Rachel Siewert (WA, Australian Greens) Share this | Hansard source

The Greens had a substantive discussion last night but we would like to go over it again and talk about a few extra points—that is, we believe it is quite clear that the government’s intention is to water down the concept of ‘just terms’. Why use a second term if they think they are interchangeable? ‘just terms’ is a term used in the Constitution and it has a specific meaning. There is an important body of law behind the meaning of that term. While to date there has not been a lot of case history in relation to the use of ‘just terms’ on Aboriginal land, we understand that ‘just terms’ would require compensation acknowledging the relationship of Aboriginal people to the land, not just in terms of land value or infrastructure values. That is a commonly understood meaning of ‘just terms’ as it relates to Aboriginal land.

‘Reasonable compensation’ is not a constitutional term and is much less specific in meaning. While you could potentially go to court as the government has been saying to argue that an amount of compensation is reasonable, you do not have the constitutional guarantee of the breadth of the term ‘just terms’. There is a difference between ‘just terms’ and ‘reasonable’. If the law is to use two different terms in the same piece of legislation—and even more so in the same section or subsection—then there is a presumption that they have a different meaning; otherwise, why are there two different terms? We believe there is no question on the basic principles of statutory construction that they would be seen by a court to have different meanings and that, given ‘just terms’ is the constitutional guarantee, ‘reasonable compensation’ would be read as requiring less than ‘just terms’.

If the government is genuine in intending that the two terms have the same meaning, then to avoid any confusion amend it to read ‘just terms’. If you do not want to amend it, it is quite clear that you have an intention to be confusing and for there to be two different meanings for ‘just terms’ and ‘reasonable compensation’. If nothing else and you are genuine in saying they are interchangeable but you want people to be able to go to court, it will reduce court time if you are very specific in your meaning. It is quite clear the government is intending to be confusing and for there to be a difference between the two terms.

If they are genuine, they would agree to amend it to remove the confusion about this particular bit of this highly complex and confusing legislation. I see no reason why the government is not prepared to clarify this point. It was raised in the committee. Unfortunately, they did not go far enough as to make a recommendation but it was raised as a point of confusion in the committee. The Law Council was very clear on it. All the advice that we have received on it is very clear: this is confusing and there are two different meanings. Resolve the confusion by amending the act; otherwise, the only interpretation that the community can make is that there is an intention for two different meanings, for there to be confusion and to force Aboriginal people into court to get compensation.