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

by leave—The Democrats oppose schedule 4 in the following terms:

(5)    Schedule 4, item 14, page 53 (line 23) to page 54 (line 4), TO BE OPPOSED.

(6)    Schedule 4, item 16, page 150 (lines 18 to 22), TO BE OPPOSED.

This deals with an issue that we have already talked of in about three different places, and I think the minister has answered the question that I have asked—at least as far as I am going to be bothered to pursue it, anyway. But it does still bring us back to the key point, I hasten to add, which is that I think the government is making a mistake here. The Democrats are opposing new section 74AA, which states:

A permit issued under section 5 of the Aboriginal Land Act of the Northern Territory may only be revoked by the issuer of the permit.

This means that if the permit is issued by a traditional owner then only that traditional owner can revoke it, unless they die—and we have dealt with that—and if it is issued by the land council then only the land council can revoke it. To a large extent we have talked about this, so I will not go on at length, but I think the core issue still has not been demonstrated—that is, why this is needed. I asked the minister prior to dinner if he could give us any more concrete details of just how widespread was the problem of land councils cancelling permits that had been issued by traditional owners in ways that had caused problems, had seemed to be capricious or had caused confusion. I am not denying that that could happen but I think it would be useful to get an idea of how frequent and how big a problem this actually is, because I am not aware of explicit examples.

The other side of that coin is what happens if you remove that power. Certainly my understanding—Senator Crossin referred to this and the supplementary submission from the Northern Land Council also referred to this—is that it is sometimes used as a circuit-breaker to resolve disputes within an Aboriginal group. In those circumstances, at least according to them—and I do not have any reason at all to doubt them—that is usually done in consultation with the police and often by the request of others in the community or Aboriginal group. It would seem to be logical to still allow that power.

There is a detailed process in the act for issuing and revoking permits, appeals and all of those sorts of things. The Northern Land Council’s supplementary submission indicates that ordinarily when they cancel a permit revoked by a traditional owner it is done in consultation with the police, other traditional owners and affected Aboriginal persons. In doing so, they must take into account all relevant considerations and ignore irrelevant considerations, and any decision to revoke a permit may be reviewed in the courts under administrative law principles or via complaint to the Ombudsman. So if there is some suggestion that there is improper revocation happening then there is some form of review available there.

It seems that you would want to have a good reason for taking away this power. I suspect that it is just a bit of a shot across the bow at the land councils or just to take away a bit of their power because you can, because they are seen—and I think this terminology was used by the minister—as the gatekeepers. I do not know whether or not the minister was using that pejoratively on this occasion, but I have certainly heard it used in a pejorative sense. It is not my position to defend anything and everything that every land council does, by any means. There are issues there that one could have in a wider debate. But to take away their ability to cancel or revoke a permit issued by a traditional owner without reasonable evidence to demonstrate why this would be a good idea is a bit of a problem. The Senate has received evidence from land councils saying this will be a bit of a problem. It could make it a bit harder in some circumstances.

The fact that a traditional owner has the right to issue a permit is without dispute. I think it is eminently plausible to say that from time to time you will have a traditional owner who may not have the best intention in giving a permit to somebody of less than ideal character. I have certainly been regularly told that cancellation of permits can be used as a way of assisting in having a person removed. I totally accept what the minister has said a few times—that the permit system should not be a replacement or an alternative to a proper police presence. I am not suggesting it should be. Inasmuch as it may have evolved that way, that is not ideal, and certainly we should ensure a proper police presence. But it is not just about catching lawbreakers. If you are talking about dealing with culture, lines of authority and good public order, sometimes it is not about people who have actually committed crimes; sometimes it is about other related issues.

The permit system is staying in place to some extent, so there are still issues about ensuring that that permit system works as effectively as possible. It just seems that, unless there is a good case being made—and I seriously have not heard it—for removing this power from land councils, there will be one less avenue available to them to revoke a permit in circumstances where it is causing a problem for the community and it cannot be revoked in any other way. In the absence of some reasonably solid evidence presented by the minister indicating the number of times and perhaps some examples of where this has been done in a capricious or unfair way or in a way that is causing significant confusion, I do not think that the case has been made to have this new section put in. A reasonably good case has been made in submissions to the Senate that it will do more harm than good.

I should say that the land council suggested an alternative form of wording and I have not gone with that. I do not think that that has been adequately explored either and I am not 100 per cent convinced that it would be the way to go based on the evidence I have before me. I am not here just to be a parrot for the land councils, by any means. I have not adopted their alternative solution. I think it is better just to keep things as is. The case has not been made and, until it is, we should not have this section in there.