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

This is, in effect, a Democrat amendment that we are speaking to. Just before question time Senator Scullion spoke in response to a couple of the questions that I asked. I have one or two more, but I will wait until he is in the chamber before I ask them. In the meantime, note that Senator Scullion’s comments before question time in many ways reflected mine—the importance of ensuring that Aboriginal people across the board, but particularly Aboriginal children, have access to fresh food and that their community stores are reliable and not filthy with rats and all of those sorts of things. There is no disagreement here. This is where we are at so many cross-purposes in this debate: raising a concern about the application of the government’s policy via this legislation is not in any way disputing the intent. I said at the start of my contribution that this is one area where there is pretty widespread agreement amongst the Indigenous and non-Indigenous people whom I have spoken to in the Territory.

There is definitely room for improvement amongst some of the community stores. I was pleased to note the minister specifically acknowledged that in some communities the stores are fantastic. Wherever we can in this debate, we need to ensure that we do not create the impression that every community is a disaster and that every Aboriginal man is a paedophile and so on. I know nobody is saying that, but that can be the impression that people get. I am sure all of us know—and I am sure that even Senator Scullion has heard this in his feedback—that a concern is developing amongst some Aboriginal men that everybody instinctively thinks that they are probably a paedophile or a violent drunk. That is not directed at the government, but when there is a lot of focus on the issue of child sexual abuse there is that potential. We all know that that is a minority of people, but we need to state that as often as we can to ensure that that almost subconscious perception does not develop.

But to come back to community stores: it is the same principle but a different point. Clearly, there are stores which are good, and it is important to acknowledge that. The Democrats amendment before us is not in any way disputing the stated goal. As I said at the outset, getting fresh, good-quality, healthy food into kids a couple of times a day is probably as good a health measure as you would wish for and better than an endless array of medical checks. If you can get the healthy food into them, you will be doing a hell of a lot more good in the long term. If you do not do that, you can have all the medical checks in the world and you will still keep having problems. This is a crucial area and the Democrats have indicated our in-principle support for the intent. Our concern is about the application and the workability of measures in the legislation. I think that is what we should focus on: whether this will work and whether it is necessary.

I appreciate the minister’s concern that the expansive and very significant power in the legislation does not reflect the intention. I am not debating the intention. I am debating what is in the legislation and how this power can be used. As a legislator, you have to look at what sorts of things are enabled by the power, not what the intention is of the government of the day. With regard to that, I think there are a couple of issues here that do need acknowledging. I will read out a bit of division 4 so that it is clear and it is on the record what is actually enabled by this section:

The Minister may … make … declarations in relation to some or all of the eligible assets—

that is, the assets of a community store—

… to which this section applies …

These declarations may include:

(a) a declaration that the legal and beneficial interests in the assets are vested in the Commonwealth … without any conveyance, transfer or assignment …

…            …            …

(c) a declaration that a specified instrument relating to any or all of those assets … continues to have effect after the legal and beneficial interest in those assets … vest in the Commonwealth …

(d) a declaration that, immediately after the legal and beneficial interests in those assets or liabilities vest in the Commonwealth, the Commonwealth becomes the successor in law of the holder of those assets.

Those are very significant powers, and I accept that the minister said they are powers of last resort. Our concern is whether that is still an acceptable reason for giving such extreme powers, particularly given the basic issues with regard to lack of oversight of how those powers are used. They were flagged in the Alerts Digest report of the Senate Scrutiny of Bills Committee, which has been referred to a couple of times in this debate.

I will not go into hyperbole too much, but I note that we have some allegations about the five-year leases being privatisation of Aboriginal land, which I think is an overstatement of the case. But, having said that, yesterday at the Press Club, Minister Brough was, once again, talking about Aboriginal communal titles being communism. I think that is also a ridiculous concept. You can throw around labels suggesting that having land rights has not worked because it is a form of communism, then you have the state coming in and taking over ownership. That is, potentially, nationalising the assets of Aboriginal communities. Again, I accept it is a last resort, but that is the power which the Commonwealth is being given. That is why you need to have a very good reason for wanting to do it. It is not an argument about intent; it is an argument about the potential consequences of this legislation.

Let us not forget that this part in the legislation to do with community stores has a lot of other powers in it as well—powers which are also pretty strong, which the Democrats are not opposing. These include decisions with regard to granting and refusing licenses, assessments of community stores, conditions of community store licenses—there are very strong powers going to the federal government in relation to that—and surrender and transfer of community store licenses. The Commonwealth already has all those powers. This measure just goes to acquisition, and I think it is a step too far. I do not think it is necessary and I think it is potentially damaging.

Again, the government talks a lot about empowering people, and Minister Brough used that term again yesterday. I do not see how the Commonwealth moving in and taking ownership of a community store is terribly empowering. It certainly would be empowering for a community to have their store run better, for it to be clean and reliable and for it to have fresh food available. I totally accept that. But I do not think the Commonwealth coming in and taking ownership of it is the way to do it.

I wish to take the opportunity of asking a couple more questions of the minister, which go specifically to matters raised in the Scrutiny of Bills Committee report on the legislation—particularly while the chair of the committee, Senator Ray, is in the chamber; I am sure he would love to hear a response to issues raised in that report of the Scrutiny of Bills Committee. Issues were specifically raised with regard to this division and the excluding of merits review. Clauses 97 and 106 of the legislation, which are in the broader part 7, give the secretary of the department the discretion to grant or refuse a community store licence or to revoke an existing community store licence. The explanatory memorandum makes clear that that decision will not be subject to internal review or to external review by the Administrative Appeals Tribunal. Is it the best that the government can do to justify the lack of review to say, ‘This is an emergency; therefore, letting people have a review would slow things up too much?’ Is that seriously the only reason they will use to say that they can do what they want without even an internal review?

The other issue concerns the specific division which I am talking about here, which the Democrats are seeking to remove where the minister can, in writing, make declarations with regard to taking over the assets for a specified time. The Scrutiny of Bills Committee, again, drew attention to that and sought the minister’s advice. Subsection (6) of clause 112, division 4, says that such a declaration is not a legislative instrument. I, on behalf of the committee, thought I would seek the minister’s advice here about whether the declaration, although not legislative in character, is a determination subject to review under the Administrative Decisions Judicial Review Act and, if so, whether the exercise of the minister’s discretion ought not be subject to merits review. Is the intent of simply stating that something is not a legislative instrument to prevent any form of merits review and, if that is the intent, can the minister guarantee that that will also be the effect?