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

It would be interesting to return to the original question that was asked by Senator Evans, which Senator Scullion, the minister, did not answer. He may have misheard and gave the government’s response to the Senate Standing Committee on Legal and Constitutional Affairs, whereas Senator Evans was actually asking for the government’s response to the Alert Digest, which is put out by the Scrutiny of Bills Committee. Nonetheless, the minister’s response was informative and a trifle perplexing. I might have misheard something so I ask him to clarify that as well.

I would like to outline the approach the Democrats are taking here. As I indicated at the end of the second reading debate, we believe that this is an issue of great importance. A window of opportunity has been opened here, for whatever reasons, by the federal government to get a lot of public focus, public debate and commitment made about genuine, ongoing, long-term and effective action to address a wide range of areas of disadvantage faced by Indigenous Australians. But the key problem here, and the reason why there is such anguish around this legislation and such torn views by many Indigenous peoples themselves, is that there is almost a ‘Sophie’s choice’ being put to them—a cleft stick. The people who have been calling for so long for concerted action are now apprehensive about the nature of many aspects of the action being put forward. I find it astonishing when this is an issue where you have such common ground across the community and the political spectrum about the need to take concerted, comprehensive and long-term action with dramatic increases in resources and support to address significant areas of disadvantage for Indigenous Australians. There would be few issues where you could get more widespread support, particularly when you are talking about wanting to assist children. Yet somehow, on an issue where we have a massive area of common ground, the approach the government has taken to date has had the quite extraordinary and terrible effect of putting bazookas into every part of that common ground that they could find. They are forcing people to either side of the chasm and would have us throwing rocks at each other again. On an issue of this importance, where there is so much common ground, to end up in a situation where we are forced on one side of a great divide is a terrible outcome, and it is a particularly terrible outcome for Indigenous Australians.

In the face of that, the approach and efforts of the Democrats in this debate are focused on continuing to point to that common ground and to maintaining some common ground so that when we get to the end of this process there is still an opportunity to move forward collaboratively and cooperatively as much as possible. That is the reason we are seeking information and clarification from the minister and seeking a response from the minister on issues such as the many points raised in the Scrutiny of Bills Committee report. That is the reason we are putting forward amendments. There are two things that I need to say. It is really important that the government show good faith in this process for the longer term. This is not just about what piece of legislation we end up with; it is about the views that people—not only senators but people in the wider community—will take away from this debate about whether there is genuine intent here to listen and to walk forward together in what needs to be a long-term commitment down what will be an arduous path.

I heard in amongst some of the various speeches that were given in the second reading stage of this debate—particularly in those from coalition senators—regular quoting of Noel Pearson as a person putting forward justification for what the government is doing. I will draw attention to his comments as well, and specifically his comments from last weekend saying that this legislation ‘needs to be decisively improved in some crucial respects’. I will also raise his final comment, which was:

It will be a grave mistake for the federal Government to be as intransigent to amendments to its bill as those who have opposed the intervention entirely.

Unfortunately, as I said before, that is the divide that we have: total opposition to any form of intervention is the position some wish to take, while others are giving no consideration at all to any amendments, any change, any comments or any concerns. To have that sort of polarised outcome on an issue where there is such widespread agreement is a terrible result.

As I said, the viewpoint of Noel Pearson, which I share at least on this issue—I know that Noel Pearson does not share the views of many Indigenous Australians who I have spoken to, but they would all agree with this one—is that there is a real risk here of a grave mistake being made if the government takes that attitude, and it could be the difference between disaster and success. There is the potential for improvements through intervention, through a genuine long-term increase in resources and through a genuine willingness to work together, but there is also a potential for disaster, and let us not kid ourselves about that.

Having said all that, I know in my head and in my heart—or what passes for it—that the amendments that the Democrats and others put forward will almost certainly be rejected with total intransigence by the government. That will be a tragedy. But it is important to make the effort and at least provide the opportunity. It is also important to emphasise that, whatever happens in this chamber, the debate will continue and needs to continue. We need to continue to provide support to Indigenous Australians, who want to have effective solutions to the enormous disadvantage and hurdles put in their way.

Before specifically turning to the Alert Digest, I want to ask a question. From the comments that the minister made before, my understanding is that the government needed to act because the Northern Territory government had the Little children are sacred report and had not responded to it after eight weeks or so. This was rightfully a matter of concern and, because of the matters raised in the Little children are sacred report, the federal government felt the need to intervene. I was therefore perplexed to hear the minister then say that the government rejects the report because the report recommends more of the same. That is what I thought I heard him say; I hope he did not say that; I hope I heard wrong. But I do not see how you can justify all of this intervention on the basis that the Northern Territory government did not respond and then reject the recommendations by saying that they are more of the same. Imagine if the Northern Territory government had responded with that and just said: ‘We reject all this; it’s just more of the same. We’re going to do something completely different.’ The howls of outrage would have been enormous, and justifiably so.

The report does not outline every single thing that needs to be done; the report was not presented that way; that was not its terms of reference. But the report recommends 97 things that need to be done. I hope I misheard that the government is saying that all these 97 things would just be more of the same. How can the federal government not respond to all of those? The federal government justifies its intervention because the Northern Territory government has not responded, and then does not respond either, saying, ‘It’s just a report to the Northern Territory government; it wasn’t a report to the federal government.’ Then it says that it is justifying itself by relying on the first recommendation, which specifically requests action from the Australian government. We at least need some consistency.

The government continually says that it is responding to the first recommendation, when it is in fact responding to the first sentence of the first recommendation and not responding to the second sentence, which says that it is critical—and I emphasise that word—that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities. Is genuine consultation just more of the same? Is that part of the recommendation being rejected as well? If not, when is this genuine consultation in designing these intiatives going to start? It certainly has not happened to date. I repeat that, if this intervention is to have any hope of succeeding, there is an absolute need for there not to be an instransigent attitude and there is an absolute need to work with the leadership in the Northern Territory. They are Noel Pearson’s words, not mine.

The Alert Digest of the Scrutiny of Bills Committee—I would emphasise for those who are not aware that it is a non-partisan committee—is a unanimous report. The concerns raised by the committee were raised unanimously, including by government members. Let me emphasise that these are not policy criticisms; they concern the fundamental legislative approach of the government on core principles that should be applied across any type of legislation, whatever the policy intent. Those concerns go to issues like insufficiently subjecting the exercise of legislative power to parliamentary scrutiny. We all know that this bill and the accompanying bills provide enormous power. Minister Brough has said himself that he has more power than anyone has had in history. I am not sure he is quite accurate there, but that is basically what he said. He has enormous power. I do not know whether it is more than ever before, but it is certainly a hell of a lot. It is more than anyone has had for a long time, certainly in this area. Concerns were raised about excluding merits review, where major decisions by bureaucrats can be made affecting people’s lives with no merits review of those decisions. Concerns were raised about inappropriate delegation of power and about what are known as Henry VIII clauses, where you pass the law and then the minister has the power of deciding when to switch the law on and off in different circumstances, without coming back to parliament. Concerns were raised about whether the phrase ‘reasonable amount of compensation’ is actually consistent with the Constitution, and so were concerns about unacceptably trespassing on personal rights and liberties, particularly in relation to the Racial Discrimination Act.

Those categories I have just outlined are part of the Scrutiny of Bills Committee’s terms of reference, which they assess every single piece of legislation against. They are not going to the policy intent or otherwise of this legislation. The government simply say, ‘It is an emergency, so we need to be able to do whatever we want.’ How long will that excuse last? Five years? Does that justify doing whatever you want without reference to these basic fundamental core principles, albeit, ‘It is for the protection of children; therefore, we need to be able to do whatever we want.’ I would like to think all legislation we pass in this place is done with the aim of not harming children. I do not see any reason why most of these principles cannot still be applied, regardless of an emergency. In fact, sometimes they need to be applied specifically in an emergency because it is precisely in those sorts of circumstances where, if you give people an enormous amount of power, you have the extra risk they will misuse it.

If the government are to show any sign of being genuine here or any indication they will not just take an intransigent approach to every amendment then they should respond to reports such as this, with its concerns. My understanding is this is about a record number of concerns. Senator Ray, the Chair of the Scrutiny of Bills Committee, said that. He has been around this place for a long time, so he would know whether or not a record number of concerns were raised about a package of legislation by this particular committee. It is a non-partisan committee. You cannot just slap it down and say, ‘They do not care about the kids,’ or, ‘They’re trying to hold it up,’ or all of the excuses that have been thrown at any of us who raise any concerns. It is incumbent on the government to respond to these concerns in a comprehensive way on the basis of the concerns themselves and for the broader purpose of demonstrating some semblance of good faith, some semblance that they will take an attitude that is less than totally intransigent and some recognition that they will work cooperatively with people across the board in recognition that the stated goal of all of this is better protection of children. It is something that is held by virtually everybody as a desirable goal. But you need to do more than agree to the goal; you have to work together cooperatively if you are to have any chance of achieving it.