George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

How would it go at the High Court? The argument that I am propounding would win without a shadow of a doubt, Senator McLucas. So while Senator Scullion's bill is supported by the race power in section 51(xxvi) it is also supported, as any piece of legislation in this parliament these days that relies on an international instrument, by the external affairs power—section 51(xxix) of the Commonwealth Constitution.

We have had this argument, Senator McLucas. Let me refer you to the Tasmanian dams case and volume 158 of the Commonwealth Law Reports, which I just happen to have with me, in which the High Court in 1983 upheld the Commonwealth Law in relation to the Gordon below Franklin Dam on the basis of the United Nations convention on world cultural and national heritage. So we have a clearly established precedent in the High Court in the Tasmanian dams case and in subsequent cases that environment legislation based on an international treaty is within the legislative competence of this parliament under the power conferred by section 51(xxix)—the external affairs power.

But this case, Senator McLucas, is even clearer than the Tasmanian dams case. It is clearer for two reasons: first of all, because the jurisprudence has moved on since 1983. In all the years since the High Court's construction, the breadth or the ambit of the external affairs power has expanded; it has not diminished. So if the Tasmanian dams case was good authority for the use of the external affairs power to support environmental legislation in 1983, then it is certainly the case in 2011 that the Common­wealth parliament has the power.

But it is even clearer in this case for a second reason, Senator McLucas—and let me finish where I began—because it was your government that acceded to the United Nations Declaration on the Rights of Indig­enous Peoples. So under the external affairs power Senator Scullion's bill is doubly supported. It is supported by the World Heritage convention, because it is a bill in relation to the protection of the environment, but it is also a bill, plainly, for the protection of the rights of the Indigenous people and it gives effect to what your government subscribed to but your Labor Party collea­gues in Queensland, in order to buy Green votes, walked away from, and that is the right in Article 26 of that international convention of indigenous peoples to:

... Have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership ...

If you believe that, you would vote for this bill, and by your conduct in opposing this bill you really show what you stand for.