it mediation and call it something else so everybody is clear about it. You cannot have it both ways with something like mediation. If you are trying to do that then it is hard to make it work if it has a range of compulsory aspects to it. People may still engage with it, but the way they engage with it and how effectively and constructively they engage with it may not produce the outcomes that people expect.

Obviously the government has a different view in regard to that. There is no greater sign of a desire to listen to the arguments being put now than there was at the end of last week. I thought there might be a freshening of the approach over the weekend, but that does not appear to be the case. I will not continue making these points, but I will make a few more points when it comes to the Democrat amendments.