John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

We are dealing with government amendments (1) to (3), (6), (7), (9) to (13) and (15) to (17), moved by Senator Kemp.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Some questions were raised by Senator Evans just before we finished the debate on the bill yesterday. As Senator Evans is in the chamber, I think it is appropriate that I now respond to those questions. Senator Evans’s questions related to the intertidal zone claims. I can advise Senator Evans that the bill, through regulations, finally disposes of claims to the intertidal zone and to the beds and banks of rivers not contiguous to Aboriginal land or claimed land. These narrow areas of land are clearly inappropriate to grant, as the adjoining land is generally pastoral lease land and not Aboriginal land.

I make the point—and this would weigh more heavily with Senator Evans than with Senator Siewert—that the Northern Territory Labor government supports the disposal of these claims. The Aboriginal Land Commissioner has recommended that some of these claims be granted. However, while the land commissioner reports on traditional ownership, I am advised that it is up to the minister to decide whether to grant land, after considering the possible detriment to other parties. While the minister could decide not to grant these claims, the government’s view is that it would prefer the matter to be dealt with by legislation.

I make the point that the decision was announced almost one year ago, with the package of reforms in November 2006. I repeat that no property rights are being disposed of. I think that was one of the issues that Senator Evans was concerned about. Therefore, my advice to Senator Evans is that there is no issue of compensation. The land commissioner’s recommendation is just that: a recommendation. It has not always been up to the minister to decide whether or not to grant land. While it is not the general practice of the government to reveal its legal advice—this is something that I strongly support; and, in my time here in the Senate, governments have been very cautious on this front—in order to assist the debate, and with the genuine way that this question was asked, I can confirm for Senator Evans that we have legal advice that is clear on this matter. As the land in question is only land under claim, I repeat: there is no issue of ownership and therefore no issue of compensation.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I thank the minister for his answer. I think there are still a few issues that remain outstanding, despite that answer. One is a question of procedural fairness: whether or not the Commonwealth has notified those claimants and also those who have been determined by the Northern Territory land commissioner to have rights over these areas. I think we have got two groups: those who have already successfully sought a decision from the Northern Territory land commissioner in their favour and those who have had claims outstanding and who were hoping to have them processed. I accept that these are not formally property rights in the sense that they have not been signed off under the act by the minister as being granted under the act—if that is the right term. Nevertheless, the process envisaged under the act has been successfully negotiated by the parties, they have been successful in getting the land commissioner to make a finding in their favour and, for some reason which is not clear to me, the successive ministers have failed to sign off on the land commissioner’s decisions. As I understand it, they have not refused or rejected those decisions; they just have not acted upon them.

I would appreciate an answer as to why ministers have not signed off on those decisions. Given the fact that the minister currently has the power under the act to reject them, why is it felt necessary to do it by way of legislation—to remove all opportunity for access to claim over intertidal zones, given that the power rests with the government as the bottom line already? I am concerned about the procedural fairness aspect. I have discussed it with one claimant who had no knowledge of this provision. I am not saying that it has not been announced, but I am wondering what measures the Commonwealth has taken to advise claimants and those who have been successful and to give them a chance to express their view on this proposition.

I think the minister said it was clearly inappropriate that they have access to this land. I am not sure when the government came to that view and why it is now inappropriate, given that it was envisaged under the act. I wonder what impact the Blue Mud Bay litigation has had on the Commonwealth’s thinking. Is that part of the Commonwealth approach? Is that why they are fearful of these claims being successfully pursued? Is that why they are intending to wipe them out under this measure?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

The decision, as I mentioned, was announced almost one year ago—I think I said November 2006 in my earlier remarks but of course I meant November 2005—so the government’s attitude on this matter has been known for a comparatively long period of time. My advice is that the land in question was claimed at the last minute, in 1997, when the sunset clause on claims took effect. I think it was regarded as an ambit claim. I should repeat that the government is of the view that these are not appropriate to grant. I think I am right in saying that this was the view of successive ministers and, obviously, it is also the view of the current minister.

On the procedural fairness issue, I draw Senator Evans’s attention to the fact that the decision was announced almost one year ago, so people should have been aware of this. I am looking anxiously at my advisers to see whether they know, but I think that is the case. Certainly the land councils were aware, as their representatives. I hope that gives you some comfort, Senator Evans.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I do not want to delay the Senate any further on this issue. I must admit I am not terribly comforted. I think it again reflects the government’s failure to properly consult or deal with people whose property rights are at stake. I am putting to one side the argument about their property rights et cetera, given the land commissioner’s decision. If you have not even managed the courtesy of writing to those people or meeting with them after they have had a successful case before the land commissioner and you are now seeking to abolish those rights, it is a pretty poor performance, in my view. It reflects the sort of approach taken in this legislation which is not helpful.

I want to make it clear for Senator Kemp—as I thought I had—that I do not care what position the Northern Territory government takes on this. I take the position that we have to express a view on behalf of the Australian Labor Party in the federal parliament about whether we think something is right or fair. They are entitled to their judgements; we are entitled to ours. They may have more information than I have; they may have different priorities but, on the basis of what you have advanced today, I do not see any reason why this Senate ought to wipe out those rights. We will be voting against that.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

The reason I mentioned the Northern Territory Labor government was not to score a political point, although that is obviously relevant. The reason I mentioned it is because it shows that people of goodwill can differ. That is the point I am making. Members of your party have a different view on this matter. You are quite right; the federal Labor Party is quite entitled to its view. I do not dispute that. I am very mindful of the relations that my own party sometimes has with our state reps. The point I am making is that people of goodwill will come down on different sides of this issue. It is not that one side is being callous, unresponsive and is not listening; it is just that everyone has weighed up the facts of the case. You do not feel that there been sufficient consultation. We do not agree with you on that. We think it is a time for action. This is not a view held solely by the Liberal-National Party government in Canberra; it is also a view held by a Labor government—in this case in the Territory.

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

For the record, these amendments, as Senator Kemp explained last night, basically seek to improve—to use his words—the various aspects that are already in the legislation. The Democrats’ position is that we oppose the whole section. I think there is a Labor amendment down the track that goes to that, so whether or not we support these amendments is probably fairly redundant inasmuch as they clearly do something that we do not support anyway. But I thought it appropriate to put our position on the record and also to emphasise that it is completely unsatisfactory to just say, ‘We told the land councils.’ I know the land councils are representative bodies, but surely if the federal government had any genuine commitment to the concept of genuine consultation with traditional owners and affected communities then they would consult directly with people. It is quite clear who the affected people are—certainly with regard to the land claims over intertidal zones.

This excuse, which was also given during the Senate inquiry, that, ‘We told the land councils’—as though that is sufficient for consultation—is simply not good enough. If this legislation is to pass unamended, I hope that the federal government at least improves its performance in that regard. It cannot just rely on continuing to tell land councils things and then expecting them to do everything else with regard to consultation. This is particularly the case given that, if this legislation passes unamended, the land councils, if they upset the federal minister by something that they do, will have the concern that the federal minister may cut their budget down the track. This legislation, if it is unamended, will give the federal minister that power.

It also needs to be emphasised that people may have legal advice about the niceties of whether this is land that is legally owned by Aboriginal people or not, but the simple fact is that the governments may have thought that it was an ambit claim. There is no doubt that the Northern Territory government supports the federal government’s approach; of course it would, because it is in the Northern Territory government’s self-interest in this situation. It is no great secret that the Northern Territory government—whether it is a Labor government or a Country Liberal government—has always wanted to ensure that it and not Indigenous people has control of these areas, so of course it would support it. It is in its self-interest.

The simple fact is that this is land that had been determined by the Aboriginal Land Commissioner as being entitled for claim. As was made quite clear to the Senate committee inquiry, if the grant had been allowed, it would have been used to generate resources for Indigenous communities. That is what is being removed by this overall section. In fact, these amendments might make it clearer that that is to happen. I suppose certainty is always desirable, even if it is certainty of injustice. There is no doubt of the position of the Northern Territory government on this, and in that Senator Kemp is right. But that does not make what is being done correct.

It was quite clear to the Senate committee inquiry that this process will remove an opportunity for some economic gain for the people who would have been successful in obtaining a grant of this land. The government want to wipe that aside by simply saying, ‘We don’t agree with it.’ Obviously, governments can do that, because governments since European settlement have done that. They have taken away land and said: ‘We don’t think that’s appropriate. We’ll have it, thank you.’ But I do not think that we should let that pass with just a wave of the hand, as though it is something of no great significance. It is significant, particularly given that, as the minister has said, it has been done without any direct notification of or consultation with the people who are directly affected. That shows a lack of respect. That is an indication of the broader problem with the approach that is being taken here. Some may suggest that process does not matter. I am not one of those. Process is important. The process of how you do things influences the final outcome.

Nigel Scullion (NT, Country Liberal Party) Share this | Link to this | Hansard source

As a Territorian, I want to try and add some context to the material to allow both Senator Evans and Senator Bartlett to gain a clearer understanding of the process. I commend them both. Their questions are not mischievous questions; they are questions going to the core of why the Commonwealth is acting in these matters. The Aboriginal land rights act that we are very sensibly seeking to amend applies only in the Northern Territory, and that is perhaps why the issues are not widely known.

While we talk about this area as Aboriginal land, people need to remember that for half the day this is ocean. This is a very complex legal matter. It has been gone over again and again. We have had the Croker Island test case; we have had the Blue Mud Bay test case. To answer Senator Evans’s earlier question: the Blue Mud Bay case does not deal with matters to do with the intertidal zone at all. It is being examined on this day by the full bench of the Federal Court, presided over by Justice French, and we look forward to the outcome of that matter. But, as I understand it, it has nothing to do with the intertidal zone in Blue Mud Bay.

Whether or not the Aboriginal Land Commissioner recommends that this land be granted is based on one simple piece of information, Senator Evans. If the land commissioner is convinced that Indigenous people have a continuing association with the land then the land must be granted. He has no discretionary powers over that matter at all. He then has to take into consideration at those hearings all the cases of detriment. In this circumstance, it was a case of detriment on behalf of the Northern Territory government. They have to manage the fisheries there and the people who move in and out of these areas—commercial fishers, recreational fishers, yachties and other people who use the water.

Generally, the Westminster system does not recognise landownership beyond the high-water mark for that very reason. So we have by dint of history a circumstance in which the land title goes to the low-water mark, when in every other case it goes to the high-water mark. The reasons for that are fairly simple. I may be wrong but I am pretty sure that in schedule 1 of the act it says that the original definition of places like Arnhem Land fell under the protected reserves. The protected reserve was described to the low-water mark. The low-water mark is something that is intangible. Where the low-water mark is changes every day, so in point of law it was so difficult to define where it was in general terms that we then went to using the mean low-water mark so that we could establish a couple of pieces of fact to enable us to work out whether people were on that land—or at least have a mechanism for doing so. There have been a number of cases that have failed to establish whether or not that is possible. I add those pieces of information, Senator Evans, so that you understand the complexity of these issues and the time that has gone into establishing some of them.

The minister’s responsibility in this matter, Senator Evans, is to weigh up the balance of benefit, because that is outside the ken of the land commissioner. It is the role of the minister to take into consideration the cases of detriment. The cases of detriment are in the equivalent of Hansard and are part of the report from the land commissioner. The minister will examine cases of detriment to do with the beds and banks of the rivers, for example, and particularly regarding land that is not contiguous with Aboriginal land, which is significant. This is not a continuation of Aboriginal land; this is simply land that was claimed on the last day before the expiry of the sunset clause to ensure that it was all covered. And good luck to the land councils—it is their responsibility to make sure that every possible claim can be made.

In considering this, the minister has taken into account the claims of detriment. For example, a pastoralist—and it may be an Aboriginal pastoralist—may need to move his cattle from his land to the water. To get a barge to come up and simply move the cattle across, you would have to seek permission or get permits. There are a whole range of processes which simply make it untenable under normal circumstances. That is the very reason that the Westminster system only recognises land tenure to the high-water mark.

To both Senator Evans and Senator Bartlett: I am just appealing for some common sense in this matter. I assure you quite sincerely that there is no mischief in this matter. The minister has sincerely considered the issues of detriment, which is his or her responsibility. The setting aside of these does not form any precedent. It should also be noted that no land in the intertidal zone not contiguous with Aboriginal land has ever been granted. This is simply a series of historical events. It does not take away any particular rights. You cannot move the land. The capacity for Indigenous Australians, or those people who see themselves as or who are traditional owners, to occupy that land or use the resources that, depending on the time of the day, walk upon or swim across that land will continue. I appeal to senators to take into consideration some of those circumstances.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I want to raise another matter, but I would, firstly, like to respond to Senator Scullion. I appreciate his contribution. I suppose I share Senator Bartlett’s view, though, that at the end of the day it is always easier to take away Aboriginal land rights. You talk about complexity and you talk about time—and I accept all those arguments; I am sure they are well placed—but often the simple answer is then to deny Indigenous people what otherwise would be their right to the land. It just seems that we too easily fall into that. It does not seem to me that it is beyond the wit of people to negotiate land use agreements. We do it everywhere else. I also do not believe it is beyond the wit of people to resolve some of the complexities. I do not want to labour the point, but it concerns me that this is occurring again without proper procedural fairness. I know the government has the numbers, so I will not delay the matter.

It is interesting to note, though, that some of these claims found as justified by the lands commissioner go back to 2002. If the minister had considered the issues of detriment, one would have thought that he or she would have gotten around to making a decision before 2006. I am interested in why they did not take that step and why they see it as necessary to legislate away those rights. They have the power under the act, as both you and I understand, Senator Scullion, but they have not exercised that power. If someone could help me with that, that would be appreciated.

I want to move on to one of the other provisions contained in the government’s suite of amendments that we are taking as a whole. This provision deals with the question of delegating the power to grant 99-year leases to regional bodies corporate—a handover from the land councils to regional bodies corporate. It comes up in a series of other places. As the Senate would be aware, previously under the act, only powers relating to mining exploration and subleasing were able to be delegated to those regional bodies corporate. It now seems that the government is moving an amendment to allow the bodies corporate to grant 99-year leases as well. I have not heard the justification for that and I have concerns about what it will mean. There is also concern that this will inflame an issue that we are all aware of; that is, the potential conflict between Aboriginal residents on land and traditional owners, the relationships between them, and the fact that owners have rights that perhaps residents do not have over the land. This is a complex and difficult issue.

Through these amendments, the government seeks to allow the potential for a regional body to be in charge of negotiating and gaining consent for a 99-year lease. There has been concern expressed not only by the Northern Land Council but also by the Minerals Council about this whole process. They fear extra litigation and regional disputes might intensify as a result of handing over what has traditionally been a land council role to regional bodies corporate—if you like, diffusing that authority down the chain to organisations that may not be as well resourced or as knowledgeable in how to gain consent from Aboriginal traditional owners. They also have a concern about whether the rights of traditional owners in this process will be protected. Obviously there is also the issue of the expertise of land councils.

One of the issues that the Minerals Council raise is the fact that they want to know who they are dealing with and they want to have certainty. I do not want to put words in their mouth but, in my discussions with the Minerals Council and miners, it would seem that they feel that, after all the debates about native title et cetera, we have got to a position of certainty in dealing with these things and they just want the rules to stay the same so that they can get on with business. They do not want another set of amendments to the native title regime or massive changes that make business more complex. They are happy to deal with the land councils, representing traditional owners, to do business and to know what the rules are.

It seems to me that the government’s amendments will create uncertainty and the capacity for more disputation and potential litigation. It seems to me that this also opens up the power for the minister to force land councils to delegate those functions to regional bodies corporate against their wishes, given the other provisions that relate to ministerial powers. This is an important development—one that I am not convinced of. I would appreciate it if the minister could allay my concerns about these matters. At the moment, I do not see the need for these amendments and I am inclined to oppose them.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

There are two substantive questions. I think Senator Evans was concerned about the delay in reaching a decision. My understanding is that these matters have been under consideration for a significant period of time, as the government was looking for a way to move forward on this matter. Until that was resolved, it was seen to be not appropriate to make a final decision. That was the thinking. I judge from Senator Evans’s expression that he is not entirely happy with that explanation.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

It is more that I do not understand what it means.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

It means that these matters regarding how we move forward in relation to amendments were under consideration by the government. Therefore, until this matter had been resolved, the ministers felt that it was appropriate to wait for the final outcome of their own consideration before they moved on this particular issue. I think that is perfectly reasonable, Senator Evans. I know it gives you little comfort, but I think that was perfectly reasonable.

Senator Evans, you are worried about the delegating of powers to grant 99-year leases and, among other things, you are concerned that this may inflame the relations between owners and residents. The advice that I have received, Senator Evans—and this confirms your view—is that under the new section 19A of the bill a land trust may grant a lease of a township at the direction of the relevant land council. The bill allows the land council’s power of direction in relation to the granting of township leases to be delegated to committees of the land council but not to an incorporated regional body. My advice is that, consistent with the fact that land councils can delegate decisions about other land use matters, including leasing issues to incorporated regional bodies, this amendment would allow the delegation of decisions on township leases to such bodies.

It is quite possible for example, Senator Evans, that an incorporated body representing an area including a township would be willing to agree to the issuing of a township lease. Given the fact that incorporated bodies will be able to hold powers in relation to other land use matters, it is appropriate that they be able to hold powers in relation to the granting of township leases. The point which I hope will give some comfort to Senator Evans is that township leases will have to be agreed to by the minister—a power which the minister cannot delegate. The delegation to bodies corporate is generally a matter, I understand, for land councils. The ministerial override, which I referred to as a means of review of the land council’s decision, must take into account the land council’s views and the ability of the body to perform the functions. I hope that is an appropriate response, Senator Evans.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I am pleased to hear that Senator Kemp is so worried about my level of comfort. It is a refreshing change. It has not been high on his list of priorities in the past. Obviously, in pre-retirement mode, he is mellowing. I do not take a lot of comfort from that response because it seems to me that it very much enhances the powers of the minister and the minister’s potential to interfere. I suppose the bottom line is this question, which I would appreciate the minister’s answer to: is it the case that the minister, as a result of the amendments proposed by the government, can direct the delegation of a land council’s powers to a regional body corporate in relation to leases?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

The answer is yes.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

What is the justification for giving the minister that power?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator Evans, I did in some detail, I thought, explain that issue. But this may assist further: the advice I have received is that the delegation to bodies corporate adds to the flexibility. We do not expect that the minister would not agree to a reasonable land council decision not to delegate. The ministerial role is a safeguard or, if you like, a safety valve. It ensures that a land council does not act unreasonably to decide not to delegate to regional groups.

Question agreed to.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The opposition opposes schedule 1 in the following terms:

(1)    Schedule 1, item 46, page 21 (line 28) to page 24 (line 14), section 19A, TO BE OPPOSED.

This goes to the question of the 99-year leases. I have said previously, and will not go over all the arguments about it, that we have concerns about the model adopted by the government. We have argued that there are other models under development in places like Wadeye and Yarrabah, which is in Queensland, that provide other ways of seeking the sorts of objectives that are common to the government, to the opposition and, more importantly, to Indigenous people. I think the government’s approach almost assumes that traditional owners are anti development and seems to seek at all stages to cut those traditional owners out of the equation, out of the decision-making process. Because of the lack of clarity about the way the entity which will be the repository of these leases will work, it is very hard to come to grips with exactly how the proposition will work.

Of particular concern to Labor is the prevention of traditional owner corporations holding the leases or having an ongoing say over how those occur. For instance, I have concerns—and they have been raised with me by others—about inappropriate development and the capacity, once the lease is signed, for traditional owners to have a say over what is appropriate or not appropriate development. For instance, if someone wants to set up a casino in the middle of a town, what say would the traditional owners have about that sort of development? It is not the aspect of the lease itself, but the conditions that would apply to the lease and what capacity there would be for traditional owners to continue to have some say, some influence, over what happens on their land. That is at the heart of the concern about the government’s approach.

We do not have all the detail. We do not have a clear idea of how the entity will work, what consultation processes there will be or who will be running the entity et cetera. Fundamentally, the traditional owners’ loss of control over development on their land is at the heart of Labor’s concerns. We have not received any comfort so far from the government’s explanation of their proposition. It seems to reflect the age-old response of governments, which is: ‘We’ll take over the land and tell you what’s best for you because you are incapable of doing it.’ That seems to be the basis of the approach.

As I said, I do not think it is because there is mass disagreement about the objectives. Every Indigenous person I speak to wants services and development, but there are serious concerns about the capacity for people to have an ongoing say and control over what happens on their land. On that basis, we are moving to oppose section 19A of item 46 to make the point which has been central to the whole debate, which is about the model of the leases.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Today some new information has become available that I thought should be shared with the Senate in the hope that the government might see the wisdom of our arguments on some of the concerns over this bill. Mr Miloon Kothari, who is the United Nations special rapporteur on adequate housing, is on a mission to Australia at the moment. In fact the special rapporteur was invited by the federal government to visit the country, with the general objective of examining and reporting on the status of the realisation of the right to adequate housing and other related rights in the country, with particular attention to aspects of gender equality and nondiscrimination. He was invited to engage in dialogues with the government and the civil society on their efforts to secure these rights and to identify practical solutions and best practices in the realisation of rights related to his mandate.

Just a bit over an hour ago he released some preliminary observations. His observations on housing, and Indigenous housing in particular, are a cause for concern in many areas. He made comments about what he perceives as the approach to the provision of adequate housing—that is, the belief that ownership and the market will take care of the issues. He indicated that he believes that this could be a mistake, that it is a mistake that has been made in the US and Canada and that we should be learning from those mistakes. He expressed extreme concern about some of the situations that he saw in Indigenous communities. He said that he believes that they are amongst the worst that he has seen in the world. He also went on to say that this is in huge contrast to the wealth of this country. He questioned Australia’s commitment to international instruments. Mr Kothari said that, given the scale of the Indigenous housing problem, it needs to be much more of a national priority. He was critical of the reliance on the homeownership model.

Mr Kothari made some specific comments about this particular bill. I understand that he has been out to visit many communities and has spoken to various government agencies and organisations. He believes, from his consultations, that this bill is too hurried and that there has been a lack of community information. People and service providers he spoke to did not know about it, despite the fact that this is a major change. He called into question Australia’s commitment to international obligations and the UN convention on economic and cultural rights. He was concerned about the move from land as a community right and identity to an economic good, believing that that might be a mistake. I understand that Mr Kothari commented that the UN special rapporteur on indigenous rights will also be making a comment on this bill and that he hopes that the government will reconsider this bill.

Mr Kothari made those comments at the media conference that he has just had. He has also made some written comments. He has commented on the ‘indivisible relationship between the right to land and the right to adequate housing’. He said:

This is even more so for Indigenous communities, where land is an integral part of their cultural identity. The amendments to the Aboriginal Land Rights (Northern Territory) Act 1976, submitted in parliament during the special rapporteur’s visit to Australia, raise grave concerns as to the extent to which the land rights of Indigenous peoples in the NT will be maintained.

He went on to say:

The special rapporteur notes with concern reports he has received that there has been insufficient consultation with Indigenous landowners or the opportunity to provide input into this process, particularly on key issues such as the 99-year lease provision. Most concerning is the potential removal of the role of Indigenous people as decision makers over the use and access of land during the lease period. Such measures would undermine the right to self-determination of Indigenous peoples in the Northern Territory and may call into question Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights, including its provisions on self-determination.

This is from an outside person who has been invited in specifically by the federal government. I believe that these comments on the bill are of great concern. They re-emphasise, I believe, community concern about the provisions of the bill. Like us, Mr Kothari hopes that the federal government will reconsider some of the provisions in the bill.

Having said that, I have a specific question that I would like to have addressed, if possible. During the discussion and the debate on this bill there have been numerous references to the voluntary nature of the leases. However, we have also heard from members of the ALP, the Greens and the Democrats that we all have concerns about what I call cross-compliance between funding provisions and the requirement to sign leases. We have heard of at least two examples where this is supposedly already occurring. I am seeking a commitment that, if these are voluntary leases, no such commitments will be required by the federal government—that is, they will not require communities to sign these leases to get any form of funding, whether it is additional funding or funding that many of us believe should be given to fulfil the basic requirements for housing and other services.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I have some responses to the matters that have been raised. Let me deal with Senator Siewert’s comments first. Senator Siewert, this is a government which listens to people. It is a consultative government. We do not think the UN is the fount of all wisdom. Sometimes the UN gets it right and sometimes it gets it wrong. That is where we differ from you. The mere fact you have ‘UN’ before some comment does not make it right. We do not dip our lid to anybody. We are an independent country and an independent government. The mere fact that you quote the UN does not immediately mean we must jump and ask how high.

It is interesting that you mention the UN special rapporteur. He met with Minister Mal Brough’s office yesterday but he did not raise in that meeting the criticisms of the 99-year lease provisions and his questions about Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights and not enough consultation. Isn’t that interesting? This is an individual who comes to Australia, meets with the office of the minister, apparently raises some issues with you—and fair enough; you are an important person—and apparently raises some issues with Senator Evans, another important person. If he is meeting with Minister Brough’s office it is a little surprising that if he feels so strongly about this matter he does not raise it with them. I have no way to explain that. Maybe it was an oversight on his part, but if he said what you said he said—again, he has obviously kept you fully informed—he might like to keep Minister Brough’s office fully informed. You might like to point out to him that in a democracy even the UN should consult with both sides and make its views known.

I am grateful that you have raised this, because it raises curious issues about what has transpired. We will be very happy to provide the rapporteur with a full briefing. We will be very happy to answer any criticisms that he has and to see what we can do to encourage a more rounded perspective. I do not attribute any mala fides to the rapporteur, and maybe it was an oversight on his part. But it is curious, is it not, that he feels so passionately about a variety of matters, which I have mentioned, and meets with Minister Mal Brough’s office but does not raise them. We will have to wait until another day for an explanation.

As the minister acting on behalf of Minister Brough, I find it curious. The rapporteur has been here for a preliminary two-week visit, and we will do what we can to make sure he has additional information and is better informed. However, he should recognise that offering the opportunity of property rights to township residents is offering them a basic human right that they do not share with other Australians at this point in time. It is strange that he did not mention that. If I can find anything more on these conversations, I will see what I can do to inform you—if not in this chamber then elsewhere—but it is strange.

In relation to the points that Senator Evans raised, I am not sure I can add much more to the discussions that we have already had. You and I will differ on this issue. As I said, it is a complex matter and a matter that a lot of people far wiser than me and, undoubtedly, even some who may be a little wiser than you have thought very hard about for a long period of time. It has crossed party lines. That is the awkward nature of the debate for the Labor Party, but it has crossed party lines and there are significant elements in the Labor Party and the Territory government which are more on the side of this government than on the side of the federal Labor Party. It is a complication for the Labor Party. It shows you that people of goodwill can differ on this issue. It is not an intensely partisan issue; it is an attempt to work our way through and solve the very big social issues that we are facing in Northern Australia, and this will make a contribution. I do not pretend it is going to solve the problem, but it makes a contribution. We will not be supporting the amendment. If there is anything more I can provide you with on the rapporteur, I will see what I can do.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

To make it clear: these comments were made publicly this morning at a media conference. I will not and cannot speak for the rapporteur, but these comments were made in a preliminary report that he released this morning at a media conference where those other comments were made. Firstly, I presume that you have the same access to this report as I do. Secondly, I ask my question again about a commitment to not require cross-compliance between any funding made available to communities and a requirement to sign a 99-year lease.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

I am sorry, Senator, I did mean to respond to that question of yours. I got diverted by your reference to the UN rapporteur. Let me share with you the advice that I have received. The new township leasing arrangements are entirely voluntary, as has been noted, and no-one will be required to enter into a township lease in order to obtain essential services. There may be cases where a community is willing to enter into a township lease to obtain some particular or special benefits which would not otherwise be available. This is the case in the Tiwi Islands where the Aboriginal people have agreed to negotiate a township lease as part of a deal to build a private secondary boarding college. I think that issue was raised earlier on in this debate.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I suppose the crux of this issue is what you define as essential services. If you are providing additional services beyond essential services, such as school services, where do you draw the line when services that are currently provided are not adequate to meet the needs of the community? For example, in Wadeye the Aboriginal children were encouraged to go to school, and they turned up for school—in fact, I think, almost double the number of students turned up to school than there were places for those students. Is that an additional service or an essential service?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

We all understand what requirements we would like to provide as essential services, but some of them are additional. On Elcho Island, my understanding is that the offer of 50 houses is a homeownership scheme and it does require land tenure change. That is the offer which has been made.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I appreciate the minister’s last response to one of the key issues that we have been raising throughout the debate: cross-compliance. If I had any doubts at all about my reservations about this bill, the minister just nailed them and made me feel very reassured that I have done the right thing. In his answer, he made it very clear that this is about a deal; that this is about a fix: ‘You do what we want and you’ll get access to things like schools and housing. You actually have to come to us and bargain for access to essential services such as adequate schools that allow you to educate children or housing that allows you to provide shelter for your family or your community.’ That is the thing that has most concerned me about the proposition. It is the thing that has most concerned me about the minister’s behaviour.

In reading the advice given to him, I think the minister correctly represented the government’s position. I do not have any doubt about that. But I think it also highlighted for the Senate exactly why we have serious concerns about the approach being taken. The phrase I think the minister used was, ‘These are special benefits not otherwise available.’ That is, we will do a deal to provide some of the services that the Commonwealth normally provides under Commonwealth funding arrangements—basic services like schools and housing that allow people to live a basic life, have a basic existence and enjoy the rights of citizenship that all other Australian citizens expect.

This is at the heart of the disagreement about this measure. There is no disagreement about organising proper land tenure arrangements for Aboriginal communities. There is no disagreement about objective economic development. There is no disagreement about providing employment and other opportunities and better services in Indigenous communities. The disagreement in this process is about whether Indigenous people have to lose control over their land and whether they are going to be made to bargain for what we regard as citizenship services from the Commonwealth in return for signing up for the deal.

It seems clear from the minister’s answer that Indigenous people will be required to bargain for services that should be made available to the community anyway; that the requirement from the government in order to get its leasing proposals accepted is to exercise its superior bargaining power and say, ‘If you want this school or if you want these houses, you’re going to have to sign up to our leasing arrangement.’ That has been a fundamental concern of the Labor opposition from the start and I think it is now clear that that is the government’s intention. I said in my contribution in the second reading debate that it seemed to be reflected in the minister’s activities, in his press releases and in the way he rampaged through communities, making it clear to the people that it was his way or the highway. To have it confirmed, I think, is seriously concerning, but it does confirm my view that we ought not to be going down that path.

I would like to hear the minister explain the extent to which traditional owners and other Indigenous people resident in a township or community will have any say over development that occurs on their land once the 99-year lease is signed away. It is a concern that I have raised throughout the debate. I have not heard the government’s explanation of what it says will be the reality of Indigenous input into decisions about what happens on their land once the lease has been signed over to the entity. That is the other critical issue that has been concerning people. I would appreciate it if the minister could provide the same sort of clarity that he did on the question of cross-compliance in relation to the issue of exactly what ongoing role or input Indigenous traditional owners will have over their land, over the town site, once the lease is signed.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator, I am glad that you—well, I am not glad; I am sorry that you feel that the arguments that have been put justify your decision. There is an unwillingness on your part, I think, Senator Evans, to accept that the vast amount of these arrangements and essential services will be provided by the Northern Territory government. The Northern Territory government has made statements on this matter which I would like to share with you. In evidence to the committee inquiry, Mr Bree said:

… the resources of the Northern Territory government will not be allocated on the basis of whether or not there is a lease in place. I will make one exception to that—

this is the evidence from the Northern Territory government—

and that is housing; but it is housing over and above the programs that are provided now. Cabinet has recently made a decision that, in light of leasing being available in communities, Territory Housing—which is a government business division and works on a commercial basis, if you like—will be authorised to go into those areas where there are leases, which it has not before.

All housing funds for Indigenous housing in the Northern Territory go through a body which was previously known as IHANT and is now the Indigenous Housing Advisory Board. So all the programs have been allocated through that board, quite separately from our public housing. Our public housing was only in areas where tenure to land was available, and that has been the case forever. Cabinet has now said that with leases being available, Territory Housing will be authorised to move into those areas. That will not impact on current levels of funding; it will only increase it. Government is looking at rebalancing its efforts between urban and community areas.

So the essential services that you are talking about, Senator Evans, are supplied by the Northern Territory government—a Labor government. It supplies municipal services: normal schooling, public housing, safety, access to health services. All those key services come through the Northern Territory government, which is, as I have pointed out once or twice before, a Labor government. So, Senator, I am not sure what one needs to do to convince you of this. But, where members of your own party have asked the Australian government to legislate in this area to provide the framework by which they will introduce their own legislation, and where they will be supplying the essential services, it does seem to me that your arguments start to look rather shaky, I have to say, and run into the sand. The debate is not between the Australian government and you. It is a debate between the federal Labor Party represented by you—contrary to the Australian government—and in this case the Northern Territory Labor government.

You asked about the relationship with leases, Senator Evans. Let me just reiterate that Aboriginal landowners will decide whether a headlease should be issued over a township area. You understand that. In negotiating a headlease, they will at that time be able to seek the inclusion of general conditions related to subleasing. The granting of individual subleases will be a matter for the entity holding the headlease. It would be possible, for example, for traditional owners to seek the inclusion of general conditions in the township lease relating to subleasing—for example, restrictions on the number of alcohol outlets. That seems perfectly reasonable to me and is something that I would have expected you to support, Senator.

I am not sure whether or not this alters your views, but I hope I have clarified the issue in relation to essential services. If you believe that there will be some inappropriate behaviour in relation to essential services, that is a matter that you should take up with the Labor government in the Northern Territory because they will have prime responsibility for the provision of those essential services. In relation to leases, as I mentioned, there will be the opportunity for subleases which can impose separate conditions.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I do not want to enter into the same sort of point scoring that Minister Kemp seems to be concentrating on all the time. I made it very clear: we take responsibility for the position we adopt in relation to federal legislation. What we are debating today is not the Northern Territory government or their policy; that is obviously a matter for them. What we are debating is actually the Northern Territory land rights legislation, which is legislation of this parliament, and what we need to do is make sure we get that right. While the minister sought in a second instance to read the Northern Territory policy—and I am glad to see he is such a fan of the Northern Territory government and its policy!—what he did in his first answer was read the policy of the Commonwealth government, which was the more appropriate and interesting response. While I am reassured by the Northern Territory attitude towards housing, and I was aware of that, I am not reassured by the minister’s comments about the special benefits. That is, as I say, a point on which we clearly disagree.

This is very much a debate about what legislation the federal parliament puts in place to determine matters arising out of the Northern Territory land rights act, and we are seeking reassurances about how these things will work and what their impact on the rights of traditional owners in the Northern Territory will be. While I am encouraged by the minister indicating that there is an understanding that the entity may be able to negotiate arrangements in the granting of subleases to principals who apply, that is not in the legislation. I may be wrong, but if it is I have not found it. The absolute lack of any detail about the entity is one of my concerns: we do not actually describe how this will work. So, if those provisions are in the bill, I would appreciate the minister pointing them out. But, as I say, I think there is fundamental disagreement about the Commonwealth’s approach to what the minister describes as ‘special benefits’.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I would like to know who determines whether the service being provided is an essential service. Is it the community? I suspect that the community may have a different opinion on what should be an essential service. Or is it the government?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator, I have run through the general list of essential services. They are essential services which are typically provided by the Territory government, in the case that we are talking about. I imagine that the Territory government consult with local communities and certainly have a view on what they believe is appropriate and what they regard as essential services.

The reason I mention the Northern Territory government—I normally do not get provoked, as Senator Evans knows—is simply that so much emphasis was being placed on essential services. It strikes me as relevant to point out that these essential services are typically supplied through the Northern Territory government. What I read out, Senator Evans, was entirely consistent with the Northern Territory government position. You tried to draw a contrast; the truth is that there is no contrast. From what I can see, they seem to be entirely consistent. You may have a different view. In the end, governments are responsible for providing essential services. You may have views on what you think is appropriate and not appropriate. In the end, the supply of those services is typically determined by a government decision. In this case, it is typically determined by a Northern Territory government decision.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I am sorry, I still need further clarification. Where the federal government is providing funding for, say, housing—because a community has a housing crisis where there are, as is typical, 17 to 18 people living in a house—I would argue that the provision of further funding for housing is an essential service. Is that a correct interpretation?

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

This debate could go on for a very long time, Senator. I am attempting to explain to you that, in this case, the essential services, I am advised, will be largely supplied by the Northern Territory government; those matters are, in the end, for them to determine. You may not like that. If you do not, my advice to you is to campaign hard on the Green agenda up there in the Northern Territory and attempt to take control of the Northern Territory government. But this is a democracy and, in the end, governments make those decisions.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I will give this one last try. My interpretation of what you have just said is that any Commonwealth funding that will be supplied to a community will require this provision.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

We are talking about essential services. My advice is that the answer to that is no.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I am sorry, but your two answers contradict each other. I was specifically asking about what determines an essential service. You said, ‘The Northern Territory government does.’ But the federal government provides funding for communities. Is that for essential services or not? If not, they are therefore not classed as essential services and cross-compliance might be required for that arrangement.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator, the point I am making to you is that most of the essential services that we are talking about would be provided by the Northern Territory government. Where it is the Australian government providing what are essential services—for example, in relation to some health matters—they will be provided. I do not think there is this complication that you are making out.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I am sorry, but there is a complication in that you said that where essential services are provided cross-compliance will not be required. Therefore, my question is: whether it is state or federal, who decides what an essential service is? Where it is decided a service is not an essential service if the Commonwealth provides it, the Commonwealth will therefore require this arrangement and cross-compliance. I am trying to nut this out. The government has made it very clear that these are voluntary arrangements. But, then again, it is saying that there will be cross-compliance required for services provided beyond what is essential. I am trying to find out what is essential, because those that are, therefore, are not voluntary.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senator, I try to help you and you try to help me. That is because we are in a chamber where we like to see what we can do to assist each other. I have indicated that essential services will be supplied. They are not dependent on 99-year leases. I have indicated to you that the vast proportion of those essential services will probably be provided through the Northern Territory government. Where there are decisions on essential services provided by the Commonwealth government, they will not require 99-year leases.

We can nut all of this out—what an essential service is and the rest of it—but I hope my assurance gives you a degree of comfort; I am not convinced that it does. In relation to, for example, schooling in the Tiwi Islands, I understand that that is essentially a private service. So we are talking about matters which can be considered over and above essential services. It seems to me that they are things that the Northern Territory government certainly wants. As I said, it certainly seems to me to be an important principle.

As far as essential services go, there is the famous quote that I read out on my briefing note that Senator Evans has decided to provide some blistering insight on. It says, ‘The new township leasing arrangements are entirely voluntary and no-one will be required to enter into a township lease in order to obtain essential services.’ That is what I read out and the Hansard will show that.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that schedule 1, as amended, be agreed to.

Question agreed to.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

by leave—I move opposition amendments (2) and (3) on sheet 5008:

(2)    Schedule 1, item 52, page 29 (lines 3 and 4), omit “55%”, substitute “60%”.

(3)    Schedule 1, item 52, page 29 (line 4), at the end of subsection 21C(5), add “and there is free and informed consent from traditional Aboriginal owners”.

The question here is the question of the provisions regarding the creation of new land councils. Under the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006, the government seeks to move a provision that new land councils can be created with the support of 55 per cent of local Indigenous residents. There are a number of concerns about that approach. One can argue up hill and down dale about majorities et cetera. In other aspects of democratic life we often have a provision that is 50 per cent plus one. That has not been seen as appropriate in terms of Aboriginal consent in the past because of the nature of the issues at stake, the ownership of land and the need for a majority greater than 50 per cent plus one. As in other organisations where one requires a three-quarters or two-thirds majority to change a constitution, the acceptance inside this debate has been that a figure greater than 50 per cent was appropriate given the import and significance of the decision regarding the administration of Indigenous land.

The provisions that the government are seeking to amend here argue for a new benchmark of 55 per cent of local Indigenous residents. Quite notable is the failure to have any requirement for traditional owner consent. As the Senate would be aware, we have local Indigenous residents in the community who may not have any relationship with that particular land or community. They might be residents, temporary or permanent, but the traditional owners, the traditional people of the land, may be only a subset of those living in the community. So there are two distinct groups and they may not all be Indigenous, for a start. The community might consist of Indigenous and non-Indigenous people. Among the Indigenous people of the community there may be those who have traditional ownership and a relationship with the land and those who do not—for example, the people who have moved there for whatever reason.

The government’s proposition is that a decision to create a new land council which has administration over Indigenous land ownership could be made with the support of only 55 per cent of local Indigenous residents. There is no requirement for traditional owner consent. It is conceivable that a decision could be reached which has an impact in terms of the creation of a land council which does not have traditional owner consent. If traditional owners represent 30 or 40 per cent of the population, even if they all vote for a proposition or against a proposition, they are not guaranteed having their view prevail because of the proportion which they represent in the community.

There is a great deal of concern about these issues being expressed by the parties involved. I know the Minerals Council have expressed some concerns, as we discussed earlier, about some of the government amendments relating to land councils, which seem to reflect a bit of an effort to undermine the existing land councils and a move to what can only be a proposition for a proliferation of smaller land councils. I do not know whether the government is concerned about the power of particular land councils in the Northern Territory but certainly they seem to be going down the ‘small is beautiful’ path—so maybe they will get Greens’ support on this one. They seem to be looking to insert provisions which undermine the capacity and authority of existing land councils.

In any event, Labor are concerned that the benchmark set in the government’s proposal is too low, and we have looked at various propositions. Some people in submissions to the Senate inquiry have argued for 70 per cent approval or 75 per cent approval et cetera. Labor have determined that we will follow the advice provided by the House of Representatives Committee on Aboriginal and Torres Strait Islander Affairs inquiry into the Reeves review, which was the review of land council operations. That House of Representatives committee spent a great deal of time examining all these issues. They were allowed much greater time to examine the issues than the Senate inquiry into this bill was afforded—a note in passing. That inquiry unanimously recommended a benchmark of 60 per cent support amongst Aboriginal people living in the area and the requirement of traditional owner consent. The House of Representatives committee, consisting of both government and non-government senators, spent a great deal of time reviewing propositions relating to land councils and the administration of land inside the Northern Territory and they adopted a benchmark for the creation of new land councils at a level considerably higher in two respects than the government’s benchmark. First of all, rather than 55 per cent support they recommend 60 per cent support, but there is also the insistence of the House of Representatives committee for the requirement of traditional owner consent—a key factor missing in the government’s proposition.

In moving these amendments, Labor seek to bring the provisions in the bill into line with the unanimous recommendations of the House committee. This includes the requirement for traditional owner consent and lifting the required vote from 55 per cent to 60 per cent of local Aboriginal residents. We are concerned that the government has set the benchmark far too low, which would run the risk of exacerbating problems that exist between traditional owners and non-owning Indigenous people in communities. As I think the Senate understands, this is often a source of conflict. Although many communities obviously resolve problems to everyone’s satisfaction, it is a key issue. It goes directly to the property rights of traditional owners. It is their land, upon which they and other people are living. It seems to me that they have a greater right to have a say over what happens on their land than people who have perhaps recently moved to live in the area or may be temporary residents et cetera.

As I said, it is a difficult issue, but we are concerned that the government’s proposal might lead to instability and greater dispute. We think that the rights of traditional owners require greater protection. Therefore, we recommend that the Senate supports our amendments, which seek to bring the proposition directly into line with the attitude of the House of Representatives committee. That committee inquired into the Reeves review, which had the support of government and non-government senators and made a very valuable contribution to the debate. The minister has been very keen to continually highlight that there might be differences between the views of federal Labor and those of the Northern Territory government. This is a statement of the views of his colleagues in the House of Representatives about what would be an appropriate benchmark. I urge the government to agree to these amendments, which would result in a better outcome than their proposition, and to support what I think are sensible findings of the House of Representatives committee.

Sandy Macdonald (NSW, National Party, Parliamentary Secretary to the Minister for Defence) Share this | Link to this | Hansard source

In relation to opposition amendment (2), the government believes that having 55 per cent of Aboriginal people voting constitutes a substantial majority for the purpose of establishing a new land council. We do not believe that there is a need to change this to 60 per cent. In relation to opposition amendment (3), under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976, land councils are required to represent the traditional owners of Aboriginal land and other Aboriginal people residing on Aboriginal land in the Northern Territory. In the current bill there is no requirement for traditional owner consent for new land councils. Such a requirement would disadvantage residents on Aboriginal land and would be an additional requirement to the current legislation. The government cannot accept these amendments.

A land council is required to represent every Aboriginal on that land, not just the traditional owners. We do not support a proliferation of small land councils—that would be in no-one’s interest—but we do need workable provisions for new land councils. The current provisions are unworkable. The government has decided, on balance, that 55 per cent is an appropriate threshold. I remind the Senate that the government has added a viability assessment for any new land council in order to ensure workability.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens support these amendments.

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

In lieu of a division, I want to put on record that the Democrats also support the amendments. They are based upon evidence. They are not something that has just been dreamed up by any of the political parties to try and differentiate or score a political point. They are not just based on evidence given to the Senate committee inquiry but also, as I understand it, based on previous deliberations. When the government say that something is unworkable, I think they mean that it does not work in the way that they want it to, and that is not a good enough reason, certainly in this particular area. I indicate our support for the amendments.

Question negatived.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I move opposition amendment (4) on sheet 5008:

(4)    Schedule 1, item 65, page 37 (lines 24 to 26), omit subsection 28C(3), substitute:

        (3)    The Minister must not approve the request unless he or she is satisfied that:

             (a)    the body will be able to satisfactorily perform the functions and exercise the powers sought by the body; and

             (b)    the body has a sound governance framework and prudent management; and

             (c)    a majority of traditional Aboriginal owners of the region represented by the body consent to the delegation.

Given that question time is approaching, I will not launch into the spirited support of that amendment and its efficacy now, but I will later. Given that it seems to be falling on the minister’s deaf ears anyway, perhaps it is best that I do it only once rather than twice. So, rather than speaking to that amendment now, I will speak to it when the legislation debate resumes later in the day.

Progress reported.