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

I table three supplementary explanatory memoranda relating to the government amendments to be moved to this bill and seek leave to move government amendments (1), (2) and (4) on sheet ZA429 together.

Leave granted.

The government opposes schedule 1 in the following terms:

(1) Schedule 1, item 4, page 3 (lines 23 and 24), to be opposed.

(2) Schedule 1, item 6, page 4 (lines 7 and 8), to be opposed.

(4) Schedule 1, item 11, page 6 (line 28) to page 7 (line 11), to be opposed.

I thank the members of the Legal and Constitutional Affairs Legislation Committee and, in particular, the chairman of the committee, the distinguished father of the Senate, Senator Macdonald, for their work in reviewing the bill. The committee's majority report contained two recommendations, the key recommendation being that the bill be passed. This reflects the significant uncertainty that the native title sector was faced with following the decision in McGlade, something I mentioned in closing the second reading debate last night. The government was urged by Indigenous and non-Indigenous stakeholders alike to address the ambiguous situation faced by the parties to an estimated 126 ILUAs following that decision.

The committee's other recommendation is for the removal of two separate measures from the bill at this time, with the recommendation that they be considered in a later bill, involving government proposals arising from the 2015 Australian Law Reform Commission report Connection to country: review of the Native Title Act. The committee recommended that the proposed amendments to sections 251A and 251B of the act be removed. Those amendments, items 4 and 6 of schedule 1, would have permitted claim groups to authorise an ILUA and to make applications for compensation or the determination of native title by a traditional process or a method agreed upon by the group. These changes implemented recommendations 10-1 and 10-2 of the ALRC report. The Senate committee has taken the view that the amendments require further consultation and are not strictly necessary to respond to the McGlade decision. Given that the purpose of this bill, as I indicated last night, was merely to respond to the McGlade decision, their presence in the bill might be regarded as supererogatory. The government accepts this point of view and proposes to remove these measures from the bill and consider the issues again at a later point, along with other important recommendations made by the 2015 Law Reform Commission report.

The committee also recommended the removal of item 11 of the bill for later consideration. This item would have allowed for the validation of applications to register ILUAs and was intended to address any unforeseen consequences of McGlade. The committee formed the view that the impact of the provision was not clear. The government considers that the provision can be removed without affecting the integrity of the bill.

I also note that the committee expressed concerns about the onerous administrative burden placed on the South West Aboriginal Land and Sea Council and the Noongar people by having to proceed through the registration process once again. The committee, however, did not see this as an impediment to recommending that the Senate pass the bill, and I note the government's commitment to considering this in the future.

One further matter raised by the committee which I wish to comment on is the status of what are known as section 31 agreements under the Native Title Act following the McGlade decision. Section 31 agreements are another way that agreements can be made under the act through the right-to-negotiate procedure. While the McGlade decision did not involve these types of agreements, stakeholders have raised concerns about the potential that these agreements could be challenged. However, as agreements made under the right-to-negotiate procedure have different requirements to ILUAs, the government will consider these matters further and will consider the ramifications of McGlade on the right-to-negotiate procedure more closely with stakeholders before making amendments to the law.

Just to be clear, with these government amendments there is nothing in this bill at all that does anything beyond legislatively reverse the effect of the McGlade decision and reinstate the status quo ante of the law as settled by the Bygraves case.