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

I move opposition amendment (1) on sheet 5274:

(1)    Schedule 1, item 88, page 27 (line 22), after “proceedings”, insert “if that party has shown cause to the Federal Court as to why the order should be made”.

The issue that comes up in the amendments moved by the government underscores, as I have said, one of the problems in this area. The government has brought forward a technical amendments bill but, after a committee inquiry which generally would not be necessary for a technical amendments bill and in which there were a couple of recommendations that the government needed to pick up, we find that there is a whole raft of amendments, 40-odd in total, that have come afterwards. Certainly there were not 40 recommendations to the Senate inquiry. It shows the complexity of getting it right in this area.

I encourage the government, in getting it right, to ensure that when they deal with this they do not create a position in which certainty is not guaranteed to stakeholders by building technical amendments on technical amendments. One thing the government could do to alleviate some of the uncertainty that surrounds these issues is in the fee structure area. It sometimes comes down to money. I understand where the government wants to be with sections 60AB and 60AC in ensuring that there is an appropriate and reasonable fee structure and that it is reviewable, but it leads to a range of questions about whether there is a right of merits review for a native title body which believes that its registrar may have made an incorrect decision, whether the regulations will set fee scales and what procedures the registrar will have in place to assess the matters that are brought before it. It is important that decisions it makes are consistent and that they are followed but that they do not become a de facto way of setting fees by providing opinions which provide, when the stakeholders look at them, an idea of what fees they should be charging. These things should be set separately, and the system should ensure that they can charge reasonable fees and set them according to the requirements they have. I am hopeful that the government can provide an answer on those matters today as well.

It is also important to ensure that the opinions preclude a system evolving in which the registrar becomes a central—that is, a de facto—agency for setting fees for the relevant stakeholders. That would seem to be self-defeating. Labor would be encouraged to hear an answer to some of those questions today. If they cannot be provided today then Labor will accept written confirmation about how those matters will be dealt with at some not-too-distant point in the future so that stakeholders can understand how the system will work effectively for them to provide beneficial outcomes for all parties.

As I have said, with the way those two sections work, in truth I do not think the government has got it right. But we are willing to suspend our judgement and see how it works and see how the answers are given. That is why Labor will ultimately, as we have said, support the passage of this bill. We are not in the business or rewriting how your fee schedules and systems should work. It is a complex area; we acknowledge that. But we do accept that the onus is on the government to ensure that we are not revisiting it back here with further technical amendments to get it right. If you say that you can answer these questions, that the regulations will work, then we would like to hear that assurance, because what the stakeholders do not want to hear is that it will be a running amendment system until we get it right. That is not helpful to anyone. Certainty is the aim here.

I will not go through all of the details themselves other than saying—I cannot resist this; my apologies—that it does seem that a range of errors have been picked up, not only by the committee but also by the drafters. I am pleased that they have picked them up, although I think in this instance that you should look at the number of them—fixing a drafting error with amendment (20); technical corrections of drafting errors in amendments (26) and (27); further technical amendments to update; and another technical amendment at (38). The government should have paid a little bit more attention to the original technical amendments bill in the first instance, to get it right and to have a comprehensive position. That would have enabled and ensured that the committee system itself would have had all the technical amendments before it and would have been able to work through them systematically, as it did with the original bill, rather than having the piecemeal approach that the government has adopted by presenting it in this way. Labor did not seek then to have those technical amendments in the second round, if I could call it that, sent back to the committee. We do see the need for this legislation. We do think this area is in need of assistance to streamline the process. On that basis we are willing to suspend part—not all, but some—of our judgement as to how this system will work, to ensure that these amendments pass through the Senate during this sitting period and are available for the participants as early as possible. With those comments, Labor supports the second round of technical amendments.