David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Hansard source

To continue my contribution from earlier today, the third point that I was making prior to question time was that representative bodies, as constituted under the act, are required to be governed equitably and to have a proper and fair basis for the selection of priority claims. The circumstances that confront claimant groups under the umbrella of one particular rep body is that they are all jockeying for funding and for the use of the anthropologists, the lawyers and all of the professional assistance that each group needs. How that is resolved is a very important matter that requires transparency and equity. Up to this point in time, there have been significant problems with claimant groups not being able to conduct their claims because they have not been able to get onto the priority list of their particular rep body. Often they have had to go through the future act process and fund their own claim away from the supervision of the rep body.

The final point with respect to the logistical difficulties confronting claimants is that the discipline of communicating the outcomes of the activity of the rep body is expensive but necessary. The claim is managed by the rep body on behalf of the claimants, who often have very limited capacity in terms of expertise to conduct a serious Federal Court litigation. The claimants’ solicitors’ advice and the outcomes of various court hearings all need to be communicated to the claimants by the rep body. This is both expensive and time consuming but ever so necessary.

So, as I have indicated, pursuit of a native title determination is a tortuous, complex and very-high-cost litigation and definitely not to be undertaken lightly or without a great deal of advice and consideration. These matters are besides the technical issues of accuracy of description of the boundaries of the land claimed, which is often very difficult—and I pause to say that the Native Title Tribunal has established a very good mapping system that indicates the precise locations, or as precise as the descriptions allow, of various land boundaries as claimed by the claimants. We then have to have concise elements of connection to the land and compliance with the thresholds set out in the act. These are all very difficult technical matters. I further note that, to have a successful claim determination, the evidence of connection needs to be direct evidence and in vive voce form. The problem with this is that we are talking about a whole host of people whose life expectancy is far below that of mainstream Australian society. Many are already old and English is not even their first or second language. To ask them to come to a sitting of the Federal Court, which is usually in capital cities to give evidence—occasionally there are significant sittings in country—is therefore a major ordeal for them.

There was a report in 2006 that was commissioned by the former government, by Graham Hiley QC and Dr Ken Levy. They provided to the then Attorney-General, Philip Ruddock, a detailed report in which the success of the process was reviewed. This was a good report. It broadly focused on the issues I have mentioned and sought to offer some solutions. To some extent, unfortunately, the authors differed as to the solutions to the various problems, and it is apparent that the current Attorney-General and government have elected to go with the changes recommended largely by Mr Hiley—that is, that the Federal Court and the registrars be further empowered to deal with claims. I will come to the rationale behind that, but I pause to say that the National Native Title Tribunal paved the way and was a trailblazer in this area. I do hope that the Federal Court will continue to use the mediation powers of the National Native Title Tribunal, because I think they have had a number of successes in very difficult circumstances, and I commend them for that. I think the native title legislation is very difficult, very complex, and continues to present logistical nightmares for claimants, respondents and state governments. I want to see that the legislation is effective and works, and that we come through this period of uncertainty with respect to land use, particularly in my home state of Western Australia.

It does seem to me that greater power to make interim orders in both the management of the claim and the ultimate determination is preferred, such that we are moving, as we are with these amendments, to the Federal Court and the federal registry. I say this because, notwithstanding that much of the work will be done by Federal Court registrars, the Federal Court will provide much more of a one-stop shop capacity. This should—I trust and I hope and I expect—expedite matters and accordingly reduce costs.

I have a view with respect to the entree type of judicial forum required to get these matters into some sort of order prior to their being presented formally before a judge in court. In Western Australia we have an administrative court called the Warden’s Court, where matters proceed with a minimum of court documents and process yet there is a good track record in the summary determination of factual issues. I hope that the registrars in the Federal Court can take a leaf out of the way that the Warden’s Court in Western Australia works, often dealing with very serious and very valuable matters, such that the lion’s share of the work is done before the matter comes before the Federal Court judge.

A move away from formal evidence in chief and cross-examination is desirable in this particular area, with agreed statements of facts and prior published evidentiary statements setting out the perspectives of the claimants and the arguments of the respondents. That is a very positive thing, and I do not think there is anything to stop us doing that. Ultimately, I think everybody has a pretty fair idea of where the matter is going. Setting out evidentiary statements allows everybody to know where they stand, and it is a great aid to mediation such that we can have agreed orders. The ultimate objective of all of this is to minimise the time that the judge has to sit in court and to make the orders as pristine and as practically applicable and effective as they possibly can be.

I pause to endorse very much of the remarks of the Chief Justice of the High Court earlier this year in talking about some of the solutions that are needed here. I do consider that the need to look at the onus of proof is important. My principal reason or the motivation for the need for reform has been the conduct of the states. Each of the states, to some greater or lesser degree, for their own reasons—some legitimate and some questionable—has been inordinately slow and often parsimonious with respect to the shouldering of the some of the expense and assistance to both claimants and respondents in resolving matters and in obtaining determinations. In Western Australia we have had to review freehold title, mining leasehold title, pastoral leasehold title and so on and so forth. All of this has presented major difficulties just for lawyers examining the position of the claimants and seeking to agree orders, which has meant literally months of examination of the state government records. This is a terribly onerous procedure, and this is why the process has bogged down.

If the states had been more proactive and, indeed, if state politicians had greater understanding of native title, were less fearful of consent determinations and less fearful of compensation and the overall process, we might be much further advanced. I do hope that they heed my words today and start to come to terms with the fact that native title is here to stay. It is an act of the federal parliament. It is not going to go away and the best way to deal with the issues that it presents on the ground is to mediate and to come to agreements. There is a great deal of lip service and hand-wringing, with platitudes offered up by state and federal politicians on this subject while they continue to stand effectively on the hose obstructing reform and progress in this regard.

Native Title Amendment Bill 2009 is no silver bullet or instant panacea to the problems, but it is a beginning. It is a contribution and I think that it is a step forward. A greater and more disciplined focus on mediation is a good thing. Greater financial assistance—and I trust that there will be greater financial assistance—for mediation and an increased financial commitment by both state and federal governments is a good thing. However I am very sceptical as to just how much money and how well managed that money will be when committed by those governments. A greater capacity for the Federal Court to make determinations on related matters is a good thing. Refining the process in rep bodies is a good thing, but again I am sceptical as to whether there is a really aggressive and disciplined capacity for rep bodies to effectively and cost-efficiently manage themselves and to properly manage the claimants in a transparent and equitable way. It is not easy. It is difficult and presents a number of problems, but it must be done correctly such that the claimants are fully informed and know exactly where they stand at any given time.

I pause to mention that in one case that I was involved in many years ago a rep body had on its books some 14 lawyers that it employed and yet, with respect to my matter, it still briefed an expensive member of a large city law firm. I just think that we need to get a huge injection of reality here. People who are immersed in native title and who work for rep bodies must conduct their cases in the Federal Court as cost-effectively as possible. The most important thing in this area of public policy is the proper funding of stakeholders and the strictest of cost-efficient management of those moneys, as I have said.

I assure the Attorney-General that many of us in the Senate will be watching the implementation and outcomes of these reforms with a very critical and weather eye. However, I do wish these reforms success, and I trust that in one or two or maybe three years we will be back here to see those 511 cases that are pending substantially reduced.