Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

With the first amendment, although the running sheet has opposition amendment sheet 5208 revised to oppose schedule 1, I would like to deal with those amendments that go to schedule 1 first. It would seem more logical, should the government not accept those amendments, that we then deal with the complete opposition to schedule 1. I imagine that that would be the more logical way to deal with it.

Unfortunately, I have not had an opportunity of explaining that to the clerks, so I apportion no blame to them. It is entirely a matter for me. It would be more logical to next proceed to the Australian Greens amendments and move on through them until such time as we reach the top of page 3 and the last amendment to schedule 1 item 43. Logically, at the conclusion of that I would then move—should the government not pick up all my amendments—opposition to schedule 1. If the Australian Greens want to proceed with their amendment, that would be helpful in the scheme of things.

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

The Greens oppose item 7 in schedule 1 in the following terms:

(5)    Schedule 1, item 7, page 4 (lines 25 to 30), TO BE OPPOSED.

The Greens have made clear that we have some very deep concerns about this bill, and we are seeking to move a series of amendments to fix some of the issues. This amendment opposes the imposition of periodic recognition, which is schedule 1, item 7. The Greens believe that limited term recognition periods are unnecessary and that there are already sufficient provisions available to the minister in the limited number of cases where there may be problems with the proper administration and effective functioning of particular representative bodies.

This provision is a very blunt instrument and will introduce substantial administration and transition costs without a clear rationale. We do not believe that it will produce any tangible benefits. Periodic recognition undermines the security, stability and administrative independence of representative bodies to no good cause. We are concerned that it will expose representative bodies to political pressures. It undermines their ability to plan for activities for the longer term. The minister already has the discretion to use the periodic funding provisions and to impose accountability measures as a condition of funding. The minister already has the discretion to withdraw recognition where an NTRB is not performing. We believe that limited recognition would give too much discretionary power to the executive.

I will note, as I did in my speech on the second reading, that the Minerals Council also has very strong concerns about the native title representative bodies being undermined and about the introduction of a further element of instability through these provisions. I believe that this particular provision will not help to achieve better functioning representative bodies. As I said, this will further undermine them. If we were really about improving the capacity of representative bodies, we would be looking at better funding and better capacity building for the representative bodies rather than introducing an extremely blunt instrument.

I have a series of questions. What is the intent of this particular provision to do with periodic recognition? How is it supposed to work better? Why won’t it create more bureaucracy? Why won’t it create instability and uncertainty? The industry opposes this provision and others. Why does the government think that is? What happens to ongoing native title claims and negotiations when the time runs out?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I am obliged to the senator for her interest in the subject matter. The opposition and minor parties are opposed to this mechanism. It is clearly an accountability mechanism. The native title regime is not about the process. Senator—through you, Chair—you used the word ‘industry’. It is not about the native title industry. This is about claimants and delivering outcomes for claimants. That is the priority; that is the focus that we seek to have. Fixed terms are integral to a more efficient, effective and accountable system. That is the intent: accountability, performance and benchmarking.

Representative bodies that are good performers have nothing to fear. Bureaucratic, slow, ponderous, process driven representative bodies that are not focused on outcomes have a lot to be fearful of. Indeed, their constituents have a lot to be pleased about with respect to these provisions. Poor performers should be wary. Native title claimants deserve much better than they have been getting. Public funding needs to be used in efficient and accountable ways, and that is the motivation for this. I am very interested to hear whether learned senators are opposed to these principles.

Fixed terms will not be unduly disruptive. The application process requires a minimal amount of paperwork. The opposition have said that fixed terms will undermine the ability of representative bodies to attract staff into the future. We see that a better performing representative body will have much more respect, be much more administratively competent and be able to perform in a much more professional way. On that basis, it should attract more employees. I do not think that I can say any more other than to reiterate that this is about accountability; it is not about ‘the industry’.

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

I want to clarify. When I was referring to ‘the industry’, I was talking about the mining industry.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I thought that it was the Aboriginal or Indigenous industry. However, if you heard the summing up of my second reading speech, you would know that the mining industry is quite happy with these provisions.

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

I know you think that the mining industry is quite happy with it, but I can quote to you from the Minerals Council of Australia submission, where they say:

The additional measures have the potential to divert already limited resources towards bureaucratic processes, unnecessarily onerous compliance obligations or the winding-up and establishment of new services ...

They go on to say:

... such organisational changes can add significant delays and additional costs to industry in:

> suspending existing negotiations;

> requiring the renegotiation of certain matters previously agreed upon;

> requiring the building of new relationships with new NTRB staff; and

> requiring new NTRB staff to acquaint themselves with the particular matter and the relevant native title holder/claimant group.

Unless they have changed their minds since they put in the submission to the Senate inquiry, those are the comments of the Minerals Council of Australia.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I love the way that quotations are taken entirely out of context! The Minerals Council said, and the senator well knows they said this:

The MCA ... supports the proposed reforms to the NTA—

the Native Title Act—

relating to representative Aboriginal and Torres Strait Islander bodies including:

>              a simplified de-recognition process for poorly performing NTRBs ...

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

Clearly, the government is not in a mood to take on board the shared concerns of all parties on this side of the chamber, which I think is unfortunate because those concerns also reflect evidence that was provided to the Senate committee inquiry. The minister has taken a quote there, accused Senator Siewert of selectively quoting and then selected a quote himself that suits his argument. But I think the other point that needs to be made is that the rationales that the minister put forward for this measure of accountability and about improving performance and outcomes are not something that anybody disagrees with, either in this chamber or amongst any of those people from all sides of the spectrum who engage with the native title process. The view of the Democrats and, I suspect, others, and certainly the view of many submitters to the committee who engage with this process—not just native title rep bodies themselves but others—is that there are other ways to ensure adequate accountability.

The problem with this—and I accept that it is put forward as an accountability measure, and in that sense I am not criticising the intent but the consequence or at least the potential consequence—is that it will affect stability. It will affect the ability to engage in long-term planning. As we all know, probably unfortunately but probably, at least in some cases, unavoidably, native title matters can stretch out over a very long period of time. A rep body can have a number of them ongoing in any one period of time and has to decide where to direct its resources. It is very difficult to do that if it does not have a reasonable degree of certainty into the long term. So the concern is that the government’s measure, whilst it is aimed at accountability, will unnecessarily impact on stability, on the ability to engage in long-term planning, and that in itself can impact on the performance and the outcome, which is what we are all interested in. I do not think we should be spending our time arguing backwards and forwards about which of us cares about getting good outcomes. That is what we all want. I think we have different views about how we can get there. Clearly there was a lot of evidence that this is not the best way to address accountability issues. It is certainly my recollection from the spoken evidence to the Senate committee inquiry that this aspect was seen as a potential problem, and I think it is unfortunate that the government has not taken that into account.

But the other point needs to be made that, in proposing that this measure not be incorporated into the law, there are other measures and proposals put forward that would address some of the accountability concerns but do not have the potential consequential problems of impacting on stability and planning. We all know that, with a whole range of organisations that are dependent on government funding in a whole range of sectors, particularly in Indigenous service delivery organisations that are community based, it can be very difficult to retain staff if there is not long-term certainty, and it can be very difficult to gain staff.

I am not saying that this measure alone is going to lead to wholesale problems—and I am not saying that there are not problems with regard to that already, for that matter—but these are all factors that need to be taken into account, particularly if you are looking at practical outcomes. That is what we are talking about here. It is certainly what the Democrats are talking about. It is what I have been talking about with regard to Indigenous issues for a long time: practical outcomes. If we are going to make significant changes to the Native Title Act in a range of areas, as this bill seeks to do, then we want to make sure that it is going to improve the practical outcomes, not make them worse.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I just want to indicate that the Labor Party will be supporting this amendment. As I pointed out in my speech on this bill, we indicated in our minority report to the Senate Standing Committee on Legal and Constitutional Affairs inquiry into this bill that we do not support the time limit for the registration of native title rep bodies. We do not believe that there has been significant evidence presented to the committee or even in fact to this government to suggest that that is the way in which they need to move.

Senator Johnston talks about accountability and increased accountability. From evidence presented to the Senate inquiry, the accountability is already there. The one particular native title rep body that was not accountable has not passed the registration process again. All of the rep bodies will now be forced to comply with a more bureaucratic requirement, when in fact only one has not met the expectations in the past. So it is a very heavy-handed approach by this government, in that we are going to make everybody step up to the mark now and be even more accountable—there will be increased accountability and more bureaucratic paperwork—in order for native title rep bodies to continue their existence, when, quite frankly, there is absolutely no evidence that the current system is not working. The current system is working. In fact, when there has been a problem with the rep bodies, we know that the system has moved into place and the rep bodies that have not complied have been dealt with. So there is really no suggestion at all that this system needs to be now overly administered.

We did hear plenty of evidence in the inquiry that people would be spending a lot of time reapplying for registration and that it would severely affect the number or quality of staff that rep bodies can attract. The consistent view was that if the rep body were only registered for two years then that would mean considerable constraints on getting the well-qualified lawyers, anthropologists and other skilled people that they need to come on board, because it would be for only a two-year period. They would not be able to give people extended contracts of employment beyond two years because the rep body would only have the funding for that length of time. So the government is clearly not listening to one side of the industry here in putting these constraints on native title rep bodies.

The minister argues that this is going to make them all the more accountable and going to make the process more transparent. We had no evidence whatsoever in the inquiry to suggest that the system is not already accountable and not already transparent. It is a case of: if the system is not broken then why make these changes? Everybody agreed that native title rep bodies are, by and large, performing well. We have one out of 13 or 14 that is not—and two or three service providers. There has been one problem in this time, yet all of them out there are going to be made to comply with this requirement.

The other issue is that there are some claims that do take longer than six years. For some bizarre reason, there is now a requirement that rep bodies can only be registered for six years. Yet we know that claims have taken much longer than that. So we do not believe that this is going to make the system better. We do not believe that there is a need to impose a time limit on the registration of these rep bodies. So we will be supporting the Greens’ opposition to item 7, schedule 1.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I am very respectful of Senator Crossin’s opinions on these matters. She has done a lot of work in this regard. But can I say that this is not about anthropologists and lawyers; it is about the constituents of these rep bodies. Mirimbiak in Victoria collapsed. The New South Wales Aboriginal Land Council handed its recognition back. The Pilbara land council was replaced. The Carpentaria Land Council is under external administration. Only 18 months ago five rep bodies had funding controls in place. The system is clearly in need of greater accountability. This is not about the processes; it is about commanding outcomes. This is about greater involvement through accountability measures to satisfy those people that Senator Crossin knows are out there saying, ‘What has native title delivered for us?’

According to Senator Crossin’s view, everybody out there is very happy with native title. It may be that some of the people who have now received a favourable determination in the Northern Territory, where she comes from, are happy. But I can tell her that amongst the other claimants, under some 600 claims, it is very hard to find anybody who says that the system is working well. It is all very well to say that we do not need accountability, but that is at the nub of the problem. These changes go a long way towards fixing the problem.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I thank the minister for those comments. But I think the fact that there are a number of rep bodies or land councils in that situation where they have either handed back their responsibilities or have administrators in place actually shows that the system is working. Where there have been problems, the system has moved in to deal with those problems. In relation to your comment that this is not about lawyers and not about anthropologists, I would say that it is about that, because if you cannot attract highly skilled, highly experienced staff in this area then the losers will be the Indigenous people that they are there to represent and advocate for. We do not want in the system—and we should not be encouraging in the system—just people who are there to get experience or to learn on the job; we want a mixture of experienced specialists in this field as well as those who are there to gain experience.

I also think there is a problem in putting a specific limit on registering the rep bodies. Many of the people who provided submissions to the committee in fact were not in favour of this, and I still say to you that I do not believe that there has been enough evidence provided to the government to warrant such major changes—particularly when at the same time in this bill you are not requiring these rep bodies to provide a strategic plan. So there is some hypocrisy and inconsistency in your approach here. On one hand we are going to tighten the accountability procedures, but on the other hand there are amendments in this bill that say the rep bodies no longer have to provide a strategic or business plan as part of their operation. I reiterate that we do not believe that this is going to make the system more efficient and deliver better outcomes for Indigenous people; in fact we believe it will clog up the system even further.

Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that item 7 in schedule 1 stand as printed.

Question agreed to.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (5) and (7) on sheet QW307 together:

(1)    Schedule 1, page 4 (after line 24), after item 6, insert:

6A  Subsection 203A(1)

Repeal the subsection, substitute:

        (1)    Subject to section 203AA, the Commonwealth Minister may:

             (a)    invite applications from eligible bodies, in the way determined in writing by the Commonwealth Minister, for recognition as the representative body for an area; or

             (b)    invite an eligible body, in writing, to make an application for recognition as the representative body for an area.

6B  Subsection 203A(2)

After “for which”, insert “an application or”.

6C  Subsection 203A(3)

After “within which”, insert “the application or”.

(2)    Schedule 1, item 7, page 4 (lines 27 to 30), omit subsection 203A(3A), substitute:

     (3A)    The invitation may specify the period for which an eligible body would be recognised, if the body successfully applied for recognition. The period must be:

             (a)    unless subsection (3B) applies, of no less than 2 years; and

             (b)    of no more than 6 years.

      (3B)    The period specified may be of less than 2 years, but no less than 1 year, if:

             (a)    the body is under external administration; or

             (b)    a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body; or

             (c)    the Commonwealth Minister is of the opinion that specifying a period of that length would promote the efficient performance of the functions mentioned in subsection 203B(1).

(3)    Schedule 1, page 4 (after line 30), after item 7, insert:

7A  Subsection 203A(4)

Omit “under subsection (1) for inviting applications”, substitute “under paragraph (1)(a) for inviting applications from eligible bodies”.

(4)    Schedule 1, item 8, page 5 (lines 27 to 29), omit subsection 203AA(3), substitute:

        (3)    The invitation must specify the period for which the body would be recognised, if an application were made. The period specified must be:

             (a)    unless subsection (3A) applies, of no less than 2 years; and

             (b)    of no more than 6 years.

     (3A)    The period specified may be of less than 2 years, but no less than 1 year, if:

             (a)    the body is under external administration; or

             (b)    a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body; or

             (c)    the Commonwealth Minister is of the opinion that specifying a period of that length would promote the efficient performance of the functions mentioned in subsection 203B(1).

(5)    Schedule 1, page 6 (after line 8), after item 8, insert:

8A  Subsection 203AB(1)

Repeal the subsection, substitute:

        (1)    Subject to subsection (3), an eligible body may apply to the Commonwealth Minister, in the form approved by the Commonwealth Minister, for recognition as the representative body for the area, or for one or more of the areas, in respect of which:

             (a)    the body has been invited under section 203A to make an application; or

             (b)    eligible bodies have been invited under section 203A to make applications.

(7)    Schedule 1, item 15, page 8 (lines 12 to 16), omit paragraph 203AD(2D)(b), substitute:

             (b)    if the body applied for recognition on the basis of an invitation in which no period of recognition was specified—the period of recognition specified in the instrument of recognition must be:

                   (i)    unless subsection (2E) applies, of no less than 2 years; and

                  (ii)    of no more than 6 years.

      (2E)    The period specified may be of less than 2 years, but no less than 1 year, if:

             (a)    the body is under external administration; or

             (b)    a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body; or

             (c)    the Commonwealth Minister is of the opinion that specifying a period of that length would promote the efficient performance of the functions mentioned in subsection 203B(1).

I table the supplementary explanatory memorandum, which I found beneath a large pile of papers on my desk.

Question agreed to.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

by leave—I move Labor amendments (2), (4) and (7) on sheet 5208 revised, together:

(2)    Schedule 1, item 5, page 4 (line 6), omit “Corporations Act 2001”, substitute “Corporations (Aboriginal and Torres Strait Islander) Act 2006”.

(4)    Schedule 1, item 8, page 5 (lines 34 to 36), omit subsection 203AA(5).

(7)    Schedule 1, item 24, page 13 (line 28) to page 14 (line 7), omit the item, substitute:

24  Subsection 203AH(2)

Repeal the subsection, substitute:

Discretionary grounds for withdrawing recognition

        (2)    The Commonwealth Minister may, by legislative instrument, withdraw the recognition of a body as the representative body for an area if satisfied that:

             (a)    the body:

                   (i)    is not satisfactorily representing the native title holders or persons who may hold native title in the area; or

                  (ii)    the body is not consulting effectively with Aboriginal peoples and Torres Strait Islanders living in the area; or

                 (iii)    the body is not satisfactorily performing its functions; or

                 (iv)    there are serious or repeated irregularities in the financial affairs of the body; and

             (b)    the body is unlikely to take steps to ensure that, within a reasonable period, none of subparagraphs (a)(i), (ii) and (iii) continue to apply in relation to the body.

I also foreshadow that Labor will oppose schedule 1 in the following terms:

(5)    Schedule 1, item 13, page 6 (lines 30 and 31), TO BE OPPOSED.

(6)    Schedule 1, items 18 to 21, page 8 (line 26) to page 13 (line 18), TO BE OPPOSED.

(8)    Schedule 1, item 27, page 14 (lines 16 to 25), TO BE OPPOSED.

(9)    Schedule 1, items 30 to 35, page 15 (lines 1 to 16), TO BE OPPOSED.

(11)  Schedule 1, item 46, page 22 (lines 3 and 4), TO BE OPPOSED.

(12)  Schedule 1, item 49, page 23 (lines 6 to 8), TO BE OPPOSED.

(13)  Schedule 1, items 51 to 54, page 23 (lines 13 to 28), TO BE OPPOSED.

(14)  Schedule 1, items 56 and 57, page 24 (lines 5 to 15), TO BE OPPOSED.

(15)  Schedule 1, item 59, page 24 (lines 20 to 22), TO BE OPPOSED.

Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

You may speak to opposition amendments (2), (4) and (7) as well as the items that you have foreshadowed you will be opposing in schedule 1, but the votes will have to be taken separately.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I will depart for just a second before I deal with each of those amendments—(2), (4) and (7). Notwithstanding the denial by the government, it seems to me that in this exercise you have a range of amendments to the native title system, to use a broader term, which appear to be adding more red tape and to be bureaucratic in nature, and which appear to provide for small changes all the way throughout. They are peppered throughout; each one of them might on its own have some merit, but it is not clear where that merit is and how that merit is going to work in effect. When you then look more broadly at the system, you ask, ‘If the government did have an opportunity’—which it has—‘to improve the system, why wouldn’t it look more broadly at the system and, if there are significant failings within it, bring forward bill recommendations, develop amendments to it and then pursue those amendments broadly, through a consultative process as well, to build cooperation and understanding of why these amendments are here?’ I do not see that that has been adopted in this process.

Even when you then examine the Senate committee report—just on a range of those amendments—you end up with criticisms, from both the majority report and the minority report, of those exact issues. And the criticisms do not come from just the one quarter. In the area that I have worked in, usually you end up with the issues or the criticism coming from one group or one quarter. Rarely do you see them combine, where you have the disciplines within the native title system and the miners and claimants and all the others adding their weight to the criticism of the process. They include similar phrases, agreeing that the current system is taking a long time to process, but they do not see how these amendments which you are proposing are going to improve the system substantially. You might then say, ‘Well, time will tell,’ and time might be on your side. I do not see it on the side of the participants in the system. The system has not produced an effective and efficient system to date. It has tried; there is no doubt about that, and it should be commended for that. It is unclear how the amendments that you are now proposing will provide an efficient and effective process for all to enjoy, especially when you find—even amongst the criticisms, which I do not see often in the Senate Legal and Constitutional Legislation Committee—people who you would think have disparate views and different positions coming together to complain that the system needs to provide effective, efficient and quick outcomes but not cheapen the process either, because it has to be enduring. For it to be enduring, you expect that the participants who are the negotiators and claimants are also enduring in the system. It seems to me that the amendments the government has put forward in this bill do not provide significant benefit and do not provide an enduring system where parties can be confident that over time they will be dealing with the same participants throughout.

Having said all that, I will turn to some of the specifics. Ultimately, if the government does not agree to these amendments that Labor are proposing, we will oppose schedule 1 because we do not in total see the benefits that are contained within it. We think that government, in picking up some of the committee recommendations, has still not gone far enough to ensure that the various areas that are recognised are sufficiently dealt with in a sensible manner, especially when you look at how these bodies—particularly native title bodies—work on the ground. You then have to ask yourself: will it benefit the claimants in that system; will it ensure that there are bodies that will endure? You raise an interesting point: you say there have been those that have not worked. It strikes me, though, to ask: is this the way to provide for machinery amendments to a legislative enactment as a way of fixing it? Without more, my answer would be no.

What I would also like to hear from the government during this debate is what else they will do to try to facilitate the process, because a lot of the participants in the system who provided information to the Senate committee report talked about broader issues as well. In short, without more, the system will continue as it is.

I will deal with amendments (2) to (9). Amendments (2) and (5) relate to the definition and criteria of what is an eligible body. Amendment (2) proposes a change that would extend the bodies which can operate NTRBs to include corporations incorporated under the Corporations Act 2001. Such corporations do not have special constitutional requirements relating to Indigenous membership as do Aboriginal corporations under the Aboriginal Councils and Associations Act 1976 and its replacement, the Corporations (Aboriginal and Torres Strait Islander) Act 2006. Such a change is a shift away from the importance of the representative nature of the NTRBs. Amendment (2) seeks to rectify this imbalance.

Amendment (5) eliminates an unacceptable change to the criteria of eligibility that the Commonwealth minister is presently required to be satisfied about before recognising an eligible body as a representative body under subsection 203AD(1), whether during or after the transition period. Those are: (a) the body does or will satisfactorily represent native title holders and persons who may hold native title in its area; and (b) the body does or will consult effectively with Aboriginal peoples and Torres Strait Islanders living in its area. Thus the only criteria would be: (c) that, if the body is already a representative body, the body satisfactorily performs its existing functions; and (d) the body would be able to perform satisfactorily the functions of a representative body.

This proposed change potentially limits the importance of Aboriginal representation by representative bodies representing the native title holder and potential native title holders. Consulting effectively with Aboriginal people and Torres Strait Islanders goes to the heart of the function of a representative body. It is therefore unacceptable to Labor. Changes are sought as part of that.

When you examine it, I do not think the EM adequately explains the direction the government is going with this. I do not think the government has articulated its motive behind many of these changes. Hopefully during this debate we might be able to tease out some of the underlying motive of the government. It is not apparent that it is about improving the system; it is not apparent that it is about removing the red tape. It is said to be about accountability, but accountability comes with responsibility—responsibility to ensure that the Aboriginal and Torres Strait Islander people have a say and a stake in the process and are able to adequately do that. I am not convinced that the changes that are proposed will do that, and that is why Labor is moving its amendments. I will pause there and see if anyone wants to comment, otherwise I will run into the 15-minute rule again, as I did yesterday. I will wait for a moment.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I also want to provide a contribution to this and will go to the reasons why the opposition has in fact put up these amendments. Let us face it: the amendments that we are now moving—essentially the block of (2) to (15)—really go to the heart of some of the major changes in this bill, and that is a complete abrogation by this government of absolutely and categorically guaranteeing that Indigenous people are involved in this whole process. I am surprised that the government would want to go to this length to ensure that the native title process effectively, by and large, can exclude Indigenous people. That is really what these amendments go to. These amendments, if they get up, will ensure that Indigenous people still have a very big voice in this.

I know the minister will get up and say, ‘Senator Crossin, I think you’re being a bit extreme here,’ but that is not the case. Whenever you move amendments to a native title bill, it just opens the door a fraction to allow native title rep bodies, for example, to be registered. In the registration process, if there is not a mandatory requirement that they have at least a majority of Indigenous people on their rep body, then you open the door to ensuring that legal firms or corporations representing people in a native title arena in this country are not driven by Indigenous people—that they do not have a majority of Indigenous people or, potentially, native title holders driving the process.

This government now wants to remove the Corporations (Aboriginal and Torres Strait Islander) Act and suggests that there would be another form of act that could substitute the requirement for having Indigenous people involved in the process. What we actually want to do here is propose a change that would extend the bodies which can become native title reps to include corporations under the Corporations Act. Such corporations do not have special constitutional requirements relating to Indigenous members, as do Aboriginal corporations under the Aboriginal Councils and Associations Act and the replacement act that we put in place in this chamber sometime in the last 12 months.

The shift here from the government is away from the importance of the representative nature of the native title rep bodies. When the minister has to recognise an eligible body now, one of the things they must do is satisfy themselves that that rep body represents native title holders, that they will consult effectively with Aboriginal people in this country. Under this legislation, we see that this government would allow the minister to recognise a rep body if it just performs, or would be able to perform, its functions satisfactorily. It is a very slight shift. There is a very small crack in the door here. But it seriously limits the importance and the recognition of Aboriginal representatives and the role they play in the rep bodies.

Our amendments also go to striking out the change that would allow the minister to extend or vary an area covered by the rep body without the consent of the body in question. We do not believe that that is acceptable either. Our amendments would make such a change conditional on the consent of the rep body concerned so that the minister could not unilaterally make changes to those boundaries without having consulted and gained the consent of the body.

Let us be very clear about this. This is the thin end of the wedge. These changes proposed by this government to the Native Title Act continue to diminish the voices of Indigenous people in this process. No matter what this minister is about to say to defend the government’s position, that is the reality here. If in legislation you do not mandate it and have a requirement to specifically consult and get the consent of Indigenous people then it provides you with the opportunity to not have to do that. That very small opportunity will become quite a large opportunity in this government if it ever gets the chance to totally ignore the wishes of Indigenous people and to ensure that those Indigenous people are not represented on a rep body and are not driving the process. This starts to shift the balance in a very major way.

These are minor amendments, but they will have quite a major impact out there in the field. They will have an impact in the sense that once again Indigenous people are going to be one step removed from this process under this government. If this legislation goes through as it is without the amendments from the Labor Party, it will ensure that Indigenous people can potentially be locked out of this process in some instances.

So we ask the government to seriously look at this and to take on board their commitment. They talk about practical reconciliation. Well, practically recognise now the role of Indigenous people in the native title process and support our amendments, particularly to this section of the bill.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The rep bodies are funded to provide a service, not to undertake a broader advocacy role with respect to the nebulous nature of Indigenous affairs. They are there for a discrete purpose, and that is to provide outcomes and to assist in the expeditious processing of native title claims to the satisfaction of the claimants and with the recognition of their rights. The functions of rep bodies will not be changed. Obligations of rep bodies are not changed or amended through this legislation. The amendments that the opposition seeks to move are opposed to the further emphasis upon the outcome. This is not about the process. This is not about the rep bodies having some sort of secure position in life; this is about having them do the right thing by the intended beneficiaries of this legislation. The intended beneficiaries were the native title holders.

Let us talk about opposition amendment (2) on sheet 5208. The opposition opposes the extension of eligibility for recognition to Corporations Act companies. Anybody with any experience in this area knows that representative bodies right around Australia from time to time employ corporate consultants, and indeed large law firms from the capital cities, to administer and assist in the future process and in the processing of claims through the Federal Court.

For some reason unbeknownst to the government the opposition is very frightened that somehow an efficient corporate entity or consultant will come along and usurp the bureaucratic dream that rep bodies in Australia have become. Who could complain about the very good work being done by New South Wales Native Title Services, Queensland South Native Title Services and Native Title Services Victoria—three corporate entities who are doing a very good job and stand as a practical example of what we are seeking to enable the minister to do to facilitate the delivery of an outcome to native title claimants? But, no, the opposition cannot see that and does not want to see that.

With respect to amendment (4), the opposition are proposing to remove a provision that helps to guarantee that only existing rep bodies are invited to apply for recognition during the transition period. They complain about stability. They complain about all these things. Here is an example of what we are doing: only existing rep bodies are invited to apply. The opposition’s position is a confused position up against all of the other amendments that they seek to put up. Certainly the government would not resile from its public commitment to guarantee all existing native title representative bodies a term of recognition under the new arrangements if they want one. This is what native title rep bodies have been promised and what they expect, and it is what they will get. If what the opposition were really trying to do was oppose fixed terms altogether, of course that would be an entirely unacceptable outcome.

Turning to amendment (7), the opposition wants to largely retain the unworkable criteria for derecognition. It is cumbersome and ineffective. No-one can forget the Queensland South Representative Body that laboured on, ineffectual and racked with division, for some 18 months because the powers were not sufficient or effective enough to enable a quick and speedy solution to that problem. Who suffers when these representative bodies cannot find their way to delivering the service? It is the people whom the act intended to benefit: the native title claimants. It is totally unacceptable that claimants can be left without services for a year and a half while a clearly dysfunctional organisation drags out the process of its inevitable demise. We are arresting that; we are changing that; we are fixing that to the benefit of Aboriginal people. The outcome is very clear, and yet the opposition opposes this move.

Let us move to opposition amendments (5), (6), (8), (9) and (11) to (15) on sheet 5208. Amendment (5) wants to prevent a simplification of the recognition criteria. I would have thought that was a very good thing. Amendment (6) wants to prevent the minister extending boundaries of rep bodies on his initiative and simplify the criteria for extending those boundaries. The opposition are opposed to that. Interesting—I cannot understand it. It is not in line with their platitudes. Amendment (8) prevents changes to when the minister must consider the fairness of bodies’ organisational structures and administrative processes consequent on changes to recognition and related criteria. I would have thought that spoke for itself. Amendment (9) wants to prevent consequential amendment following the removal of strategic plans. Amendment (11) will prevent consequential amendment following the removal of annual reports. These are things that make life easier for these rep bodies. Amendments (12), (13), (14) and (15) remove application provisions consequent on other opposition amendments.

I do not think I need to say much more other than to underline that the government’s reforms are clearly designed to simplify the process. These reforms will simplify the way that services can be delivered and that accountability and oversight can occur with respect to these rep bodies in the hope and with the intent and the objective that there will be better outcomes for Indigenous people who are native title claimants.

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

The Greens will be supporting these amendments. People will be aware that the Greens have a similar amendment relating to the inclusion of non-Indigenous people being recognised in rep bodies. I was interested to hear the minister’s response to the opposition’s amendments when he said that this is not about representation. He may be able to say that if these amendments pass, because they are taking out some of the requirements and criteria for representation and consultation with native title holders. I believe that the combination of a series of these amendments is, in fact, reducing the involvement of Aboriginal people in native title. These amendments reduce Aboriginal people’s involvement in native title; that is what they are about.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

It doesn’t do that.

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

It does do that. These amendments take away the requirement for native title representative bodies to consult and be representative of native title holders. The Greens, for one, oppose this legislation. That is why we have also proposed an amendment to oppose that section of the bill. We will be supporting the opposition’s amendments because we do not believe further removing and disenfranchising Aboriginal people from the process when it has not been working optimally is the appropriate way to go. These amendments will make the process more complicated and reduce their involvement even further instead of dealing with the real issues: providing adequate resources and capacity building.

Instead of facilitating greater involvement by native title holders and Aboriginal people in the process by increasing resources and increasing their capacity, the government is trying to remove and lessen their involvement. What the government should be doing is improving involvement by providing extra capacity. Those are the two areas that were consistently and repeatedly pointed to during both the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account inquiry and the Senate inquiry. A lack of resources and a lack of capacity were repeatedly identified as being the two major stumbling blocks. Instead of actually addressing those two things—resources and capacity—we are removing Aboriginal people’s involvement in native title. The Greens will be supporting the opposition’s amendments.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

We are talking about the role of NTRBs. What concerns me with all of this is that the government’s position seems to focus on the bean-counting role—as it should—to ensure that Commonwealth moneys are spent effectively. The role that the NTRBs play is a very important one. They assist and facilitate the preparation of native title applications, including mediation, negotiations and proceedings relating to native title and related processes. They provide written certification of applications for determinations of native title and related processes for land or waters in the representative body area.

They also promote dispute resolution between constituents about native title applications, so that is very much involved with native title, the participants and claimants in the system. They can also be party to Indigenous land use agreements. Those are the functions of NTRBs. So given that, Minister—I should say, ‘Through the chair,’ although it is not adequate dealing with it in that way—it strikes me that the direction the government is going in this schedule, schedule 1, is underpinned by its words of improving accountability without more. The more is if the government maintains that there are more efficient, more effective examples that can be used.

So what work has the government undertaken to promote those examples across other NTRBs? Has it undertaken casework, case studies—promoted those? Has it effectively ensured that, if there are successful NTRBs, the government can hold them up to the light and say they pass the accountability test, they pass the efficiency test and they are effective in their representation and their role? What work has the government undertaken to promote those examples? Has it undertaken case studies? Has it provided improvements to others and modelled arrangements? Has it provided guidelines? Has it said, ‘These are successful and provide effective representation’?

Those are issues where the government could come to the table and say, ‘You’re not meeting those benchmarks, those requirements, the guidelines,’ or however else the government wants to do it. An area springs to mind, although it is unrelated: when the government moved to outsourcing legal services in 1999 post the Logan review, we then went through a situation where departments were able to seek their own outsourced legal service and maintain an in-house legal service or other models—although it is my view that it went all over the shop. There has been an audit report or two into this area plus the Tongue report, which demonstrated there were failings in the system that needed addressing.

One of the things they talked about significantly was ensuring that there were strategic plans, strategic direction, and areas which would go to not only accountability but framework mechanisms to ensure that people understood what their requirements were. The role of the outsourced legal service provider was to ensure that they were meeting the guidelines but also that the people within each department would then ensure those guidelines were being met. I know I digress, but what is the government doing in this area if it is going to pursue these amendments over our objection?

I turn specifically to amendments (7) and (8). They would substitute a different section 203AH(2), which deals with discretionary withdrawal of a representative body’s recognition. The government’s proposed changes would remove representation of native title holders and consultation with Aboriginal people and Torres Strait Islanders as matters which the minister needs to consider in removing recognition. It would also insert serious and repeated irregularities in the financial affairs of the body as a criterion for withdrawal. Labor’s substitute under amendment (7) delivers the good outcomes the government wants while preserving the integrity of the process, while amendment (8) is consequential upon that.

Amendment (9) deals with reporting requirements. As proposed, the bill would remove the requirements for representative bodies to prepare strategic plans and prepare annual reports. Annual reports provide invaluable insight into the operation of rep bodies, providing information on the performance of functions and the exercise of powers. They are also required to contain audited financial statements. Importantly section 203DC(6) stipulates that the minister must put the report before parliament. This allows the content of the report to be discussed in the House and committees. It is also a valuable accountability mechanism.

As senators would know, annual reports are, by and large, pored over, read and looked at often as accountability documents, not only for the good read they sometimes provide. It would seem to be important to preserve that process. It would be unusual to find an annual report that is not chased up, and provided by the department. It would seem important that they do that, whereas in this instance the government is proposing not to continue with this process. In my view that would be tantamount to saying the minor agencies or even important agencies of some size should not provide annual reports about their performance and should not have audited accounts tabled in parliament so that parliament can have the opportunity of examining them.

The government’s answer is that reports still have to be prepared, but it seems trite not to seek to have them lodged in parliament as well. Perhaps the government can explain the rationale for that. Amendments (11) to (15)—and (30), which is yet to be moved—are consequential amendments, and I will not deal with them at any length.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I want to briefly clarify some things because I am not sure that senators have a clear grasp of what rep bodies are supposed to do. Section 203B sets out the functions of rep bodies, and those functions are in subsection (1): (a) facilitation and assistance functions; (b) certification functions; (c) dispute resolution functions; (d) notification functions referred to in section 203BG; (e) agreement-making function; (f) internal review functions. These functions are all very outcomes based and service related. The facilitation function, for example, is:

(a) to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications.

These are rudimentary tasks. These are outcomes based functions. Section 203BB(1)(b) is:

(b) to assist registered native title bodies corporate, native title holders and persons who may hold native title ... in consultations, mediations, negotiations and proceedings—

and so it goes on. The certification function is set out in section 203BE:

(1) The certification functions of a representative body are:

(a) to certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area for which the body is the representative body.

This is about getting the job done. It has not been getting done. The changes will assist it to get done, and that is the obligation of these rep bodies. They are not some fanciful political mechanism that becomes a bureaucratic dream team for a whole lot of do-gooders. This is outcomes based, and we want to see them start performing.

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

I put on record the Democrat position on this. I have heard some of the things that the minister has been saying and I think that perhaps the words ‘representative’ and ‘representation’ can mean a lot of different things. It is probably not his intent, but I do think some of his last comments suggested or could leave the impression that the problems with the current native title determination process predominantly fall at the feet of the representative bodies. I am certainly not saying that they are blameless, particularly in a few instances, but, even in some of the areas in which rep bodies have not been able to deliver as adequately or as quickly as is desirable, some of that is due to factors outside matters we are dealing with here and matters within the act itself, such as resourcing and capacity et cetera.

That was very clear from the evidence given at the Senate committee inquiry, not just from Indigenous representatives but from the mining council as well. They were calling for more resourcing, more capacity and more assistance for rep bodies. I wanted to make it clear, certainly from the Democrats’ perspective, that no impression should be left that rep bodies are at the core of problems that exist. I will not go too far down the track of pointing to some other reasons why I think there are problems, although I do think the lack of enthusiastic embracing of native title by a few state governments in certain circumstances could certainly be part of the reason, as could be some individual companies at various times. There are always a range of reasons.

The minister has read out components from the act about what rep bodies do, and he is right to again point out that this is about getting the job done. I think it is right to point out in response that, from the Democrats’ perspective, our key concern is also about getting the job done. But part of the job is to represent. As I said, ‘represent’ means different things. You can represent in a legal sense, in a political sense and in an in-between advocacy sort of sense. Some of those are appropriate and some of them are not. Certainly, rep bodies are not meant to be there to just be large-scale advocacy representatives for Indigenous people in general. Unfortunately, at the moment, we do not have terribly effective representative bodies for Indigenous representation in a political sense either, but that is a separate debate to the one we are on now.

I should say, though, that it is that lack of other avenues for genuine representation of Indigenous views and voices on a whole range of issues that is in part making people almost involuntarily or subconsciously look a bit towards the role of native title rep bodies. They are one of the few Indigenous related institutions that are still in place—that have not been pulled down, defunded, turned on their heads or continually shifted from one role to another. That is partly why, to some extent, that wider notion of what sort of other role rep bodies could play is potentially creeping into people’s views, I suspect. But, because it is moving outside the specifics of the native title legislation, I do not want to go further down that path at the moment, beyond flagging that it is a real problem and that the government’s own National Indigenous Council has acknowledged it as a real problem—that is, representation of Indigenous voices at the regional level. If that were there more effectively then, frankly, apart from anything else, it would ease some of the burden on native title rep bodies, whichever way you want to define it and constrain it.

But it is appropriate to pull it back to what the minister said, to look at what native title rep bodies are there for, and they are there to assist in the progressing of native title claims and getting the job done. That is what they should be there for. They should not be there, ideally, for a range of other perhaps linked but broader reasons. In that sense, there is some substance to what the minister said. But I think it is also worth pointing out the specific nature of native title, the unique aspects of it and the benefit in terms of the effectiveness of the process, because it is appropriate to be pulling it back to that and for there to be that sense of a representative body being able to represent rather than just being a pure service delivery organisation in the most narrow sense of the words. That is at the heart of what these amendments are about. They do not seek to make rep bodies into some other regional council a la ATSIC or anything like that. They seek to ensure, in my view, that there is still a clear link there that would, more often than not, mean that the outcomes would be better. They would be better for Indigenous people, but I think in general terms that also means that they would be better for everybody.

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

In whose opinion and in whose view is it about getting the job done? Is it native title holders? Or is it about helping to facilitate getting this done more quickly for mining interests? The fact is that the issue we are discussing at the moment is about representation and part of it is about effective consultation, and it was clearly the intent, because it is in the act, that rep bodies should be able to satisfactorily represent persons who hold or may hold native title in the area. That means, to me, that when this act was formulated we had enough foresight to know that to get the job done they had to be able to adequately represent persons who hold or may hold native title in the area. I also think that is why the act put in place that they needed to be able to consult effectively with Aboriginal people and Torres Strait Islanders living in the area, because that is also about getting the job done. To get an effective job done that delivers meaningful outcomes to native title holders you need to be able to satisfactorily represent those people who hold or may hold title and you need to be able to consult.

Those requirements are now being taken out. What is more, what is being added is that you can have non-Indigenous people as representatives. I think those two things conflict. I do not think that these changes will deliver getting the job done to native title holders. We already know that the act is not delivering to native title holders, and in my speech in the second reading debate I articulated some of the research that has been done around those issues. The recent research shows that it is not delivering to native title holders. I do not believe that these amendments removing those requirements and adding non-Indigenous representation will effectively deliver outcomes to native title holders.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I have a question for the minister, and it is this: if in fact the criteria for native title rep bodies are that they would be able to perform satisfactorily the functions of a rep body, would they include a specific requirement that they satisfactorily represent the native title holders and that they consult effectively with Indigenous people? And how would you seek to measure that?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Senator Crossin knows full well that the requirements of the functions of a rep body are set out in the act, and compliance with the act is very easily discernible.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Section 203B of the Native Title Act does not actually contain, to my knowledge, a specific requirement to effectively consult or to represent. Bearing that in mind, is it the intention of the government that they would rule out categorically the open market possibility that a native title rep body may well be a corporate law firm in this country?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Senator Crossin well knows that corporate law firms do an awful lot of work for rep bodies now.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

But they are not the rep body.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

But they are not the rep body. Nothing in here makes any corporate law firm a rep body. What Senator Crossin needs to understand is that the functions of a rep body—and if it is a rep body now it will get priority to be a rep body after these provisions are passed—have not changed. Rep bodies are funded by the Australian government under the act to provide the service, to adhere to the statutory functions that the act commands of them. The functions are not changed in any shape or form. The obligations to represent their clients, the beneficiaries in native title matters, have not at all been diminished.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

We could probably debate this endlessly, but I still have not had an answer from you about why there is a need to remove specifically these two criteria that the Commonwealth minister would use to be satisfied that a rep body should continue to be eligible. I would have thought, given all you have said this morning in responses, that these two criteria would actually enhance the functions of a rep body and therefore ought to remain in the act. What is it about the functions of a rep body that you believe can be enhanced by explicitly removing the requirement to represent and consult effectively with Indigenous people?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The senator I think does know the answer to that. The new and the only criterion for recognising a body as a native title representative body under the act is whether the body can satisfactorily perform its statutory functions. I would have thought that that position is a very strong position to indicate that the government, as I say, is all about delivering proper outcomes and getting the job done for the benefit of Indigenous people who are claimants.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

We do not agree, which is why, of course, we have put up these amendments. I just want to go to one other section that this parcel of amendments goes to, seeing that we are talking about the Native Title Act, and that is a change of the boundaries. We are proposing that we remove all of the items that relate to the ability of the minister to unilaterally extend a boundary being covered by a rep body. Our amendments make it such that it would be conditional on the consent of that body. We do not agree that the minister should vary the boundaries without consent of the rep bodies, nor do we believe the minister should be able to consider reducing the rep bodies without the consultation of the native title holders and consultation with Indigenous people. I wonder if the minister could please explain to the Senate why it is that this government also believes that lack of consultation, consent or approval even by rep bodies is needed to vary the boundaries. Why is it that the minister should have this power unilaterally?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

It frustrates me that the glass is always half-empty for Senator Crossin. The new provisions governing extension or variation of boundaries will allow the minister to respond in a timely and flexible way to changes within the rep body system. Before extending or varying rep body areas on his own initiative, the minister must notify relevant native title representative bodies and give the public 60 days to make submissions and consider any submissions made. The requirement to consider submissions from the public ensures that the minister will be informed of the wishes of the rep body and the rep body’s clients, as well as the bodies themselves. It will be open to those rep bodies and the public to raise concern about whether a proposed extension or variation is culturally appropriate, whether it is accurate and whether it meets the needs of one or more claimant groups.

On the ground, these things cannot be done in a vacuum. These amendments recognise that the minister has to roll up his sleeves, identify what is happening, engage and then make a decision. The minister must be satisfied that, after a proposed extension or variation, relevant rep bodies will satisfactorily perform their functions. The minister would thus need to consider whether any rep body had any opposition to a proposed extension or variation, based on cultural or other grounds—namely, the area is too big or the rep body has a group of claimants who are culturally diverse or separate from another part within the rep body area—that would compromise service delivery. These are very good considerations. Indeed, Senator Crossin, I am sure that, if you thought it through in the Northern Territory, you would see some benefit in going this way.

It should be noted that the amendments also make it easy for rep bodies themselves to initiate extension and variation of their areas. The government think this is a very sound change that provides a capacity to resolve issues, to firm up these boundaries and to have some certainty so that the claims can move forward, instead of fighting and bickering over which river, which riverbank, which road, which fence or whatever.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Minister, it is a bit harsh to suggest that the glass is half-empty or half-full. Perhaps my glass is always half-full in favour of trying to protect Indigenous rights in this country, instead of just pandering to the wishes of the mining industry and the bosses of the world. Let us not stoop to that level.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Senator Johnston interjecting—

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

You started it! Let’s just say that we on this side actually provide some balance in legislation. Maybe the imbalance that is in the Workplace Relations Act is now coming to the Native Title Act. You are reducing the notice period from 90 to 60 days so, effectively, people now have only two months rather than three months.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

It is more efficient.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

You say it is more efficient, but sometimes these native title rep bodies are stretched and they have limited resources. You sat on the Joint Statutory Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account—in fact, you may well have been the chair—when we handed down our report into the funding of native title rep bodies where we said they specifically needed better resourcing, better funding and better assistance. So you, probably more than any other person on your front bench at this point, would know the constraints that native title rep bodies are under.

I do not see how a more efficient system cuts out the requirement to consult rep bodies, to get the consent of the rep bodies and to consider consultation before the areas are reduced. There is now not a requirement. You say that that is what ministers would be expected to do. You say that they will take it into account but, unless it is in the law, there is no specific requirement for them to do that. That is why we have moved these amendments and that is why we disagree with the actions the government have taken in relation to amending the Native Title Act in this way.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The question is that opposition amendments (2), (4) and (7) on sheet 5208 revised be agreed to.

Question negatived.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The opposition opposes items 13, 18 to 21, 27, 30 to 35, 46, 49, 51 to 54, 56, 57 and 59 in schedule 1 in the following terms:

(5)    Schedule 1, item 13, page 6 (lines 30 and 31), TO BE OPPOSED.

(6)    Schedule 1, items 18 to 21, page 8 (line 26) to page 13 (line 18), TO BE OPPOSED.

(8)    Schedule 1, item 27, page 14 (lines 16 to 25), TO BE OPPOSED.

(9)    Schedule 1, items 30 to 35, page 15 (lines 1 to 16), TO BE OPPOSED.

(11)  Schedule 1, item 46, page 22 (lines 3 and 4), TO BE OPPOSED.

(12)  Schedule 1, item 49, page 23 (lines 6 to 8), TO BE OPPOSED.

(13)  Schedule 1, items 51 to 54, page 23 (lines 13 to 28), TO BE OPPOSED.

(14)  Schedule 1, items 56 and 57, page 24 (lines 5 to 15), TO BE OPPOSED.

(15)  Schedule 1, item 59, page 24 (lines 20 to 22), TO BE OPPOSED.

The Temporary Chairman:

The question is that items 13, 18 to 21, 27, 30 to 35, 46, 49, 51 to 54, 56, 57 and 59 in schedule 1 stand as printed.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I reiterate for the record that we have given many reasons in the preceding hour or so for our opposition to these items, so I will not put them on the record again.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

We have also given as many reasons why we cannot accept them.

Question agreed to.

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

by leave—I move Greens amendments (4), (6), (7), (8) and (17) on sheet 5201 revised together:

(4)    Schedule 1, item 7, page 4 (lines 27 to 30), omit subsection 203A(3A), substitute:

     (3A)    The invitation may specify the period for which an eligible body would be recognised, if the body successfully applied for recognition. The period specified must be no less than 3 years and no more than 6 years.

(6)    Schedule 1, page 4 (after line 30), after item 7, insert:

7A  After subsection 203A(3)

Insert:

      (3B)    If an eligible body has been recognised, the Minister must, before the expiration of the period of recognition mentioned in subsection (3A), invite the representative body for a further period of recognition.

(7)    Schedule 1, page 4 (after line 30), after item 7, insert:

7B  After subsection 203A(3)

Insert:

      (3C)    If a recognition period for a representative body has been specified under subsection 203A(3A) for a period of less than 6 years, the Minister must give to the applicant a reason in writing for having specified a period of less than 6 years.

(8)   Schedule 1, page 4 (after line 30), after item 7, insert:

7C  After subsection 203A(3)

Insert:

     (3D)    If a recognition period for a representative body has been specified under subsection 203A(3A), the Minister must invite that representative body to apply for further recognition no later than 6 months before the end of that recognition period, except in circumstances where notice is given by the Minister at or before this point in time of an intention to withdraw recognition in accordance with subsections 203AH(2) and (3).

(17)  Schedule 1, page 14 (after line 27), after item 28, insert:

28A  After section 203C

Insert:

203CAA  Link between recognition and funding

                 It is a general principal of this Act that:

             (a)    where recognition has been given to an eligible body in accordance with Division 2, the Secretary of the Department is required to provide funds to the recognised eligible body; and

             (b)    funding will be provided for the duration of the period of recognition; and

             (c)    funding periods and recognition periods will be of the same duration.

I realise that one of these amendments seeks to deal with an issue that the government has amended, but I would like to put on the record that the Greens do not think that the period the government has changed the minimum recognition period to is adequate. We are moving an amendment to change that to three years because we believe that that enables a greater period of stability for rep bodies. It also means that they do not have to continually be reapplying for recognition, which would place an associated administrative burden on those groups.

Amendment (6) relates to requiring the minister to invite rep bodies to reapply for recognition before the recognition period expires. This is about giving a greater degree of certainty to native title rep bodies.

Amendment (7) states that, if the minister chooses to recognise a native title rep body for less than the default recognition period of six years, the minister should be required to give a reason in writing for the shorter period of recognition so that there is a degree of transparency. As I have mentioned previously, we believe that the executive is being given far too much power and is in fact not subjecting itself to processes that require openness and transparency. The government keeps talking about native title rep bodies having to be accountable, yet I believe that this bill introduces amendments that give the executive more power but do not subject it to the same requirements for accountability and transparency. We believe that the default period for recognition should be six years with a minimum of three years. Therefore, if the minister decides that they should not be recognised for that default period of six years, the minister should be required to give notice in writing.

Amendment (8) requires the minister to give the rep bodies reasonable notice before the expiry of the period of recognition, inviting them to reapply or giving notice of intention to withdraw recognition. Again, this amendment is designed to ensure that there is a greater degree of stability for rep bodies so that they can do long-term planning and can get on with the job.

Amendment (17) is about coinciding the recognition and funding periods for native title rep bodies. Again, this is about increasing stability for native title rep bodies so that they do not have to keep reapplying for funding. This amendment also addresses the issue that is constantly raised, as I have said previously, about the need for greater resources for native title rep bodies to get on and do their jobs. We believe that the period of recognition and the funding period should be coincided so, again, the administrative burden for rep bodies is reduced.

I am aware that we are jumping between amendments at the moment. As I said, part of the issue of the period of recognition has been addressed. But our amendments seek to give a greater degree of certainty to native title rep bodies so that, as the minister said, they can get on and do their jobs.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I indicate our support for those amendments, for the reasons articulated by Senator Siewert. I will not go to them in detail. It is clear that the position that the government have adopted, in my view, is not tenable. They should really be persuaded to adopt our position—or, if not ours then Senator Siewert’s, representing the Greens. These amendments go in part to some of the areas we have already covered. I will not go through those again. I indicate our support for the amendments.

Question negatived.

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

by leave—I move Democrat amendments (3), (4) and (5) on sheet 5192 together:

(3)    Schedule 1, item 7, page 4 (lines 29 and 30), omit “The period specified must be of no less than 1 year and no more than 6 years.”.

(4)    Schedule 1, page 4 (after line 30), after item 7, insert:

7A  After subsection 203A(1)

Insert:

     (1A)    If an eligible body has been recognised, the Minister must, not less than 90 days before the expiration of the period of recognition specified under section 203AD, invite the representative body to apply for a further period of recognition as the representative body for that area.

(5)    Schedule 1, page 4 (after line 30), after item 7, insert:

7B  After subsection 203A(3)

Insert:

      (3B)    Subject to subsection (3C), the period to be specified in an invitation is to be 6 years.

      (3C)    When, pursuant to subsection (1A), the Minister gives an invitation to an eligible body that has been recognised, the Minister may specify a period less than 6 years, but not less than 2 years, if, during the current period of recognition:

             (a)    the body has failed, in a material respect, to comply with conditions to which funding is subject pursuant to section 203CA; or

             (b)    the body has failed, in a material respect, to comply with section 203DA; or

             (c)    the body has failed, in a material respect, to comply with section 203DB; or

             (d)    there have been serious or repeated irregularities in the financial affairs of the representative body; or

             (e)    the body has not satisfactorily performed its functions.

Again, these amendments deal with issues that we have talked about in various ways. The Greens, Democrats and Labor amendments have dealt with similar issues in different ways in different combinations. These amendments again seek to provide an alternative to the recognition period issues that the government decided to persevere with. I think our approach here would have provided a better result with regard to ensuring accountability whilst also ensuring better outcomes on the ground. The amendments basically require the minister, no later than a specified time before the expiry of the period of recognition of a rep body, to invite them to apply for a further period of recognition. They also provide some criteria for making decisions about the length of the recognition periods the rep bodies would be offered. This would make things more transparent and predictable, which is important if you want to focus on getting the best results out on the ground and the best delivery of service.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

The opposition supports the Democrats amendments. I will not go into this in detail. Senator Bartlett has outlined what the amendments do. Anything is better than what the government is putting up. We need to ameliorate what the government intends. The government is not clear about the true motive behind all of this. It says that it is about accountability, improvement, efficiency and effectiveness. These provisions add bureaucracy and red tape to the overall process. They will not allow the NTRBs to do their job effectively and efficiently, quite frankly. I said that at the beginning and it continues to annoy me.

Question negatived.

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

The Greens oppose items 2 to 6, 8 to 11, 13 to 16, 18 to 20, 24 and 27 of schedule 1 in the following terms:

(1)    Schedule 1, items 2 to 4, page 3 (line 21) to page 4 (line 3), TO BE OPPOSED.

(2)    Schedule 1, item 5, page 4 (lines 4 to 6), TO BE OPPOSED.

(3)    Schedule 1, item 6, page 4 (lines 7 to 24), TO BE OPPOSED.

(9)    Schedule 1, items 8 to 11, page 4 (line 31) to page 6 (line 27), TO BE OPPOSED.

(10)  Schedule 1, item 13, page 6 (lines 30 and 31), TO BE OPPOSED.

(11)  Schedule 1, items 14 to 16, page 6 (line 32) to page 8 (line 18), TO BE OPPOSED.

(12)  Schedule 1, item 18, page 8 (line 26) to page 10 (line 31), TO BE OPPOSED.

(13)  Schedule 1, item 19, page 10 (line 32) to page 13 (line 4), TO BE OPPOSED.

(14)  Schedule 1, item 20, page 13 (lines 5 to 16), TO BE OPPOSED.

(15)  Schedule 1, item 24, page 13 (line 28) to page 14 (line 7), TO BE OPPOSED.

(16)  Schedule 1, item 27, page 14 (lines 16 to 25), TO BE OPPOSED.

These cover a range of issues. We are opposing the transition arrangements—the government proposals which effectively spill recognition of all NTRBs once the bill is enacted and force them to reapply for recognition during the transition period, which ends 30 June 2007. The existing NTRBs will be the only ones invited to reapply during the transition period and the minister will be required to, as the bill says, recognise all applicants. We do not believe that this serves a useful purpose. It is a vast bureaucratic undertaking and it seems that limited NTRB administrative resources will be put to no real effect. The only decision that the minister will be making at this point is the period for which NTRBs will be recognised. This decision could be made based on existing strategic plans and performance. I suggest therefore that we are wasting the precious time and resources of NTRBs, which could be put to better use.

What is the intent of the transition period? Am I accurate in my assessment of what the transition period will accomplish? Will NTRBs only have to submit a brief letter applying for re-recognition or will there be a much more substantial process? At the moment, as I understand it, that is the minister’s decision. How will it work in practice, given that section 203AB(1)(a) implies that re-recognition is automatic regardless of the content of the proposal? Is the default position going to be the full six-year recognition period or is it designed so that a small group of NTRBs will be given a much smaller period of recognition?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

They will be offered between one and six years and all they have to do is say yes or no.

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

On what basis will they be offered a period of between one and six years? I understand from what has just passed that the minimum is now to be two unless other criteria kick in. Does that mean that groups will be offered six? On what basis will the decision be made to offer groups between two and six years?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

The learned senator mentioned the criteria. The performance history, the level of delivery of service and the financial accountability of the representative body, among other things, will all be taken into account.

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

There are other things included in this batch of items to be opposed relating to representative bodies being required to consult and be representative, the extension of and variation to representative areas and non-Indigenous corporations not being representative bodies. We have been discussing those things at length. I do not intend to debate those yet again, other than to reiterate that we have a great deal of concern about the impact that these changes will have for native title representative bodies.

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

The question is that items 2 to 6, 9 to 11, 13, 14, 16, 18 to 20, 24 and 27 of schedule 1 stand as printed and that schedule 1, items 8 and 15, as amended, be agreed to.

Question agreed to.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

by leave—I move government amendments (6) and (8) on sheet QW307 together:

(6)    Schedule 1, item 14, page 7 (after line 12), after subsection 203AD(1A), insert:

Instrument recognising body not disallowable

      (1B)    Section 42 of the Legislative Instruments Act 2003 does not apply to a legislative instrument made under subsection (1A).

(8)    Schedule 1, Part 1, page 22 (after line 6), at the end of the Part, add:

Legislative Instruments Act 2003

47A  Subsection 54(2) (table item 26)

Omit “section 203AD, 203AE, 203AF or 203AG, subsection 203AH(1) or (2),”, substitute “subsection”.

Government amendments (6) and (8) are amendments about certain legislative instruments. Government amendment (6) will provide for instruments recognising existing representative bodies for their areas during the transition period to be exempt from disallowance. This is because these instruments are mandatory in nature. The bill provides that the minister must recognise an existing representative body that applies to be recognised for its area in response to an invitation made during the transition period. It also provides that that representative body must be recognised for the term specified in the invitation. If parliament disallowed these instruments there would no longer be compliance with the statutory requirement. It is therefore appropriate to exempt these instruments from disallowance.

Government amendment (8) makes a consequential amendment to the Legislative Instruments Act to ensure that it reflects the changes made in the bill—a recognition that related instruments are presently exempt from sunsetting under the Legislative Instruments Act. This means that they do not need to be remade every 10 years. The change to fixed-term recognition periods for rep bodies means that recognition in related instruments will cease to have effect after a maximum of six years. There is thus no need to exempt these instruments from sunsetting.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

This is probably what I would describe as the feel-good amendment. This makes you feel good because you can stand up and say, ‘Look, we’ve picked up the recommendation of the legal and constitutional committee report. We’ve listened—we’ve truly listened—and we are going to mandate now for a two-year minimum period for the registration of native title rep bodies.’ But, wait, there is the fine print. It actually gives the minister the discretion to ignore the mandatory two-year minimum period, so in fact native title rep bodies can be registered for only one year. So I call this the feel-good amendment: it makes you look good; it makes you look as if you are listening, but really, at the end of the day, nothing can change because the minister can still register a native title rep body for only one year. So it will not come as any surprise to you that the Labor Party will be opposing this move.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

With respect, just to clarify: I think the learned senator was talking about the wrong amendments there. These are not the recognition amendments.

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

These are government amendments (6) and (8) together, Senator Crossin.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

These are my general comments in relation to the native title rep bodies, in relation to schedule 1. I think I am right, am I not, if I look at your amendment sheet?

The Temporary Chairman:

It is sheet QW307, Senator.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Yes, that is right.

Question agreed to.

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

I move Democrat amendment (17) on sheet 5192:

(17)  Schedule 1, page 14 (after line 27), after item 28, insert:

28A  After section 203C

Insert:

203CAA  Link between recognition and funding

                 It is a general principal of this Act that:

             (a)    where recognition has been given to an eligible body in accordance with Division 2, the Secretary of the Department is required to provide funds to the recognised eligible body; and

             (b)    funding will be provided for the duration of the period of recognition; and

             (c)    funding periods and recognition periods will be of the same duration.

I also have a number of other amendments which are opposing a range of items in schedule 1, which you can read out a bit later.

The Temporary Chairman:

Is this amendment (17) singly, Senator?

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

Yes. I will speak to all the others as well, because they link together to a fair extent and some of them, I might say, are issues that have been raised already in previous amendments. As I said, there tends to be an intertwining between various amendments from the Democrats, Labor and the Greens. Amendment (17) amends item 28 of the bill to set out criteria to establish a link between recognition and funding. If limited-term recognition periods are introduced, as they are going to be, then there ought to be some formal legal link established between recognition and funding so that the periods are the same. If we do not do that, it would result in two periods subject—potentially anyway—to independently exercised discretions, each of which will effectively determine whether the body concerned continues to be able to perform its role. To me, that seems to be unnecessarily bureaucratic and extra red tape in an act where there is already quite a lot, particularly on the rep bodies themselves.

The various other items of schedule 1 which we seek to oppose—and, again, a lot of them were mentioned previously in Senator Siewert’s earlier contribution—all go to matters that, to a large extent, I think are not particularly necessary, about transition periods and the like. I should emphasise that a lot of these amendments are derived from submissions provided to the Senate committee inquiry, in particular submissions and proposals from Tom Calma, the social justice commissioner covering Indigenous issues under the Human Rights and Equal Opportunity Commission. It is reasonable to state that Mr Calma knows what he is talking about with regard to the Native Title Act and how it operates. I think any suggestion that we have got the wrong end of the stick here and do not quite understand what is going on would, quite frankly, be a reflection not just on him but on a number of others who put in submissions to the Senate committee inquiry.

I would make that broad point again: the people who gave evidence to the Senate committee inquiry—as Senator Johnston would know, because he was on the committee at the time when we had the public hearing, before he moved on to his current esteemed role—were not engaging in ideological frolics. They were not putting forward evidence with an aim of trying to score political points or trying to slam the government or put forward some other form of ideological nirvana; they were talking about what they thought would work. I think that a lot of what the government has put forward does have that intent as well, the intent to make the legislation work better, but I suppose from the Democrats’ point of view—and this is a wider comment as well as specific to native title—things are more likely to work better in the native title area as well as other areas if affected Indigenous groups and people themselves believe it is a process that they have some genuine input into and have a fair go at, rather than just this morass of red tape or an uneven playing field. If you focus solely on what might seem to be a straight, quick, best outcome in terms of just getting the job completed, without looking at the nature of the job, it is perhaps not surprising that we are ending up in two different locations, even if we nominally desire to get to the same place. But that is probably a broader comment about the differing approaches that various parties are taking to this issue.

Turning to amendment (17) in particular: it does stand alone, as I understand it. Amendment (17) in itself would be beneficial. It would reduce some red tape and add some certainty for native title rep bodies, which, as we have said a number of times, do not have as much certainty as would be desirable and certainly do have very significant accountability requirements. We all support accountability, but we also need to get the balance right between accountability and excessive bureaucratic control.

This is a government that likes to have control. It likes to have micro control of a lot of things. It is a government that has made major power grabs in a whole range of areas. It has centralised power in a whole range of areas. In the Indigenous area it has removed power from Indigenous people and taken more control itself. Perhaps it should come as no surprise that in this area as well—as we saw last year in the land rights legislation for the Northern Territory—there are heaps of areas of discretion for the government and the minister and heaps of obligations on the part of the Indigenous organisations. Amendment (17) would at least streamline one of those processes.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

The opposition supports the Democrat amendment. Much of this has been covered, I know, in the sense that we have run it up to the government, and the government has ignored it as usual and maintained its position. The Democrat amendments do try to ameliorate some of the problems that beset this bill. The ultimate test of this bill will be whether it does endure and this amendment does do what the government claims it will do. On that score, it will be helpful if, in a while, the government can come back with the figures to say how this is such an improvement on the past, demonstrating that it has provided support and assistance to the bodies in their tasks and showing that the claims get processed, not just in the sense of numbers but in the sense of proper and enduring outcomes. That will be the ultimate test of the words here and what we are arguing here. The ultimate test is for the government to demonstrate that in the ensuing period.

Labor does not think that these changes will provide that. It does not think that there will be sufficient outcomes. When you look at the range of submitters to the Senate committee inquiry who were not convinced and when you look at the changes themselves, the various amendments, and hold them up to the light, they do not, on face value, look like they will provide a better outcome. There is still a range of serious problems with the bill. It is recognised that, in picking up some of the recommendations, there will be a slight improvement. But it seems to be that, even with that, you do have serious problems that face the bill and face the native title process today, particularly the length of time taken for the resolution of claims and the view that the system is clogged, bureaucratic and tied up with red tape. I have already mentioned those things, in my speech in the second reading debate. I reiterate that Labor does not believe that these changes—I will not call them reforms—will reduce red tape and does not believe that they will save taxpayers money.

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

I would like to put on record that the Greens support this amendment.

Question negatived.

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

The Democrats oppose schedule 1 in the following terms:

(1)    Schedule 1, item 5, page 4 (lines 4 to 6), TO BE OPPOSED.

(6)    Schedule 1, item 8, page 4 (line 31) to page 6 (line 8), TO BE OPPOSED.

(7)    Schedule 1, item 12, page 6 (lines 28 and 29), TO BE OPPOSED.

(8)    Schedule 1, item 13, page 6 (lines 30 and 31), TO BE OPPOSED.

(9)    Schedule 1, items 18 to 20, page 8 (line 26) to page 13 (line 16), TO BE OPPOSED.

(14)  Schedule 1, items 23 and 24, page 13 (line 26) to page 14 (line 7), TO BE OPPOSED.

(15)  Schedule 1, item 27, page 14 (lines 16 to 25), TO BE OPPOSED.

(18)  Schedule 1, item 31, page 15 (lines 3 and 4), TO BE OPPOSED.

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

The question is that schedule 1, items 5, 12, 13, 18 to 20, 23, 24, 27 and 31, stand as printed and that schedule 1, item 8, as amended, be agreed to.

Question agreed to.

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

by leave—I move Democrat amendments (10) to (13) on sheet 5192 together:

(10)  Schedule 1, item 18, page 9 (lines 18 and 19), omit paragraph 203AE(4)(b).

(11)  Schedule 1, item 18, page 9 (lines 30 to 35), omit subsection 203AE(6).

(12)  Schedule 1, item 19, page 11 (lines 23 and 24), omit paragraph 203AF(4)(b).

(13)  Schedule 1, item 19, page 12 (lines 4 to 9), omit subsection 203AF(6).

These amendments are based on a recommendation from Tom Calma in his submission to the Senate committee. He is the Aboriginal and Torres Strait Islander Social Justice Commissioner of the Human Rights and Equal Opportunity Commission. These amendments go to the issue of the public’s right to comment on extensions and variations. It is probably easier if I quote from the submission. Mr Calma said:

46. I am concerned that the proposed changes to the way in which decisions to extend, vary or reduce a representative body area are made.

47. Presently, such decisions cannot be made without -

a. in case of extension:

• the representative body’s agreement [s203AE(f)], and

• Ministerial satisfaction that the body will ‘satisfactorily represent persons who hold or may hold native title’ [s203AE(c)], and

• Ministerial satisfaction that the body ‘will be able to consult effectively with ATSI peoples living in the area’ [s203AE(d)], and

• Ministerial satisfaction that the body will satisfactorily perform its functions [s203AE(f)];

b. in the case of variation:

• joint application for variation being made by the representative bodies[s203AF(1)], and

• a consultation requirement [s203AF(2) & (3)], and

• Ministerial satisfaction that the body will satisfactorily represent native title holders and claimants [s203AF(4)(a)] and effectively consult with Aboriginal and Torres Strait Islander peoples [s203AF(4)(b)], and

• Ministerial satisfaction that the body will satisfactorily perform its functions [s203AF(4)(c)].

c. In the case of reduction:

• Ministerial satisfaction that the body is not satisfactorily representing native title holders and claimants or effectively consulting with Aboriginal and Torres Strait Islander peoples [s203AG(1)(a) & (b) but will do so in relation to the remainder of the area [s 203AG(2)(a) &(b)];

• Ministerial satisfaction that the body will satisfactorily perform its functions [s203AG(2)(c)].

48. It is proposed to remove all of these criteria save the sole criterion that the Minister is satisfied that, after the extension or variation, the representative body or bodies will satisfactorily perform statutory representative body functions in relation to the extended, varied or reduced areas.

In this regard, Mr Calma noted that representative bodies’ functions do not include general representation and consultation requirements—something that the minister himself was indicating earlier on—and that they did not suggest any standard for representation and consultation. So under the proposed changes the minister would, in relation to extension and variation decisions, be required to give 60 days notice of his or her intentions to the public inviting submissions about the matter and to consider any submissions made by the public before making a decision.

Mr Calma’s submission continues:

51. I am concerned that ‘the public’ are thought of as having:

• any relevant interest in which particular body will be responsible for providing legal representation to native title holders in an area, or

• any relevant opinion about the likelihood of satisfactory performance of statutory functions by any particular body.

52. The inclusion in the Bill of a proposed requirement that there be notice of these matters to the public and consideration of the public’s submissions, underscores my concerns that leaving recognition decisions to be decided solely on the basis of a broadly defined criterion susceptible to differing interpretations, exposes representative bodies to an actual or at least perceived danger that decision making will be influenced by political considerations.

When one talks about the danger of political consideration, it is always worth emphasising that it is not necessarily attempting to cast a slur on the current government or the current minister. It is always worth noting that we are not here deciding whether or not to make life easier for the current government; we are deciding whether or not to change the law. Of course that law stays, potentially, for decades to come—well past the life of this government and perhaps its successor. So we have to look at what is likely to work and at what the potential consequences and uses are of a section of an act once it is agreed to.

It is a combination here of the fact that all of these current requirements are being removed and left basically solely with ministerial discretion, combined with the ability to take notice of opinions from a wider group of people than would necessarily have any relevant interest, particularly with regard to which particular body would be responsible for providing legal representation to native title holders in an area. I am certainly not against consultation, but, in changing the law to basically give much wider, more open-ended discretion for the minister and on top of that allowing the minister to take into account a much wider range of opinions or views in coming to the decision, there is a potential risk and certainly potential for perceptions about political considerations.

Again, I point out that this is coming from the Social Justice Commissioner and reflects views from some sections of the Indigenous community about how some of these powers might be used. It is a matter of whether or not people will have confidence and be relaxed about how discretion might be used down the track and whether people and representative bodies can feel secure in what they are doing, or whether in undertaking their tasks they will have a little extra creeping suspicion at the backs of their minds that upsetting the wrong person might come back to bite them. Once we take out all those specific legislation criteria and leave open-ended discretion, it opens up that risk.

On the flipside of it, there is also the issue of providing some security for the relevant minister, whoever it might be down the track. As we have seen in some other areas, such as migration, when there is nothing else there but ministerial discretion it can actually leave ministers and decision makers exposed to unfair perceptions about the reasons behind their decisions. To me that also suggests there are good public policy reasons for having more specific criteria outlined.

Question negatived.

I move Democrats amendment (16) on sheet 5192:

(16)  Schedule 1, item 27, page 14 (lines 24 and 25), omit “the body’s organisational structures and administrative processes will operate, or are operating, in a fair manner”, substitute “on the basis of published criteria:

             (a)    the body’s organisational structures and administrative processes will operate, or are operating, in a fair manner; and

             (b)    there has been satisfactory compliance with approved statutory plans under section 203D; and

             (c)    the body has effective planning procedures in place and complies with them; and

             (d)    there has been satisfactory representation and effective consultation with constituents.”.

I might have lost that last vote, but I do not think I lost the debate.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

Don’t give up now!

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

I did not hear any good arguments against it. This next amendment is an alternative to a previous Democrat amendment, (15), which was actually opposing a schedule. It seeks to set out some relevant criteria for the exercise of the broad ministerial discretion, including compliance with approved statutory plans and satisfactory representation and effective consultation with constituents. Again, it simply seeks to put in place just a couple of criteria that would go to inform the exercise of the very broad ministerial discretion that will now be in place. As I have just stated, it will also be of assistance to the minister of the day as well as being of assistance to those whom the minister will be making decisions about.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

In response to the senator, I do respect his work on this matter. Democrat amendment (16) seeks to introduce further matters that the minister needs to take into consideration before deciding whether a body can satisfactorily perform its functions as a rep body. This amendment includes the concept of fairness of a body’s organisational structures and administrative processes. The government has already provided for that to be included. It also includes where a body has complied with a strategic plan, and of course, Senator—through the chair—the bill removes strategic plans. I do not think I need to say any more.

Question negatived.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The opposition opposes schedule 1 in the following terms:

(10)  Schedule 1, item 43, page 16 (lines 11 to 20), TO BE OPPOSED.

I move this amendment on behalf of the opposition to remove this item, which actually limits the ability of the secretary of the department to make funding available to Indigenous people in areas where there is no representative body, only in circumstances where in the opinion of the secretary the function would not be performed in an efficient and timely manner without such funding. This is not a requirement for funding to Indigenous people in other areas. We do not believe it is necessary, so we will be seeking to have it removed.

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

The question is that schedule 1, item 43 stand as printed.

Question negatived.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

We oppose schedule 1 in the following terms:

(1)    Schedule 1, page 3 (line 2) to page 24 (line 33), TO BE OPPOSED.

The whole of the debate was that, if the government were not going to pick up the substantive amendments that we moved, then as a consequence we would move this amendment. I recognise that the government moved maybe one step out of a long march, but it certainly was not far enough.

Question put:

That schedule 1, as amended, be agreed to.