Bob Brown (Tasmania, Australian Greens) Share this | Hansard source

That is an important matter for the parliament to be considering—because, otherwise, we hand across to the government unlimited access to consolidated revenue to fund legislation without there being parliamentary scrutiny or an ability to review the situation. The minister just said that compensation for properties taken off Indigenous people will be on just terms. He would be aware that section 51(xxxi) of the Constitution says:

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

The question then arises as to why ‘just terms’ is not used in the legislation. Division 4, clause 60, ‘Compensation for acquisition of property’, says:

However, if the operation of this Part, or an act referred to in paragraph (1)(b) or (c), would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

So, immediately, this legislation goes outside the Constitution and contemplates the acquisition of property other than on just terms. The Constitution says that it must be on just terms, but the government’s legislation says ‘otherwise than on just terms’ and, where that occurs, the legislation says there will be a ‘reasonable amount of compensation to the person.’ What is reasonable here?

What we have in this situation is the Commonwealth taking the property of Indigenous communities against their wish and their will. I think there is little doubt that the Commonwealth has the power to do that under the Constitution—but, when it does that, it must come to a just terms arrangement. And the basis of a just terms arrangement, as the minister will know, is an agreement coming out of a mutual discussion and understanding between the parties. But there has been none here. The government are simply saying: ‘We’re coming to take your land; end of discussion. What’s more, instead of discussing what would be just terms, we are going to go outside just terms—we’ve got that in our legislation—and we’ll pay a reasonable amount.’ This is unconstitutional behaviour, drawn up by unreasonable people, saying, ‘We will resort to our reason, not the other party’s rights under the Constitution to be involved in the just determination of compensation.’

The minister just mentioned that the Northern Territory Valuer-General would work out what the property is worth. Is the minister not aware that property is not just land value according to the big end of town; that, for Indigenous people, property, amongst other things, has an inheritance. For Indigenous people, there is a deep bond with the land which cannot be duplicated somewhere else. It has an extremely valuable non-tangible component for the people who are being dispossessed here. You cannot simply go to the Valuer-General as if that bond means nothing and simply say, ‘Give us a value of this land,’ as if some itinerant real estate agent wanted to sell it to somebody. That is not how it works. The minister may not understand it and Prime Minister Howard may have no idea of the relationship that there is between Indigenous Australians and their ancestral lands. It goes beyond owning it; it is a relationship which is being part of that land. I ask the minister how he is going to assess the value to Indigenous Australians of that relationship, that spiritual connection, that ancient connection.

Where is even the beginning of a talk to make an assessment of this dispossession of Indigenous people’s land at a calculated value according to a Valuer-General using simple real estate values? It is a terrible prospect and I think it is illegal. The opinion of Mr Brian Walters SC ought to be noted here because it is important that the government understands that there are broad legal opinions which find that the government is acting outside the just terms required by the Constitution. In fact, the committee was furnished with Mr Walters’ opinion. The end of that opinion states:

In my opinion the legislation purports to authorize the acquisition of property on terms other than the “constitutional guarantee” of just terms.

In those circumstances, the courts would not have a role of correcting the legislation by inserting just terms. Rather, the legislation purporting to authorise the acquisition of the property would be struck down as void.

In my opinion all of the provisions in the legislation providing for acquisition of property other than on “just terms” would be struck down as void ab initio if they were enacted into law in their present form.

This is a breach of the Constitution being tried on in the Senate. This is the conservatives breaking the highest law of this land, which is the Constitution. This is a conservative government—and isn’t it so often the case?—saying, ‘We are above the Constitution.’ The Prime Minister stands in front of the flag and uses all the symbols of this nation, but when it comes to Indigenous people he wants to override the Constitution through this legislation. Chair, you will understand, even if the minister and the Prime Minister do not, that you cannot do that.

This legislation challenges Indigenous Australia. It says: ‘If you want to get your constitutional rights you’re going to have to go to court. The parliament is not going to fix it up.’ Why isn’t the parliament going to fix it up? Because the government has the numbers and the parliament is being used as a rubber stamp by the executive office of Prime Minister Howard. They are saying: ‘We’ll fit out the Constitution. We’ll put it on the shelf because we have a political aim here.’ Not to put too fine a point on it, that aim is to defraud the Aboriginal people of their land using a valuation system which ignores their relationship with their own land. It ignores their rights and it ignores 60,000 years of cultural heritage and puts it in the hands not of the Constitution, justice or fair-mindedness but of the Valuer-General of the Northern Territory, whoever that might be. It is left to Indigenous Australians to try to get their justice not in this parliament, because this government is turning this parliament into a hall of injustice here tonight, but through the court in order to undo legislation which should never be in here in this form.