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

The Democrats oppose schedule 3 in the following terms:

(38)  Schedule 3, item 2, page 60 (lines 8 to 13), TO BE OPPOSED.

We seek to oppose item 2 of schedule 3. Schedule 3 is short; it just deals with some amendments to prescribed bodies corporate. The Democrats’ view is that the issue raised in item 2 would best be deferred until the next round of amendments. My understanding is that there are further changes to the Native Title Act in the pipeline for us to all look forward to, relating to prescribed bodies corporate, and amendments to the regulations in that area. Our view is that it would be preferable to defer this item until all of the changes to the Native Title Act relevant to this area of PBCs and the amendments to the regulations can be considered together.

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

For continuity and so that the minister can summarise the debate, I will just say that Labor will support the Democrats in opposing schedule 3. I know we are coming to the close of this debate on the Native Title Amendment Bill 2006, but I think it is worth doing at least some recapping. I will not take up very much time. The aim of the Labor Party, the Democrats and the Greens in respect of this bill, and it has been almost the same refrain, was to improve the bill. That has not been successful in this debate. The government has resisted nearly all of the amendments that have been put forward by the Greens, the Democrats and Labor. They were about trying to improve a system which is under stress and which the government does acknowledge is tied up by red tape and requires assistance.

The direction the government is pursuing will not, in Labor’s view, assist the native title system. It will not remove the red tape. It will not create a streamlined system. It will not improve the system to the extent that the parties to claims can obtain a reasonable outcome from it. The government and the Labor Party disagree on those points that we have made throughout this debate. I am reiterating them because of the disjointed way in which we have unfortunately had to conduct this committee stage of this bill—effectively, last week and this week; and even today it was broken up by question time. Rather than speaking during the third reading debate, I want to make a brief contribution now. We will also be seeking to divide on the third reading. Labor have indicated that we do oppose this bill, so I will not take up too much more of our time.

We have now come to the position where shortly this bill will ultimately pass. By the look of things, it will have to at least be returned to the House for consideration of the amendments that have been agreed to and then come back to the Senate, as it has to be dealt with this week. It is certainly on the list of legislation to be dealt with this week. So it will come back to us with a message from the House of Representatives. If I am wrong about that, the minister can correct me. I thought there were some amendments, but the debate has come along.

The native title representative bodies do not agree with this bill and the direction in which it is going. The Federal Court has indicated it has concerns about it. The social justice commissioner does not support much of the bill. The WA state government has expressed key concerns about it. The Minerals Council of Australia, although providing some conditional support, have also indicated that there are many parts of the bill that they have not warmed to—perhaps I can use that phrase rather than verbal them on the record.

The report on the bill by the Senate Standing Committee on Legal and Constitutional Affairs summarised the positions of all of those stakeholders in the bill in its final recommendations. Labor in its minority report outlined where it believes improvements to the bill would come from. However, they have not been, as I said, agreed to by the government. That is why—without reiterating the points that I made during my speech in the second reading debate, to which I would refer people—Labor will ultimately oppose the bill: there has not been sufficient improvement to the bill, especially without the amendments that Labor proposed to schedules 1 and 2. What I can say, though, is that we did examine all of the schedules, including schedules 3 and 4. Although they were generally acceptable on the whole, when you take a look at the final form of the bill which we are now seeing, it is an unacceptable bill and it will not help the process.

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

I am obliged to all senators for their contribution. The Democrats’ opposition to schedule 3 would remove a provision intended to allow a recommendation by the prescribed body corporate report to be implemented. That provision will allow regulations to allow native title holders to decide on the types of decisions they wish to be consulted about, according to their particular circumstances. I say to Senator Bartlett, prescribed bodies corporate must presently consult about ‘native title decisions’. The definition of ‘native title decision’ is presently unclear and we seek to clarify it. However, it is often understood as requiring prescribed bodies corporate to consult with and obtain the consent of the native title holders they represent about all future acts. That is a very expensive and time-consuming process, particularly in outback Australia.

Future acts, which result in native title being surrendered, are clearly significant and existing consultation and consent obligations will be retained for these acts. Other future acts have more limited impacts and prescribed bodies corporate will not be legislatively obliged to meet consultation and consent requirements for these acts. However, prescribed body corporate members will be completely free to impose additional consultation and consent requirements on their prescribed body corporate through its rules, if they so want.

In closing can I say, as I do not intend to say anything more on the upcoming division, that the measures of the Native Title Amendment Bill 2006 are part of the government’s practical reforms to improve performance of the native title system and to encourage agreement making in preference to litigation—that is, a negotiated settlement at about a fraction, probably less than five per cent, of the cost of weeks and weeks of Federal Court hearings and visitations to the designated claim areas.

The government has developed and is now implementing a coordinated and balanced package of reforms to address all significant elements of the native title system. The reforms enhance the framework within which parties can seek outcomes. The key to securing outcomes is the behaviour of the parties themselves. With the changes made by these reforms, the performance of the native title system should continue to improve and we should continue to encourage agreement making and resolution through conciliation and through negotiation and mediation as opposed to bringing in the lawyers in the court.

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

I want to make a concluding comment in this stage for neatness’s sake. I note the chamber will not oppose schedule 3, so I will not continue to argue on that but I have concluding comments from the Democrats. We do not dispute the aim. The minister has outlined the government’s aim of getting negotiated settlements rather than prolonged, very expensive and often not terribly constructive court battles. What we are less convinced about is whether that will be the effect of these changes. I think a lot of the debate we have had backwards and forwards during the committee stage of this debate has not been about the goal, which has broadly—in most cases anyway—been shared; it has been about what the actual effect will be and whether the government’s preferred model will achieve that. I guess we will see for ourselves in any case once this is passed into law, but it is something that does merit continual monitoring.

I also want to emphasise that, whilst negotiated settlements are desirable as a general principle and certainly minimise the expense—nobody likes to see all the resources going to lawyers to slug it out when the resources could be going directly to the parties, Indigenous groups in particular, and the communities involved, the areas and regions that are covered by the native title claims—we do still need to make sure that there are just outcomes. Obviously, to date there have been, under some of the land use agreements, agreements reached without having to go through all the court processes but some of them have not been terribly fair or have not been as substantial or as beneficial as they could have been. I am not saying that all of the ones that have not been good have been exploitative agreements. In many cases it is simply that they have not been as adequate as they could have been and therefore the potential has not been realised. It is not always just one group managing to use its better resources to convince the others to reach an agreement that is not really as good as they could have got; it is also that sometimes it does not reach its full potential.

I am not convinced that all of the changes in this legislation will improve that situation although, in saying that, there are some that should be beneficial. But there are some real concerns about the legislation in its totality and what it might mean with respect to the power balance when you are having conciliation and negotiations—where the resources lie, who the greater onus is upon and where the areas of capacity and capability lie. For all of those things, I am not convinced the balance has been improved by this change.

I finish, however, by returning to where I started in the second reading stage. I believe there still needs to be a significant improvement in the attitude of governments in particular, and here I am talking as much about state governments, to the potential native title offers. I actually think there have been some significant improvements, particularly within the minerals sector, the mining sector, in their attitudes to the potential that native title presents—not what is embedded in native title itself but the potential that lies within the rights attached to having native title recognised. There is positive potential there for the minerals industry itself. It is not some sort of handout to Indigenous people or some sort of benevolent bestowing of recognition; it is a very positive, dynamic thing that can be embedded in native title that can provide benefits for all parties.

I realise that is not present in all cases and I am not seeking to be too starry-eyed about it, but I think that positive potential is there much more often than people realise. There is a growing realisation of that. I think it was clear, as we saw even from the evidence to the Senate committee inquiry, that some of the representatives from the minerals industry are keen to empower and strengthen the ability of Indigenous groups to engage with this process more effectively because that is in the minerals industry’s interest as well.

There have been really significant advances compared to where we were 10 years ago, but moving forward has not been universal, even in that sector, and advances are certainly still not present in many of the state and territory governments. If we really saw a shift in attitude and view at the state government level and a determination to share that positive vision with the wider community to shift public attitudes, awareness and understanding about the potential that native title represents then that would probably do a lot more to move things forward than anything we could do here mucking around with the legislation. If people engage with the whole system on a more cooperative basis to recognise the potential positives it presents for the entire community then I think we could get a lot further forward.

I would even use my own region in south-east Queensland where I have lived all my life as an example of this. I think there is enormous potential there to shift the way we perceive our region, our own home area, if we step forward and embrace the reality—it is not just a hope or a nice pleasant feeling; it is a reality—that there is a continuing connection between traditional owners and many areas of that land that goes back tens of thousands of years to well before European settlement. It has been knocked around a fair bit, but that culture and that connection with country is still there in parts.

I have mentioned before the claim of the Githabul people in northern New South Wales. That is around Mount Barney and over into the southern rainforest area of Queensland near Quandamooka and the northern Stradbroke Island region. There is an indisputable, very clear and continuing connection with country there. It would obviously be beneficial for the traditional owners there to have that resolved, but it would be beneficial for everybody in that community and region to recognise, celebrate, promote, embrace and move forward with the recognition that our whole wider community has amongst it a continuing culture that is alive and has a connection going back tens of thousands of years. I think it would be a huge value-add, frankly, to the way people within that region perceive native title and the way we could promote it. The same applies of course to most other areas of Australia and, in some respects, doing that in urban areas would have its own special benefits as well.

I once again plea for a greater positive embrace of the potential of native title by state governments, as well as those various industry bodies, groups and individuals. It is not all simple, easy and sweet, and it presents a lot of difficulties, as I imagine all of us know, within Indigenous communities as well. It has been unfortunate to see some of the unintended consequences from the way the legislation as framed was interpreted and how that has created internal division within Indigenous groups. I am not sure whether these changes we have made today will assist with that or not. They may—and I certainly hope they do—but, again, I think it is as much about shifting attitudes as anything else. I think we can all still play a role in that whilst we continue to debate the effectiveness or otherwise of the act.

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

The question is that schedule 3, item 2 stand as printed.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.