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

by leave—I move government amendments (9) and (10) on sheet QW307 together:

(9)    Schedule 2, item 35, page 31 (lines 4 to 6), omit subparagraph 87A(1)(c)(iii).

(10)  Schedule 2, item 52, page 39 (table item 3), omit the table item, substitute:

These amendments would make technical corrections to the bill. Government amendment (9) would remove a redundant provision from proposed section 87A. Proposed section 87A would enable the court to make a determination of native title where some but not all parties agree to the determination. As drafted, the provision would require the consent of any registered native title body corporate for the area that is a party to the claim before the determination could be made. This amendment would remove the requirement as it is not possible for a registered native title body corporate to be a party to an application for a determination of native title. Government amendment (10) deals with the reports about breaches of good faith obligation. Funding to non-government respondents in native title claims is provided by the Attorney-General rather than the Secretary of the Attorney-General’s Department. The provision as drafted erroneously referred to the secretary and that is a correction we are making which is largely housekeeping. This government amendment will change that provision so that any report will be provided to the Attorney-General.

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

I will just indicate Labor’s support for these amendments. They are technical in part, but they go to improving the bill.

Question agreed to.

by leave—I move opposition amendments (22), (24), (25), (27) and (29) together:

(22)  Schedule 2, item 51, page 38 (line 28) to page 39 (line 2), omit subsection 136G(3B).

(24)  Schedule 2, item 53, page 44 (line 20), at the end of subsection 136GE(2), add “; provided that the parties to the proceeding agree.”.

(25)  Schedule 2, item 57, page 46 (lines 8 to 10), omit subsection 138B(3).

(27)  Schedule 2, item 67, page 50 (line 18), after “must”, insert “, provided the parties consent,”.

(29) Schedule 2, page 52 (after line 22), after item 73, insert: 73A Subsection 203C(1)After “body”, insert “or a prescribed body corporate”.

I will see if I can deal with those seriatim. They would then deal with all of the amendments save for opposition amendment (26) and, ultimately, schedule 2. I will confine my comments to the significant parts of the bill that we wish to see some improvement in and give the government the opportunity to have a look at those particular areas. Amendments (17) and (20) both concern the effect of proposed item 36 in the bill, which would insert proposed section 94C. This proposed section would require the court to dismiss an application in response to a future act if certain criteria were met. Further acts are defined under section 233 of the act as acts which in particular circumstances affect or purport to extinguish native title.

There is no reason why native title applications lodged with the motive of protecting native title, where a future act is notified, should be regarded as improper or an abuse of process. To make them the subject of summary strike-out can only be regarded as an unfair attempt to deprive native title claimants of their rights to pursue the proper court processes available to attain their rights. It is also unnecessary, given that the courts can already strike out claims if they are manifestly unsound. So in this instance there is the ability for the courts to deal with these types of applications. You can also have an application by the respondents to bring that about, but that is an aside really. The real issue of course is: it seems that the amendments of the government in this bill will reduce the rights of those people bringing claims and may in fact impinge on existing rights.

Amendment (18) in addition moves to strike out item 19 of the bill, which reduces the ability of the Federal Court to monitor and supervise the progress of mediation of matters before it and, when it considers it appropriate, to explore other ways to resolve matters, through court based mediation.

For the benefit of people listening: Labor is just going through the relevant amendments that we seek to move and speaking to those. Some of them are consequential so I will not go through those in any detail. It is clear from the amendments that they are in fact consequential. Amendments (19) and (21) both relate to the production of documents, albeit in different contexts. Amendment (19) relates to the bill’s item 31, which would provide a mechanism for the courts to enforce a direction given by the member presiding over the Native Title Tribunal mediation conference where a party fails to comply with the direction. That can be seen in schedule 1, items 45 and 47, which propose to empower the presiding member to direct parties to attend mediation and produce documents.

Amendment (21) would give the presiding member of the tribunal the power to direct the production of a document which might assist the parties to reach agreement on any matters mentioned. This is not conducive to the mediation process. If mediation is designed to get the parties together to come to a result, that would be better served if the government actually turned its mind to how it could improve the mediation process overall rather than by making these proposed amendments. Labor seeks to ensure that the parties can use the mediation process.

Although the bill’s explanatory memorandum states that the parties will not be required to produce documents that are subject to legal professional privilege, it is not made explicit. Labor believes that it should be. Amendment (22) relates to item 51, which provides for reports by the tribunal to the court on progress in mediation. Section 136G(3B) provides for the tribunal to include in the reports proposed breaches of duty to mediate in good faith and to appear and produce documents. The last two obligations are opposed by Labor. The inclusion of all of these aspects in reports to the court is not conducive to the mediation process and could compromise the court’s position as the ultimate arbitrator of the matter before the court.

It might be worth explaining what I am seeking to do. I sought leave to move that first group of amendments, but I am also dealing with a second group. I do understand that the questions have to be put separately, but I think for the sense of ensuring that all these amendments are before—

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

You can still speak to them.

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

Amendment (23), if adopted, would delete item 52 from the bill, which provides an ability for the tribunal to report breaches in respect of mediating in good faith to various external bodies, including the Commonwealth and state ministers, secretaries of funding bodies and legal professional bodies that issue practising certificates. This is a peculiar section, in that it does not seem to me to be conducive to the mediation process. Labor is unaware of what value the government says it will provide to the mediation process.

In mediation there may be events that occur that are confidential between the parties and that might cause some people to raise an eyebrow. In these instances, if there is a breach in respect of good faith, it might be a minor breach. The legislation does not talk about the scale of the breach. With a mediation that is actually finalising a successful outcome, there might have been some minor transgressions that occurred in good faith that the parties sorted out on the way. In other words, during the mediation process the matter might have come to light and been resolved and the parties moved on.

But there is this follow-up position where all of these matters are circulating which would otherwise have been confidential between the parties. When people come to the bargaining table and have the mediator mediate, they will be aware of the issues that will otherwise flow. In other words, if there are breaches in respect of good faith, then various external bodies will all find that they have the notification process.

It would seem strange if there was finally a successful outcome and yet the parties were distracted by the breaches in respect of good faith, if I can put it that way. That is not to say that the mediator and the parties should not act in good faith. It is a requirement. They should act in good faith. If the government supports that principle, it would be helpful to see it elsewhere in the legislation and in other Commonwealth legislation as well.

The other point, though, is that where there are breakdowns in good faith there needs to be remedial action. That is the usual course. To use a well-worn expression, I think the jury is still out on whether the report actually provides for the type of remedial action that the government envisages—that is, getting the parties to deal with the matter in good faith. Labor is unconvinced that that will assist.

On that basis, that requirement does not seem to add anything and it would be much better to leave it out, more because of the way it has been defined and the way it will work in practice. Therefore, whilst we do support good faith as a concept, the way it has been put in here would really undermine its utility. It is disappointing to see that.

Amendment (24) seeks to amend item 53, which inserts division 4AA of part 6, reviewing whether there are native title rights and interests. This would give the tribunal the power to conduct a review on whether a native title claim group holds a native title over its claim area. According to the explanatory memorandum, the purpose of this is to make mediation more effective and facilitate agreement between parties. The other items are incidental to this.

This section is problematic. Under item 53 as to section 136GC(7), evidence given in the course of the review cannot be raised in later court proceedings without the consent of the participating parties, effectively without privilege protection. However, proposed section 136GE provides that the person conducting the review is to prepare a report and may provide a copy to the court. According to the explanatory memorandum, the court can then adopt the findings of the review. Section 136GE also provides that a copy of the report may be given to other parties.

These provisions would defeat the protection under 136GC(7). This could be remedied by an amendment to the effect that review reports can only be provided to the federal court and non-participating parties—that is, section 136GE(2)—with the consent of the participating parties, and that is the rationale underpinning amendment (24).

Amendment (25) amends item 57, which would insert subdivision AA into division 5 of part 6. These inquiries are to be conducted by the tribunal, which is section 138B(3), as per Labor’s amendment, which would mean that inquiries could not be requested prior to a general referral to a mediation. This matter was recommended by the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Amendment (27) amends item 67, which provides for the inquiry report to be given to the court, and inserts a requirement that the parties must consent to this. The proposed amendment to the item is recommended by the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Amendment (28) seeks to delete item 73, which proposes to empower the court to summarily dismiss native title claims that do not pass the merits aspect of the tribunal administered registration test in section 190B. Quite frankly, this is unlikely to relieve the overload on the system, as the Native Title Tribunal will have to retest all unregistered applications.

There is also a view that the registration test provisions are not the same in law as the legal test for native title, which is set out on a different basis for quality control for the rights to negotiate purposes. The court already has sufficient powers to strike out claims that are unsound. Therefore, Labor thinks that the change is unnecessary.

Amendment (29) has been revised and the revised amendment (29) has been circulated, or it will be circulated. I am not sure if it has been at this point. My instructions are that if it has not then it can be. We might have to come back to amendment (29). We will deal with amendment (29) separately when everyone in the chamber has that amendment. It amends it to ensure that the correct wording is used throughout when we talk about bodies corporate. The revision does not make any material change to amendment (29) but, to give everyone a reasonable opportunity to have a look at it, I will deal with it separately.

I will recap where we are at. Opposition amendments will be dealt with in two parts. I will move amendment (29) straight after that. I would like to mention one of the arguments that the government might raise in response, which is that Labor does not support good faith bargaining. But we do; we just do not support the way it has been reflected in the legislation. I will head that criticism off first.

Good faith bargaining would be good to see in a lot of the Commonwealth legislation around mediation, but the government has reflected it in this legislation in such a way that it cannot be supported by Labor in these circumstances because we think it will not add much to the bargaining process; it may in fact slow it down even further. That goes to the same issues. I will not reiterate what was said in respect of schedule 1—that Labor is concerned that the amendments proposed by the government will add red tape. Labor has tried to ameliorate that with some of its amendments, at least in a spirit of cooperation. If they are not picked up, as we have indicated, we will seek to oppose schedule 2 because, on balance, we do not believe that it adds to the Native Title Tribunal process in a positive way. I still have amendment (29) to deal with.

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

I thank Senator Ludwig for his work on these amendments. Let me clarify what these amendments seek to do. I will start with opposition amendment (17) and work through all of them to (29), touching on the substance of (29) in light of Senator Ludwig addressing them across two segregated groups. Opposition amendment (17) removes the provisions consequent to dismissal of future act claims. Speaking generally, these amendments overall appear to overlook the fact that native title claims are matters within the jurisdiction of the Federal Court and are under the constant supervision of the Federal Court throughout the carriage of the action.

After carrying out consultations across Australia, the consultants who carried out the claims resolution review were firmly of the view that these additional powers and functions, as attacked in these amendments, were required to enable the National Native Title Tribunal to mediate more effectively. I underline that and say we are seeking more expeditious and efficient outcomes with respect to native title. The tribunal is the primary native title mediation body, but different claims may require different processes to advance them in different parts of Australia, which might immediately include mediation by the tribunal or the court, the taking of evidence by the court to inform a tribunal mediation, the referral of a question of law to the court, or proceeding directly to trial where issues are not susceptible to a mediated outcome. All of those variations of the mediation process can certainly occur. These reforms will allow the court to be better informed by the tribunal and parties as to the needs of a particular client when making orders for that claim to be progressed and they provide additional options that parties may choose to avail themselves of in seeking a resolution. So what we are seeking to do is provide maximum flexibility and maximum options for the tribunal and for the court to seek to obtain a negotiated as opposed to a litigated outcome. The reforms will ensure that the court and the tribunal can work together in guiding parties to the more expeditious resolution, as I say, of native title claims.

I will examine each of these amendments. Opposition amendment (17) seeks, as I say, to remove provisions consequent to dismissal of future act claims. Amendment (18) seeks to remove prohibition on the court mediating while a matter is in the tribunal for mediation. Amendment (19) seeks to remove the ability of the court to enforce tribunal directions. Amendment (20) deletes provisions enabling dismissal of future act claims and deletes provisions requiring the court to take into account mediation reports, regional mediation reports and work plans. Amendment (21) removes the tribunal power to direct parties to produce documents. Amendment (22) removes the ability of the tribunal to report to court about parties’ failure to comply with directions. Amendment (23) removes the ability of the tribunal to report breaches of good faith.

Opposition amendment (24) requires that the report after connection review be provided to other parties only if parties to the review agree. Amendment (25) removes the ability for parties and courts to request a native title application inquiry before the matter is in the tribunal mediation process. Amendment (27) provides that the tribunal would only report to the court after native title application inquiry if parties consent. Amendment (28) removes the provisions enabling the court to dismiss unregistered claims. Amendment (29) allows the prescribed bodies corporate to apply to the secretary of FaCSIA for funding. Obviously amendment (29) will be different to the one that has been circulated, and we await the circulation of that, but I understand that the amendment is a matter of remedial wording.

Turning to amendment (17), in any civil proceedings applicants are required to prosecute their claim and the court is at liberty to dismiss a claim where the applicant fails to do so. Native title claimants should be no different. These amendments will not result in the automatic dismissal of claims made in response to a future act notice; rather they will require the court to dismiss a future act claim where the claimant has failed to produce evidence in support of the claim and where the claimant has failed to take other steps to resolve the claim where the court directs them to do so. Where the court otherwise considers the claimant has failed within a reasonable time to take steps to have the claim resolved, the court will have the power to seek dismissal. It is very clear in the nature of these proceedings that that is a reasonable and appropriate power in the nature of what occurs with respect to a claim.

Opposition amendment (18) would remove the prohibition on the court mediating a matter whilst it is in tribunal mediation. The claims resolution review found that the existing duplication in mediation of functions between the court and the tribunal creates confusion and has significant resource implications, as one might logically expect when two mediations of the same matter occur at the same time or one after the other. A key recommendation of the review is to ensure that matters are not mediated by more than one body at once. The government has accepted this recommendation upon the basis that it is inefficient to require parties to participate in two separate alternative dispute resolution processes before two different institutions at the same time.

With amendments (19) and (21), the opposition seeks to delete provisions enabling the tribunal to direct parties to produce certain documents. The claims resolution review found that mediation of native title claims is being hampered by the lack of statutory powers in the tribunal. The new powers of compulsion for the tribunal are aimed at equipping it with the necessary tools to facilitate the negotiated resolution of claims. The opposition’s amendments would remove the ability of the court to enforce tribunal directions. The tribunal is an administrative body and it is necessary that it be subject to judicial oversight to enable its directions to be enforced.

Opposition amendment (20) would remove the requirement for the court to take into account mediation reports, regional mediation reports and regional work plans, provided to the court by the tribunal. We think that the court should have access to and should be able to take into account those important reports from the tribunal.

Opposition amendment (22) would remove the ability of the tribunal to report to the court where a party fails to comply with a direction from the tribunal to attend a mediation conference or to produce documents. The government has accepted the recommendation of the resolution review committee which found that mediation of native title claims is being hampered by the lack of statutory powers. The new powers of compulsion for the tribunal are aimed at equipping it where necessary with further tools to negotiate resolution of these claims.

With amendment (23), the opposition seek to remove the ability of the tribunal to report to various entities about breaches of obligations to mediate in good faith. In the government’s opinion, the key to securing enduring outcomes in native title is in the behaviour of the parties themselves. The obligation to act in good faith will make clear that a basic standard of behaviour is required in mediation conferences. In other words, people need to understand that the mediation is directed to achieving a much more expeditious outcome than weeks and months of hearings in the Federal Court. The reporting mechanisms will complement the good faith obligations by ensuring that appropriate funding bodies, disciplinary bodies and the court, which retains oversight of all native title matters, are aware of the behaviour of the parties.

With amendment (24), the opposition proposed that the tribunal only provide a report following a connection review to other parties if the parties to the review agree. The purpose of a connection review is to facilitate parties to reach agreement on issues where possible, or to narrow the issues in dispute. The utility of a connection review is likely to be significantly restrained if the opposition amendment is accepted. It is difficult to see how the review could be used to narrow or resolve issues in dispute if relevant parties are not privy to the findings. That speaks for itself and is fundamentally obvious.

With amendment (25), the opposition makes a number of amendments in relation to the new native title application inquiry function. The government does not see any merit in opposition amendments (25) and (27). One opposition amendment would remove the ability of the court or a party to the proceedings to request that a native title application be held before a matter is in the Native Title Tribunal mediation. Enabling the request to be made before a matter is in mediation may allow issues to be identified and prioritised at an early point. Another opposition amendment would require the consent of parties before a report about the inquiry could be provided to the court. Where parties do not follow the recommendation made by the tribunal following a native title application inquiry, the provision of a report to the court will enable the court to consider whether to accept the transcript of evidence from inquiry.

Opposition amendments (28) and (30) would also remove all provisions relating to the dismissal of unregistered claims. These amendments implement one of the recommendations of the claims resolution review, namely, that the court will only be able to dismiss claims where the claim has failed to meet a basic standard of merit. The government’s amendments should ultimately result in stronger claims which have a better chance of resolution. Moreover, the final decision as to whether a claim is dismissed rests of course with the court.

Old opposition amendment (29) will be subject to my commentary now, notwithstanding that there are some changes which I understand are rather cursory. With this amendment, the opposition wants the prescribed bodies corporate to be able to apply for funding directly from the department. There may be some circumstances where this is appropriate, although usually we would expect that support be provided through national native title representative bodies. In accordance with the recommendation by the Senate Standing Committee on Legal and Constitutional Affairs, the government is implementing proposed funding arrangements for prescribed bodies corporate as a high priority. This can be done without legislative changes.

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

Some of the amendments—although not all—that Senator Ludwig has moved mirror what had been circulated in the Democrats’ name, particularly in regard to various items of schedule 2 which we are also opposing. Not surprisingly, I agree with the ALP’s position on those. As I said when we were debating this legislation last Friday, I think there is, to a fair degree, a shared view around the chamber about the outcome people would like: a native title determination system that will work more effectively and efficiently. I think there is simply a disagreement about how best to achieve that. In some of the responses the minister gave, he was talking about the government’s amendments being derived from a review, or one aspect of the review and consultation that were done. That is true, but I also think it is true to say that evidence from a number of different witnesses to the Senate committee of inquiry was that the government did not get it right in the component of the review it chose to go with. At the end, it just comes down to a matter of judgement as to whose assessment or judgement you go with. A lot of different aspects have been put forward by Senator Ludwig, and the minister responded to a lot of them. But I think there is a particular problem here, that what is being put forward in the government’s amendments is almost at cross-purposes. I think removing parts of it, as proposed by the opposition’s amendments, is a safer approach.

The aspect with regard to item 31, which the opposition is seeking to remove, gives the court power to make orders consistent with directions by the tribunal, and that includes things like directing a party to produce documents—for example, for the purposes of mediation. In evidence provided to the committee by those who quite regularly engage in this area of activity, there was a lot of concern about that—not so much that a power like that might exist, but that it is conveying a mixed message about the approach of the tribunal and the role of mediation more broadly. It is potentially problematic. I know evidence was provided to the committee that reinforced this view that providing powers to direct the production of documents is appropriate to a forum that has a role in determining facts. The purpose of mediation is not to determine facts, per se; it is to encourage parties to reach agreement on relevant matters.

If a tribunal is running mediation and then comes in with the power to demand that documents be produced, I think that is potentially problematic. I am not saying it will automatically blow everything out of the water all the time, but there is confusion, in my view, about the nature and purpose of mediation and what sorts of things make mediation work well. If you are forcing people to comply with mediation then it is not mediation, and you might as well not call it mediation and call it something else so everybody is clear about it. You cannot have it both ways with something like mediation. If you are trying to do that then it is hard to make it work if it has a range of compulsory aspects to it. People may still engage with it, but the way they engage with it and how effectively and constructively they engage with it may not produce the outcomes that people expect.

Obviously the government has a different view in regard to that. There is no greater sign of a desire to listen to the arguments being put now than there was at the end of last week. I thought there might be a freshening of the approach over the weekend, but that does not appear to be the case. I will not continue making these points, but I will make a few more points when it comes to the Democrat amendments.

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

The Greens will be supporting these opposition amendments. As I outlined in my contribution to the second reading debate, we have a number of concerns about the potential coercive powers of the tribunal. We do not think it is appropriate for a body that is supposed to be mediating between parties to have these sorts of powers. We believe it could potentially disadvantage the negotiations rather than improve them in terms of requiring evidence to be produced. It takes it more into the judicial realm than we believe is appropriate for a body that is responsible for mediation.

We have a number of concerns about the way some of the tribunals have been performing in the different states around Australia and the way some of the outcomes have not been delivering for native title holders. We think the government should have concentrated on those weaknesses with the tribunals rather than going down the path that it has. I refer to the comments I made in my second reading contribution about the findings of Professor O’Faircheallaigh from Griffith University that show some serious shortcomings in what has been delivered for native title holders in the so-called negotiations and in the so-called mediated outcomes, which by far are in favour of the mining companies rather than native title holders. We suggest there are some very significant shortcomings with the current process. These are not addressed in the amendments to the legislation and we believe this will result in further negative outcomes for native title holders. We do not believe this is the way to go. We have made that point abundantly clear and will be supporting the ALP amendments.

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

I want to thank the senators for their contributions. I believe all the matters they have raised have been addressed in my formal response to the opposition amendments.

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

I want to thank the Greens and the Democrats for their support. I understand that the government has not been particularly accommodating in schedule 2. I note that it looked at one amendment in schedule 1. As I understand it there are no amendments in schedule 2 that the government is enamoured with.

I want to go now to opposition amendment (29). Now that the revised amendments have been circulated, I could seek leave to include them and speak to them now.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

In that case, Senator Ludwig, would you like to withdraw amendment (29) and substitute amendment R(29)?

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

I seek leave to replace amendment (29) with amendment R(29) on sheet 5208 revised.

Leave granted.

I realise the government understands the importance of amendment (29), in any event. It amends the definition of representative bodies to include prescribed bodies for the purposes of this division. Amendments R(29A), R(29B) and R(29C) will mean that when a prescribed body corporate is replaced by another under section 60 of the act, the remaining funding will need to be returned to the Commonwealth. In effect, the replacing prescribed body corporate will need to reapply for fresh funding. Amendments R(29A) to R(29C) ensure there is consistency throughout, particularly sections 203C and 203CA(1A)(a), but I will not go into the technicalities of it. It does not change the nature of what we are seeking to do in (29); it just tidies up how it would operate.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

In that case, Senator Ludwig, do you wish by leave to add R(29) to R(29C) to this as well?

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

Yes.

Leave granted.

I thank the Senate. I move:

R(29)        Schedule 2, page 52 (after line 22), after item 73, insert:

73A  At the end of section 203C

Add:

        (4)    For the purposes of this Division,representative body also includes a prescribed body corporate under Division 6.

R(29A)    Schedule 2, page 52 (after line 22), after item 73, insert:

73B  Paragraph 203CA(1A)(a)

After “203AH”, insert “or the prescribed body is replaced under section 60”.

R(29B)     Schedule 2, page 52 (after line 22), after item 73, insert:

73C  Paragraph 203CA(1A)(b)

After “withdrawal”, insert “or replacement”.

R(29C)     Schedule 2, page 52 (after line 22), after item 73, insert:

73D  At the end of subsection 203CA(1A)

Add “or the replacement occurs”.

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

I just want to provide some comments about the suite of amendments that have been moved by the opposition. Senator Johnston would be aware that this is where we have some fundamental difficulties with the changes being requested of the government—that is, a shift of emphasis from the Federal Court to the NNTT. This is in a climate where we clearly heard during the Senate inquiry—particularly from Ron Levy from the Northern Land Council—that there is support for the Federal Court to maintain the directions of the mediation, and we heard that the National Native Title Tribunal is clearly under-resourced, that there are not enough full-time members and that those who are members undergo five or maybe 10 days training in mediation. My question to the government is: what plans are there to actually provide more mediation training, more support or more resources for the NNTT to be able to undertake this increased role?

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

The premise that the very learned senator puts forward is that the National Native Title Tribunal members are not skilled negotiators and do not have any experience. Can I just say that most of them spend a significant amount of time—probably in excess of 50 to 60 per cent of their time—in mediation. They already have extensive skills. On top of that, the mediation that you have talked about I think augments what are already very good mediators. May I pause to say that the tribunal has received in many circumstances very good negotiated outcomes. Indeed, the government seeks to leverage off that track record.

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

Senator Johnston, you were at the hearings and heard the same evidence that I did. In some instances that is not in fact what we heard. In fact, Mr Neate admitted to us that he found that the five days of initial mediation training was inadequate, so the NNTT moved to provide people with a further five days. I have another question. This parliament once had a joint parliamentary committee on native title and the Indigenous Land Fund, admittedly under a section of the Native Title Act. That section has now required for that committee to no longer exist, because it was under a 10-year sunset clause. We both sat on that committee and my recollection is that that was at least an external body that had the power to inquire into and report on the annual report of the NNTT, monitor the operations of the NNTT and have a really good look at exactly how all of the native title processes were going under the NNTT. So does the government have any plans to reconstitute a joint parliamentary committee or reconvene some sort of committee of this parliament that will have an ongoing oversight of the native title regime, including scrutiny of the NNTT?

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

I can inform the senator that I think most of the issues that were dealt with by the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund will end up in the Senate Standing Committee on Legal and Constitutional Affairs. That is an area where, both at estimates and in the general scheme of terms of reference, these matters can be oversighted. I think the senator well knows that that is an appropriate task for that committee, which is skilled in oversighting native title matters, given of course that the Attorney-General is the responsible minister.

The Temporary Chairman:

The question is that opposition amendments (22), (24), (25), (27), R(29), R(29A), R(29B) and R(29C) be agreed to.

Question negatived.

The Temporary Chairman:

The question is now that schedule 2, items 2, 19, 31, 36, 47, 73, 89 and 90 stand as printed, and that schedule 2, item 52, as amended, be agreed to.

Question agreed to.

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

by leave—I move amendments (24) and (29) together:

(24)  Schedule 2, item 35, page 31 (lines 1 to 3), omit subparagraph 87A(1)(c)(ii).

(29)  Schedule 2, item 48, page 37 (lines 4 to 8), omit subsection 136DA(1), substitute:

        (1)    Subject to subsections (2) and (3), if the presiding member considers that a party to a proceeding:

             (a)    is not a person covered by paragraph 66(3)(a); and

             (b)    does not have an interest that may be effected by a determination in the proceeding;

he or she may refer to the Federal Court the question of whether the party should cease to be a party to the proceeding.

Amendment (24) amends item 35 of schedule 2 of the bill to clarify the meaning of the reference in section 87 to ‘each registered native title applicant’. The act provides that the court will determine native title in relation to part of a claim area on the agreement of the parties. Proposed new section 87A limits the range of parties whose agreement is needed for such a determination to be made. This amendment is derived from concern expressed by the Social Justice Commissioner about how clear the definition was or what was meant by the words ‘each registered native title claimant’ in relation to any part of a determination area. He noted that perhaps what is meant is the applicant in any other proceeding to an application for a determination of native title in relation to any part of that area—that it is meant to cover those instances in which there are overlapping claims.

Amendment (29) amends item 48 of schedule 2 to clarify the meaning of ‘relevant interest’ and again is derived from concerns expressed by the Social Justice Commissioner, Mr Calma. He supported the intent of the proposed new section 136DA but was concerned whether the test of the words ‘does not have a relevant interest in the proceeding’ was sufficiently clearly articulated to be readily applied by the presiding member of the Native Title Tribunal. He suggested that the test should be reworked to refer to whether or not the person’s interests are likely to be significantly affected by a determination if they cease to be a party. Currently it reads:

... if the presiding member considers that a party to a proceeding does not have a relevant interest in the proceeding, he or she may refer to the Federal Court the question of whether the party should cease to be a party to the proceeding.

The Democrat amendment here suggests that that criterion be clarified somewhat so that it would apply:

... if the presiding member considers that a party to a proceeding:

(a)

is not a person covered by paragraph 66(3)(a); and

(b)

does not have an interest that may be effected by a determination in the proceeding;

I think it makes it clearer and also a bit safer in regard to how that new provision may be interpreted.

While I am on my feet, I will mention the other Democrat amendment here, which has oppositions to a range of items, some of which are the same as those that have already been put forward by Senator Ludwig on behalf of the ALP. They broadly go to the issue of mediation and the way that may apply, but there are a few extra ones in here. They go to what the outcome will be, how much it leaves to the decision making of the representative bodies, and the flexibility for them to make their own decisions about how they are being controlled and the allocation of their resources—the potential, to use one example, for regional work plans to be made and priorities to be set without proper regard to the objectives and priorities of the relevant representative body or bodies. Given the circumstances and the time, I will not elaborate on those in any great depth this time around, as we have already covered a lot of that.

A lot of the concerns that the Democrats have in regard to this go to the balance of things—how they are going to apply once these new changes are gone through. We are giving a fair few extra powers to the Native Title Tribunal. Some of those are justifiable and we are not opposing them. But it should be mentioned again and reinforced—I think Senator Siewert and Senator Crossin have both referred to it—that there was a reasonable degree of evidence provided to the Senate committee that the tribunal is not necessarily operating in a way that is receiving a universal seal of approval from all of the people who have to engage with it. That is not just those from the Indigenous side of things. Obviously, nothing is perfect, but, in a situation where a reasonable cross-section of those who are engaging with the tribunal as it operates at the moment are suggesting that in some circumstances it was not operating particularly well, to be giving a lot of extra powers on top of that without really going to recognising or resolving some of the existing problems does not particularly give a lot of confidence that this will necessarily lead to an overall improvement.

By giving all these extra powers to the tribunal we are also putting in place—even though the final oversight is still with the court—what was described by the Social Justice Commissioner as having the disadvantages of trial but without the advantages. That in my view and the Democrats’ view is not likely to lead to better outcomes. I would reinforce again that that is what we are about here: trying to get better outcomes—not just quicker ones for the sake of completing them, but actually better, fairer, more just, more complete and more positive outcomes.

It should be emphasised, to go to the broader points in my speech in the second reading debate, that we still do need to do more to highlight the positive opportunities that native title presents for everybody. Obviously there are times—and these amendments go to some of those times—where you have people on opposing sides unable to reach agreement and with competing interests. But there are many circumstances where, particularly if we could get the mediation process working better and the broader support and encouragement from governments working better, there are opportunities for positive gains for everybody. That is really what we should be aiming for wherever possible. I do not think we have done enough of that either in this process here or in the wider approach to native title.

There is still, clearly, a pretty widespread view—and in my view a justified one—that there is still an imbalance with regard to the Indigenous applicants. They have less in terms of resources, capacity and continuity. There are a lot of difficulties there in terms of the burden of reviews, inquiries and what has to be demonstrated. That is already the case. Some of the submissions to the inquiry suggest that this further burden of reviews and inquiries will fall unequally on the applicant. They bear the burden of proof in relation to most of the matters at issue in native title proceedings. If anything, this is going to make it more difficult. Again, the concern has been raised that a number of these proposals that the Democrats are therefore opposing will further complicate the institutional framework for the resolution of native title proceedings. It is already complex because the tribunal and the court must be involved in every proceeding. That is something that this bill and the government seek to address but I do not think they have got it right.

That is a broad snapshot of the reasons the Democrats are opposing a number of these items—not all of them—in schedule 2. In broad terms, we are not convinced that they are going to work. We are not convinced that they are going to have the effect that the government says they will. We are concerned that, in a worse-case scenario, they may further complicate matters and make things more difficult, more expensive and less smooth. That is not where we want to end up.

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

Very briefly, I have answered most of the questions raised by the Democrat amendments. If amendment (24) were to proceed, it would remove the requirement that the registered native title claimants be required to consent to a determination under proposed new section 87(A). Removing the ability for claimants in registered overlapping claims to participate in a determination would have a significant impact upon their rights. From a government’s perspective that would be completely and entirely counterproductive. The provisions that we have inaugurated provide that all parties claiming to hold native title in an area must consent to a determination of native title under the provisions, which protects their rights.

Democrat amendment (29) would affect the ability of the provision it refers to, which is designed to enable parties without relevant interests to no longer be involved in native title matters in appropriate circumstances. With respect to Democrat amendments (19) and (25), I refer to what I said with respect to opposition amendments (17) and (20). We oppose amendments (21), (27) and (28) and I refer to what was said with respect to opposition amendments (18), (19) and (24). We oppose Democrat amendments (22) and (30). With respect to (30) I refer to what was said with respect to opposition amendment (19). There is nothing more I can say. Most of the issues raised by the learned senator have been dealt with.

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

I indicate Labor’s support for the Democrat amendments. I will not go to the detail. Senator Bartlett made all the relevant points in his contribution.

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

The question is that Democrat amendments (24) and (29) on sheet 5192 be agreed.

Question negatived.

The Temporary Chairman:

The question is that schedule 2 items 2, 31, 33, 36, 45, 47, 51, 53 to 67 and 73 stand as printed.

Question agreed to.

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

I move:

(20)  Schedule 2, item 2, page 26 (after line 5), after subsection 66C(2), insert:

     (2A)    Advice by the NNTT Registrar in accordance with subsection (1) is not of itself sufficient for the dismissal of the proceedings but the Federal Court retains its discretion to do so.

This amendment is an alternative to one of the amendments that was just put. We have just attempted to delete item 2 of schedule 2. That was not agreed to, so this is a compromise amendment in a spirit of cooperation and constructive engagement. I am sure the government will take a similar view and consider the arguments put forward. Amendment (20) is fairly straightforward. It seeks to amend that item of the bill so that information provided by the Native Title Tribunal Registrar under the new section 66C(2) should not of itself be sufficient for the dismissal of proceedings. It would mean that the court is not obliged to dismiss the proceedings but retains its discretion to do so. We think this would be a better approach. It is a good compromise approach.

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

The government do not think this amendment would add anything to the bill. It already provides for the decision to dismiss a claim under proposed section 94C to be a matter for the Federal Court, which we think is an adequate protection in itself.

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

I indicate the opposition’s support for that amendment. I foreshadow that we will also be supporting Democrat amendments (23), (26), (32) and (38). That saves me jumping up and down to say we agree to individual amendments. The Democrats have put the merit behind those amendments, and we understand that. We support the merit and we support the amendments they are seeking. They are effectively trying to improve the bill. Ultimately, we have formed the view, which I suspect the Democrats have also formed, that the government is not going to accede to any of those amendments. That is the motivation by Labor to ultimately oppose schedule 2 in the final position, which we will get to shortly.

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

Following the lead of Senator Ludwig, the Greens—this probably comes as no surprise—are also supporting the Democrat amendment. We also supported the previous ones. We have made our views about the negative aspects of this legislation extremely clear. We do not think it will improve the native title process. In fact, I very strongly suspect it will make outcomes worse for native title holders. I believe that the amendments the Democrats are proposing here, along with the ones from the opposition and those proposed by the Greens on Friday, would improve the bill and lead to better outcomes for native title holders.

Question negatived.

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

I move Democrat amendment (23) on sheet 5192:

(23)  Schedule 2, page 30 (after line 14), after item 33, insert:

33A  At the end of section 86E

Add:

        (3)    A report or a plan in accordance with paragraph (2)(a) or (b) must:

             (a)    be prepared after consultation by the NNTT with all representative bodies in whose areas the region concerned is located; and

             (b)    must take account of the views of and the terms of any operational or strategic plan of those representative bodies.

I hear that I already have Labor and Green support without even starting to explain it, so we are almost there and I will focus my positive thoughts on Senator Johnston. This is also an alternative to previous proposals to delete item 33 within schedule 2 of the bill. The relevant item in the bill, item 33, will enable the Federal Court to request the Native Title Tribunal to provide a report to assist their court in progressing proceedings, a report on either the progress of all the mediations conducted by the tribunal and/or a work plan setting out the priority given to each mediation being conducted by the tribunal. That is in the legislation.

The Democrat amendment seeks to add a provision to ensure that in the preparation of such a report or reports the tribunal is to consult with the relative representative bodies and have regard to their views in relation to the development of the work plan and to its strategic and operational plans for the relevant period. It provides for the relevant representative body to receive a copy of the regional report or work plan sufficiently in advance of the directions hearing as to allow it to make any submission to the court about the report or plan that it considers necessary. If we are going to require the preparation of these reports to maximise their value, we should ensure that they are prepared after consultation with all the representative bodies and take account of their views. It is fairly self-evident that that would increase the value and accuracy of those reports, therefore maximising the benefit they bring.

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

In line with what we have already said, the government does not see any necessity for this amendment. It is expected that native title representative bodies would be consulted in the course of these plans being developed.

Question negatived.

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

I move Democrat amendment (26) on sheet 5192:

(26)  Schedule 2, item 36, page 32 (after line 33), at the end of section 94B, add:

        (2)    If a report is provided to the Court under subsection (1), a copy of the report must also be provided to the other party to the proceedings.

In moving this amendment I note the previous response from the minister and the government. I appreciate that he is not the minister directly responsible for this so he probably does not have scope to take into account and to agree to some of these amendments. But just to say that it is expected that this will happen and that consultation will happen is, firstly, very heroic. Also, given the feedback and evidence that we got from the inquiry itself about how things can operate when they are not working well already, it is also a bit curious to say that those things do not add anything to the legislation. To put in a requirement that such views of representative bodies must be taken into account adds a very specific thing. It moves it from an expectation that this will happen to a requirement that this will happen. To reject such a simple and straightforward amendment as that, frankly, does not, I think, reflect terribly well on whoever it is in the government who makes these decisions—and I appreciate it is probably not the minister in the chamber at the moment.

Democrat amendment (26), which is also an alternative to a previous amendment, seeks to amend item (36) of schedule 2 of the bill so that other parties to the proceedings are served and provided with an opportunity to comment on any report to which the court will have regard. It may well be that the minister again says that it is expected that this will happen. I would again simply say that, although I hope it is expected, it should be required, not just because it is a nice thing, all nice and cuddly and inclusive, but rather, more importantly, because it will maximise the chances for fully informed proceedings and justice occurring. It is a pretty complex act we have here. There are a lot of requirements and a hell of a lot of red tape and bureaucracy being put on a lot of people. The least we can do is to ensure that when that happens there is full opportunity for people to comment and have input into what gets put before the court.

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

The government has considered this amendment and all I can say with respect to the amendment and to the Democrats is that this is about the court taking into account certain reports when making orders about native title determination applications. As a matter of practice, when a judge calls for a report or seeks to use a report and takes it into account he would of course disclose it to the other parties to the proceedings and we see that that is the way the reforms should work. Therefore we cannot accept this amendment.

Question negatived.

I move government amendment (11) on sheet QW307:

(11)  Schedule 2, item 53, page 44 (after line 15), at the end of subsection 136GE(1), insert:

However, the findings of the review are not binding on any of the participating parties.

Government amendment (11) would remove any doubt that the findings made by a member of the tribunal following a connection review are not binding on any of the parties. The government does not consider that the provisions as drafted could render the findings binding on parties and it is not intended that the findings of a connection review be binding. A connection review is intended to be upon a voluntary process. Concerns were raised with the government that these provisions may, not withstanding the government’s intention and the drafting of the provisions, render the findings of a connection review binding on the parties. This amendment will avoid any doubt about the operation of the provision by providing that the findings of a connection review are not binding on any of the parties participating in the review.

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

We support the government’s amendment. In this instance a ‘belt and braces’ approach is the wise course to follow and therefore it gains our support.

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

The Democrats will constructively engage with the government and are prepared to take on board what Senator Ludwig has called a ‘belt and braces’ approach. It is a quaint expression but it probably accurately describes what is being done here, which I think also accurately describes what the previous Democrat amendments were seeking to do. But rather than say that it does not add anything to the legislation and therefore is not necessary, which is the standard government response to such Democrat amendments, I will say that it is an appropriate safeguard that will put beyond doubt the circumstances that seek to be addressed. Therefore, it is something that we will support.

Question agreed to.

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

I move opposition amendment (26) on sheet 5208 revised:

(26)  Schedule 2, item 62, page 49 (lines 10 to 12), omit subsection 154A(3), substitute:

(3)     The Tribunal may direct that a hearing, or part of a hearing, be held in public, providing that the parties consent to this.

This amendment seeks to repeal and replace section 154A(3) to allow the tribunal to undertake a public hearing with the consent of the parties. This matter was recommended during the course of the Senate Standing Committee on Legal and Constitutional Affairs inquiry into the Native Title Amendment Bill 2006. The amendment does not need a great deal of explanation; on the face of it, it seems quite clear. Therefore, I will not delay the chamber any longer. It would seem to be a sensible amendment, and I put it to the committee that the government should also support it.

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

I am pleased to advise the committee that while the government does not accept opposition amendment (26), the government will accept Democrat amendment (35), which will have a similar effect. The bill is drafted on the premise that native title application inquiries will generally be held in private. Before the tribunal makes an order that an inquiry be held in public, cultural and customary concerns of Indigenous persons must be taken into account and canvassed. The government considers an amendment to provide that a native title application inquiry hearing can only be in public where parties’ consent would be acceptable. Accordingly, we would ask that the Democrats consider what I have just said and look to move, separately, Democrat amendment (35), with respect to amendments (32) to (36) on sheet 5192.

Question negatived.

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

I move Democrat amendment (35) on sheet 5192:

(35)  Schedule 2, item 62, page 49 (line 11), after “so”, insert “and the consent of the parties has been obtained”.

This amendment is, clearly, infinitely preferable to the Labor amendment that has just been moved.

Question agreed to.

I think that is the first time that an amendment of mine has been agreed to in this place in about two years. I’ll just run out and have a party!

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

If you’re overcome with emotion, you can take a deep breath, Senator.

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

I shall now go back to the standard operating procedure of moving a whole bunch of other amendments which the minister will no doubt cursorily dismiss as being unnecessary. I seek leave to move Democrat amendments (32), (33), (34) and (36) on sheet 5192 together.

Leave granted.

I move:

(32)  Schedule 2, item 53, page 42 (line 7), at the end of subsection 136GC(2), add:

   ; and (c)    the applicant has consented to the review being conducted.

(33)  Schedule 2, item 53, page 44 (line 17), omit “may provide”, substitute “must obtain the consent of a party before providing”.

(34)  Schedule 2, item 57, page 46 (lines 8 to 10), omit subsection 138B(3).

(36)  Schedule 2, item 67, page 50 (line 18), after “must”, insert “, if the parties have consented,”.

Amendment (32) seeks to amend item 53, schedule 2 of the bill to implement provisions providing reviews that require the consent of the applicant. Amendment (33) seeks to amend the same item, implementing provisions which provide that review reports should only be provided to the Federal Court and non-participating parties with the consent of the participating parties. Amendment (34) provides that an inquiry should not be requested prior to a general referral to mediation. Amendment (36) specifies that inquiry reports and determinations should not be provided to the Federal Court without the consent of the parties. I note for the record that amendment (35), which has just been agreed to, amends item 62, schedule 2 of the bill to implement provisions that specify that inquiry hearings should not be public unless the parties consent to it. The other amendments I have moved are equally wise and desirable but the minister might not agree.

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

The government opposes the amendments. With respect to amendment (32), we say that issues such as whether the parties are likely to participate in a review and whether they are likely to accept the assessment provided by the review are likely to be important factors influencing the decision to conduct a review. The government opposes amendments (33), (34) and (36) based upon the commentary I have already given with respect to opposition amendments (24), (25) and (27).

Question negatived.

by leave—I move government amendments (12) and (13) on sheet QW307 together:

(12)  Schedule 2, item 73, page 51 (lines 28 and 29), omit the heading to subsection 190D(6), substitute:

Where all avenues for review of Registrar’s decision exhausted

(13)  Schedule 2, item 73, page 52 (lines 6 to 13), omit paragraph 190D(6)(b), substitute:

             (b)    the Court is satisfied that the avenues for:

                   (i)    the review under this section of the Registrar’s decision; and

                  (ii)    the review of orders made in the determination of an application under this section; and

                 (iii)    the review of the Registrar’s decision under any other law;

                      have all been exhausted without the registration of the claim.

Government amendment (12) is consequential to government amendment (13), which will clarify the circumstances in which the court may consider whether to dismiss an unregistered claim. The intention of the provisions in the bill is to ensure that the court may only consider whether to dismiss an unregistered claim where any review of the registrar’s decision not to register the claim has been completed. This is appropriate to ensure claimants have adequate opportunity to seek a review of the registrar’s decision. However, the provisions in the bill do not address all ways in which the registrar’s decision can be reviewed, nor do they ensure those reviews must be completed before the claim can be dismissed. The government amendment will provide that all avenues of review of the registrar’s decision under law must be exhausted before the court can consider whether to dismiss the claim on the basis that it is unregistered.

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

Those words find favour with the opposition and we will be supporting those amendments. I could go to the usual recourse that I have had in this debate which is that they do not go far enough. It is a pity that the government have not picked up much of the amendments moved by Labor, the Democrats and the Greens in this debate. We think that the ultimate outcome will be a lesser outcome for the claimants and the participants in the process. Saving that, these are amendments that do go some way to ameliorating the harm that the greater bill does.

Question agreed to.

The opposition opposes schedule 2 in the following terms:

(16)  Schedule 2, page 25 (line 2) to page 59 (line 7), TO BE OPPOSED.

We seek to delete schedule 2 from the bill. We have indicated that if the government were not prepared to accept the sensible amendments proposed by Labor, and perhaps even the alternatives proposed by the Democrats and the Greens, we would be opposing schedule 2. We do not think it adds to the bill. We do not think schedule 2 in the form that we now have before us will provide those things that the government believe will eventuate—that is, that it would remove red tape or facilitate claimants within the Native Title Tribunal area in resolving their differences. Labor believe that this bill will, in fact, add to the woes that are already there and will not assist.

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

I am interested to know whether we can get rid of the schedule 3 question with the Democrats before we divide.

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

I am at the mercy of the chamber. If the chamber wishes to move to that we can.

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

I thought it would be more convenient.

The Temporary Chairman:

I doubt, Minister, whether we will have time. We are probably best to go to the division. The question is that schedule 2, as amended, stand as printed.

Question put.